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Shiv Hiraj Mining Industries and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 156 of 1976
Judge
Reported inAIR1983Bom83
ActsMineral Concession Rules, 1960 - Rule 44; Limitation Act, 1963 - Schedule - Article 54
AppellantShiv Hiraj Mining Industries and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateK.J.Y. Abhyankar and;R.V. Desai, Advs.
Respondent AdvocateC.D. Shenio, Asst. Govt. Pleader,;C.R. Dalvi, Adv., i/b., Matubhai Jamietram and Madan Gangadhar,;J.Y. Sabnis and;P.M. Pradhan, Advs.
Excerpt:
.....x contained in the said two leases contemplates is the grant of a prospecting licence and/or a mining lease, in the absence of the existence of the 'pre-conditions'.this words clearly offend the provisions of the said statute and if this be so, then the question of granting specific performance of the contract as specific performance of the contract as spelt out in clauses x contained in either of the said two leases cannot arise. 16. the entire scheme of the rules and more particularly of chapter v clearly goes to show that it does not contemplate any agreement of leases. rule 44 clearly prohibits with regard to the minerals like alia any grant of prospecting licence for commercial purposes. if there be no demise as such then neither can there be any lease nor can the rights be..........the powers of the court of wards.3. it is the case of the appellant that they entered into two mining leases both dated 20th oct. 1964 -- one with the said p. d.nimbalkar (now deceased) being exh. 184, and the other with respondent no. 2 acting for the said j. y. nimbalkar being exh. 185. both these leases relate to the properties described in the schedule a to the plaint, and the mineral rights therein. the extent of the land demised under the two leases was and in 906 acres under and 31 gunthas. this land is situated at village vetore. taluka vengula, district ratnagiri,. that both these leases have a clause, (being clauses x) inter alia, stating that the lessors have bound themselves to grant a prospecting licence and supplementary mining leases to the appellant in respect of the.....
Judgment:

Parekh, J.

1. Being aggrieved by an order and judgment dated 16th June 1975 of the learned Civil Judge. Senior Division Ratnagiri, in Special Civil Suit No,. 8 of 1971, the appellant (the original plaintiff ) have preferred this appeals.

2. The fact according to the Appellants are that the appellants are a partnership firm. That the properties mentioned in Schedule A and B to the plaint belong to one P. D. Nimbalkar (now deceased) and one J. Y. Nimbalkar. That respondent Nos. 3 (a) to (3) (f) and on J. Y. Nimbalkar were and are his legal heirs and representatives. That the said J. Y. Nimbalkar has 1/2 share in the said properties. That the Court of Wards being respondent No. 2 are in management of the share of J. Y. Nimbalkar. That Respondent No. 4 exercises the powers of the Court of Wards.

3. It is the case of the appellant that they entered into two mining leases both dated 20th Oct. 1964 -- one with the said P. D.Nimbalkar (now deceased) being Exh. 184, and the other with respondent No. 2 acting for the said J. Y. Nimbalkar being Exh. 185. Both these leases relate to the properties described in the Schedule A to the plaint, and the mineral rights therein. The extent of the land demised under the two leases was and in 906 acres under and 31 gunthas. This land is situated at village Vetore. Taluka Vengula, District Ratnagiri,. That both these leases have a Clause, (being Clauses X) inter alia, stating that the lessors have bound themselves to grant a prospecting licence and supplementary mining leases to the appellant in respect of the properties not conversed by the said two leases i. e. in respect of the properties mentioned in Schedule B.

4. It is the appellant's case that in pursuance of the aforesaid terms contained in the lease, on 17th of Nov., 1964, the appellants made an application to Respondent No. 2 of the prospecting licence in respect of the properties now mentioned in Schedule B to the plaint. That this was followed by another application dated 31st Dec., 1964 addressed to respondent Nos. 2 and 3 for a prospecting licence for the areas mentioned in Schedule B (to the plaint). That on 31st Dec., 1965 an application in due from (Exh. 187) for getting of mining leases in respect of the property mentioned in Schedule B was forwarded to respondent Nos. 2 and 3. However, on the 17th Jan., 1966 a letter (Exh. 188) was received from the Prant Officer. informing the appellants that the Government had cancelled that the said mining leases executed by and on behalf of the said P. D. Nimbalkar and J. Y. Nimbalkar granting a lease to the appellants, and further directing that the parties should execute fresh documents . By the said letter the Prant Officer also asked the appellant to see him in his office on 31st January. 1966. That the appellants by their letter dated 23rd February 1966 (Exh 189) addressed to the Prant Officer expressed their surprise as to how the Government could cancel the said leases. The appellants also asked the Prant Officer to furnish to them a copy of the order to enable to appellants of proceed further in the matter, and further recorded that since they were to meet the Prant Officer on the 28th of Feb., 1966, they, the appellants, would discuss this matter on that day. The Prant Officer, by his letter dated 25th Feb., 1966 (Exh. 190) address to the appellants, referred to the earlier application dated 31st Dec. 1965 made by the appellants for the grant of mining lease in respect of the properties mentioned in Schedule B and informed them that since the lease already entered by the appellant were to be cancelled, the question of granting a supplementary mining leases (i.e. in respect of the properties mentioned in Schedule B to the plaint) could not arise. the Prant Officer, again by his letter dated 1st March, 1966 (Exh. 191), informed the appellant that the said two leases were cancelled in view of the fact that 'clauses (1) of Clause X' contained in the said leases were not in conformity with the provisions of the Minera) Constitution Rule 1960, and it was necessary for the appellants, by their letter dated 2nd march 1966 (Exh 1920, repudiated the contention of the Prant Officer and set out, what, according to them, was the legal position.

5. It is the appellant's case that being aggrieved by the decision of the State Government to cancel the said two leases, the appellants preferred a revision application on the 16th March 1966 (Exh. 196) under Rule 54 of the Mineral Concession Rules, 1960. challenging the decision canceling the said two leases. Pending this revision application, the appellants received from the Prant Officer a letter dated 24th March, 1966, again informing the Appellants that the State Government had cancelled the said leases since sub-clause (1) of Clause X contained in the said leases was not in conformity with the provisions of the Mineral Concession Rules, 1960 and further informing them that the State Government was not agreeable to grant any supplementary mining lease (i. e. in respect of the property mentioned in Schedule B to the plaint) Thereafter, the appellants received an order dated 29th June, 1966 (Exh,. 198) inter alia stating that the State Government had examined the two lease deed and had noticed that the lease deeds in question were void as sub-clause (1) of Clauses X of the said lease deeds was not in conformity with the provisions of the Mineral Concession Rules 1960. By the said order, the Government also cancelled the said lease deeds.

6. It is the appellants' case that on the 12th Aug., 1966 the appellants' lessors, granted to respondent No. 7 lease in respect of a part of the property mentioned in Schedule B to the plaint, and by another leased to the same date granted a leased to respondent No. 8 of the other portion of the said property mentioned in Schedule B to the plaint. That on or about 19th Sept., 1966 (Exh. 210). the appellant obtained from the Government of India an order, staying the execution of the order contained in the State Government letter No. WRD/WS/76 dated 29th June, 1966 with further directions that the status quo be maintained in all respect, and that the appellants' possession (in respect of the property mentioned in Schedule A to the plaint) should not be disturbed. On the 3rd of Oct., 1966 this order was published by the information of general public. By a letter dated 3rd October 1966 (Exh. 212) the appellant informed in district Deputy Collector, Swantwadi Division, Swantwadi of this order,. That, since the appellants came to know that despite the said stay order respondent No. 7 and 8 were working the properties mentioned in Schedule B and leased out to them, the appellants, by their letter dated 7th Nov., 1966 (Exh. 214) addressed to the Under-Secretary to the Government of Maharashtra, drew his attention to the stay order, and to that fact that the respondent Nos. 7 and 8 were working on said property (i. e. mentioned in Schedule B to the plaint) and asked the Under-Secretary the appellant's attention was drawn to an announcement inserted in the newspapers of the 14th Nov. 1966 by respondent Nos. 7 and 8. That, therefore, the appellants, by their letter dated 21st of November, 1966 (Exh. 216) lodged a protest against the working of this area by respondent Nos. 7 and 8. That, the revision application filed by the appellants was disposed of by an order dated 20th Feb., 1967 (Exh. 221) passed by the Under-secretary to the Government of India. In this order, it was stated as follows:--

I am, directed to refer to your letter No. 866/26439 MNG dated 18-10-66 on the above subject and to say that the Central Government in exercise of their revisional powers under Rule 55 of the Mineral Concession Rules, 1960 and of all other powers enabling in this behalf, hereby set aside the orders of the State Government and further direct the State Government to restore mining lease for silica and over an area of 906 acres 31 of gunthas in village Vetore Mahal Vengurla, District Ratnagiri in favour of M/s Shiv Hiraj Mining Industries'.

7. It is the appellants case that by this order the status quo ante was restored and they became entitled to call upon the lessors to comply with the provisions of sub-clauses (1) of Clauses X contained in the two leases dated 20th Oct., 1964 and execute the necessary documents in respect of the properties mentioned in Schedule B to the plaint. However, the lessors were unable to documents so more particularly as they had put respondent No. 7 in possession of a part of the properties described in Schedule B to the plain and respondent No. 8 in possession of the other part of the said properties. That, in the circumstance, the appellants were constrained to give a notice under S. 80 to the Government, and after giving the notice, the appellant proceeded to file a suit in the Court of the Civil Judge, Senior Division, Ratnagiri, being Civil Suit No. 8 of 1971. In this suit, the appellants contended that the lessors were bound to comply with the provisions of sub-clauses (1) of Clauses X included in the said two leases (the clause in both the lease is identical) and they having not complied with the said clause, the appellants were entitled to specify performance of the contract. They also contended that the leases executed by the lessor in favour of respondent Nos. 7 and 8 were illegal and void and that in any event they, the appellants, had become entitled to damage.

8. The respondent, by their written statement, denied the claim made by appellants and contended, amounts other things. that the appellants' suit was barred by the low of limitation. That specific performance could not be granted inasmuch as Clauses X was vague and otherwise offended the provisions of the Mineral Concession Rules, 1960. The respondent further denied the claim made by the appellants and contended that the appellants were not entitled to any relief whatsoever.

9. By an order and judgment dated 16th June, 1975 the appellants suit was dismissed, Being aggrieved by the same, the appellants have preferred this appeal.

10. At the hearing of this appeal, Mr. Abhuankar, the learned counsel for the appellant mentioned the aforesaid facts and urged that the State Government had, by its order dated 29th June, 1966 (Exh. 198), stated that the lease deeds executed between the appellants and the lessors were void as the sub-clause (1) of Clause X contained in the two lease deeds was not in conformity with the provisions of the Mineral Concession Rules, 1960 and the State Government treated the two leases as cancelled and asked the parties to enter into fresh leases. That, as against this order, the appellants had gone in revision, and the Central Government. by its order dated 20th Feb., 1967 (Exh. 221) had allowed the revision (see paragraph 6 above). That the effect of this order of the properties mentioned in the two leases (i. e. the properties mentioned in Schedule A to the plaint) confirmed in but, furthermore, that the Central Government had, but its order impliedly held that Clauses X contained in both the said leases did not offended any of the provision of the Mineral Concession Rules, 1960. That, Clauses X in both the leases were and are identical. That in view of that clause the appellant were entitled to prospecting licences and also to a supplementary lease in respect of the properties mentions in Schedule B. However, pending the said disputed, leases in respect of properties mentioned in Scheduled B were granted to respondent No. 7, 8 and respondent Nos. 7 and 8 are now in possession of the properties mentioned in Schedule B. That it was in these circumstance that the appellants had to file a suit for specific performances of the contract and for possession of the properties mentioned in Schedule B. That, in the circumstance, the appellants would be well entitled to the relief now claimed.

11. Now, as regard this argument, it may be stated that the relevant portion of the text of the order dated 20th Feb., 1967 (Exh. 221) passed by the Central Government has already been set on (vide paragraph 6 above). A perusal of the order passed by the Central Government goes to show that the Central Government has, by its said order set aside set aside the order of the State Government. It however goes not to add that the State Government should restore the mining leases in respect of 906 acres and 31 gunthas (i. e. of the properties which were and are the subject-matter of the two leases and/or otherwise described in Schedule 'A' to the plaint). In other words, the order passed is of a 'restrictive: character. The order of the Central Government makes no reference to Clauses X contained in the said two leases, nor does it pronounce as to whether the said clause offends the provisions of the Mineral Concession Rules, 1960. It would, therefore, not be possible to hold that the Central Government by the said order, had impliedly held that Clauses X did not offend the said Act. To hold so, would mean not only straining the language of the order passed by Central Government but to read something in the order which odes not exist. The order is clearly restricted to the demise of 906 acres, 31 gunthas (which are the subject-matter or the two leases and/or which are described in Schedule A to the plain) and no more.

12. But, whilst the Central Government in its said order does not make any pronouncement about Clauses X incorporated in the said two leases, one would have to view the said clauses in the light of the provisions of the Mineral Concession Rule, 1960.

13. Now, relevant sub-clause (1) of Clause X contained in the rate two lease reads as follows:--

'The lessor and his co-shares having the other half share in these land share giving under a separate agreement to the lessees a prospecting licence in respect of the remaining lands in village Vetore excepting the lands that are already given by them to Shri A. S. Desai, for similar use and those that are of the nature as described in sub-clauses I of the Clause VIII of this cases and therefore the lessor hereby separately agree with the lessees to given them as supplementary lease with conditions and convenants as are provided for in this lease in respect of all those other lands that may be later on found useful by the lesses on taking geological survey in accordance with the terms of the prospecting licence which is going to be separately executed'.

14. Chapter V of the mineral Concession Rules, 1960 speaks of the procedure for obtaining a prospecting licence of mining of lease in respect of land in which the minerals vest exclusively in a person other than the Government, and it is an admitted position that the properties in question in this mater vest in private parties.

Rule 41 and 42 of the said Rules provide as follows:--

'41. Applicability of this chapter -- The provisions of this chapter shall apply only to the grant of prospecting licences and mining leases in respect of land in which the minerals vest exclusively in a person other than the Government.

42. Restrictions on the grant of prospecting licence and mining lease--

(1) No prospecting licence or mining lease shall be granted to any person unless he--

(a) holds a certificate of approval in From A from the State Government.

(b) produces an income-tax clearance certificate in From C from the Income-tax Officer concerned.

(2) Except with the previous approval of the Central Government no prospecting licence or mining lease shall be granted --

7 (1) in respect of any mineral specified in the First Schedule to the Act or

(ii) to any person who is not an Indian national'.

Rule 43 speaks of renewal of a prospecting licence whilst Rule 44 speaks of conditions of prospecting licence. Sub-clauses (ii) of Rule 44 provides as follows:--

'44. (ii) in the case of minerals other than gold, silver, precious stones or mica, the licensee shall not win or carry away the minerals for commercial purposes'.

Rule 45 speaks of the conditions of mining leases and Clause (iii) thereof provided as follows:--

'45. (iii) the lease may contain such other conditions, not being inconsistent with the provisions of the Act and these rules, as may be agreed upon between the parties.:

Rules 45 speaks of the transfer of assignment, and Rule 47 of speaks of submission of copy of licence of lease.

Rule 43 speaks of communication of transfer or assignment.

Rule 49 provides for the prohibition of premium.

Rule 50 reads as follows:--

'50. Prohibition of working, of mines-- If the State Government has reason to believe that the grant or transfer of a prospecting licence of a mining lease or of any right, title or interest in such licence of leas is in contravention of any of the provisions of the chapter, the State Government may, after giving the parties an opportunity to represent their view and with the approval of the Central Government direct the parties concerned not to undertake any prospecting or mining operations in the area to which the licence or lease relates'. Rule 51 refers to returns and statements, and Rule 52 speaks of a penalty.

15. Considering these provisions the scheme of the Rule appear to be that in so far as prospecting licence of leases in respect of land in which minerals vest in a person other than the Government are concerned, only two possibilities are contemplated viz., that there can either be grant of a prospecting licence and/or a mining lease, and the Rules require the existence of certain 'pre-conditions', before any one of these is granted e. g. that a party must hold a certificate of approval in Form A and that a party must produce an income-tax Officer concerned. Any third possibility such as there being an agreement to grant a prospecting licence or an agreement to grant a lease are ruled out for there can been no such agreement if the 'pre-conditions' do not exist. In other words, the pre-conditions must be in present and not in futuro. What sub-clauses (1) of Clause X contained in the said two leases contemplates is the grant of a prospecting licence and/or a mining lease, in the absence of the existence of the 'pre-conditions'. This words clearly offend the provisions of the said statute and if this be so, then the question of granting specific performance of the contract as specific performance of the contract as spelt out in Clauses X contained in either of the said two leases cannot arise.

16. The entire scheme of the Rules and more particularly of Chapter V clearly goes to show that it does not contemplate any agreement of leases. Rule 44 clearly prohibits with regard to the minerals like alia any grant of prospecting licence for commercial purposes. if we were to conceive Clause X in the light of the lease, then what the parties intended and are seeking to enforce is a right initially for prospecting licence for commercial purpose which would be contrary to Rule 44 (iii) . In the very nature of things of and the matter is governed by the provisions of statute unless it permits agreement to leases, the enforceability in the manner sought in the present appeal can hardly be entertained. In this Act, either there is a licence actually granted in accordance with the terms of a lease with the demises, but there is no scope of an agreement to further lease or inchoate right of lease.

17. Ordinarily, an agreement of lease under the general law would and should contemplate demise of the property and, in that case, it would be a lease. If there be no demise as such then neither can there be any lease nor can the rights be worked out under the statute like the present one, for there is no possession of having any agreement of lease therein. The position of the law under S. 105 of the Transfer of Property Act has been stated in Tolaram v. State of Bombay, : [1955]1SCR158 , by the Supreme Court, holding that an instrument in usually construed as a lease if it contains words of present demise. It is construed as an executory agreement, notwithstanding that it contain words of present demise, where certain things have to be done by the lessor before the lease is granted. If this distinction is kept in view and as the case of t present appellant is, Clauses X, merely and at the most would be an agreement and no the lease. Such an agreement is not supported by any of the provisions of the Chapter V of the Rules which operates upon the present demise either by reason of a licence of by a reason of lease. In view of this, Mr. Abhuankar's contention must fail.

18. Mr. Abhyankar next urged that in any even. the appellant were not at this stage seeking to enforce the terms of Clauses X of the said two leases in to far as it concerned prospecting licences. but, in any event, the appellant would be entitled to mining lease. That the prayer of the plaint was said is also to this effect, and this must now be granted to the appellants.

19. We are unable to accept this submission. A plain reading of the Clauses X (contained in the said leases) makes it clear that the intention of the parties was there in the first instance a prospecting licence should be obtained and then a geological survey be carried out. and only then, if the parties desired, a lease agreement ought to be entered into. The clauses has now to be read as a whole, and if specific performance has to be granted, it has to be in terms of the clause, and not otherwise, It would not be open to delete a portion of the clause and seeks to enforce the rest of it. In view of this also the relief now claimed by the Appellants cannot be granted.

20. Mr. Abhyankar next urged that the learned trial Judge had held that in so far as Clauses X was concerned, it did not constitute a concluded contract and that the said clause was vague and was not enforceable. That, this was an erroneous view of the matter, since a plain reading of the clause must go to show that it clearly envisages the grant of a prospecting licence and/or a mining lease, and it does not constitute a concluded contract. In view of what is aforesaid, it is unnecessary now to debate this point.

21. Mr. Abhyankar next urged that the learned trial Judge had held that the was barred by the law of limitation and here too the learned trail Judge was in error. That as state earlier. the order of the Central Government was dated 20th February, 1967. That, the time must now be computed from that day. The suit for possession was filed was 1st of July, 1971, and therefrom, the suit for possession was clearly in time. That, if it is to be held that the a declaration for specific performances was and is necessary, then it can only the be form the date of the demand. That the demanding this behalf was made by a letter dated 7th October, 1968, and computing the period form that date then also the suit would be in time. That, in view of this, the finding of the learned trial Judge on this aspect of the matter must now be set aside.

22. Mr. Dalvi, the learned Counsel for Respondent No. 7 urged that the order of the Central Government was dated 20th February 1967. That the suit was filed on the 1st of July 1971. In other words,. more than three years have elapsed, and therefore, the suit would be barred by the law of limitation. In any every, a notice and 15th February. 1964. (Exh. 239) was not only issued, but published. But this notice the Appellants were made aware that they would not be entitled to any right in so far as the property mentioned in Schedule B was concerned. That if the Appellant wanted to enforce their rights, then they should have filed their suit within three years thereof, more particularly in view of Art. 54 of the Limitation Act, which provisions as follows:--

------------------------------------------------------------------------------------------------------------------'Description of Suit Period of Limitation. Time from which period begins to run.------------------------------------------------------------------------------------------------------------------53. * * * * * * 54. For specific Three years. The date fixed for the performance or, if noperformance such date is fixed, when the plaintiff hasof a contract. notice that performance is refused.'------------------------------------------------------------------------------------------------------------------

That, in this view of the matter, the suit would be bared by reason of the provisions of the law of limitation.

23. We uphold Mr. Dalvi's submission on this point.

24. In the suit, the order of the trial court must stand confirmed, the Appeal fails and the same is dismissed with costs.

25. Appeal dismissed.


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