Shyamakant Lal v. State Of Bihar — 1959 DIGILAW 38 (PAT)

Judgment V.Ramaswami, J. 1. In this case the petitioner Shyamkant Lal has obtained a rule from the High Court asking the respondents to show cause why a writ in the nature of mandamus should not be granted under Article 226 of the Constitution commanding the respondents to withdraw the notification No. 7325 L, R. Act/Mines, dated the 5th/11th December, 1956, published under Rule 67 of the Mineral Concession, Rules, with regard to 3300 acres of land situated in village Saphi Sawaiyatanr in the district of Gaya. 2. Cause has been shown by the learned Government Advocate on behalf of the respondents to whom notice of the rule was ordered to be given. 3. Previous to the coming into force of the Bihar Land Reforms Act the petitioner Shyamakant Lal and his wife had 8 annas milkiat interest in frauzi No. 12561 of village Sawaiyatanr covering an area of 3300 acres. In the year 1940 the petitioner and his wife executed a zarpeshgi lease in favour of Chhathu Ram Horil Ram Limited with regard to an area of 2893 acres out of their 8 annas share. It is alleged that the mortgagees worked the mines in some portions of the area and the mortgage amount was automatically paid off on the 1st October, 1955. After the period of the mortgage had expired the petitioner and his wife took possession of the area and carried on mining operations. On 25-9-1 1950, the Bihar Land Reforms Act (Bihar Act 30 of 1950) was promulgated. By virtue of a notification dated 27-6-1953 under Sec.3 of that Act, tauzi No. 12561 of Village Sawaiyatanr became vested in the State Government. The case of the petitioner is that after the vesting of the estate under Sec.3 of the Bihar Land Reforms Act the petitioner became a statutory lessee of the mica mines in the tauzi by virtue of Section 9(1) of that Act. It is alleged that the petitioner was working the mines in an area of 3300 acres comprised in the tauzi and the effect of Section 9(1) of the Bihar Land Reforms Act was that he became a statutory lessee with regard to these mines and the respondents had no authority to declare that the area was available for re-grant under Rule 67 of the Mineral Concession Rules. It is convenient at this stage to refer to the statutory provisions relevant to this case. It is convenient at this stage to refer to the statutory provisions relevant to this case. 4. Rule 67 of the Mineral Concession Rules states as follows: "67. Availability of areas for regrant to be signified by entry in Standard Register.-- No area which was previously held under a prospecting license or a mining lease shall be treated as available for regrant, unless an entry to that effect has been made in standard register. The date from which the area shall be treated as available for regrant, shall be notified in the official Gazette of the State at least 30 days in advance. Explanation: For the purpose of this rule, the registers required to be maintained under rules 20 and 33 shall be deemed to be Standard Registers." Sec.3 of the Bihar Land Reforms Act states: "3. (1) The State Government may, from time to time by notification, declare that the estates or tenures or a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State. X X X x" Section 9 of the Bihar Land Reforms Act is in the following terms: "9. (1) With effect from the date of vesting, all such mines comprised in the estate or tenure as were in operation at the commencement of this Act, and were being worked directly by the intermediary shall, notwithstanding anything contained in this Act, be deemed to have been leased" by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lessee thereof. (2) The terms and conditions of the said lease by the Stale Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Sec.12: Provided that all such terms and conditions shall be in accordance with the provisions of any Central Act for the time being in force regulating the grant of new mining leases." 5. There are two questions arising, in this case. The first question is whether the petitioner is a statutory lessee under Section 9(1) of the Bihar Land Reforms Act with regard to 2893 acres of land given in zarpeshgi thica to Chhathu Rain Horil Ram Limited on the 30th September, 1940. There are two questions arising, in this case. The first question is whether the petitioner is a statutory lessee under Section 9(1) of the Bihar Land Reforms Act with regard to 2893 acres of land given in zarpeshgi thica to Chhathu Rain Horil Ram Limited on the 30th September, 1940. The second question is a question of fact, namely, whether the petitioner was directly working the mines on the 25th September, 1950, the date of the commencement of the Bihar Land Reforms Act, with regard to an area of 407 acres not covered by the zarpeshgi thica executed in favour of Chhathu Ram Horil Ram Limited. 6. With regard to the area given in zarpeshgi thica the argument of Mr. P.R. Das on behalf of the petitioner is that the document was a mortgage and not a lease The learned Government Advocate conceded that it is not necessary to decide in this case whether the document is a mortgage or lease and that we may proceed on the assumption that it is a mortgage. Learned Counsel on behalf of the petitioner submitted on the basis of this assumption that the possession of the mortgagee was in the eye of law the possession of the mortgagor and so the requirements of Section 9(1) of the Bihar Land Reforms Act were satisfied and it must be held that the working of the mines by the mortgagee was equivalent be the working of the mines by the petitioner. It was argued by learned Counsel that the mortgagee in possession was the bailiff of the mortgagor without receipt of any salary, and in support of this proposition learned Counsel referred to a passage from Ghose on law of Mortgage, 5th edition, Vol. I, at page 546, and also to two decisions, Awdh Singh V/s. Nanhai, 46 Ind Gas 872: (AIR 1917 Nag 33(2)) and Sulleman Hashim V/s. Esso, (AIR 1926 Sind 145 at p. 148). I do not accept the argument of learned Counsel for the petitioner as correct. Under Section 9(1) of the Bihar Land Reforms Act the test is not judicial possession but physical control. The word "possession" does not occur in Section 9(1) at all. I do not accept the argument of learned Counsel for the petitioner as correct. Under Section 9(1) of the Bihar Land Reforms Act the test is not judicial possession but physical control. The word "possession" does not occur in Section 9(1) at all. The section, on the contrary, refers to mines "being worked directly by the intermediary" and provides that there shall be statutory lease of such mines by the State Government in favour of the intermediary and the intermediary shall be entitled to retain possession of those mines as a lessee thereof. The test under Section 9(1) is, therefore, not whether the intermediary was in juridical or constructive possession of the mines. Section 9(1) on the contrary contemplates a factual situation namely, that the intermediary must be directly working the mines. It is manifest, therefore, that the petitioner has not directly worked the mines with regard to an area of 2893 acres, because the mines are being worked by a mortgagee Chhathu Ram Horil Ram Limited. In such a case Section 9(1) has no application and there is no statutory lease in favour of the mortgagor under the terms of Section 9 (1). It is necessary in this connection to refer to Sec.10 which deals with the mines in possession of lessees. Sec.10(1) is in the following terms; "10. (1) Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the leasehold property." There is no similar provision in the Bihar Land Reforms Act with regard to mines given in mortgage and in possession of the mortgagees. The language of Sec. 6 of the Bihar Land Reforms Act which deals with agricultural or horticultural land is also different from the language of Section 9. Sec. 6(1) of the Bihar Land Reforms Act provides as follows: "6. The language of Sec. 6 of the Bihar Land Reforms Act which deals with agricultural or horticultural land is also different from the language of Section 9. Sec. 6(1) of the Bihar Land Reforms Act provides as follows: "6. (1) On and from the date of vesting, all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting, including- (a) (i) proprietors private lands let out under a lease for a term of years or under a lease from year to year, referred to in Sec.116 of the Bihar Tenancy Act. 1885, (ii) Landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Sec. 43 of the Chota Nagpur Tenancy Act, 1908, (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock,, and (c) lands used for agricultural or horticultural purposes and in the possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such proprietor or tenure-holder, shall, notwithstanding anything contained in this Act, be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner: Provided that nothing contained in this subsection shall entitle an intermediary to retain possession of any land recorded as Chaukidari chakran or goraiti jagir or mafi goraiti in the record-of-rights or any other land in respect of which occupancy right has already accrued to a raiyat before the date of vesting." The expression "Khas possession" is defined in Sec.2(k) of the Act as follows: "2. (k) "Khas possession" used with reference to the possession of a proprietor to tenure-holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock." In contrast, therefore, to the language of Section 9 (1) the provisions of Section 6(1) expressly refer to the land given in mortgage and in possession of the mortgagee which immediately before the execution of the mortgage bond was in knas possession of the intermediary. There is another important matter to be taken into account. The definition of "mine" in Sec.2(m) of the Bihar Land Reforms Act is practically the same as the definition in Sec.2(1) of the Indian Mines Act and Sec.2(m) of the Bihai Land Reforms Act further provides that "a mine shall be deemed to be in operation if a notice of the commencement of its operation has been given under Sec.14 of the Indian Mines Act, 1923, to the District Magistrate of the district in which such mine is situated." It is necessary therefore to construe the provisions of Section 9(1) of the Bihar Land Reforms Act in the background of the relevant provisions of the Indian Mines Act (Act 4 of 1923). Sec.3(g) of Act 4 of 1923 defines "owner" of a mine as "any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof, but does not include a person who merely receives a royalty, rent or fine from the mine, or is merely the proprietor of the mine subject to any lease, grant or license for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine, but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so an to exempt the owner from any liability." Sec.14 imposes a duty upon the owner, agent or manager of a mine to give notice to the District Magistrate of the commencement of the mining operations. Sec.16 describes the duties and responsibilities of owners, agents and managers. Sec.16 states as follows: "16. Sec.16 describes the duties and responsibilities of owners, agents and managers. Sec.16 states as follows: "16. (1) The owner, agent and manager of every mine shall be responsible that all operations carried on in connection therewith are conducted in accordance with the provisions of this Act and of the regulations, rules and bye-laws and of any orders made thereunder. (2) In the event of any contravention of any such provisions by any person whomsoever, the owner, agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention: Provided that the owner or agent shall not be so deemed if he proves - (a) that he was not in the habit of taking, and did not in respect of the matter in question take, any part in the management of the mine; and (b) that he had made all the financial and other provisions necessary to enable the manager to carry out his dulies; and (c) that the offence was committed without his knowledge, consent or connivance. X X X x" Chapter V of the Act makes provisions with regard to health and safety, and Chapter VI deals with the hours and limitation of employment in to mine. It is manifest, therefore, that the mines are subject to rigorous statutory control and restrictions in the manner of working, and the definition of "owner" in Sec.3(g) of the Act lays emphasis on the control and occupation of the mine, and the person who is the immediate proprietor or lessee or occupier of the mine is an owner within the meaning of the Act and is subject to the duties and obligations prescribed in Sec.16 of the Act. The mines dealt with under Section 9 of the Bihar Land Reforms Act are therefore, in a different category from agricultural or horticultural land dealt with in Sec. 6 of the same Act. The mines dealt with under Section 9 of the Bihar Land Reforms Act are therefore, in a different category from agricultural or horticultural land dealt with in Sec. 6 of the same Act. As I have pointed out, the language of Section 9 of the "Bihar Land Reforms Act must be construed in the context and background of the relevant pro-visions of the Indian Mines Act, and if so construed lit is manifest that the expression "were being worked directly by the intermediary" cannot include a case when the mines are not worked directly by an intermediary but directly by the mortgagee in possession. My concluded opinion, therefore, is that the petitioner has not acquired the status of a statutory lessee with regard to the area of 2993 acres and add which was the subject-matter of the Zarpeshgi lease to Chhathu Ram Horil Ram Limited. 7. The second question is whether the petitioner is a statutory lessee with regard to an area of 407 acres which is not covered by the zarpesngi lease. The case of the petitioner is that he was directly working the mines with regard to this area on the 25th September, 1950, which is the date of the commencement of the Bihar Land Reforms Act. There is a counter-affidavit filed on behalf of the respondents and it is alleged in the counter-affidavit that the petitioner was not directly working any mine. The question at issue is purely a question of fact. On behalf of the petitioner reference was made to the fact that the petitioner was granted a proprietors certificate under Sec. 4(l)(b) of the Bihar Mica Act (Bihar Act 10 of 1948) for the years 1951 to 1956. Sec. 4(1)CW of the Bihar Mica Act states: "4. (1) Save as provided in Sub-section (2) and Sub-section (3) of this section, no person shall - x xxx (b) have in his possession or sell mica extracted from a mica mine of which he is in possession and which is situated in land of which he is the proprietor, except under and in accordance with a proprietors certificate." I do not accept the argument of the petitioner that the grant of the proprietors certificate is evidence of the actual working of the mines. The certificate only qualifies the petitioner for working the mines but it is no proof of the actual working. The certificate only qualifies the petitioner for working the mines but it is no proof of the actual working. On behalf of the petitioner reference was also made to the correspondence between him and the State Authorities, annexures A/1, C. D. N and O to the application. It was suggested by learned Counsel hat there was an admission on behalf of the Collector that the petitioner was actually working mica mines. But having perused the documents I do not think that it is legitimate to draw any such inference from this correspondence. I do not think that there is any admission by the Collector in these letters that the petitioner was actually working any mica mine. In annexure D, for example, the Collector gave notice to the petitioner, asking him to supply information with regard to mines and minerals worked by him directly at the time of the commencement of the Act. It is far fetched to argue that this letter contains an admission by the Collector that the petitioner was actually working any mines and minerals, for in the last paragraph the Collector states that if the information is not received within the time prescribed the conclusion would be drawn that no such mines were directly worked by the petitioner. It was also submitted on behalf of the petitioner that notices for opening and closing of mines were given in accordance with Sec.14 of the Mines Act. The giving of any such, notice is denied in paragraph 5 of the counter-affidavit filed by the respondents. There is, however, an application dated 17-12-1957, made on behalf of the petitioner praying that the Court may call for certain documents mentioned in paragraphs 6 (a) to 6fe) of the petition. On behalf of the respondents it is pointed out that in the original application the petitioner had not given the date and year of the notices under Sec.14 of the Mines Act. It was submitted by the Government Advocate that if the petitioner was serious about the production of the document he should have taken out summons against the Chief Inspector of Mines. It was submitted by the Government Advocate that if the petitioner was serious about the production of the document he should have taken out summons against the Chief Inspector of Mines. It was further pointed out that the dates of the notices as mentioned in paragraph 6 of the application of the petitioner are the 10th October, 1951, and subsequent dates, and there is no document to show that there was opening of the mines in the year 1950 when the Bihar Land Reforms Act came into force. On behalf of the petitioner reference was made to the returns of mines made under the Bihar Land Reforms Act. In the counter-affidavit it was said that no returns were filed by the petitioner except a return dated 4-1-1953 signed by one Parvati Devi holding general power of attorney on behalf of the petitioner, and that return did not show that the petitioner was directly working any mine. The return filed by Parvati Devi is annexure A to the counter-affidavit, and does not support the case of the petitioner that he was directly working the mines on the date when the Bihar Land Reforms Act came into force. The argument was also addressed on behalf of the petitioner that cess returns were filed showing that the mines were being worked. In paragraph 4 of the counter-affidavit it is denied by the respondents that the petitioner filed any cess returns or paid any cess with respect to the working of any mica mines. The petitioner seated in paragraph 6 of the reply to the counter-affidavit that the mica cess returns were filed for the years 1952 and 1953. The returns are annexures B-1 and B-3 to the reply of the petitioner dated 6-12-1957. These two returns were for the years 1952 and 1953, respectively, but were filed by Parvati Devi on one and the same date, namely, the 2nd of September, 1955. No cess return has been filed by the petitioner for the year 1950 and there is nothing to show that for that year the petitioner was directly working any mica mine. Reference was also made on behalf of the petitioner to annexures D-1 and D-2, which are extracts from the register of notified mica godowns. No cess return has been filed by the petitioner for the year 1950 and there is nothing to show that for that year the petitioner was directly working any mica mine. Reference was also made on behalf of the petitioner to annexures D-1 and D-2, which are extracts from the register of notified mica godowns. These two documents are annexures to the reply to the counter-affidavit and it was argued that these documents show that the petitioner was carrying on operations in mica mines. But annexures D-1 and D-2 are for the years 1951, 1952 and for subsequent years and do not relate to the year 1950 which is the material year for our purpose. I have now dealt with all the documentary evidence produced by the petitioner in support of his case and I am of the opinion that the petitioner has not prima facie established that on 25-9-1950, he was directly working the mica mines. On behalf of the respondents the learned Government Advocate also pointed out that the petitioner has not produced material documents which could establish that he was actually working the mines. It was submitted that under Sec.28 of the Indian Mines Act the petitioner was bound to maintain a register of employees in the prescribed form if he had actually worked the mica mines. It was also pointed out that under Sec.10 of the Bihar Mica Act the petitioner was bound to keep accounts in respect of the quantity of crude mica received, the source of supply, the quantity issued to cutters or disposed of and the quantity of block mica received from cutters, etc. It was argued that the petitioner has not produced the accounts kept under Sec.10 of the Bihar Mica Act, 1947, and the register of employees prescribed under Sec.28 of the Indian Mines Act, and the omission of the petitioner in this respect is a circumstance which goes to show that the petitioner was not actually working the mica mines on the date of the commencement of the Bihar Land Reforms Act. 8. In view of all these considerations I hold that the petitioner has not made out a case for grant of a writ under Article 226 of the Constitution. In my opinion, this application fails and must be dismissed with costs. Hearing fee Rs. 200/-. R.K.Choudhary, J. 9 I agree.