Bharat Coking Coal Limited v. State Of Bihar — 1990 DIGILAW 61 (PAT)

Judgment 1. - These two first appeals arising out of a common judgment dated 29-9-1982 passed by Sri Tarkeshwar Prasad, Additional Subordinate Judge, Dhanbad in Title Suit No. 43 of 1969, were heard together and are being disposed of by this common judgment. 2. One M/s. Bhowra Kankanee Collieries Ltd. incorporated and registered under the Companies Act, filed the aforementioned Title Suit No. 43 of 1969 under the following circumstances: - The said Company took a mining lease from the then landlord of Jharia Raj estate, Raja Durga Prasad Singh by virtue of a deed of Mokrari Mourashi Patta dated 18-12-1900, as a result whereof a lease of underground mining right of several villages including the village Gourkhunti was granted in favour of M/s. Betar Machnon and others, who accepted the said grant on behalf of the M/ s. Eastern Coal Co. Ltd. Cl. (5) of the said patta relates to the grant of lease of surface lands, the English translation whereof has been quoted in paragraph 2 of the plaint in the following terms :- "That should you, for the purpose of carrying on mining works in the leasehold land stand in the need of surface lands for constructing quarry mines, pit mines or inclines or any other mines and buildings, stocking place for coal, factory house, collyshed, rail line, tramline and tubline and for excavating well tank etc., you shall be competent to take the same. But in respect of the said land you shall be liable to pay me rent annually at Rs. 2 (two) per bigha in case of garabadi (non-cultivable) patti land and Rs. 5 per bigha in case of abadi sali and dohari land and Selami at three times the aforesaid rate of rent " (Underlining is mine for emphasis) 3 According to the plaintiff, pursuant to the aforementioned patta, M/ s. Eastern Coal Co. Ltd. entered into possession of the said leasehold and began to run a colliery commonly known as Bhowra Colliery. Ltd. entered into possession of the said leasehold and began to run a colliery commonly known as Bhowra Colliery. The plaintiff asserted that as in terms of the aforementioned patta, the lessees thereof became entitled to use the surface lands of Mauza Gourkhunti as well as the other Mauzas for using the same for coal mining operations, they occupied various surface lands in Mauza Gourkhunti for carrying on colliery works and had been using the same by constructing labour quarters, offices, bungalows, pits, engine houses, inclines, quarries, roads, tram lines and for other allied works which are necessary for running a colliery and carrying on coal mining business. Besides the aforementioned works, the Eastern Coal Company Ltd. constructed a power house for production of electrical energy to be supplied to its collieries and also constructed a Coke plant for manufacture of coke therein. 4. The plaintiff alleged that the dominant purpose of using of the surface lands of the aforementioned Mauza Gourkhunti as, also the other villages was only in connection with mining operations and the surface land had all along been used for the said purpose only and for no other purpose. 5. In the finally published record of rights, the aforementioned leasehold right was entered in the name of M/ s. Eastern Coal Co. Ltd. in Khatian No.19. The original plaintiff along with the plaint annexed a plan showing as to how and in what manner the surface land of the aforementioned Mauza was being used. 6. By reason of a registered deed dated 28-9-1957, the original plaintiff acquired the right title and interest in respect of aforementioned Bhowra Colliery from M/s. Eastern Coal Co. Ltd. 7. According to the original plaintiff, it had all along been paying surface rents in terms of the aforementioned deed of mining lease to the District Mining Officer of the State of Bihar. The plaintiff has alleged that even after vesting of the zamindary in the State of Bihar under the Bihar Land Reforms Act, they having become statutory lessee under the State of Bihar, in terms of the provisions of S.10 thereof, continued to pay the surface rent to the District Mining Officer. 8. The plaintiff has alleged that even after vesting of the zamindary in the State of Bihar under the Bihar Land Reforms Act, they having become statutory lessee under the State of Bihar, in terms of the provisions of S.10 thereof, continued to pay the surface rent to the District Mining Officer. 8. The plaintiff contends that in terms of R. 27(1)(d) of the Mineral Concession Rules, 1960 a mining lessee is required to pay for the surface area as used by it for the purpose of mining operation surface rent and water rent etc. as may be specified by the State of Bihar in the deed of lease. 9. The plaintiff has further asserted that in terms of S.11 of the Bihar Land Reforms Act, 1950 , if any surface land is occupied and used by a mining lessee, which is not within his leasehold, the surface rent of such leasehold shall be settled by mutual agreement and in the event of dispute in any matter relating to quantum thereof the same is to be determined by the Mines Tribunal. 10. However, according to the plaintiff, despite the said provision the defendant No. 3 started Belagan kabilagam cases as against the original plaintiff purported to be on the ground that no rent in relation to the surface used was being paid by the said mines. The said cases were registered as Belagan Kabilagan cases for the purpose of fixation of fair rent in respect of the lands described in Schedule A to the plaint. The original plaintiff filed objection in the aforementioned cases but it came to learn sometimes in April, 1967 that the said objection petition had been rejected by the defendant No. 3 and rent had been assessed as against it. The original plaintiff, later on, obtained a certified copy of the said order and came to learn that surface rent amount to Rs. 42,556.20 paise per annum had been assessed for the surface lands at the rate of Rs.6.00 per Kottah. The plaintiff, thereafter, preferred an appeal before the Land Reforms Deputy Collector and the Additional Collector pleading, inter alia, therein that the entire proceedings before defendant-respondent No. 3 were void and without jurisdiction but the said appeals were also dismissed. 11. 42,556.20 paise per annum had been assessed for the surface lands at the rate of Rs.6.00 per Kottah. The plaintiff, thereafter, preferred an appeal before the Land Reforms Deputy Collector and the Additional Collector pleading, inter alia, therein that the entire proceedings before defendant-respondent No. 3 were void and without jurisdiction but the said appeals were also dismissed. 11. The plaintiff further contended that the defendant No.3 had no jurisdiction to assess any rent under the provisions of the Chotanagpur Tenancy Act or under the Bihar Lands Reforms Act inasmuch as the lands were not being used by the original plaintiff for any agricultural or horticultural purposes. In relation to the aforementioned assessment of rent a certificate case being certificate case No. 2 (LR) of 1967-68 had also been initiated. In the aforementioned circumstances, the plaintiff filed the aforementioned suit claiming, inter alia, the following reliefs: "(a) For a decree declaring that the proceeding for fixation of fair rent being Belagan-Kabil Legan case No. 2(7) of 1964-65 which finally culminated in the order passed by the Additional Collector on 11-3-69 purporting to fix the rent at Rs. 360 / - per acre per annum in respect of 63. 71 acres appertaining to Khatian No. 19 of mouja Gourkhunti is wholly illegal, void and without jurisdiction. (b) For a decree declaring that the certificate case being No. 2(LR) of 1967-68 pending before the Certificate Officer, Dhanbad is wholly illegal, void and without jurisdiction as no amount is due for which the certificate case has been filed. (c) For a decree declaring that the defendants have no right, whatsoever, to fix any rent and realise any rent over and above the amounts mentioned in the patta of 1900 regarding the surface lands described in Schedule A below. (d) For a permanent injunction restraining the defendants and their servants and agents from taking any steps for realisation of the alleged dues for which the certificate case mentioned above is pending and from taking any steps in the said certificate case. (e) For costs of the suit. (f) For any other or further reliefs to which the plaintiff may be found entitled to. " 12. (e) For costs of the suit. (f) For any other or further reliefs to which the plaintiff may be found entitled to. " 12. In the aforementioned suit a written statement was filed on behalf of the defendants contending, inter alia, therein that the original lease granted in the year 1900 by the then Landlord of Jharia Raj in favour of the Eastern Coal Company was not only a mining lease but it is also a lease for using surface lands for the purposes of residence, trade, commerce and factory etc. It has further been stated that by reason thereof, a tenure right was created in favour of the original plaintiff and, as such, after expiry of 68 years from the said date, the rent fixed in the said deed of lease being on a low side, the defendant No. 3 was entitled to fix rent in respect of labour quarters, offices, bunglows, roads, tram lines etc. According to the defendants the original plaintiff had set up power house, factory and structures for manufacturing hard and soft coke, building for residence, for trade, commerce and manufacture and a very small portion of the surface lands was to be used for mining operations such as digging of quarters, inclines and pits to get at the mineral. The defendants, however, accepted that the rent and royalty had to be paid to the State of Bihar not in accordance with the terms and conditions stipulated in the aforementioned deed of lease dated 18-12-1900 but in terms of the provisions of Mines and Minerals (Resulation and Development) Act, 1948 and Mineral Concession Rules, 1949 framed thereunder and Mines and Minerals (Regulation and Development) Act, 1957 and Mineral Concession Rules, 1960 framed thereunder. It has further been contended that the rates of royalty or dead rent of surface rent as stipulated in the lease deed dated 18-12-1900 must be deemed to have been annulled by the Mineral Concession Rules, 1949, Mineral Concession Rules, 1960 , Mines and Minerals (Regulation and Development) Act, 1948 and Mines and Minerals (Regulation and Development) Act, 1957. It has further been contended that the surface rent is payable according to Government Revenue which means at the prevalent rates meant for the purpose of agriculture or trade or commerce. 13. It has further been contended that the surface rent is payable according to Government Revenue which means at the prevalent rates meant for the purpose of agriculture or trade or commerce. 13. During the pendency of the aforementioned suit, the aforesaid Bhowra Colliery, was nationalised in terms of the provisions of Coking Coal Mines (Nationalisation) Act, 1972 as a result whereof the entire right, title and interest of the original plaintiff vested in the Central Government free from all encumbrances. It may be mentioned that in the aforementioned suit an application for injunction under O.39, Rr.1 and 2 read with S. 151 of the Code of Civil Procedure was filed, inter alia, for restraining the defendants, their servants and agents from taking step(s) for realisation of the rent due in certificate bearing Certificate Case No. 2 / LR of 1967-68 pending before the Certificate Officer, Dhanbad. 14. By an order dated 22-8-70 passed in the aforementioned suit, Sri Jitendra Dixit, the then Additional Sub Judge, Dhanbad restrained the defendants from realising any dues in the said certificate case as prayed for. 15. It appears that the defendants, being aggrieved by and dissatisfied with the said order preferred an appeal in this Court being Misc. Appeal No. 345 / 70. By a judgment dated 15-11-75 the said appeal was disposed of with a direction that the suit itself be heard at the earliest and concluded preferably within a period of three months from the date of the said order. 16. The records of the case, however, reached the trial Court on 1-12-78 on 29-1-79 the present appellant in F.A. No. 22/ 83(R) (M/s. Bharat Coking Coal Ltd.) filed an application before the trial Court praying therein for some time to file an application for substitution. 17. On 31-5-79 an application for substitution was filed which was allowed and the present plaintiff-appellant was substituted in the place of the original plaintiff. The learned trial Court, upon the aforementioned pleadings of the parties framed the following issues: "1. Is the suit maintainable in its present form? 2. Has the plaintiff got any cause of action for the suit? 3. Is the suit barred by limitation and principles of estoppel, acquiscence and waiver? 4. Is the suit barred by the provisions of Specific Relief Act and Bihar and Orissa Public Demands Recovery Act? 5. Is the suit maintainable in its present form? 2. Has the plaintiff got any cause of action for the suit? 3. Is the suit barred by limitation and principles of estoppel, acquiscence and waiver? 4. Is the suit barred by the provisions of Specific Relief Act and Bihar and Orissa Public Demands Recovery Act? 5. Is the suit barred under Sec. 35 of the Bihar Land Reforms Act? 5(a). Is the notice u / s. 80 C.P.C. legal and valid? 6. Is the plaintiff entitled for a decree as claimed? 7. Is the plaintiff entitled for a decree for permanent injunction restraining the defendants from realising the rent of the certificate case?" 18. The learned trial court, while deciding issue No. 5, held that S.35 of the Bihar Land Reforms Act is not applicable to the facts and circumstances of this case. 19. The learned trial court took up issues Nos. 6 and 7 for his decision together and held that no rent ought to have been fixed by defendant No.3 for occupation of surface land by the plaintiff as shown in serial Nos. 1 to 8 as well as serial Nos. 9, 12, 13, 14, 19, 20 and 21 of the Schedule appended to the plaint as there are structures and constructions for which no fresh rent should be fixed and in this context the learned trial court held in its concluding paragraph as follows: "I, therefore, find and hold that occupation of the surface land by the plaintiff as shown in the serial No. 1 to 8 as well as that of serial Nos. 9, 12, 13, 16, 19, 20 and 21 are structures and constructions for which no fresh rent should be fixed and in this column also comes serial No. 14 which is power house and coke plant and these are structures and constructions which are directly connected with mining operation and as such all these surface lands given above noted at serial Nos. as shown in para 11 of the judgment of the Addl. Collector are the areas for which no fresh rent should be fixed and so far remaining serial Nos. i.e. 10, 11, 15, 17 and 18 are concerned, fresh rent should be fixed only for these constructions and surface land therein. So far rate of rent is concerned, I further find that it being fixed at Rs. Collector are the areas for which no fresh rent should be fixed and so far remaining serial Nos. i.e. 10, 11, 15, 17 and 18 are concerned, fresh rent should be fixed only for these constructions and surface land therein. So far rate of rent is concerned, I further find that it being fixed at Rs. 6 / - per katha by the defendant is excessive in nature and I find and hold that for the ends of justice it will be justified if the rate of rent is fixed at Rs. 4 / - per katha for the category of surface land for which fresh rent should be fixed and accordingly I find and hold that dues as claimed by the defendants. In the certificate case amended in the light of aforesaid findings and accordingly I find and hold that the plaintiff is entitled for the reliefs in part as mentioned above." From the materials on record it appears that the structures described in serial No. 10 of the schedule of the plaint is bungalow and office. Serial No. 11 is also an office building. Serial No. 5 is a pit house. Serial No. 6 is staff quarter. Serial No. 7 is a bungalow where senior officers reside. Serial No. 18 is Club, bungalow, sports ground labour and staff quarters which are allegedly used for mining, residential and recreational purposes of the staff which alleged come within the purview of the definition of mine. 20. According to the appellant of F. A. No. 22/83 (R) the learned trial court has committed an illegality in directing the assessment of rent at the rate of Rs. 4/ - per katha. 21. The defendants who have also preferred an appeal against the aforementioned judgment being F. A. No.70/83(R), challenged that part of the findings recorded by the learned trial court in favour of the plaintiff and have further contended that the learned trial court had no jurisdiction to reduce the quantum of rent from Rs. 6.00 to Rs. 4.00 per katha. 22. Mr. Vishwa Mohan Kumar Sinha, learned counsel appeared on behalf of the appellant-Bharat Coking Coal Ltd. in F. A. No. 22/83 (R) whereas the State, in both the appeals was represented by Mr. Narayan Roy, G. P. II. in F. A. No.70/83(R) the respondent-Bharat Coking Coal Ltd. was represented by Mr. Devi Prasad. 23. 4.00 per katha. 22. Mr. Vishwa Mohan Kumar Sinha, learned counsel appeared on behalf of the appellant-Bharat Coking Coal Ltd. in F. A. No. 22/83 (R) whereas the State, in both the appeals was represented by Mr. Narayan Roy, G. P. II. in F. A. No.70/83(R) the respondent-Bharat Coking Coal Ltd. was represented by Mr. Devi Prasad. 23. Learned counsel for the parties confined their submissions only with regard to the question as to whether respondent No. 3 had any jurisdiction to assess any rent in respect of surface land used by the plaintiff. Learned counsel for the applicant further submitted that in any event the present appellant is not liable to pay surface rent in view of the provisions of Coking Coal Mines Nationalisation Act 1972. 24. Mr. Narayan Roy, learned G.P. II, however, further contended that the learned trial court had no jurisdiction to reduce the quantum of rent from Rs. 6.00 per katha to Rs. 4.00 per katha. 25. In such a situation the questions, which arise for consideration in these appeals, are as follows: "(a) Where respondent No. 3 could have initiated Belagan Kabil Lagan cases as against the original plaintiff? (b) What would be the effect of the provisions of Coking coal Mines (Nationalisation) Act, 1972 in relation to assessment of the surface rent? (c) Whether the learned court below had jurisdiction to reduce the quantum of surface rent from Rs.6.00 per katha to Rs.4.00 per katha?" 26. Re-question (a): The first and foremost question which should be posed and necessary to be answered for the purpose of disposal of these appeals is whether the patta of the year 1900 executed by the then zamindar of Jharia Raj in favour of Eastern Coal Company is a deed of mining lease or not. 27. From a perusal of the aforementioned deed (Ext. 6) it appears that statements have been made therein to the effect that the lessee approached the lessor for grant of an underground mining right and the lessor accepted the aforementioned proposal of the lessee on receipt of salami and advance and the lessees were granted a Mokrari Mourashi patta only in respect of mineral coal and not in respect of any other minerals. In the said patta the quantum of maximum royalty and cess etc. were also fixed. 28. A Mokrari Mourashi right means a heritable right on payment of fixed lump-sum rent. In the said patta the quantum of maximum royalty and cess etc. were also fixed. 28. A Mokrari Mourashi right means a heritable right on payment of fixed lump-sum rent. Reference in this connection may be made to Bhupendra Chandra Singha V/s. Harihar Chakraborty reported in 24 Calcutta Weekly Notes page 874 and Jugal Kishore Mandal and ors. V/s. Fani Bhushan Kundu and ors. reported in 1973 (2) SCC page 221: AIR 1973 SC 2341 at 224. 29. As noticed hereinbefore, the said patta also contains a stipulation in Clause 5 thereof regarding the conferment of the right for user of surface land with a view to carry out coal mining operations or for digging quarries, inclines, pit or for storage of coal and for construction of buildings etc, the English translation whereof has been reproduced in paragraph 2 of the plaint. 30. From a perusal of the judgment of the learned trial court it appears that the learned court below held that the plaintiff was a tenure holder and not a pure mining lessee. The learned court below evidently has committed a mistake inasmuch as in the then district of Manbhum all the mining lessees were recorded in this regard as tenure holders which would be evident from the B.K. Gokhales Survey Settlement Report. 31. The learned trial court, unfortunately, has not considered as to petitioner the patta of the year 1900 (ext. 6) was a deed of mining lease or not which was the only relevant document for the purposes of coming to a conclusion as to whether the then landlord of Jharia Raj granted a mining lease in favour of M/s. Eastern Coal Company or the same was also for other purposes. As indicated hereinbefore the dominant purpose for executing the aforementioned patta by the then landlord of Jharia Raj was for allowing the lessee to win the mineral coal and for no other purpose. The lessor granted a lease only in respect of underground mining right in respect of coal only to the lessee and not any other mineral. In Tarkeswar Thakur Ji V/s. B. D. Dey and Co. reported in 1979 SC 1669, it was held that lease of mines and minerals is also governed under the provisions of Transfer of Property Act. The lessor granted a lease only in respect of underground mining right in respect of coal only to the lessee and not any other mineral. In Tarkeswar Thakur Ji V/s. B. D. Dey and Co. reported in 1979 SC 1669, it was held that lease of mines and minerals is also governed under the provisions of Transfer of Property Act. Even under the Common Law of England all mines and minerals that lie beneath the soil belong absolutely to a tenant in fee simple. But certain minerals under the provision of the Statute have now vested in the National Coal Board or in the crown. See Cheshire V/s. Burn on Modern Law of Real Property, 13th Edn. at page 154. 32. Even from a perusal at clause 5 of the said patta as referred to in paragraph 2 of the plaint, it is evident that the lessee became entitled to use only such surface land which was required for the purpose of carrying out coal mining operations, namely for the purpose of digging quarries, inclines, pits, or for stacking coal or for constructin of structures which are required for the purposes of mining operation in respect of mineral coal. 33. In such a situation, ex facie, it is evident that the Circle Officer, defendant No. 3 had no jurisdiction to initiate a proceeding for assessment of rent in terms of Secs. 5, 6 and 7 of the Bihar Land Reforms Act inasmuch as a mining lease does not come within the purview of the aforementioned provisions. In terms of S.4 (1)(a) of the Bihar Land Reforms Act 1950 inter alia the right title and interest of the tenure holder including the right of lessee in respect of mines and minerals vested in the State of Bihar free from all incumbrances. However, by reason of the provisions of S.10 of the Bihar Land Reforms Act, 1950 such lessees become a statutory mining lessees under the State of Bihar. 34. The right of the earstwhile landlord of Jharia Raj estate to grant a mining lease was untramelled. 35. Sec. 10 of the Bihar Lands Reforms Act reads as follows: - "10. However, by reason of the provisions of S.10 of the Bihar Land Reforms Act, 1950 such lessees become a statutory mining lessees under the State of Bihar. 34. The right of the earstwhile landlord of Jharia Raj estate to grant a mining lease was untramelled. 35. Sec. 10 of the Bihar Lands Reforms Act reads as follows: - "10. Subsisting leases of mines and minerals- (l) 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 Govt. 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 lease hold property. (2) The terms and conditions of the said lease by the State Government shall mutatis mutandis be the same as the terms and conditions of the subsisting lease referred to in Sub-sec. (1), but with the additional condition that, if in the opinion of the State Government the holder of the lease had not, before the date of the commencement of this Act, done any prospecting or development work, the State Government shall be entitled at any time before the expiry of one year from the said date to determine the lease by giving three months notice in writing. Provided that nothing in the Sub-sec. shall be deemed to prevent any modification being made in the terms and conditions of the said lease in accordance with the provisions of any Central Act for the time being in force regulating the modification of existing mining leases. (3) The holder of any such lease of mines and minerals as is referred to in Sub-sec. (1) shall not be entitled to claim any damages from the outgoing proprietor or tenure holder on the ground that the terms of the lease executed by such proprietor or tenure holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act. " 36. (1) shall not be entitled to claim any damages from the outgoing proprietor or tenure holder on the ground that the terms of the lease executed by such proprietor or tenure holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act. " 36. At this juncture it is relevant to note the legislative history of the relevant laws: On 8/09/1948, the Central Legislation passed the Mines and Minerals (Regulation and Development) Act, 1948, (Act No. 53 of 1948) under Entry 36 of List I of Seventh Schedule to the Government of India Act, 1935. The Act, as declared in its preamble, was enacted as it was considered expedient in public interest to provide inter alia for the regulation of mines and for the development of minerals. Sub-sec. (1) of S.4 of the Act prohibited the grant after the commencement of the Act of any mining lease otherwise than in accordance with the rules made under the Act. Sub-sec. (2) of S.4 of the Act provided that any mining lease granted contrary to Sub-sec. (1) would be void and of no effect. Sec. 5 of the Act empowered the Central Govt. to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. Sec. 7 of the Act empowered the Central Govt. to make rules for the purpose of modifying or altering the terms and conditions of any existing mining lease i.e. any mining lease granted prior to the commencement of the Act so as to bring such lease into conformity with the rules made under S.5. In exercise of the powers conferred on it by S.5 of the Act, the Central Govt. made the Mineral Concession Rules 1949. 37. Both the 1948 Act and the Mineral Concession Rules 1949, came into force on 25th October 1949. The 1948 Act was extended to Chotanagpur by a notification dated 16/01/1950 issued under S.92 of the Govt. of India Act, 1935. The Constitution of India came into force on 26-1-1950 as a result where of the right of legislation in the Parliament as also in the State Legislature were distributed in the lists contained in 7th schedule of the Constitution. of India Act, 1935. The Constitution of India came into force on 26-1-1950 as a result where of the right of legislation in the Parliament as also in the State Legislature were distributed in the lists contained in 7th schedule of the Constitution. By reason of Entry 54 of List-1 (Union List), regulation of mines and mineral development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest, the Parliament became entitled for enacting such laws. However, entry 23 of List 2 conferred legislative power upon the State in relation to regulation of mines and minerals development subject to the provisions of List I with respect to regulation and development under the control of the Union. The Constitution was followed by the Bihar Land Reforms Act, 1950 (Act XXX of 1950) which, though passed on 11/09/1950, came into force on 25/09/1950. This legislation, as evident from its preamble, was enacted as it was considered expedient to provide for transference to the State of the interests of properietors and tenure holders in land and of mortagagees and lessees of such interests including interest in mines and minerals. On the publication of notification under Ss.3 and 3A of the Bihar Land Reforms Act, the estates or tenures of proprietors or tenure holders as also the intermediary interests of all intermediaries passed to and became vested in the State. Sec. 4 of the Bihar Land-Reforms Act declared the consequences flowing from the vesting of the estate or tenure in the State. Clause (a) of S.4 (1) provided that on publication of the aforesaid notifications, such estate of tenure, including the interests of the proprietor of tenure holders in any building etc. in trees etc. as also his interests in all sub-soil including any fights in mines and minerals, whether discovered or undiscovered, or whether being worked out or not, inclusive of such rights of a lessee of mines and minerals comprised in such estate or tenure other than the interests of raiyats or under raiyats shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressely saved by or under the provisions of the Act. Thus the interest of the proprietor or tenure holder including his rights in mines and minerals, inclusive of rights of a lessee of mines and minerals came to an end and vested absolutely in the State. Having once so vested, certain rights were conferred by statute on the proprietors and tenure-holders and the lessees. Sec. 9 of the Bihar Land Reforms Act provided that mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Govt. to the intermediary and he would be entitled to retain possession of those mines as a lessee thereof. The lease by the State Govt. to the intermediary, according to Sub-sec. (2) of S.9 was to have such terms and conditions as might be agreed upon between the State Govt. and the intermediary or in the absence of such agreement, as might be settled by the Mines Tribunal appointed under S.12 of the Act provided that all such terms and conditions had to be in accordance with the provisions of any Central Act for the time being in force regulating the grant of new mining leases. According to the proviso, such terms and conditions were to be in accordance with the provisions of the 1948 Act which was in force at the time the estate vested in the State of Bihar. It is an admitted fact that the Jharia Raj vested in the State of Bihar on 14-11-1951 in terms of the provisions of Bihar Land Reforms Act. The Supreme Court of India in the case of Bihar Mines Ltd. V/s. Union of India reported in AIR 1967, Supreme Court, 887 and Chhatu Ram Horil Ram Pvt. Ltd. V/s. State of Bihar, reported in AIR 1969 Supreme Court 177 came to the conclusion upon interpretation of S.4 (1)(a) and S.10 (1) of the Bihar Land Reforms Act that the contractual mining lease granted in favour of the lessees came to an end and in its place statutory mining lease in favour of the lessees under the State of Bihar came into force being under S.10(1) of the said Act. 38. 38. In 1956 the Mining Leases (Modification of Terms) Rules 1956 providing for the modification and alteration of the terms and conditions of the mining leases granted prior to the commencement of the 1948 Act so as to bring them in conformity with the terms and conditions of the mining leases granted thereafter but the same were made expressly inapplicable to mining leases in respect of coal granted before 25/10/1949. The Parliament, thereafter, enacted Mines and Minerals (Regulation and Development) Act 1957. Sec. 16 of the 1957 Act reads as follows:- "16. Power to modify mining leases granted before 25/10/1949. (1) (a) All mining leases granted before the commencement of the Mines and Minerals (Regulation and Development) Amendment Act 1972, if in force at such commencement, shall be brought into conformity with the provisions of this Act and the rules made thereunder, within six months from such commencement or such further time as the Central Govt. may, by general or special order, specify in this behalf. (b) Where the rights under any mining lease granted by the proprietor of an estate or tenure before the commencement of the Mines and Minerals (Regulation and Development) Amendment Act 1972, have vested on or after the 25th day of October 1949, in the State Govt. in pursuance of the provisions of any Act of any provincial or State Legislature which provides for the acquisition of estates or tenures or provides for agrarian reform, such mining lease shall be brought into conformity with the provisions of this Act and the rules made thereunder within six months from the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972 or within such further time as the Central Govt. may, by general or special order, specify in this behalf : Provided that the Central Govt. is of opinion that in the interest of minerals development it is expedient so to do, it may, for reasons to be recorded, permit any persons to hold one or more such mining leases covering in any one State a total area in excess of that specified in Cl. (b) of Sec. 6 or for a period exceeding that specified in Sub-sec. (1) of Sec. 8. " 39. It is, however, not on record as to whether any action had been taken by the Central Govt. in terms of the aforementioned provisions or not. 40. (b) of Sec. 6 or for a period exceeding that specified in Sub-sec. (1) of Sec. 8. " 39. It is, however, not on record as to whether any action had been taken by the Central Govt. in terms of the aforementioned provisions or not. 40. It is, however, clear that the matters in relation to the payment of royalty or dead rent were to be paid in accordance with the provisions of Ss.9 and 9(A) of the aforementioned 1957 Act. 41. Taking, however, the either views, a mining lessee is to pay the surface rent in terms of the provisions of rule 27 (1)(d) of the Mineral Concession Rules 1960 read with part V of the deed of mining lease in form K appended in schedule thereto or in accordance with the terms and conditions of the deed of mining lease. In either event, such a surface rent being payable in respect of a mining lease, the same cannot come within the purview of Ss. 5, 6 and 7 of the Bihar Land Reforms Act 1950. 42. Even a coke oven plant is a mine within the meaning of the provisions of Colliery Control Order, 1945. Such coke oven plants also come within the purview of Coking Coal Mines (Nationalisation) Act 1972 so far as the plants mentioned in Schedule 2 thereof are concerned. Bhowra Coke plant has been mentioned in schedule 2 of the Coking Coal Mines (Nationalisation) Act 1972. 43. Apart from a coal mining right, a lessee of mine or minerals is entitled to have such ancillary rights which are necessary for the purpose of carrying out coal mining operations. Reference in this connection may be made to Halsburys Laws of England (Fourth Edition). Vol.-31 in which Article 293 at page 171 regarding the ancillary rights, which reads as follows: "An ancillary right may be conferred on a person having the right to work minerals who is working or desirous of working the minerals either by himself or through his lessees, if the right is required in order that the minerals may be properly and conveniently worked by him, and the proper and efficient working of the minerals is unduly hampered by him inability or failure to obtain that right. In relation to minerals, ancillary right means any facility, right or privilege and, without prejudice to the generality of that provision, includes (1) a right to let down the surface (2) a right of airway, shaft-way, or surface or underground wayleave, or other right for the purpose of access to or conveyance of minerals, otherwise than by means of a pipe, or the ventilation or drainage of the mines, (3) a right to use and occupy the surface for the erection with the working of the minerals or with any such works (4) a right to obtain a supply of water or other substances in connection with the working of minerals and (5) a right to dispose of water or other liquid matter obtained from mines or any by-product works. So far as required in order that coal may be properly and conveniently worked and where the surface has been used for the erection of any works for a coal mining purpose, or dwellings for persons employed in connection with the working of coal or in connection with any such works for a coal mining purpose or with any work mentioned in head (3) ancillary right also includes a right to use and occupy the works and dwelling for the purposes for which they were erected. An ancillary right may be conferred on a person on whom a right of working minerals is conferred at the same time or at any subsequent time. " 44. In terms of the provisions of Mines and Minerals (Regulation and Development) Act 1957, the work mine has not been defined and by reason of S.3(j) thereof, the expression mine has been incorporated with reference to the definition of mine as contained in the Mines Act (Act 35 of 1952). " 44. In terms of the provisions of Mines and Minerals (Regulation and Development) Act 1957, the work mine has not been defined and by reason of S.3(j) thereof, the expression mine has been incorporated with reference to the definition of mine as contained in the Mines Act (Act 35 of 1952). The mine has been defined in the Mines Act in S. 2(j) which reads as follows: - "2(j) : mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes: (i) all borings, boreholes and oil wells (ii) all shafts in or adjacent to and belonging to a mine, whether in the course of being sunk or not (iii) all levels and inclined planes in the course of being driven (iv) all open cast workings (v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine or minerals or other articles or for the removal of refuse therefrom. (vi) all adits, levels planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine. (vii) all workshops situated within the precincts of a mine and under the same management and used solely for purpose connected with that mine or a number of mines under the same management (viii) all power stations for supplying electricity soely for the purpose of working the mine or a number of mines under the same management. (ix) any premises for the time being used for depositing refuse from a mine or in which any operation in connection with such refuse is being carried on, being premises exclusively occupied by the owner of the mine (x) unless exempted by the Central Govt. by notification in the official gazette, any premises or part thereof, in or adjacent to any mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on." 45. Mining lease has been defined in the Mines and Mineral (Regulation and Development) Act 1957 to mean a lease granted for the purpose of undertaking mining operations and includes a sub-lease granted for such purpose. Mining lease has been defined in the Mines and Mineral (Regulation and Development) Act 1957 to mean a lease granted for the purpose of undertaking mining operations and includes a sub-lease granted for such purpose. In a broad and enlarged sense the term mine apart from the aforementioned definition denotes vein, lode or deposits of minerals and is also used to denote the place or parcel of land on which such minerals, vein or deposit is found. 46. In this sense it is certainly a part of the soil or of the earth surface in which there are minerals, of which a person may obtain not only by reason of a full right of ownership of the soil but also by reason a right of removal of the minerals therefrom and to dispose of them as he thinks fit. 47. In terms of the provisions of the Mines Act, Coal Mines Regulations and the rules framed thereunder and the circulars issued thereunder by the Directorate of Mines Safety, from time to time, an owner of a coal mine or colliery carrying out underground coal mining operations, is not only to maintain underground working plans but is also required to maintain surface plans showing as to how and in what manner surface is being used and the location of quarries, pits, inclines and structures standing thereon. 48. In this case also the plaintiff has proved the surface plans showing the structures and constructions standing on the surface. 49. The right to obtain necessary surface right, for various purposes, must be held to be an incidental right. Implied surface rights arise out of necessity. However, this is a general rule. Bare right to work mines will be accompanied with the right to use so much of the surface as is necessary and reasonable, The extent of this right may often be determined by reference to the usage in similar pursuits and an owner of mines will not be limited to such appliances only existed at the time of some remote grant but he may freely employ the means of modern invention. He will be entitled to erect all adequate modern machinery, as steam engines, for draining the mines and for drawing the minerals from deeper workings. In this connection reference may be made to the Treatise on the Law of mines and Minerals by William Bainbridge at page 207. 50. He will be entitled to erect all adequate modern machinery, as steam engines, for draining the mines and for drawing the minerals from deeper workings. In this connection reference may be made to the Treatise on the Law of mines and Minerals by William Bainbridge at page 207. 50. In the law of Mines quarries and Minerals by Robert Forster Maneswinney (Third Edition), at page 33 it has been stated that surface may, however, be used in a secondary sense to denote the whole of the soil down to the centre of the earth, except the mines, or, as opposed to an underlying mine, the whole of the soil lying over such mine, whether such soil itself contains minerals or not. Cockburn, in The Law of Coal and other Minerals at page 116, states that where surface and minerals are held together as one entire estate of inheritance or freehold, it may be dealt without any restriction, except so far as the law forbids, or the nature of their particular estate or interest interferes. Cockburn also, in his aforementioned treatise at page 118 states that surface rights are implied by law also on the principles of maxim, aliquis, aliquid, concedit, videturet, is sine quo res ipsa esse, non potest (when any one grants a thing he is also tacitly supposed to grant that without which the grant itself would be of no effect). 51. However, in this case, as noticed hereinbefore, the lessee, in terms of the patta of the year, 1900 (Ext. 6) itself had the right to acquire so much of the surface land without any limitation, whatsoever, which was necessary for the purpose of extracting coal from the lease-hold area. If the lessor has allowed the lessee to occupy so much of the surface in terms of the aforementioned deed of lease, a presumption will arise that such permission was granted by the lessor in order to carry out the purport and object of the deed of lease and not for any other purpose. If the lessee had occupied the surface Ext. for other purposes, the lessor was free to determine the lease or put an embargo upon the lessee to use such surface and/or to enter into a fresh instrument required for the purpose for which such lands are being used. If the lessee had occupied the surface Ext. for other purposes, the lessor was free to determine the lease or put an embargo upon the lessee to use such surface and/or to enter into a fresh instrument required for the purpose for which such lands are being used. In such an event the lessor was not be bound to accept the surface rent at the rate stipulated under Ext. 6. 52. Without going into this question further, it may be relevant to refer to a Division Bench decision of this court in Khas Karnapura Colliety V/s. Union of India reported in AIR 1965 Patna 305. In that case a question arose relating to interpretation of a notification issued by the Central Govt. in terms of S.4(1) of the Coal Bearing Areas (Acquisition and Development) Act 1957. In terms of the provisions of the said Act even a part of the land covered by the mining lease could be proceeded against and in such circumstances also it was held that where an undertaking is worked as a single commercial unit, acquisition of land covered by the mining lease excluding the land actually required for coal digging purposes cannot be allowed. In that judgment Untwalia, J. as he then was, held as follows: "It would thus be noticed that the word Colliery in its commercial sense includes the business of selling the coal worked and the word mine is capable of different meanings in particular context. That seems to be the reason, if I may hazard a surmise, that in Sub-sec. (4) of Sec. 4 of the Act neither the word colliery nor the word mine has been used but reading the two portions of the said sub-section, it is clear that what is meant to be examined under it is the land comprised in the colliery or the mine if it forms one unit in the commercial and legal sense with reference to the various enactments, rules and regulations, referred to above. " 53. From the judgment of the learned trial court it is, therefore, clear that the entire lands in suit is being used on one part of the mining lease, the defendant No. 3 had no jurisdiction to assess any rent in relation thereto in purported exercise of his powers conferred upon him under Secs. 7 and 7A of the Bihar Land Reforms Act. 54. 7 and 7A of the Bihar Land Reforms Act. 54. Further, although in terms of Sec. 7 of the Bihar Land Reforms Act a factory belonging to an owner may come within the purview thereof but a mine is excluded from the definition of a factory. A factory or any other structure appertaining thereto is referable to such factory which belonged to extenure holder and not to a lessee. As a mine belonging to a tenure-holder or a lessee or a sub-lessee is governed under the provisions of Secs. 9, 10 and 10A of the Bihar Land Reforms Act. Sec. 7 or 7A thereof cannot have any application whatsoever in relation thereto. The provision in the said Act relating to Factory etc and Mines and Minerals are mutually exclusive. In terms of S. 4(1)(a) of the Bihar Land Reforms Act not only the right, title and interest of the tenure holder, inter alia, in relation to mines and Minerals vests in the State of Bihar but the same includes the lease in respect of such mines and minerals. It is, therefore, clear that what is saved under S.10 of the said Act is the right of a mining lessee which has got nothing to do with the ex-intermediary having a factory on the date of vesting of the zamindari. 55. Incidently it may be mentioned that in the case of Kanpur Sugar Works Ltd. V/s. State of Bihar reported in 1966 BLJR 142 it has been held that the expression building whether used for residential house or a factory must include not only that portion in which the masonry structures stand but also that portion of the vacant land which is necessary for the convenient occupation of the house or for the use of the factory as the case may be. It was further held that S.7 of the Act postulates that factory cannot be limited only to that inner portion where the machinery is installed but the buildings and structures used for the ancillary purpose of the factory must also be held to form part of the factory and the land on which they stand must include not only the actual site on which the structures are erected but also the adjacent land necessary for the convenient user of the said structures and buildings. It was further held that the whole of the said land covered by the outer enclosure would, therefore, be on a reasonable interpretation of S.7 (1) of the Act, be included within the words buildings or structures used as factory for the purposes of the said Sub-sec. even though that area may include some vacant land also. It was further held that even the residential quarters for the staffs also come within the purview of the aforementioned definition. 56. Taking thus into consideration all the aspects of the matter particularly the broad definition of mine as contained in S. 2(j) of the Mines Act 1952, in my opinion, there cannot be any doubt, whatsoever, that the area in question had been used for mining purposes. In that view of the matter and as the same forms part of the mining lease, the defendant No. 3 had no jurisdiction to assess any rent in terms of Secs. 5, 6 or 7 of the Bihar Land Reforms Act. 57. Further, assuming that some lands were not being used for mining purposes or incidental for such purpose, the only course left open to the said authority was to take possession of such land or enter into a fresh agreement with them in terms of the provisions of Mineral Concession Rules, 1960 and / or other statute but in relation to the said lease also, as they did not come within the purview of Secs. 5, 6, and 7 of the Bihar Land Reforms Act, recourse thereto could not have been taken by the defendant No. 3. 58. However, the position in law has completely changed subsequently. As noticed hereinbefore, during the pendency of the suit the colliery in question was nationalised as a result whereof admittedly, the land in suit vested in the Bharat Coking Coal Ltd. 59. The President of India, in exercise of his power conferred upon him under Art.123 (1) of the Constitution of India promulgated an ordinance known as Coking Coal Mines (Taking over of Management) Ordinance 1971 whereby and whereunder the management of all coking coal mines and the coke oven plants mentioned in schedules appended thereto vested absolutely in the Central Government free from all encumbrances. The said ordinance came into force on 17-10-71. 60. The said ordinance came into force on 17-10-71. 60. The said Ordinance was later on, repealed and replaced by a Parliamentary Act known as Coking Coal Mines (Taking Over of Management) Act, 1971. 61. Thereafter the Parliament enacted Coking Coal Mines (Nationalisation) Act 1972 which although received the assent of the President of India on 17-8-1972 but the same was given retrospective effect and retroactive operation with effect from 1-5-72; in terms whereof the right, title and interest in relation to the interests of the mining lessees vested absolutely in the Central Govt. with effect from the aforementioned date. 62. By reason of the said Act, the Central Govt. became a mining lessee under the State of Bihar as if a mining lease under the provisions of the Mineral Concession Rules 1960 for the maximum period has been granted to it by the State Govt. 63. In terms of S.7 of the aforementioned Nationalisation Act of 1972, the Central Govt., by issuance of a notification in this regard was empowered to direct that any coking coal mines instead of continuing to vest in the Central Govt., shall vest in a Govt. Company. 64. In terms of the provisions of the said Act a notification had been issued as a result whereof the plaintiff became a mining lessee under the State of Bihar for the maximum period in respect whereof a mining lease could be granted to it in terms of the provisions of Mineral Concession Rules 1960. 65. The said Coking Coal Mines (Nationalisation) Act overrides the provisions of any other law for the time being in force. 66. Thus a legal fiction was created as a result whereof M/s. Bharat Coking Coal Ltd. became a mining lessee under the State of Bihar; the terms and conditions whereof are to be governed under the provisions contained in the Mineral Concession Rules 1960. 67. As noticed hereinbefore, R.27(1)(d) of the Mineral Concession Rules 1960 as also part V of the model Mining Lease contained in form K appended to the schedule of the Mineral Concession Rules 1960 containing the term, conditions and covenants would govern the parties. 67. As noticed hereinbefore, R.27(1)(d) of the Mineral Concession Rules 1960 as also part V of the model Mining Lease contained in form K appended to the schedule of the Mineral Concession Rules 1960 containing the term, conditions and covenants would govern the parties. Thus, there cannot be any doubt whatsoever that so far as Bharat Coking Coal Ltd. is concerned, the right, title and interest of the mines has vested in it in terms of the provisions of Coking Coal Mines (Nationalisation) Act, shall be governed by the provisions of Mineral Concession Rules. 68. Incidentally it may be mentioned that the definition of mine as occurring in S. 3(j) of the said Nationalisation Act is much more broader than the definition of mine occurring in S. 2(j) of the mines Act, 1952. 69. In terms of the provisions of the said Act even a weigh bridge is considered to be a part of the mine. Reference in this connection may be made to the case of Valley Refractories Pvt. Ltd. and another V/s. K.S. Garewal reported in AIR 1978 Calcutta 574. 70. In this view of the matter, in my opinion, it must be held that the defendant No. 3 had no jurisdiction to make any order of assessment of rent as the matters in relation to the determination and/or payment of surface rent are matters governed now by the provisions of Mineral Concession Rules 1960. 71. In view of my findings aforementioned, it is not necessary to decide the question as to whether the learned trial court had jurisdiction to very the quantum of rent assessed by the Circle Officer or not. 72. However, there cannot be any doubt that the civil court could not have done so and in any event the learned trial Court has not assigned any reason as to how he arrived at the aforementioned quantum of rent of Rs. 4/ - per katha from Rs. 6.00 per katha as a reasonable sum by way of rent. In the result, First Appeal No. 22 / 83 (R) is allowed and the suit filed by the plaintiff, Bharat Coking Coal Ltd. is decreed whereas First Appeal No. 70 / 83 (R) preferred by the State of Bihar and others is hereby dismissed. However, in the facts and circumstances of these cases there will be no older as to costs. Order accordingly.