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Jharkhand High Court · body

2009 DIGILAW 869 (JHR)

Bharat Coking Coal Limited v. State of Jharkhand

2009-06-23

AJIT KUMAR SINHA

body2009
ORDER JUDGMENT : The present writ petition has been preferred for quashing of the order dated 7.10.2003 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh, the respondent no.2 herein, in C.N.T. Appeal No. 2/1998 whereby and whereunder the appeal filed by the respondent no.4 Sri Pradeep Kumar Bose under Rule 74 of the Chotanagpur Tenancy Rules, 1959 has been allowed. The further prayer is for confirmation of the order dated 5.12.1997 passed by the Settlement Officer, Dhanbad, the respondent no.3 herein, in case no. 163 of 1991 whereby and whereunder he has been pleased to allow the appeal of the petitioner by directing the opening of the Record under ownership of the petitioner in respect of the land situated at Mouza-Bhupatdih (Mouza No. 252) appertaining to Khata No. 20, Plot No. 169, measuring an area of 0.73 acres as vested land in the petitioner’s company by virtue of the provisions contained in Section 3 of the Coal Mines (Nationalization) Act, 1973 specially in the light of the definition of ‘Mine’ as contained in Section 2(h) (vii) of the said Act. The further prayer is for issuance of an appropriate writ, order or direction commanding upon the concerned respondents not to take any action and to forbear them from giving effect to and acting pursuant to or in furtherance of the order dated 07.10.2003 passed in C.N.T. Appeal No. 2/1998. 2. The facts, in brief, are set out as under: One Profulo Chandra Mazumdar, Power of Attorney holder of Katras Raj Estate settled an area of 3.98 acres of land under Plot No.169, C.S. Khata No. 20 of Mouza-Bhupatdih in favour of Lalit Amulyo Mohan Basu on 26.9.1924 by a registered deed of Settlement vide Deed No. 3370, Mining and other allied purposes. On the death of Lalit Amulyo Mohan Basu the aforesaid land were inherited by N.K. Bose & Brothers and the private respondent no.4 is the legal heirs of N.K. Bose & Brothers. In the revisional survey records the said lands were recorded in the name of West Katras colliery which was nationalized under the Coal Mines (Nationalization) Act, 1973 which came into effect on 1.5.1973 and the same appears at Serial No. 207 in the Schedule to the Coal Mines (Nationalization) Act, 1973. 3. In the revisional survey records the said lands were recorded in the name of West Katras colliery which was nationalized under the Coal Mines (Nationalization) Act, 1973 which came into effect on 1.5.1973 and the same appears at Serial No. 207 in the Schedule to the Coal Mines (Nationalization) Act, 1973. 3. It appears that the forefather of the private respondent who were ex-colliery owner had installed a workshop on the aforesaid land for casting, moulding, repair and maintenance of tubs/buckets used for loading coal from the colliery seam and bringing the same on rails to the pit head and the said workshop was named and styled as Ruby Engineering Works prior to the nationalization of the Coal Mines in the year 1961. The said respondent no.4 filed an application under Section 89 of the Chotanagpur Tenancy Act challenging the recording made in R.S. Khatiyan dated 20.3.1987. The case of the private respondent no.4 was that a family partition took place on 25/26.9.1974 and 73 decimals of lands on which the workshop is situated was allotted to his share. The Assistant Settlement Officer vide its order dated 7.9.1991 allowed the case of the respondent no.4 in respect of 73 decimals of land and directed the same to be entered in R.S. Khatiyan No. 31 in the name of respondent no.4 under a ‘Batta’(divided) Plot No.232/1 with the nature of land ordered to be recorded as ‘Makan Maisahan” Kabil lagan. The petitioner being aggrieved preferred a First Appeal F.A. No. 163/1991 in the court of Survey Settlement Officer at Dhanbad, under the provisions of Section 89(2) of the Chotanagpur Tenancy Act, 1908 read with Rule 74 of the Chotanagpur Tenancy Rules and the appeal was dismissed vide order dated 23.9.1993. Thereafter, the petitioner preferred a Second Appeal under Rule 74 of the Chotanagpur Tenancy Rules, 1959 stating that the related property by virtue of forming part of the West katras colliery already stood vested in the petitioner’s Company on the enactment of the Coal Mines (Nationalization) Act, 1973 with effect from 1.5.1973 free from all encumbrances. It also pointed out that the work shop was set-up and established on the land which was exclusively engaged in the manufacture of coal mining machinery and the same was established by the ex-colliery owner. The respondent no.2 after hearing the matter set aside the order dated 23.9.1993 passed in Case no. It also pointed out that the work shop was set-up and established on the land which was exclusively engaged in the manufacture of coal mining machinery and the same was established by the ex-colliery owner. The respondent no.2 after hearing the matter set aside the order dated 23.9.1993 passed in Case no. 163/1991 and remanded the matter to the Settlement Officer to give a decision in accordance with law after making spot inspection. On remand, the Settlement Officer, respondent no.3 herein, made a spot/site inspection and heard the parties at length and vide its order dated 13.11.1997/5.12.1997 allowed the appeal and directed the opening of R.S. Survey Khata in the name of petitioner in respect of the lands in question. The respondent no.4 being aggrieved filed an appeal under Rule 74 of the Chotanagpur Tenancy Rules, 1959 which was registered as C.N.T. Second Appeal No. 02/1998 and the second appellate court, respondent no.2 herein, vide its impugned Judgment dated 7.10.2003 was pleased to allow the said second appeal only on the basis of the possession. 4. The main contention raised by the learned counsel for the petitioner is that the right, title and interest in a mine or mining area used in relation to a mine vested in the Central Government Coal Companies free from all encumbrance and Katras Colliery also vested and was included in the Schedule and compensation having been paid no claim survives of the private respondent. The next contention raised is that Section 2(h) of the Coal Mines (Nationalization) Act, 1973 defines mine which is an inclusive definition. The next contention raised by the learned counsel for the petitioner is that the issue has been fully considered and settled by a Bench of three Hon’ble Judges of Hon’ble Supreme Court in the matter of M/s B.C.C.L. Vs. Madan Lal Agrawal reported in (1997) 1 SCC pg 177. 5. The learned counsel for the respondents submits that there was a partition/family arrangement dated 26.9.1974 and 73 decimals of land was carved out and recorded in the name of respondent no.4. It has also been contended that the impugned order passed was perfectly justified since respondent no.4 was in possession. 6. I have considered the rival submissions, pleadings and the case law. It has also been contended that the impugned order passed was perfectly justified since respondent no.4 was in possession. 6. I have considered the rival submissions, pleadings and the case law. There is no dispute about the fact that the Coal Mines (Nationalization) Act, 1973 came into force with effect from 1.5.1973 and the Schedule appended to it included all the erstwhile private collieries which stood vested in the Central Government free from all encumbrances. The West Katras Colliery is listed at Sl. No. 207 of the Coal Mines (Nationalization) Act, 1973 of the Schedule appended with the Act. There is no dispute that at the time of vesting there was no family arrangement or partition and the alleged family arrangement/partition based on which the respondent no.4 raised the claim, even according to him, is dated 26.9.1974 which is much after the vesting and the parliamentary enactment. 7. The erstwhile private collieries, mines and anything used in relation to a mine stood vested in the Central Government owned company and they were also paid compensation as determined. The issue with regard to vesting and inclusive definition of mines is no more res-integra and a Bench of three Hon’ble Judges of Hon’ble Supreme Court in the matter of M/s B.C.C.L. Vs. Madan Lal Agrawal(Supra) while interpreting the inclusive definition of mines under Section 2(h) of the Coal Mines (Nationalization) Act, 1973 held as under: “ In addition, the definition of ‘mine’ also covers all those assets which are required for a proper functioning of the mine irrespective of whether these assets ‘belong’ to a mine or not. Thus, for example, Section 2(h)(vi) covers all lands, buildings, machinery and equipment, instruments, stores, vehicles, railways, tramways etc. adjacent to a mine and used for the purposes of the mine. Therefore, all these assets if they are lying adjacent to a mine and are required for the proper functioning of the mine would be acquired irrespective of whether they belong to the “owner of a mine” or not. Similarly under Section 2(h)(ix) all power stations in a mine operated primarily for supplying electricity for the purposes of working the mine or a number of mines under the same management will be acquired irrespective of whether the power stations belonged to the mine or owner of the mine, or not. Similarly under Section 2(h)(ix) all power stations in a mine operated primarily for supplying electricity for the purposes of working the mine or a number of mines under the same management will be acquired irrespective of whether the power stations belonged to the mine or owner of the mine, or not. Sub-clause (xi) of Section 2(h) provides that all other [other than those in sub-clause (x)] lands and buildings wherever situated, if solely used for the location of the management, sale or liaison offices or for the residence of officers and staff of the mine are also acquired. Unlike sub-clause (x), sub-clause (xi) does not contain the words “belonging to the owners of the mine”. Therefore, the definition clause of ‘mine’ covers at least two different kinds of property; (i) properties which belong to the mine and (ii) properties which are used by the mine for a proper functioning of the mine. The first category of properties would be properties which are of the ownership of the mining company. The second category of properties need not necessarily be of the ownership of the mining company. These could also be properties which are leased by the mining company or in possession of the mining company and used by it.” 8. Likewise, under Section 2(h) (vii), all workshops in or adjacent to a mine and used substantially for the purposes of the mines are also included under the definition of mines stood vested in accordance with the provisions contended in the Coal Mines (Nationalization) Act, 1973 and the same is quoted as under:- “All workshops (including buildings, machinery, instruments, stores of such workshop and the lands on which such workshops stand) in, or adjacent to, a mine and used substantially for the purposes of the mine or a number of mines under the same management.” 9. In (2004) 13 SCC 67 (Western Coalfields Ltd. Vs. Central Bank of India) while considering a similar issue, the Hon’ble Supreme Court referred to and relied upon the aforesaid Judgment of M/s B.C.C.L. Vs. In (2004) 13 SCC 67 (Western Coalfields Ltd. Vs. Central Bank of India) while considering a similar issue, the Hon’ble Supreme Court referred to and relied upon the aforesaid Judgment of M/s B.C.C.L. Vs. Madan Lal Agrawal and at para-5 held as under: “5.That the plant and machinery which were hypothecated by the private respondents to Respondent 1 formed part of the mines and, therefore, subject to nationalisation under the Coal Mines (Nationalisation) Act, cannot be in dispute not only having regard to the decision of the Commissioner of Payments, but also the definition of the word in the Act and the decisions of this Court more particularly the decision in Bharat Coking Coal ltd. V. Madanlal Agrawal (1997) 1 SCC 177 ) construing the definition. As such on the nationalisation of the two coal mines, the hypothecated assets vested in the appellants free from all encumbrances in terms of Section 6 of the Coal Mines (Nationalisation) Act. To the extent that Respondent 1 has any claim against the private respondents in respect of the hypothecated goods, Respondent 1 must seek for recovery of the same by pursuing its remedy under Section 20 of the Act before the Commissioner of Payments or by such other method which may in law be available to it. No decree could have been passed against the appellants nor are they obliged to meet the liabilities of the private respondents.” 10. There is no dispute about the fact that Ruby Engineering Work is a work shop which formed part of Western Katras Colliery which stood vested on 1.5.1983 itself and it is used for mining purposes and is situated in or adjacent to the mines. 11. The Hon’ble Supreme Court in (2006) 6 SCC 340 (South Eastern Coal Fields Ltd. Vs. Commissioner, Custom & Central Excise, M.P.) while considering the issue with regard to duty on all manufacturing goods in a workshop in a mining area and its exemption thereof considered the definition of mine as defined under Section 2(1) (j) of the Mines Act, 1952 which is quoted as under: Section 2(1)(j)(viii) of the Mines Act states that mine includes: “2. (1)(j)(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;” 12. (1)(j)(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;” 12. Further, while considering the issue it interpreted and defined the word precincts of a mine and at para-23 and 24 held as under: “23. However, where the meaning of a word or expression is not clear, obviously the literal rule of interpretation cannot be applied, and hence we have to take resort to other rules of interpretation e.g. Heydon’s mischief rule, the purposive rule, etc. In our opinion in the present case the purposive rule should be applied. Under this rule, we have to see the purpose for which the provision was made. Looking at it from this angle, we are of the opinion that the word “precincts” has to be given the broader meaning and not the narrower meaning. 24. In other words, we have to interpret the word “precincts” in the exemption notification to mean the surrounding region or area, as defined in Collin’s English Dictionary or the surroundings or environs of a place as defined in New Shorter Oxford English Dictionary. This is because the purpose of the exemption notification is to grant exemption from excise duty to goods produced in a mine so as to encourage the mining industry. A workshop which is in an area in the environs of a mine and is existing solely for the purpose connected with the mine and under the same management, is obviously directly serving the mining operations. Hence, we have to interpret the notification so as to include such a workshop within the definition of a mine for the purpose of grant of exemption, as that would encourage the mining industry.” 13. Hence, we have to interpret the notification so as to include such a workshop within the definition of a mine for the purpose of grant of exemption, as that would encourage the mining industry.” 13. Section 2 (m) of the Factories Act defines factory which does not include a mine and the same is quoted as under:- (m) “Factory” means any premises including the precincts thereof- (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,-but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)], or [a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place]; 14. In view of the aforesaid, I am of the considered view that the workshop and the land in question fall within the ambit of definition of mines under Section 2(h) of the Coal Mines (Nationalization) Act, 1973 and as such stood vested in the Central Government on the appointed day by virtue of provision of Section 3 of the Act, which is quoted as under: “On the appointed day, the right, tile and interest of the owners in relation to the coal mines specified in the schedule shall stand transferred to, and shall vest absolutely in, the Central Government free from all encumbrances.” 15. In the instant case the workshop is in a mining area and is used in connection with the mining purposes and is thus included under the definition Clause of 5.2 (h) (vii) of Coal Mines Nationalisation Act as held in the judgment aforesaid. 16. Considering the aforesaid facts and circumstances of the case, this writ petition is allowed and the impugned order dated 7.10.2003 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh is hereby quashed.