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PETITIONER: AMAR JYOTI STONE CRUSTING CO.

       Vs.

RESPONDENT: THE UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 08/08/1961

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: 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  dec- laration.   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.

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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  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 therefor 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

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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,   un-               occupied, 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 pre-                              67 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

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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 plaintits 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  plaintif fs 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-ofrights  of  the  suit-village prepared in 1880 and 1908-09.  These clearly recite the fact

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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 thereunder 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

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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  corsequently  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. 72