Amar Jyoti Stone Crusting Co. Vs. The
Union of India & Ors [1961] INSC 238 (8 August 1961)
AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR
P.(CJ) DAS, S.K.
SARKAR, A.K.
MUDHOLKAR, J.R.
CITATION: 1967 AIR 46 1962 SCR (3) 62
ACT:
Quarry-Refusal of permit-Ownership of
minerals-Presumption Punjab Land Revenue Act, 1887 (XVII of 1887) s. 42.
HEADNOTE:
The appellant had been granted a permit by
the Collector for quarrying store upto June 30, 1957 under the Delhi Minor
Mineral Rules 1938 framed under s.155(1) of the Punjab Land Revenue Act, 1887.
On the expiry of the term of this permit the appellant applied for another
permit but it was refused on the ground that the land had been included 63 in
"a controlled area" reserved for other purposes by proceedings under
the Delhi (Control of Buildings) Act, 1955. The appellant filed a suit praying
for a declaration that it had a right to quarry stones from the land in suit
without a permit as the ownership of the minerals was vested in the landowner
from whom it had taken the land and for a mandamus to the collector to grant
the permit as the 1955 Act had ceased to be operative after December 30, 1937.
Held, that the appellant had not proved its
title to the mineral rights in the land and was not entitled to the declaration.
Section 42(2) Punjab Land Revenue Act, 1887, provided that when in any record
of rights, completed after November 18, 1871, it was not expressly mentioned
that any quarry belonged to the Government it shall be presumed to belong to
the landowners. In the present case neither party produced any such record of
rights, and no presumption could be invoked in favour of the owner. The
presumption arises only when such a record of rights is before the court and
flows from the contents of the document.
Held, further, that the application for a
permit was refused on good and relevant grounds. The subsequent repeal of the
Delhi (Control of Buildings) Act, 1955, did not entitle the appellant to an
order directing the issue of a permit as no other application for a permit was
pending at that time.
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 O. P. Rana, for
the Appellant.
C. K. Daphtary, B. Sen and T. M. 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 under 64 Art. 136 of the Constitution against the decision of the
Punjab High Court in second appeal No. 123-D of 1959.
The appellant-firm is the lessee under a
lease dated December 21, 1955 of kasra Nos. 1621, 1646, 1652, 1653 and 1703 in
Naraina Village within the administration of the Chief Commissioner of Delhi.
As lessee the firm was working certain stone-quarries in the fields which were
the subject matter of its lease; The right of persons to quarry in the area is
subject to the provisions contained in the Delhi Minor Mineral Rules, 1938
framed in exercise of the powers conferred by s.155(1) of the Punjab Land
Revenue Act, 1887.
Under these rules an application has to be
made to the Collector for the grant of permits to effect quarrying who was
empowered to grant them at his discretion, the duration of these permits being
one year; When such quarrying took place the royalty at the rates specified in
the rules was payable by the permit-holder. The rules, however, expressly saved
from their operation and from the need for a permit or the payment of royalty,
the quarrying of any mineral proved to be on land belonging to the land-owner
in which he had the right 'to the mineral under s.42 of the Punjab Land Revenue
Act, 1887. The appellant-firm had applied for and obtained permits under these
rules and were paying the royalty prescribed there for from the commencement of
their lease right up to June 30, 1957. For quarrying thereafter its 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, 1957.
The appellant prayed in the suit for two main
reliefs : (1) 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 reliefs was based on the
plea that the land-owner from whom 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 quarrying 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 the provisions of s.42) of the Punjab Land Revenue, Act and , that,
if that section were properly construed, the appellant's lessor should be held
to be the owner of the mineral rights in the suit lands. For understanding this
contention it is necessary to set out the terms of s.42. It reads "42. (1)
When in any record-of-rights completed before the eighteenth day of 66
November, 1871, it is not expressly provided that any forest, quarry,
unclaimed, unoccupied, deserted or waste land, spontaneous produce or other
accessory interest in land belongs to the land-owners, it shall be presumed to
belong to the Government.
(2) When in any record-of-rights completed
after that date it is not expressly provided that any forest or quarry or any
such land or interest belongs to the Government it shall be presumed to belong
to the land-owners.
(3) The presumption created by subsection (1)
may be rebutted by showing(a) from the record or report made by the assessing
officer at the time of assessment, or (b) if the 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 be held to belong to the
Government." Learned Counsel is, no doubt, right in his sub. mission that
the learned single Judge of the High Court wrongly treated sub-cl. (4) of this
section as equally applicable to the presumption raised in favour of the
landowner by sub-s. (2), but this does not, however, establish that the
appellant is, on the facts of this case, entitled to invoke the pre67 sumption
enacted in sub-s.(2). It was common ground that records of-rights had been prepared
in respect of the village of Naran twice after 1871 though the relevant entries
in the documents were not placed before the Court by either side. Mr. Bindra
submitted that if once it was roved 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 present case had not produced the record-of-rights the, Court
should have proceeded on the basis that the appellant bad proved its title to
the minerals. We are wholly unable to accept this construction of the section.
Section 42 (2) raises a presumption against the Government when in any
record-ofrights completed after November 18, 1871 it is not expressly provided
that any quarry belongs to the Government, but this presumption arises only
when the record-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 the 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 and therefore available to the appellant as well who could have
obtained a certified copy and filed it if it supported its case. The appellant
produced 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
proprietorship 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 the
68 presumption in s.42(2) could be invoked. The position, therefore, was that
the relevant record of-rights was not before the Court and consequently the
presumptions raised neither by sub-ss.(1) or (2) of s.42 could be invoked in
favour of Government or the owner.
There were, however, two facts before the.
Courts on the basis of which the title to the, minerals could have been
decided. The first was that the appellant had been working the minerals only on
the strength or permits obtained from the Collector and, as we have pointed out
earlier, this could have happened only if its lessor was not the 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 does not help him, because the making of
the application would constitute an admission which would throw upon the
appellant burden 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 be is the owner of the minerals would have to prove his
title to the property before he, could succeed in the suit, but the appellant
led no evidence to prove his title. Mr. Bindra made a submission that a
presumption in favour of the plaint its 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 possession of the
minerals, with which alone we are now concerned was under the permit granted by
the Collector-a situation which clearly negatived the plaintiffs ownership of
the minerals having regard to the schemes of the Minor Mineral Rules. The
Courts below were therefore right in holding that the appellant's claim on the
basis of established proprietary rights to the quarry should fail 69 The
respondents have filed in this Court an 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-of rights 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 appellant sunless there were proper grounds for refusing the
permit and that the grounds of his refusal in the present case were improper
and mala 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 Delhi
Development Provisional Authority constituted under Act 53 of 1955. By reason
of proceedings of that authority the land in suit bad been included in "a
controlled area", i.e., an area which was reserved for other 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 70 in
giving effect to the recommendation of the Board in the matter of prohibiting
quarrying on the suit-land. Before us, however, learned Counsel did not
seriously contest, the position that if the land was in "a controlled
area" under Act 53 of 1955 and there was need to prohibit quarrying in the
interests of the health of the people inhabiting the residential area,
adjoining the quarries, and the Collector was appraised of this fact by the
Development Authority, the order of the Collector refusing permission could not
be successfully impugned. But learned Counsel urged that Act 53 of 1955 had
ceased to be operative after December 30, 1957 when it was replaced by the
Delhi Development Act of 1957 and that under the latter enactment the area had
not been so notified. Having regard to this changed situation the contention was,
that at the date when the trial Court passed judgment it should have taken
judicial notice of the fact that Act 53 of 1955 had ceased to be in force and
that the notification there under had lapsed, and that if these matters were
taken into account the appellant had a clear legal right to the relief of
mandamus which he prayed for, directing the Collector to grant the permission
sought. It is not necessary for the purpose of this case to examine the limits
subject to which a Court could take into account subsequent facts and afford
relief on the basis of such facts. The position so far as the appellant was
concerned was this : It had made an application to the Collector to permit it
to quarry stones and this had been refused. It was this refusal which was challenged
as illegal and it was on this basis that the relief of mandatory injunction was
sought in the plaint. It would be one thing if the appellant was able to make
out the case that the Collector's refusal to grant the permission in April-May
1957 was improper but that is not the situation her.-. The argument was that
the Trial Court ought to have taken into account the fact that long subsequent
to the filing 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 there proceedings in the trial Court no fresh application was
made to the Collector on the basis of the altered state of facts. There was consequently
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 a 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.
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