STATE OF U P v. DISTRICT JUDGE AGRA — 1995 DIGILAW 250 (ALL)

G. P. MATHUR, J. Babu Lal Goyal and Jagdish Prasad Goyal, respon dent No. 2 and 3 (hereinafter referred co as the plaintiffs) filed Suit No. 144 of 1993 against the State of U. P. through Collector, Agra (hereinafter referred to as the defendants) in the Court of Munsif, Fatehabad, Agra praying that a decree of permanent prohibitionary injunction be passed against the defendants restraining them from interfering in the possession of the plaintiffs over the property in dispute either by execution of a contract of lease or by an auction lease of the lease hold rights or by delivering possession thereof to anybody else by dispossession of the plaintiffs. At the foot of the plaint, the details of the property in dispute was given. The plaintiffs also moved an application under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying that defendants be restrained from interfering with the plaintiffs possession over the property in dispute either by auction or execution of lease or by authoris ing any one else to interfere with the plaintiffs right of removal of the red stones from the plots in question. The State filed an objection to the injunc tion application. The learned Munsif by his order dated 22-4-1993 dismissed the injunction application. The plaintiffs preferred an appeal under Order XLIII, Rule 1, CPC and the same was partly allowed by VIth Addl. District Judge, Agra by his judgment and order dated 30-4-1994. It was directed that a Vakil Commissioner will get a survey done of 37. 5 acres of land claimed by the plaintiffs and till the survey of the disputed land was done and the same had been identified on the spot, parties will maintain status quo regarding possession. Subsequently a review application was tiled by the plaintiffs which was allowed on 16-5-1994 and it was directed that defendants will not interfere with the plaintiffs possession over the property in dispute. 2. In view of the amendment to Section 115, CPC in the State of U. P. a revision against the appellate order of the Addl. District Judge is not main tainable. 2. In view of the amendment to Section 115, CPC in the State of U. P. a revision against the appellate order of the Addl. District Judge is not main tainable. This view has been taken by a Fuii Bench of our Court in M/s. Jupitar Chit Fund v. Dwarikadas, AIR 1979 All 218 , which was affirmed by Supreme Court in Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 899 and Vishnu Awatar v. Sheo Awatar, AIR 1980 SC 1575 Feeling aggrieved by the orders passed by the Addl. District Judge, the State (defendants) has preferred the present writ petition under Article 226/227 of the Constitution. The plaintiffs (respondent Nos. 2 and 3) had put in appearance at the time of admission hearing of the writ petition and by the order dated 16-11-1994 they were given opportunity to file counter affidavit annexing therewith all the documents on which they rely in support of their title and also a copy of the lease deed on the basis whereof they claim title to excavate red stones from the land in dispute. Since the parties have exchanged affidavits, the writ petition is being disposed of finally at the admission stage. 3. Since the parties have exchanged affidavits, the writ petition is being disposed of finally at the admission stage. 3. In order to judge whether the plaintiffs have any prima facie case to get an injunction order, their right to remain in possession and operate the mines and excavate the red stones (minerals) needs to be examined The case of the plaintiffs, in brief, is that they were the proprietors in possession of stones quarries situate in plot No. 1 and 14 of Village Basai-Jagner and plot No. 1 of Village Karahaki and Baghaur, Tantpur in Tehsil Kheragarh, district Agra for over 100 years since the time of their ancestors; that the Collector, Agra vide bib order dated 9-8-1953 invited applications from the zamindars of the stone-quarries to apply for lease and plaintiffs made application for the said purpose on 17-9-1953; that the Tehsildar in pursuance of the direction issued by the Collector tried to take the management and control over the stone quarries on 16-3-1954; that the plaintiffs and other co-owners then tiled writ petition No. 260 of 1954 in the High Court which was allowed on 18-3-1955 and the notice issued by the Collector was quashed and the plaintiffs were held entitled to continue to operate the said mines; that the State of U. P. made a reference to Mines Tribunal (hereinafter referred to as the Tribunal) which was decided on 24-11-1977 and the plaintiffs were found to be in possession and entitled to 37. 5 acres of land; that the Supreme Court has passed an order in favour of the plaintiffs on 4-12-1980 directing the defendants to determine the amount of royalty which is payable by the plaintiffs; that the Tribunal had passed another order in favour of the plaintiffs on 16-10-1986; that in another writ petition filed by plaintiffs, the High Court has passed order on 4-11-1992 for demarcating the plaintiffs land measuring 37. 5 acres; and that the plaintiffs have throughout been in possession and are entitled to excavate the minerals from the aforesaid 37. 5 acres of land and the defendants have no authority in law to interfere with the mining operation carried on by the plaintiffs. 4. 5 acres; and that the plaintiffs have throughout been in possession and are entitled to excavate the minerals from the aforesaid 37. 5 acres of land and the defendants have no authority in law to interfere with the mining operation carried on by the plaintiffs. 4. Before examining the question as to whether on the facts pleaded by the plaintiffs they have a legal right to remain in possession and excavate the minerals, it will be convenient to refer to the relevant provisions of U. P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 1951 ). Section 4 of the Act provides that all estates situate in Uttar Pradesh shall vest in the State on a date to be specified by notification and all such estates shall stand transferred to and vest, except as hereinafter provided, in. the State free from all encumbrances. The notification was issued on July 1, 1952 and thereafter with effect from the said date all estates vest in the State. The relevant portion of the Sections 6, 7 and Sections 106 and 107 are quoted below:- "section 6 - When the notification under Section 4 has been published in the Gazettee, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely; (a) All rights, title and interest of all the intermediaries- (i ). . . . . . . . . . . . . . (ii ). . in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances: Section 7 - Nothing contained in this chapter shall in any way affect the right of any person- (a) to continue to work any mines comprised in any estate herein before acquired which shall be governed by the law for the time being in force: Section 106 - Notwithstanding anything contained in this Act, the right to operate or work mines and to extract minerals therefrom shall, from the date of vesting, be governed by the provisions of this Chapter. Section 107 - (1) With effect from the date of vesting, all mines com prised in the estate or estates acquired under this Act as were in operation on the date immediately preceding the said date and were being worked directly by the intermediary shall, if so desired by him, be deemed to have been leased by the State Government to the intermediary, and such intermediary shall be entitled to retain possession of those mines as a lessee thereof. (2) The terms and conditions of the said lease by the State Govern ment shall be as may be agreed upon between the State Govern ment and the intermediary, or, in default of agreement, as may be settled by a Mines Tribunal appointed under Section 110: Provided that all such terms and conditions shall be in accordance with the provisions of any Central Act for that time being in force regulating the grant of new mining leases. " 5. The plain reading of the aforesaid provisions will show that all rights, title and interest of the intermediaries in mines and minerals ceased on July 1, 1952 and the same vested with the State of U. P. free from all encum brances. However under Section 7 of the Act such intermediaries were given rights to continue to operate the mines. Under Section 107 all mines in the estate acquired under the provisions of the Act were deemed to have been leased by the State Government to the intermediary and such intermediary was entitled to remain in possession of the mines as a lessee thereof. It however provides that terms and conditions of the aforesaid lease shall be such as may be agreed between the State Government and the intermediary or may be settled by a Mines Tribunal. The precise question as to whether the intermediary or the erstwhile zamindar had any title to the mines and minerals after the notification had been issued under Section 4 of U. P. Act No. 1 of 1951 has been considered by the Supreme Court in Bhagwan Dass v. State of U. P. , and others, AIR 1976 SC 1393 wherein in paragraph 5, the Court rules as follows: "these provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile zamindars possessed, stood extinguished and became vested in the State Government. " Again in paragraph 9, it was held as follows: "the right of the former zamindars to mines and minerals was extin guished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar: he was entitled to mines and minerals. With the abolition of Zamindari by the 1951 Act, that right has passed on not to the appellant but to the State Government. The appellants writ petition filed to restrain the State Government from auctioning the right to undertake mining operations must therefore fail. " In view of the language of the statute and the authorative pronouncement by the Apex Court, there can be no doubt whatever that the plaintiffs, who claim to be intermediaries and erstwhile Zamindars, have no legal right or title over the disputed land including the mines and minerals and the same now vests with the State Government. The plaintiffs therefore cannot claim any legal right to excavate the minerals unless they show that a lease has been executed in their favour by the State Government under Section 107 of the Act. 6. The plaintiffs claim that they had filed some writ petitions in the High Court in which orders were passed recognising their right to operate the mines, and therefore they are entitled to an injunction order in their favour. The effect of these judgments may now be considered. The Collector, Agra issued notice on 9-8-1953 to the effect that intermediaries had lost all such rights in mines and minerals which had vested in the State of U. P. and they were directed to deposit the income which they had earned after 1-7-1952 and they were also directed to take steps to obtain leases in respect of the mines of which they claimed to be in possession. The plaintiffs or their predecessors made an application on 18- 9-1953 challenging the right of the State to take over the mines and further prayed that a lease be granted in their favour in accordance with provisions of Sections 107 and 108 of U. P. Act No. 1 of 1951, Another notice was issued on 16-3-1954 stating that the possession of all the stone quarries would be taken over. A notice was also given by the Forest Officer on 28-2-1954 stating that the quarries belong to the State Government. A notice was also given by the Forest Officer on 28-2-1954 stating that the quarries belong to the State Government. Another notice was issued on 24-3-1954 that the right to excavate stones (minerals) for the period 1-4-1954 to 30-6-1954 would be auctioned on 2-4-1954. The predecessors of the plaintiffs then filed writ petition No. 260 of 1954 in the High Court pray ing that a writ of mandamus be issued to the opposite parties not to enforce the order contained in the notices dated 9-8-1953, 16-3- 1954 and 2-4-1954 and further that a direction be issued for granting a lease. The writ petition was allowed on 18-3-1955, notices issued were quashed and the opposite party (State of U. P.) was directed not to hold auction and was further directed to consider the application moved by the petitioner for grant of a lease under Section 106 to 108 of the Act. It was also held that the petitioners were entitled to continue to operate the mines. In pursuance of the judgment in the writ petition, the Collector, Agra by his order dated 8-1-1964 offered the terms and conditions of the proposed mining lease to the plaintiffs and a draft of the lease for a period of 15 years containing the terms and conditions thereof was also sent. The plaintiffs filed an objection against the terms and conditions of the proposed lease especially with regard to the period fixed therein which was 15 years. They also filed a writ petition in the High Court challenging the direction containing in the order of Collector dated 8-1-1964. The writ petition was dismissed by the High Court on 9-2-1965 and it was held that in case of default of agreement between the State Government and the petitioner (plaintiffs), the terms and conditions of the lease may be settled by the Mines Tribunal under Section 110 of the Act. Thereafter the State Government constituted a Mines Tribunal under Section 110 of the Act by means of a notification dated 22-2-1965 of which the District Judge, Agra was the Chair man. The Collector, Agra then made an application dated 12-10-1966 to the Mines Tribunal for settling the terms and conditions of the lease which was to be granted in favour of the erstwhile Zamindars under Section 107 of the Act. The case of the plaintiffs was registered as Ref. The Collector, Agra then made an application dated 12-10-1966 to the Mines Tribunal for settling the terms and conditions of the lease which was to be granted in favour of the erstwhile Zamindars under Section 107 of the Act. The case of the plaintiffs was registered as Ref. No. 98 of 1966 and sixteen references were decided by a common order dated 24-11-1977. Copy of the judgment of the Tribunal has been filed as Annexure CA-2 to the counter affidavit. The Tribunal held that the period of lease would be for the previous period from 1-7- 1952 under the deeming effect and ten years from the date of order. Therefore the period of lease in favour of the plaintiffs, as per the terms of the order of the Tribunal could be from 1-7-1952 to 24-11- 1987. 7. The plaintiffs were aggrieved by that part of the order of the Tribunal by which it had directed that the lease would come to an end after a period of ten years from the date of the order, namely, on 24- 11-1987, as the order had been passed on 24-11-1977. They accordingly filed writ petition No. 1984 of 1978 in the High Court for quashing of the order of the Mines Tribunal and they further prayed that a writ of mandamus be issued commanding the State of U. P. not to interfere on the strength of the impugned order and treat them as perpetual lessee in respect of the area under mining operation. The writ petition was, however, dismissed on 10-8-1979 and the judgment of the Divi sion Bench in the leading case of Sheo Varan Singh v. State of U P. , AIR 1980 All 92 , The plaintiffs then filed Special Leave petition in the Supreme Court against the judgment of the High Court which has now been registered as Civil Appeal No. 2908 of 1980 in which a limited stary order has been granted on 4-12-1980 staying the payment of dead rent for the period 1952 to 1963 but they have been directed to pay royalty. Copy of this order has been filed as Annexure CA-3 to the counter affidavit. Copy of this order has been filed as Annexure CA-3 to the counter affidavit. Along with the objec tion filed before the learned Munsif by the State, copy of an application which was filed by plaintiffs before the Supreme Court on 24-11-1992 praying that the auction proposed to be held on 28-11-1992 be stayed and the copy of the order dated 27-11-1992 rejecting this prayer has also been filed (Annexure 6 to the writ petition ). The plaintiffs had also moved an application in the aforesaid appeal on 24-11-1992 praying that the auction proposed to be held by the State on 28-11-1992 may be stayed but this application was dismissed on 27-11-1992. Copy of the application and the order passed thereon were filed along with the objection which was filed by the State (defendants) in reply to the injunction application before the learned Munsif and it has also been annexed along with Annexure 6 to the writ petition, The facts mention ed above would show that except for the order of the Mines Tribunal dated 24-11-1977 which directed that a lease be executed in favour of the plaintiffs for a period of ten years hence namely, till 24-11-1987, there-is no other order in their favour. In terms of the order of the Tribunal no lease deed was in fact executed. Even assuming that the plaintiffs got a right to carry on mining operation without execution of a formal lease deed in terms of the order of the Tribunal, the said right also came to an end on 24-11-1987 and thereafter they have no right whatsoever to operate the mines or to excavate minerals therefrom. 8. The affect of the orders passed by this Court in two subsequent writ petitions filed by the plaintiffs may now be considered. It appears that a notice was issued by the district authorities on 7-10-1992 for holding auction for settling the right to carry on mining operation for excavating stones. The plaintiffs filed writ petition No. 44589 of 1992 in the High Court praying that a writ of mandamus be issued commanding the Collector, Agra not to give effect to the aforesaid auction notice. The plaintiffs filed writ petition No. 44589 of 1992 in the High Court praying that a writ of mandamus be issued commanding the Collector, Agra not to give effect to the aforesaid auction notice. The writ petition was disposed of on 4-12-1992 and the relevant portion of the order passed by the bench reads as follows: "the only contention of the petitioners is that the aforesaid area is not demarcated or specified on the spot and unless that is done, the auction, if any, made or the date fixed pursuant to the afore said notice, may include the area belonging to the petitioners. It is, therefore, urged by the learned counsel for the petitioners that before holding auction pursuance to the aforesaid notice, the respondent be directed to demarcate and specify the aforesaid area on which the petitioners, admittedly worked. On these facts, the petition is disposed of finally with the observations that before holding auction pursuant to the notice dated 7th October, 1992 (Annexure IV to the petition ). The respondent will demarcate or specify the area demeasuring 37. 5 acres on which the petitioners are admittedly working to ensure that the same is not included in the said auction," 9. I have examined the record of the aforesaid writ petition which shows that it was filed in the Registry on 2-11-1992 and was disposed of finally on 4-12-1992 at the time of admission hearing without giving any opportunity to the State to file counter affidavit. It was asserted in the writ petition that the petitioners (plaintiffs of the present case) were in possession of 37. 5 acres of land and therefore a direction was issued to demarcate the aforesaid area. Shortly, thereafter another writ petition was filed complaining that the Collector held auction in which "2 acres of mining are already given on lease to the petitioners" had wrongly been auctioned. The writ petition was disposed of with a direction that the petitioners may make a complaint to this effect to the Collector. The order passed by this Court on 4-12- 1992 and 18-12-1992 do not show that there was any adjudication of the rights of the plaintiffs. Both the petitions were disposed of at the time of admission hear ing on the basis of the averments made therein and without giving any oppor tunity of hearing to the State. The order passed by this Court on 4-12- 1992 and 18-12-1992 do not show that there was any adjudication of the rights of the plaintiffs. Both the petitions were disposed of at the time of admission hear ing on the basis of the averments made therein and without giving any oppor tunity of hearing to the State. The orders passed in the aforesaid writ petitions do not show that the plaintiffs were found to be having any legal right to operate the mines after 24-11-1987. 10. It may be mentioned here that in spite of notice issued by the Collector and subsequent orders passed by the Tribunal, the plaintiffs did not obtain a lease deed in their favour The reason for this is not far to seek. Even the Mines Tribunal had held that the lease may be granted for the period of ten years from the date of the passing of the order i. e. from 1-7-1952 to 24-11-1987. The plaintiffs were not satisfied with this order and they wanted a lease in perpetuity. However the fact remains that no lease deed was over executed in favour of the plaintiffs yet they continued to operate the mines. This fact has been stated in paragraph 5 and 10 of the rejoinder affidavit. In spite of clear order passed by this Court on 16-11-1994 the plaintiffs have not filed copy of any lease deed. Shri Ravi Kant, learned counsel for the plaintiffs has submitted that Rule 3 and 14 (2) of U. P. Minor Mineral (Concession) Rules, 1963 provide that no person shall undertake any mining operations except under and in accordance with the terms and condi tions of a mining lease aad as the lease deed has not been executed, the period of ten years as provided by the order of the Mines Tribunal dated 24-11-1977 has not yet commenced. The contention is that since the period has not com menced, the plaintiffs are entitled to operate the mines. In my opinion, the contention raised by the learned counsel is wholly misconceived. The consis tent case of the plaintiffs is that they have throughout been operating the mines and excavating the minerals right from 1-7-1952 till the filing of the writ petition in 1992. It is stated in paragraph 24 of the counter affidavit filed by them that they have been carrying on mining operations. The consis tent case of the plaintiffs is that they have throughout been operating the mines and excavating the minerals right from 1-7-1952 till the filing of the writ petition in 1992. It is stated in paragraph 24 of the counter affidavit filed by them that they have been carrying on mining operations. Sri Ravi Kant has also fairly conceded that plaintiffs have been operating the mines and excavating the minerals throughout. In these circumstances, the conten tion advanced by the learned counsel that as the formal lease deed has not been executed, the period of ten years fixed by the Tribunal has not yet com menced, cannot be accepted. 11. The learned counsel has next submitted that the present writ petition arises out of proceedings in a suit and as the State (defendants in the suit) has admitted that the plaintiffs are entitled to 37. 3 acres of land, it is bound by the aforesaid admission and the right of the plaintiffs to excavate minerals from the aforesaid area cannot be disputed. It is true that in the objection filed on behalf of the defendants in the Court of learned Munsif in reply to the injunction application, it was stated that the plaintiffs are entitled to 37. 5 acres of land. It appears that the written statement m the suit has not yet been filed. The objection to the injunction application was filed by some employee working in the Department of Mines in the Collectorate at Agra. In view of the position which emerges out of from the provisions of U. P. Z. A. L. R Act and also the orders passed by the Mines Tribunal and the judgment of this Court in writ petition No. 1984 of 1978 decided on 10-8-1979, I do not consider it proper that the plaintiffs should be allowed to carry on mining operation merely because something has been stated by a minor functionary of the State in the reply filed to the injunction application. Taking the case of the plaintiffs at its best, there is no escape from the conclusion that after 24-11-1987 they have got no legal right whatsoever to operate the mines and in such a situation, it will not be proper to allow them to excavate the minerals merely because a wrong statement has been made in the objection filed before the learned Munsif. It may be pointed out that a rejoinder affidavit has been filed by the Mines Officer of Collectorate, Agra in this Court wherein it is asserted in paragraphs 12 and 15 that the plaintiffs have no right to carry on mining operations. Having given my deep consideration to the whole matter, I am clearly of the opinion that the plaintiffs have no right whatsoever to carry on mining operation after 24-11-1987. In fact, all those who were parties before the Mines Tribunal cannot carry on mining operation after the aforesaid date. Since the plaintiffs have no prima facie case in their favour, they are not entitled to any injunction order and the injunction application moved by them is liable to be dismissed. 12. For the reasons mentioned above, the writ petition succeeds and is hereby allowed. The impugned orders passed by the Addl. District Judge on 30-4-1994 and 16-5-1994 are quashed and the injunction application filed by the plaintiffs is dismissed. Petition allowed. .