Prasad Agarwalla & Ors Vs. Bharat Coking Coal Limited & Ors  INSC
117 (31 March 1989)
K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)
1989 AIR 1530 1989 SCR (2) 283 1989 SCC Supl. (1) 628 JT 1989 (3) 170 1989
Mines (Nationalisation) Act, 1973: ss. 2(h)(iv), 2(h)(vi), 3, 5 & 6--Land
used for carrying on mining opera- tions adjacent to a coal mine--Whether a
mine--Whether vested in Central Government-Owners right, title and inter- est--Whether
and Procedure: Whether parties entitled to retract from evidence let in.
3 of the Bihar Land Reforms Act, 1950 provided for vesting an estate or tenure
in the State. Section 2(h) of the Coal Mines (Nationalisation) Act, 1973 defines
a 'mine, to mean any excavation where any operation for the purpose of
searching for or obtaining minerals has been or is being carried on. Sub-clause
(iv) thereto includes there- in all open cast workings and sub-clause (vi)
takes in all lands, buildings etc., in or adjacent to a mine and used for the
purposes of the mine. Section 3(1) provides for acquisition of rights of owners
in respect of coal mines by the Central Government. Section 5(1)empowers the
Central Government to direct vesting of the said rights in a Government
company. Section 6(1) refers properties vested in the Central Government free
from mortgages etc.
appellants instituted a suit in respect of a large expanse of land for
declaration of their homestead right thereto. The possession in the zamindari
right was settled to their ancestor in 1949. They, therefore, claimed owner-
ship of leasehold land.
respondent Government-company resisted the suit on the grounds, firstly, that
the disputed land formed part of a colliery which had vested in the Central
Government and thereafter in the company under the provisions of the Coal Mines
(Nationalisation) Act and secondly, that the interest claimed by the
plaintiffs, automatically stood extinguished with the vesting of the estate of
the plaintiffs' lessor by reason of the notification issued under s. 3 of the
Land Reforms Act.
trial court negatived all the defences anti decreed the suit.
Reversing the said decree, the High Court held that the lease granted to the
plaintiffs was an encumbrance which was annihilated with the issuance of the
notification under s. 3 of the Land Reforms Act, and that the lease having thus
come to an end the plaintiffs had no title to be declared. It further found
that the salt lands were adjacent to a coal mine and were being used for the
purpose of the said mine.
it held that the suit lands were more within the meaning of the Nationalisation
Act, and that what vests under that Act is the mine and not .merely the
interest of the owner of the mine.
1.1 The evidence on record both for the plaintif- fappellants and the
defendant-respondents makes it evident that the land was being used for the
purpose of the mine for carrying on the mining operations in respect of the
part of the seam lying immediately below the surface. There cannot be any
working mine without the surface being included in that concept. If the surface
does not form part of the concept of mine, it is not possible to have any
2(h)(iv) of the Coal Mines (Nationalisation) Act includes open cast working
within the definition of 'mine.' [289E-F]
The suit land was also adjacent to a coal mine and was being used for the
purposes of the said mine, namely, stacking of the coal and effecting local
sale thereof. It was therefore, a mine as defined under s. 2(h)(vi) of the Act.
Under s. 3 of the said Act, the right, title and interest of the owners in
relation to the coal mines stood transferred to and vested absolutely in the Central Govern- ment free from encumbrances. It was
immaterial whether the mine belonged to the State or to a private party. The appel-
lant's title to the said land, if any, thus stood extin- guished. [289H; 290A]
State of West Bengal v. Union of India,  1 SCR
371, referred to.
parties went to trial knowing fully well what they were required to prove. They
have adduced evidence of their choice in support of the respective claims. That
evidence has been considered by both courts below. The appellants cannot now
turn round and say that the evidence should not be looked into. This is a well
accepted princi- ple. [290C-D] 285 Kunju Kesavan v.M.M. Philip & Ors.,
 3 SCR 634, referred to.
APPELLATE JURISDICTION: Civil Appeal No. 2647 of 1980.
the Judgment and Order dated 24.4.1980 of the Patna High Court in Original
Decree No. 289 of 1979(R).
Ghosh, S .P. Lal and H.K. Puri for the Appellant.
R.N. Sachthey and A. Sachthey for the Respond- ents.
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal by
certificate under Art. 133(1) of the Constitution is from a decision of the Patna
High Court which reversed the decree in the suit filed by the appellant for
declaration of title and confir- mation of possession.
court of the Subordinate Judge, the First Court at Dhanbad, the
plaintiff/appellants instituted a suit in respect of Schedule B of the plaint
for a declaration of their homestead right thereto and for confirmation of pos-
session or in the alternative recovery of possession. The suit property
consists of 30 bighas, 18 kattar and 11 chha- taks being part of plot nos. 59
and 70 in village Dhansar.
plaintiff's claim was based on a registered indenture of lease dated December 9, 1949 by which it is said that the
possession in the Zamindari right of Kali Prasad was settled to Ruplal Aggarwal,
father of plaintiff No. 1 and grand- father of plaintiff Nos. 2 and 3. The
plaintiffs' claim that they have become the owners of the lease hold land and
are in possession of the same by exercising diverse acts of possession,
mutating their name and by payments of stipulat- ed rents to the State of
Bihar, who recognised the said lease.
defendant is a Government company called Messrs.
Coking Coal Limited (The Company). The Company re- sisted the suit on three
main grounds: firstly, that the disputed land formed part of North Bhuggatdih
Colliery which had vested in the Central Government and thereafter in the
company under the provisions of the Coal Mines (Nationalisa- tion) Act, 1973,
secondly, that the interest claimed by the plaintiffs automatically stood
extinguished with the vesting of the estate of the plaintiffs' lessor, by
reason of the vesting notification 286 issued under sec. 3 of the Bihar Land
Reforms Act, 1950.
that actual lease of the land was taken much earlier expressly for the purposes
of the mines and that the instru- ment of 1949 is contaminated with flaw and
obtained with a view to certifying the vesting of the estates in the State of Bihar and even that on a misapprehension
that the so- called homestead land would. not vest.
trial court negatived all the defences and decreed the suit.
appeal by the company, the Patna High Court re- versed the decree of the trial
court and dismissed the suit.
are two main findings recorded by the High Court to allow the appeal. As to the
scope and effect of the provi- sions of the Bihar Land Reforms Act, 1950 in
respect of the suit property, the High Court held:
the reasons indicated above, I am of the view that a lease granted to the
plaintiffs in the instant case was an encum- brance and it was annihilated with
the issu- ance of the notification under sec. 3 of the Act. The submission
urged on behalf of the appellants, therefore, in this behalf must be accepted.
The lease of the plaintiffs having come to an end consequent upon the issuance
of notification under sec. 3 of the Act, the plaintiffs have no title to be
declared and the decree of the trial court is liable to be set aside." As
to the nature of the suit property and the scope and effect of the Coal Mines
(Na- tionalisation) Act, 1973, the High Court on an appraisal of the oral and
documentary evidence led by both the parties said:
would, therefore, prefer their positive evidence (referring to the defend-
ants/respondents evidence) than to the nega- tive evidence adduced on behalf of
the plain- tiffs. It will, however, be seen that the suit lands are adjacent to
a coal mine, namely, North Bhuggatdih Colliery and were being used for the
purposes of the said mine, namely, stacking of coal and effecting local sales
thereof. The conclusion is, therefore, ines- capable that the suit lands are
more within the meaning of the Nationalisation Act. What vests under the Nationalisation
Act is the mine and not merely the interest of the owner of the mine." 287
Having regard to these findings, the High Court did not find it necessary to
examine whether the instrument of 1949 was a genuine transaction.
this appeal, on the submission of counsel for both sides, two questions arise
for our consideration: (i) wheth- er the suit lands had vested, free from
encumbrance in the.
consequent upon the issuance of Notification under sec. 3 of the Bihar Land
Reforms Act; and (ii) whether the suit land is "mines" within the
meaning of the Coal Mines (Nationalisation) Act, 1973? In our opinion, it is
unnecessary to consider the first question and indeed it is not proper also to
consider the question in the absence of the State which is a necessary party
for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore,
refrain from expressing any opinion on the first question.
second question, the relevant provisions of the Coal Mines (Nationalisation)
Act, 1973 (The Act) may now be noted.
2(h) defines "mines" to mean any excavation where any operation for
the purpose of searching for or obtaining minerals has been or is being carried
on, and includes XXX XXX XXX XXX XXX (iv) all open cast workings;
XXX XXX XXX (vi) all lands, buildings, works, adits, levels, planes, machinery
and equip- ments, instruments stores, vehicles, railways, tramways and sidings
in, or adjacent to, a mine and used for the purposes of the mine;
XXX XXX XXX (x) all lands, buildings and equip- ments belonging to the owners
of the mine, and in, adjacent to or situated on the surface of, the mine where
the washing of coal obtained from the mine or manufacture, therefrom, of coke
is carried on.
XXX XXX XXX XXX 288 Section 3, so far it is relevant, reads.
On the appointed day, the right, title 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 incumbrances
.......... " Section 5(1) reads as under:
Notwithstanding anything con- tained in secs. 3 and 4, the Central Govern- ment
may, if it is satisfied that a Government company is willing to comply, or has
complied, with such terms and conditions as that Govern- ment may think fit to
impose, direct, by an order in writing, that the right, title and interest of
an owner in relation to a coal mine referred to in sec. 3, shall, instead of
continuing to vest in the Central Government, vest in the Government Company
either on the date of publication of the direction or on such earlier or later
date (not being a date earlier than the appointed day), as may be specified in
the direction." Section 6(1) provides as under:
All property which vests in the Central Government or in a Government company
under this Chapter shall, by force of such vesting be freed and discharged from
any trust, obligation, mortgage, charge, lien and all other incumbrances
affecting it and any attachment, injunction or decree or order of any court
restricting the use of such property in any manner shall be deemed to have been
withdrawn." Sections 8 to 10 in chapter III provide for payment of
compensation to owners of coal mines. Provisions under Chapter IV of the Act
deal with claims to be .made for compensation and for disbursing the amounts
payable to the Owners of coal mines by Commissioner of Payments.
behalf of the plaintiffs, 11 witnesses were examined including plaintiff No. 1
himself. Most of the witnesses have not made any relevant statement on the
question of location or user of the suit land.
However, Kanhaiya Lal Agarwal, witness No. 6 for the plain- tiff stated,
"The land is full of collieries on all the four sides." Likewise Ram Briksha
Viswakarma, witness No. 8 for the plaintiffs has stated that the suit land is a
fallow land and no crop is grown on it and there is nothing except the road in
between the suit land and the North Bhagatdih Colliery. The 9th witness of the
plaintiffs B.K. Mukherjee, who surveyed the locality and submitted a report
the time of my inspection, the defendants were removing the over-burdened
surface and then taking out coal and this is called open cast working ..... I
do not see the quarry by Southern side of the leased coal land but do not
remember whose quarry was there. There were coal all over the land but it was
after the burden of earth was removed ..... The coal was being ,cut at the
depth of 25 from the surface. Adjoining the quarry, the land was not for
homestead pur- poses." The witnesses for the defendant company have specifical-
ly stated that the land in dispute constitutes the upper layer of the coal
lying beneath and above the surface. The working of the mines is by open cast
working system. When the mining operations are carried on in the other parts of
the Seam, the land is being used for the various purposes connected with the
light of this evidence, the location of the suit land and the uses to which it
is put to are beyond doubt.
land is being used for carrying on the mining operations and it is adjacent to
a mine. It is used for the purposes of the mine for carrying on the mining
operations in respect of the part of the Seam lying immediately below the
there cannot be any working mine without the surface being included in that
concept. If the surface does not form part of the concept of mine, it is not
possible to have any excavation. Section 2(h)(iv) includes open cast working
within the definition of "mine".
the suit land is also adjacent to a coal mine, namely, North Bhagatdih Colliery
and is being used for the purposes of the said mine, namely, stacking of the
coal and effecting local sale thereof. It is, therefore, a mine as defined
under sec. 2(h)(vi) of the Act.
sec. 3 of the Act, the right, title and interest of the owners in relation to
the coal mines stand trans- ferred to and shall vest abso- 290 lutely in the
Central Government free from encumbrances. For the purpose of acquisition and
vesting, it is immaterial whether the mine belongs to the State or to the
either case, the Act extinguishes the title. A Constitu- tion Bench of this Court
in State of West Bengal v. Union of India,  1 SCR 371 has held that under
Entry 44 of List 3 of the Seventh Schedule to the Constitution, Parliament is
competent to make a law for acquisition of property owned by the State.
was, however, urged for the appellants that there is no proper pleading or
issue for determination of the afore- said question and the evidence let in
should not be looked into. It is too late to raise this contention. The parties
went to trial knowing fully well what they were required to prove. They have
adduced evidence of theft choice in support of the respective claims. That
evidence has been considered by both courts below. They cannot now turn round
and say that the evidence should not be looked into. This is a well accepted
Kesavan v. M.M. Philip & Others,  3 SCR 634, this Court has stated
(as summarised in the headnote at p. 637):
parties went to trial, fully understanding the central fact whether the
succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not.
The ab- sence of an issue, therefore, did not lead to a material sufficient to
vitiate the decision.
plea was hardly needed in view of the fact that the plaintiff stated in his
replication that the "suit property was obtained as makka- thayam
property, by Bhagavathi Valli under the Ezhava Act". The subject of
exemption from Part IV of the Ezhava Act, was properly raised in the trial
court and was rightly considered by the High Court." On the facts and
circumstances of the case we cannot, therefore, accept the contention urged for
the appellant in this regard.
result and for the reasons stated above, the appeal fails and is dismissed. In
the circumstances, however. we make no order as to costs.