Amar Jyoti Stone Crusting Co. v. the Union of India and Others

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 112 of 1961. Appeal by special leave from the judgment and order dated September 26, 1960, of the Punjab High Court, (Circuit Bench) at Delhi in R. S. A. No. 123.D of 1959. N. S. Bindra, I. C. Jain and 0. P. Rana, for the Appellant. C. K. Daphtary, B. Sen and T. lfl. Sen, for Respondents Nos. 1 to 3. Tarachand Brijmohan Lal for Respondent No. 4. 1961. August 8. The Judgment of the Court was delivered by ' AYYANGAR,,J.-This appeal has been filed pursuant to leave granted by this Court unqef Amar Jif,ti Stone C!'U•tlngCo. The Union of India Ayyangar J, A.ma,. Jyot; Stan,. Crwtiong Co. Tl~ Union of India Ayyangar J. 64 [1962] Art. 136 of the Constitution againgt the decision of the Punjab High Court in second appeal No. 123-D of 1959. The appellant-firm is the leHsee under a lease date<l December 21, 1955 of kasra Nos. 1621, j(j.J6, IG52, IG5il 1rn<l 1703 in Xaraina Village within the administration of the Chief Commissioner of Delhi.

As !Pssee the firm wa.s working certain stone-quarries in the fields which were the subjectmatter of its lease. The right of pNsons to quarry in the area is subject to the pro1•isions contained in the Delhi l\Iinor ;\fincral Rul<'s, l!l:IS framed in exercise of the powers conferred by s.155(1) of the Puujab Land Revenue Act, 188i. Under these rules an application has to Le made to the Collector for the grant of permits to effect qurirrying who was empowered to grnnt them at his discretion, the duration of these permits being one vcar, When such qunnying took placn the royalty at the rates specified in the rules was payable b~- the permit-holder. The rules, hO\rnvcr, expressly saved from their operation and from t.he need for a permit or the payment of royalty, the quarryiniz of any mineral proved to be on lane! belonging to the land-mvner in which he had the ri!'"ht. to the mineral under sA2 of the Punjab Larnl H.e,·enue Act, 188i.

The appellant-firm had a.ppliccl for ancl obtained permits under these rules and w<'re p:iying the royalty prescribed therefor from the commencement of their lease ri~ht up to .Tune 30, Hl!ii. For quarrying thereafter it~ application for a permit was not granted. The appellant-firm thereupon issued notice to the governmental authorities under s,80 of the Civil Procedure Code and filed the suit out of which the present appeal arises, on October 8, Hl5i. t Tho appellant praye<l in the suit for two main reliefs : (l) a declaration that it had a right to quarry stones from the suit-land apparently 65 even without a permit, and (2} alternatively for a perpetual injunction directing the defendants-the Union of India and the Collector and the Delhi Development Authorities-to issue the required permit on payment of royalties as before.

The first of the above re!iefa was based on the plea that the land-owner from 1vhom it claimed title under the lease, had vested in him the ownership of the minerals with the result that the appellant had a right to effect the qtrn.rrying without the necessity for a permit under the Delhi Minor Mineral Rules referred to earlier. The other alternative prayer was rested on the ground that even if the mineral rights in the suit-land vested in Government, the appellant had a legal right to carry on quarrying operations on the land and that there was an obligation on the part of the Collector to grant the permit applied for. It was the further case of the appellant that the Collector refused the permit mala fide, and for reasons which were extraneous to the purpose for which the power to grant permits was vested in him under the statutory rules.

The Trial Court dismissed the suit holding against the appellant on every crucial issue and this judgment has been affirmed by Courts right up to the High Court in the judgment now under appeal. Two principal points have been urged by Mr. Bindra-learned counsel for the appellant in support of its plea. His first contention was that the learned Judge of the High Court had misunderstood and misapplied tlie provisions of s.42 of the Punjab Land Revenue Act and that if that section were properly construed, the appellant's lessor should bo held to be the owner of the mineral rights in t,he suit-lands. For understanding this contention it is necessary to set out the terms of s.42. It reads : "42. ( 1) When in oompleted before the any record-of-rights eighteenth day of Amar Jyoti, Stffle Crusting Co. The Union of India Ayyangar J, A.mar Jyoti S101u Cru11ing Co. Tl~ Union of India Ayya"f'Sr J. 66 November, 18il, it is not expressly provided that any forest, quarry, unolaimed, un· occupied, deserted or waste land, spontaneous produce or other accessory interest in land belongs to the land-owners, it shall bo presumed to belong to the Government.

(2) When in any record-of-rights completed after that date it is not expressly providecl that any forest or quarry or any such land or interest belongs to tho Govornment it shall be preRUmed to belong to the land-owners. (3) The presumption created by sub· section ( 1) may be rebutted by showing- ( a) from the record or report made by tho assessing officer at the time of assessment, or (b) ifthe record or report is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land or interest, that the forest, quarry, land or interest was taken into account in the assessment of the land-revenue. , (4) Until the presumption is so rebutted, the forest, quarry, land or interest shall bo held to belong to the Government." y Learned Counsel is, no doubt, right in his submission that the learned single Judge of the High Court wrongly treated sub-el.

(4) of this section afs equallfy 1 app 1 li<~dablc tobthe pbresu 2 mptbion rha~sed 1 in 0 avour o t 10 an ownor y su ·s. ( ), ut t is c oes not, however, establish that the appellant is, on t4e facts of t4is case, entitleq to invoke the pre, 67 sumption enacted in sub-s.(2). It\vas common ground that records-of-rights had been prepared in respect of the village of . N araina twice after 1871, though the relevant entries in these documents were not placed ... before the · Court by either side. ~Ir. Bindra submitted that if once it was proved that a record-of-rights had been prepared for a village after 1871, the presumption in sub-s.(2) in favour of ·the land-owner being entitled to the minerals was attracted and that as the defendants in the 11resent case had not produced the record-of-rights the· Court should have proceeded on the basis that the appellant had proved its title . to the minerals .. \Ve are wholly unable to accept this construction of the section.

Section 42 (2) raises a presumption against the Government when in any record-of-· rights completed after November 18, 1871 it is not expressly provided that any quarry belongs ·to· the Government, but this presumption arises only when therecord-of.rights is before the Court and flows from the contents of the produced document. The sub-section is no authority whatsoever . for raising a presumption as to the contents of a recordof-rights which is not produced and is not.before the Court.

Learned Counsel for t11e appellant is not also justified in inviting the Court to draw a presumption against the defendants from the non-production of the document, because the record-of-rights is a public document an·d therefore available to the appellant as well who could have obtained a certified copy and filed it if it supported its case; · The appellant produeed for the year 1948-49 merely the .Jamabandi account of the. village· and relied on the fact that there was no mention therein of the Government being proprietor of the mineral rights ; but obviously the contents of this document could have no bearing on the custom obtaining in the village as to the proprietor-. ship of the minerals which would find ·mention only in a wajib-ul:arz and a. jamabandi account· is certainly not a document on the basis of which ;th~ . Amar Jyoti Stone Cruetin[j Co. The Union of Irwlia;- A.yyangar, J. Amar Jyoti Stone Cruattng Co. Thi Union of India Ayyan1ar J, 68 [1962] prcRumption in s.42(2) could be invoked.

The ~ position, therefore, was that the relevant recordof-rights was not 6efore the Court and consequently the presumptions raised neither by sub-ss.(l) or (2) of s.42 could be invoked in favom of Go\·errunent or the owner. There were,. however, two facts before the Courts on thll hnsis of which the title to the • rninrrals eouHl have been decided. The first was t.hat the appellant harl been working the minerals only on the strength or permits obtained from tlw Collector and, as we have pointed out earlier, this could have happened only if its lessor was not tl1e owner of the minerals. Learned Counsel, no doubt, • sought to explain this conduct of the appellant on the basis that it might have made application for a permit under a mistake as to its rights.

This however docs not help him, because the making of the application would constitute an admission which would throw upon the appellant hurnen of proving that it was done under a mistake and the mistake established to the satisfaction of the Court. This was not even attempted. This apart, a plaintiff ' who comes to Court with an allegation that he is the owner of the minemls would have to prove his title to the property before he could succeed in the suit, but the appellant led no evidence to provo his title. J\fr. Bindra made a submission that a presumption in favour of the plaintiff's ownership arose under s. 110 of the Indian Evidence Act by ' reason of the appellant's admitted possession of the property.

This however is entirely without force, since the poAsession of the minerals, with which alone we are now concerned wa.s under the permit granted by the Collector-a situation which clearly ncgativerl the plaintiff's ownership of the minerals having regard to the schemes of the Minor_..-. Mineral Rules. The Courts below were thereforoil9 · right in holding that the appellant's claim on the"' basis of established proprietary rights to the quar7 sJiould fail, The respondents have filed in this Court an 7 application for the admission of additional evidence and the items of evidence so sought to be admitted are the entries in the wajib-ul-arz of the record-ofrights of the suit-village prepared in 1880 and 1908-09. These clearly recite the fact that the Government were owners of the stone-quarries in the village.

Learned Counsel for the appellant "' strenuously objected to the admission of additional evidence at this stage and submitted that if the application were allowed he should be given an opportunity of adducing evidence to disprove the correctness of these entries. In view of our conclusion as regards the rights of the appellant ..,, even without these additional documents, we do not consider it necessary to admit them. We hold that the appellant has not proved its title to the mineral rights in the suit-lands and that its claim for a declaration on that basis was properly dismissed by the Courts below.

The other point urged by learned Counsel was that even if it be that the Government were the proprietors of the minerals and the permission > of the Collector was necessary to be obtained under the Minor Mineral Rules,· 1938, still the Collector was under a legal obligation to grant a permit to the appellants unless there were proper grounds for refusing the permit and that the grounds of his refusal in the present case were -,, improper and inala fide. In this connection it was pointed out that the Collector had refused the permit sought by the appellant because of a resolution of the Dellii Development Provisional Authority constituted under Act 53 of 1955. By reason of proceedings of that authority the land in suit had been included in "a controlled 11,rea", i.e., a~ area which was r~served for 0th.er purposes, with the result that it was thought proper and ·expedient to prohibit quarrying in it.

In the plaint it was alleged that the Collector acted improperly A mar Jyoti Ston~ Crusting Co. T1" Union of India Ayyang<1' J; Amar Jyot~ Ston, Cr11atin11 Co. n.,. Un.o>I of Tndirr 70 SUPREME COURT REPOTITS [1062] in giving effect to the recomme1.dntion of the _ Board in the matter of prohibiting quarrying on~ th(• suit-land. Before us, however, learned Counsel did not sr.riousl.r rontest tho position that if the land was in "a controlled area" under Act 53 of 1!)55 and there was ncc<l to prohibit quarrying in the interests of the health of the people inhabiting the residential arc~. adjoining the quarries, and the Collector was appraised of this fact by the .. Development Authority, the order of the Collector refusing p13rmission could not be 1:mccess(ully impugned.

But learnerl Counsel urgPd that Act 53 of 1955 had ceased to be operative after December ao, I 95i when it W<l.H r0pla.ced by the Delhi Development Act of 1957 and that under tho "' latter enactment tho area had not been so notified. Haviug regard to this changed situation the contoution was, that nt the date when the trial Court passed judgment it should have taken judicial notice of the fact that Ac:t 5a of 1955 had ceased to be in force and t.hat tho notification thereunder had lapsed, and that if these mattrrs wero taken into account the appellant had a clear legal right to the relief of mandmnu.i; which he prnyed for, directing ... the Collector t9 grant the permission sought. It is not neceSHary for the purpose of this case to examine tho limits subject to which a Court could take into account subsequent facts and afford relief on the basis of such facts. The position so for as the appellant was concerned was this :

It had mnde an application to the Collector to permit ~ it to quarry stones llnd this hacl been refused. It was this refusal which was challenged as illegal ancl it was on this basis that the relief of mandatory injunction was sought in the plaint. It would be one thing if the appellant \Vas a.blo to ma.kc out the - ca.so that the Collector's refusal to grant the permission in April-May 195i was improper but that is not the situation here. The argument was t.ha.t the TriaJ Court ought to have ta.ken into account the fact. that long euLecqucnt to the filing t SUPREME COURT REPOR1'S 71 of the plaint the statute or order which justified the refusal of the permission had ceased to exist and that this. vested in the appellant a right to obtain the grant.of a permit. The argument, in our opinion, proceeds on a fallacy.

If the application of the appellant was properly refused by the Collector before the suit, the result was that there was no pending application before the authority for the grant of a permit. It is common ground that during the pendency of these proceedings in the trial Court no fresh application was made to the Collector on the basis of the altered state of facts. There was corsequent!y no application pending before the Collector which he could be directed by the issue of a mandatory injunction by the Court to grant. It is clear therefore that the change in the law in the shape of Act 53 of 1955 ceasing to be operative does not assist the appellant to obtain any relief in this suit.

In the view we have taken it is not necessary for us to canvass the point which has been discussed in the Courts below as to whether in cases where the Government is the owner of 11, property its discretion in its management and control could be the subject of directions by the Court unless, of course, the statute or statutory rule enables individuals to claim any particular rights. The appeal fails and is dismissed with costs. Appeal dismissed. A mar Jyoti Ston1 O,.rmingCo. The Union of India Ayyangar J.