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Smt. Deo Kaur Bai Pandya Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 303 of 1972
Judge
Reported inAIR1974Ori84
ActsMines and Minerals (Regulation and Development) Act, 1957 - Sections 8(1); Constitution of India - Article 226
AppellantSmt. Deo Kaur Bai Pandya
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateGovt. Adv.
DispositionPetition allowed
Cases Referred(Serajuddin & Co. v. Union of India
Excerpt:
.....relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' as by annexure-2 the..........1965. the petitioner filed o. j. c. 20 of 1966 to quash the order, dismissing the revision. the writ application was dismissed on 28th of october, 1969. the case is reported in 36 cut lt 633 = (air 1971 orissa 75 (sm. deo kuar bai pandya v. the union of india). possession of the mine was taken by the state government on 23rd of august, 1971.in air 1967 sc 964 (gujarat pottery works (p) ltd., v. b. p. sood) majority of their lordships held that the act is not retrospective and a mining lease cannot be modified to a period of twenty years retrospectively. following this decision this very bench of this court held in (1971) 2 cut wr 918 (serajuddin & co. v. union of india) that the lease is to be modified with effect from the date when the act came into force, that is, from 1-6-1958. but.....
Judgment:

G.K. Misra, C.J.

1. The husband of the petitioner obtained a mining lease of manganese (Annexure-1) dated 30th of September, 1943 from the Bonai Durbar for a period of thirty years. The original lessee died on 11th of November, 1948 leaving behind the petitioner as the sole heir. On 1st of June, 1958 the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter to be referred to as the Act) came into force. Under Section 8(1) of the Act the Central Government had powers to modify prior mining leases to a period of twenty years. In accordance with that power, on 12-1-1959 the lease (Annexure-1) was modified to a period of twenty years with effect from 30-9-1943 by the order Annexure-2. The substantive part of Annexure-2 modifying the period of lease runs thus:--

'Period of the lease shall be 20 yearscounting from 30-9-1943; renewal to beregulated according to the law and rulesin force when it falls due.'

As by Annexure-2 the lease was to expire on 30th of September, 1963, the petitioner made an application for renewal on 16-3-1963/20-3-1963. The State Government rejected this application on 30th of March, 1965 on the ground that the petitioner failed to produce the income-tax clearance certificate as required under the rules of renewal. The petitioner filed such a certificate on 1-4-1965 and applied for review of the rejection order dated 30th of March, 1965. The State Government refused to review the earlier order on 25-5-1965. A revision was filed before the Central Government on 26th of May, 1965 which was dismissed on 30th of October, 1965. The petitioner filed O. J. C. 20 of 1966 to quash the order, dismissing the revision. The writ application was dismissed on 28th of October, 1969. The case is reported in 36 Cut LT 633 = (AIR 1971 Orissa 75 (Sm. Deo Kuar Bai Pandya v. The Union of India). Possession of the mine was taken by the State Government on 23rd of August, 1971.

In AIR 1967 SC 964 (Gujarat Pottery Works (P) Ltd., v. B. P. Sood) majority of their Lordships held that the Act is not retrospective and a mining lease cannot be modified to a period of twenty years retrospectively. Following this decision this very Bench of this Court held in (1971) 2 Cut WR 918 (Serajuddin & Co. v. Union of India) that the lease is to be modified with effect from the date when the Act came into force, that is, from 1-6-1958. But the period of twenty years cannot be extended beyond the date when the original lease was to expire. The petitioner's case is that after coming to know this decision of this Court she was advised that she had still a valid title and wrongly she filed an application for renewal and pursued other remedies to obtain renewal and that she had been illegally dispossessed. The writ application has been filed under Article 226 of the Constitution for issue of a writ of mandamus directing opposite party No. 3 to hand over possession of the mine to the petitioner.

2. In the counter affidavits filed by the opposite parties the aforesaid facts are not disputed. The learned Government Advocate urged that the writ application is liable to be dismissed on account of laches and delay.

3. The main question for consideration in this writ application is whether the decision of this Court in 36 Cut LT 633 = (AIR 1971 Orissa 7) constitutes res judicata so far as this writ application is concerned. In that case the petitioner wanted the revisional order of the Central Government to be quashed as it assigned no reasons for rejecting the revision application. No question was raised that the petitioner had still a subsisting title in the lease-hold. Even if such a contention had been raised at the time of hearing by citing the Supreme Court decision, such a contention would have been rejected as inadmissible as the writ application was not based on the basis of title. That case proceeded on the assumption that the petitioner had no title to the lease-hold which had come to ah end by the order Annexure-2 and that she should have been granted renewal. The point raised in this writ application was neither heard nor decided in 36 Cut LT 633 = (AIR 1971 Orissa 7). There is no question of res judicata in this case and the learned Government Advocate did not also press that point. We, however, considered it appropriate to deal with the question of res judicata as such a point is likely to arise in a case of this nature.

4. In (1971) 2 Cut WR 918 we made the following observation in paragraph 8 of the judgment which may be extracted:--

'The modification made by the controller is done with a view to bring the lease in conformity with Section 8(1) of the 1957 Act. In this case the lease is to expire by 1-12-1974 and consequently if the modification is taken to be for a period of 20 years with effect from 1-6-1958, then the period of the new lease would expire on 1-6-1978 which does not appear to be the intendment of Section 8(1). The modification was never intended to extend beyond 1-12-1974. We would uphold the contention of the petitioner that the order of modification can delimit the period to 20 years commencing from 1-6-1958 and can have no retrospective operation. We cannot, however, construe the modification as extending beyond 1-12-1974.'

5. The identical principle applies to the facts of this case. The original lease was dated 30th of September, 1943 for a period of thirty years. In normal course it would have expired on 30th September, 1973. If the period of 20 years is taken from 1-6-1958 as was said by the majority of their Lordships in the aforesaid Supreme Court decision, then the period of 20 years would expire on 1-6-1978. This is not the intendment of Section 8(1) of the Act. By modification the petitioner's original period cannot be enlarged. Applying the aforesaid principle the lease of the petitioner would subsist till 30-9-1973 and not beyond. In other words, the petitioner has still a title to the leasehold for about another period of seven months. The title of the petitioner has not been extinguished by any legal act. Only under misconception of law the petitioner was of the impression that she had no legal title. As the petitioner has been dispossessed before the 30th September, 1973 she is entitled to recovery of possession.

6. The only serious objectionraised by the learned Government Advocate was that the Supreme Court decision was published sometime in June,1967 and the writ application was filedon 14-4-1972--about five years after--and reliefs should not be granted to thepetitioner in exercise of jurisdictionunder Article 226 of the Constitution. Thereis no substance in this contention. Undisputedly the petitioner's title has notbeen extinguished by adverse possession.The petitioner is entitled to recover possession within twelve years. But thatapart, the petitioner was continuing inpossession till 23rd of August, 1971 andthe writ application was filed about eightmonths after dispossession. In the circumstances we cannot say that there wasany delay and laches on the part of the petitioner.

7. In the result, the writ application is allowed. A writ of mandamus be issued directing opposite party No. 3, the State of Orissa through the Secretary, Department of Mining and Geology, to put the petitioner in possession forthwith. In the circumstances, there will be no order as to costs.

Acharya, J.

8. I agree.


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