D.S. Tewatia, J.
1. The trial Court has referred the following two question for the opinion of this Court:
'1. Whether the grant of mining contract by the State of Haryana in favour of the plaintiffs prohibits all other persons in the area of mining contract from carrying out any sort of work on minerals besides the carrying away of the same ?
2. If question No. 1 is answered in negative, then whether all other persons are also debarred from carrying out any sort of work on the minerals even if they carry out their work within 50 meters from the Public road?'
The referred questions have to be judged in the light of the case set up in the plaint by the plaintiffs (Messrs Ram and Shyam and Company) and the case set up by the defendants thereto. The plaintiffs' case is that a definitely earmarked area in terms of Khasra numbers had been given to them on lease by the State Government, Haryana, vide agreement dt. 10-12-1982, for the purpose of mining, breaking, crushing and removing or taking away the same after crushing stone, minor minerals of stone and all road metals lying and found in the said quarry, which has been described in detail in para No. 2 of the plaint; that the defendants who had the contract of lease earlier to carry on mining operations have their crushers over the leased area; that the continuance of the crushers of the defendants started illegal interference over the leased area and they have no right either to maintain or to work their stone-crushers there.
2. The defendants' plea inter alia was that crushing of stones was no part of the mining of the stones and, therefore, the defendants by establishing and working the stone-crushers within the leased area had nowhere indulged in mining operations and thus, in no manner, their presence contravened the contract of the plaintiffs of mining; and that, in any case, the stone-crushers were within fifty meters of the metalled road within which area the plaintiffs themselves had been prohibited to establish and to work any stone-crusher and, therefore, the plaintiffs, in no manner, suffered from the stone crushing activity of the defendants in that area.
3. Before dealing with the above referred two questions, it would, at this stage, be apt to recapitulate a little history in regard to this reference. The defendants had applied to the trial Court to make a reference to the High Court. Right up to the High Court the prayer for making a reference was declined. When the matter was carried to the Supreme Court, their Lordships made a direction to the trial Court, operative part whereof is in the following terms:
'....... But since the decision of the controversy, between the parties involves the question of construction of clauses (g) and (j) of Rule 2 of the Punjab Minor Minerals Concession rules 1964 and this interpretation might depend on the question of validity of these Rules, we would direct the trial court to immediately refer this question to the High Court under S. 113 of the Code of Civil Procedure.
The trial Court acting in pursuance of the said direction made a reference to this Court which, when came up for consideration before my learned brother Goyal, J., the same was found not in accord with the provisions of O. 46, R.1 of the Civil P. C. and the trial Court was directed to frame a proper reference and it is thus that the present reference pointing the two questions, already stated, for the opinion of this Court with its own findings by the trial Court has been submitted to this Court.
4. A perusal of the Supreme Court direction would show that their Lordships were of the view that since the decision of the controversy between the parties involved the question of construction of clauses (g) and (j) of R. 2 of the Punjab Minor Minerals Concessions Rules, 1964, and that the interpretation thereof might depend on the question of validity of these Rules, so it was desirable that the reference was made under S. 113 of the Civil P. C. by the trial Court to the High Court.
5. A perusal of the questions posed by the trial Court for the opinion of this Court would show that the validity of clauses (g) and (j) of R.2 of the said Rules had not been made an issue in the reference and the learned counsel appearing for the defendants (for the purpose of this reference the status of the parties to the reference is stated herein on the basis of their status in the trial Court viz. the plaintiffs shall be referred to as the plaintiffs and the defendants shall be referred to as the defendants) did not challenge the validity of the aforesaid clauses (g) and (j) of R. 2 of the said Rules.
6. Now back to the points raised in the reference answers to which would depend on the interpretation of clauses (g) and (j) of rule 2 and, therefore, these deserve noticing at the very outset:
'2. In these rules, unless the context otherwise requires-
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(g) 'Mining lease' means a lease to mine, quarry, bore, dig, and search for win, work and carry away any minor mineral specified therein.
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(j) 'Contract' means a contract given on behalf of the Government to carry, win, work and carry away any mineral specified therein, through open auction or by inviting tenders for certain specified areas, notified by the Director.
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These rules had been promulgated by the State Government in exercise of powers under S. 15(1) of the Mines and Minerals (Regulations and Development) Act, 1957, relevant portion of which provision is in the following terms:
'15(1) The State Government may, by notification in the official Gazette, make rules for regulating the grant of quarry lease, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith................' The plaintiffs' right flows from the contract of lease granted to them by the State Government.
7. The question that pointedly arises for consideration under Question No. 1 formulated by the trial Court is whether the defendants could establish a stone-crusher in the area leased out to the plaintiffs and crush stones whether secured surreptitiously from the area leased out to the plaintiffs or from outside, and if the stone-crusher was already there in the given area, then whether the defendants are entitled to maintain their stone-crusher in the leased area and continue to work it for stone-crushing.
8. The learned counsel for the defendants canvassed that since right to mine the mineral under the lease granted to the plaintiffs would not give them any right to the surface area, so the surface area could be put to any use by the owner of the surface area himself or by his lessee, as putting to the use of the surface area by installing any plant or machinery did not tantamount to the right of mining and thus it stood excluded from the contract of lease.
9. In our view, there is no merit in this contention whatsoever. There are two aspects of the matter (1) whether under the lease the plaintiffs acquired any right over the surface of the area forming part of their lease and if they did acquire such a right, whether such a right was such as to entitle them to exclude other persons or the owner from making use of the surface area for the purpose of establishing plant and machinery etc., and (2) whether right to instal stone-crusher on the leased area by the plaintiffs-formed part of the mining operations.
10. In our opinion, under the lease the plaintiffs not only acquired the exclusive right of mining in the area specified in the lease, but also got exclusive right to make use of the surface area and exclude therefrom any other person except the one which is mentioned in R.21(1)(ix) of the said Rules.
11. As to the right of the lessees over the surface of the area forming part of their lease the same flows from clause (ii) of R. 21(1) of the said Rules, which is in the following terms:-
Conditions of mining lease:--
'21(1) Every mining lease shall be subject to the following conditions:
(ii) The lessee shall pay for the surface area occupied by him at such rates not exceeding land revenue, water charges and cesses assessable on the land as may be fixed by the Government and specified in the lease deed.
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Rule 22 (relevant portion whereof is in the following terms) confers an express right on the lessees to erect plant and machinery and use land for stacking purposes and do any other thing specified in the lease:
'22. Right of Lessee--Subject to the conditions mentioned in R. 21 the lessee, with respect to the land leased to him, shall have the right for the purposes of mining operations on that land to-
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(iii) erect plant and machinery;
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(vi) use land for stacking purposes ;
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From the aforementioned provisions, it is clear that R. 21(1)(ii) of the said Rules expressly envisages payment for the use and occupation of surface area. That means the lessees have not only to pay royalty on the minor minerals mined by them under Clause (I) of R. 21(1) and yearly dead rent specified under clause (iii) of R. 21(1), but also for the surface area as well under clause (ii) of R. 21(1) of the said Rules.
12. In a case where only the minor mineral rights vest in the Government and not the land, then R. 61 of the said Rules prescribes acquisition of land and payment of compensation therefore by the lessees or contractors which rule is in the following terms:
'61. In case the occupier or owner of a land in respect of which minor mineral rights vest in the Government, refuses his consent to the exercise of the right and powers, reserved to the Government and demised to the lessees or contractor, as the case may be, the lessees or contractors shall report to the Government and shall deposit with it the amount offered as compensation and if the Government are satisfied that the amount of compensation offered is fair and reasonable or if it is not so satisfied and the lessee shall have deposited with it such further amount as the Government shall consider fair and reasonable the Government shall order the occupier to allow the lessee to enter the land and to carry out such operations as may be necessary for the purposes of this lease. In assessing the amount of such compensation the Government shall be guided by the principles of the Land Acquisition Act'.
with the result that for the lease period the lessee acquires in law the exclusive right to possess the demised area in its entirety and is entitled to exclude everyone else from the area on lease with them except those who are mentioned in clause (ix) of R. 21(1) and that too only for the purposes of traversing the land, that is, for the purpose of access to any land to which the only access is through the leased area. If a stranger to the lease cannot even step upon the area under lease with the plaintiffs, then the question of any such person being entitled to carry out within or on such leased area any sort of work whatsoever on the minerals occurring in the leased area does not arise.
13. Adverting to the rights of the defendants, it may be observed that they do not fall in the above said category. The defendants were old lessees and on the expiry of their lease period and after the start of the lease period of the plaintiffs, the defendants ceased to have any connection with the area leased out to the plaintiffs. The defendants could not step on the area on lease with the plaintiffs without the express permission of the latter, much less maintain a stone-crusher or work there. The plaintiffs therefore are entitled to approach the Civil Court and seek a mandatory injunction directing the defendants to remove the stone-crusher from the leased area and a further injunction restraining them from working the said stone-crusher.
14. In view of the above, the second aspect of the question as to whether establishment of stone-crusher forms part of the mining operations need not be gone into.
15. For the aforesaid reasons, we answer the first question in the affirmative.
16. Now coming to the second question, it may be observed that in view of the affirmative answer to the first question, there cannot be two opinions about the fact that nobody can maintain a stone crusher and work it within the area under lease with the plaintiffs nor work on the minerals occurring in the leased area in any manner whatsoever irrespective of the fact whether the site of the stone crusher happens to be within fifty meters of the road or less or more. Hence, the answer to Question No. 2 is also returned in the affirmative.
17. With the above answers to the questions in the reference, the office is directed to return the papers to the trial court to decide the case on merits in the light of the answers given to the questions referred to by it. There will be no costs of these proceedings.
18. Order accordingly.