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PETITIONER: KALI PRASAD AGARWALLA & OTHERS

       Vs.

RESPONDENT: BHARAT COKING COAL LIMITED & OTHERS

DATE OF JUDGMENT31/03/1989

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) OZA, G.L. (J)

CITATION:  1989 AIR 1530            1989 SCR  (2) 283  1989 SCC  Supl.  (1) 628 JT 1989 (3)   170  1989 SCALE  (1)852

ACT:     Coal  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 extinguished.     Practice  and  Procedure: Whether  parties  entitled  to retract from evidence let in.

HEADNOTE:     Section  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 acquisi- tion  of  rights of owners in respect of coal mines  by  the Central Government. Section 5(1)empowers the Central Govern- ment  to direct vesting of the said rights in  a  Government company.  Section 6(1) refers properties vested in the  Cen- tral Government free from mortgages etc.     The  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.     The  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. The trial court negatived all the defences anti decreed  the suit. 284

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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. Therefore, 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. Dismissing the appeal,     HELD: 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  excavation. Section  2(h)(iv)  of the Coal Mines  (Nationalisation)  Act includes open cast working within the definition of  ’mine.’ [289E-F]     1.2  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. [289G]     2.  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, [1964]  1  SCR 371, referred to.     3.  The  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., [1964] 3  SCR  634, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2647  of 1980.     From the Judgment and Order dated 24.4.1980 of the Patna High Court in Original Decree No. 289 of 1979(R). Shankar Ghosh, S .P. Lal and H.K. Puri for the Appellant. L.N.  Sinha, R.N. Sachthey and A. Sachthey for the  Respond- ents. The 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.     In  the court of the Subordinate Judge, the First  Court

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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. The 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.     The  defendant  is a Government company  called  Messrs. Bharat  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. Lastly, 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. The  trial court negatived all the defences and decreed  the suit.     Upon  appeal  by the company, the Patna High  Court  re- versed the decree of the trial court and dismissed the suit. There  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:                        "For  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:                        "I  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

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             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.     In  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. State  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. On the second question, the relevant provisions of the  Coal Mines  (Nationalisation)  Act,  1973 (The Act)  may  now  be noted.                         "Section  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 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 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 XXX XXX               288               Section 3, so far it is relevant, reads.                         "(1)  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:                         "(1)  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-

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             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:                        "(1) 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.     On 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. 289 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 stated:                         "At  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 mining operations.     In the light of this evidence, the location of the  suit land  and the uses to which it is put to are  beyond  doubt. The 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  surface. Apparently,  there  cannot be any working mine  without  the

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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".     Secondly, 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.     Under  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  plaintiffs. In either case, the Act extinguishes the title. A  Constitu- tion Bench of this Court in State of West Bengal v. Union of India, [1964] 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.     It 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 principle.     In  Kunju Kesavan v. M.M. Philip & Others, [1964] 3  SCR 634, this Court has stated (as summarised in the headnote at p. 637):                         "The  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.               The 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.     In  the  result and for the reasons  stated  above,  the appeal fails and is dismissed. In the circumstances,  howev- er. we make no order as to costs. P.S.S.                                         Appeal   dis- missed. 291