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2021 DIGILAW 194 (MP)

Ultra Tech Cement Ltd. v. Nandkishore Pandey

2021-02-22

SANJAY DWIVEDI

body2021
JUDGMENT : Sanjay Dwivedi, J. 1. With the consent of the learned counsel for the parties, the matter is heard finally. This Petition has been filed by the petitioner under Article 227 of the Constitution of India questioning the legality, validity and propriety of the order dated 03/10/2020 (Annexure-P-14), whereby the Court below in an appeal preferred under Order 43 Rule 1(d) of Code of Civil Procedure has set aside the order dated 06/08/2020 passed by the trial court in Civil Suit RCSA 237/2013 thereby granted injunction in favour of the plaintiffs-respondents no. 1 and 2. 2. To resolve the controversy involved in this case, it is necessary to adumbrate the necessary facts of the case. The petitioner is a company incorporated under the provisions of Companies Act. In the year 2016, the petitioner entered into definitive agreement with respondent no. 3 for acquiring, amongst others, J.P. Bela Cement Plant at Rewa. In pursuance to the agreement executed between the petitioner and respondent no. 3 on 15/02/2017 and 02/03/2017, National Company Law Tribunal-Mumbai Bench sanctioned the schemes of agreement entered into between them. Accordingly, the petitioner has acquired Jaypee Bela Cement Plant of respondent no. 3 situated at Rewa. The predecessor in title of the petitioner M/s. J.P. Associates purchased two pieces of land in village Hinoti bearing Khasra Nos. 49 and 52 in the year 1985. The State of M.P. granted mining lease to the erstwhile M/s. J.P. Associates and after transferring the cement business to the petitioner, mining lease was also transferred in the name of the petitioner. The said lease was extended and registered on 20/08/2020. The respondents no. 1 and 2 being aggrieved by the sale of land to M/s. J.P. Associates, filed a Civil Suit No. 70A/2013 before V Civil Judge, Class-II, Rewa in the year 2013. The basic ground raised in the civil suit was that the vendor of the suit properties could not have sold the total land as it was a joint property and plaintiffs predecessor had 1/2 share in the same. In the said suit, the respondents prayed for a decree of declaration of the sale deed as null and void to the extent of half (1/2) share and also for grant of permanent injunction. The Written-Statement was filed by the respondent no. 3 on 13/10/2014. The trial court rejected the interim injunction application of the plaintiffs on 15/12/2015. In the said suit, the respondents prayed for a decree of declaration of the sale deed as null and void to the extent of half (1/2) share and also for grant of permanent injunction. The Written-Statement was filed by the respondent no. 3 on 13/10/2014. The trial court rejected the interim injunction application of the plaintiffs on 15/12/2015. Against the rejection of injunction, an appeal was preferred before the Additional District Judge. In the year 2016 in pursuance to the definitive agreement executed between the petitioner and respondent no. 3, National Company Law Tribunal has passed an order and sanctioned the scheme of agreement. Vide order dated 13/12/2017 V Additional District Judge, Rewa passed an order in a pending appeal i.e. 57/2016 and granted injunction by staying further activity changing the existing structure of the suit land for the further period of one year or till final adjudication of the dispute whichever is earlier. On 15/07/2020 respondents no. 1 and 2 filed an application before the trial court for grant of temporary injunction saying that the period of order granting injunction is already over. The petitioner filed reply to the said application and vide order dated 06/08/2020 the trial court rejected the same. Being aggrieved with the rejection of the said application, an appeal was again preferred and vide order dated 03/10/2020 interim injunction was granted by the appellate court restraining the petitioner from doing any mining work on 1/2 part of the disputed land being khasra no. 49 and 52 for the period of six months. Against the said order dated 03/10/2020 (Annexure-P-14), this petition is filed. 3. Shri Adhikari, submits that the suit was filed by the respondents no. 1 and 2 for declaration claiming 1/2 share in the joint property after more than 25 years from the date when the land was sold to the respondent no. 3. It is further contended that the suit for declaration is yet to be decided and right of the plaintiffs over the property will be determined only after final decree is passed. Thus, admittedly when the plaintiffs are out of possession and filed suit after 25 years of sale granting injunction restraining bona fide purchaser from carrying out mining operation which is being done in pursuance to the lease granted by the State Government, in any manner cannot be said to be proper and justified. Thus, admittedly when the plaintiffs are out of possession and filed suit after 25 years of sale granting injunction restraining bona fide purchaser from carrying out mining operation which is being done in pursuance to the lease granted by the State Government, in any manner cannot be said to be proper and justified. He further submits that no prima facie case is made out in favour of the plaintiffs and even they failed to show what irreparable injury has been caused to them. As such, the required ingredients for granting injunction are not in favour of plaintiffs and as such balance of convenience is also not in their favour. It is also contended by learned counsel for the petitioner that the injunction earlier granted was lapsed and for two years there was no interim injunction but application filed after expiry of two years for grant of injunction was considered and the appellate court granted injunction reversing the order passed by the trial court. He submits that the basic contention raised by the plaintiffs before the trial court was that before granting mining lease, no consent had been obtained by the State Government from the plaintiffs and therefore defendant/petitioner cannot carry out the mining operation. 4. Counsel for the petitioner relied upon a decision rendered by the Division Bench of this Court reported in 2008 (4) MPLJ 255 (Shyam Bihari Singh Vs. State of M.P. and others) which clearly laid down that for grant of mining lease under the provisions of Mines and Minerals (Development and Regulation) Act, 1957, no permission from the land owner is necessary. He submits that the petitioner has a valid lease granted by the State Government and as such having legal right to perform mining operation and if the order passed by the appellate court is not set aside, the petitioner would suffer great loss and irreparable injury, whereas plaintiffs would not suffer any loss. He further submits that even on a private land, the right to excavate the mineral is vested with the State as per Section 57 read with Section 247 of M.P. Land Revenue Code, 1959 (Herein after 'the Code'). 5. He further submits that even on a private land, the right to excavate the mineral is vested with the State as per Section 57 read with Section 247 of M.P. Land Revenue Code, 1959 (Herein after 'the Code'). 5. Per contra, learned counsel for the State has opposed the submissions made by learned counsel for the petitioner and submits that before entering into the land for excavating the mineral, permission from the land owner is a mandatory requirement and as such no permission has been granted by them, therefore, by granting injunction the Court below has restrained the plaintiffs from committing further illegality and also restrained to change the status of the land. He has supported the order passed by the appellate court which is impugned in this petition and further submits that nothing illegal has been done by the court below restraining the defendant to carry out the mining operation because the same would change the actual nature of the land and if injunction is not granted that may cause irreparable injury to the plaintiffs. 6. The appellate court instead of considering the required ingredients for granting injunction relied upon the order passed on earlier occasion granting injunction in favour of the plaintiffs and found that there was no material change in the circumstances and therefore considered the application and granted injunction holding that prima facie case is made out in favour of the plaintiffs. It is also observed by the appellate court that if the lease granted in favour of the defendant/present petitioner is executed then it is every likelihood of changing the original nature of land and also to avoid unnecessary litigation, granted injunction for the period of six months restraining defendant/present petitioner from carrying out the mining operation. 7. I have heard rival contentions of the parties and perused the record. In my opinion while granting injunction the Court has to see as to whether the plaintiff has successfully proved prima facie case in his favour or not and further to see if injunction is not granted what irreparable injury would cause to the plaintiff and further whether balance of convenience is in favour of the plaintiff or not. 8. Considering the factual circumstances of this case, indubitably, the suit has been filed for declaration of share in the property which was sold 25 years back from the date of filing the suit. 8. Considering the factual circumstances of this case, indubitably, the suit has been filed for declaration of share in the property which was sold 25 years back from the date of filing the suit. The plaintiffs were also not in possession of the property and further as per Section 247 of 'the Code' the Government has right over all the minerals and mines and sub Section (4) of Section 247 of 'the Code' very categorically provides that while exercising such a right over any land if the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the Government or its assignee shall pay to such person compensation for such infringement and amount of such compensation shall be calculated by the Sub Divisional officer. 9. It is clear from the provision of Section 247 that there is no requirement of taking permission from a land owner by the lease holder to enter into the land for carrying out the mining lease if granted by the Government. 10. The Division Bench in the case of Shyam Bihari Singh (supra) in para 16 has held as under: 16. Coming now to the argument of Mr. Tankha that if grant of mining lease in respect of minerals located in the private land can be made by the Government without the consent of the owner of the private land, then the valuable right to property which is not only a constitutional right but also human right will be seriously affected, we may say that as and when a challenge to the provisions of the 1957 Act and the 1960 Rules is made on this ground, the same can be considered by the Court, but so long as the language of Section 24-A of the 1957 Act and of the 1960 Rules, discussed above, is clear, we have no option but to hold that consent of the owner of the private land in respect of which mining lease is sought to be given by the Government is not mandatory. We are supported by Para 14 of the Judgment of a three Judge Bench of the Supreme Court in State of Tamilnadu Vs. M.P.P. Kavery Chetty (supra), which is quoted hereinbelow:- "14. We are supported by Para 14 of the Judgment of a three Judge Bench of the Supreme Court in State of Tamilnadu Vs. M.P.P. Kavery Chetty (supra), which is quoted hereinbelow:- "14. Learned counsel for the respondents submitted that under the first proviso of Rule 19-A a consent of the owner of the land was not made a condition and it was bad in law on that account. The submission does not take note of Section 24-A of the said Act. Thereunder the holder of a mining lease under the said Act or Rules made under it is empowered to enter the land on which the lease has been granted and carry out mining operations. He is obliged to compensate the land owner for any loss or damage that his operations may cause. Consent of the occupier is required only when the holder of the lease desires entry into any building or enclosed Court or garden." The three Judge Bench of the Supreme Court thus clearly held that the consent of the owner of a private land is not a condition precedent for grant of mining lease or for entering upon the land on which mining lease is granted for carrying out mining operations and the lessee is only obliged to pay compensation for any loss or damage to the owner of the private land. and finally while answering the reference made to the Division Bench it is also observed that the consent of the owner of the private land or opportunity of hearing to such owner of the private land is not mandatory for grant mining lease under the provisions of 'Act, 1957'. Even though, in the present case the plaintiffs are claiming share in the property and for such right declaration is yet to be made by the Civil Court. 11. In view of facts considered hereinabove, when the suit has been filed after 25 years of sale of land, no prima facie case is made out in favour of the plaintiffs. If the plaintiffs suffer any injury, they may be suitably compensated as has already been made clear that right over the minerals and mines are with the Government for which lease can be granted. 12. If the plaintiffs suffer any injury, they may be suitably compensated as has already been made clear that right over the minerals and mines are with the Government for which lease can be granted. 12. Thus, the submissions made by learned counsel for the respondents have no substance that if the plaintiffs are not restrained from carrying out the mining operation, it would change the very nature of the land and no consent has been obtained before entering into the land. 13. In view of the above, I am of the opinion that the order passed by the court below which is impugned in this petition is not sustainable as the Court below has not considered the material facts and required ingredients before considering the application filed under Order 39 Rule 1 and 2 of Code of Civil Procedure for grant of temporary injunction. 14. As a result, the petition is allowed. The order dated 03/10/2020 (Ammexure-P-14) passed by the appellate court which is impugned in this petition is hereby set aside.