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industrial Fuel Marketing Co. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4093 (W) of 1980
Judge
Reported inAIR1983Cal253
ActsMines and Minerals (Regulation and Development) Act, 1957 - Section 3; ;Coal Mines (Nationalisation) Act, 1973 - Section 3(3); ;Coal Mines (Nationalisation) (Amendment) Act, 1976; ;Bihar Land Reforms Act; ;Coal Bearing Areas (Acquisition and Development) Act, 1957; ;Constitution of India - Article 226(1)
Appellantindustrial Fuel Marketing Co.
RespondentUnion of India (Uoi)
Appellant AdvocateSomnath Chatterjee, ;Anindya Kumar Mitra, ;S. Pal, ;P.K. Chatterjee, ;M.P. Meharia and ;B. Majumdar, Advs.;Narattam Chatterjee, Adv.
Respondent AdvocateR.C. Deb, ;Goutam Chakraborty, ;Samar Banerjee and ;Ranjit Kr. Sanyal, Advs. for Respondent No. 3
Cases ReferredRogers v. Longsdon
Excerpt:
- orderb.c. ray, j.1. the petitioner no. 1, messrs. industrial fuel marketing co., a partnership firm duly registered under the partnership act and the petitioners nos. 2, 3 and 4 who are the partners of the aforesaid firm have assailed in this writ application the institution of the criminal case being petarbar p. s. case no. 2 dated 4th april, 1982 on the ground that the said criminal proceeding was wrongly started against the petitioners and also for a mandate restraining the respondents from interfering with the petitioners right to collect sludge or slurry elected, from the coal washeries known as kathaya kargaji and swang washeries belonging to the respondent no. 3, the central coalfields ltd.2. the sallent facts as appear from the petition are as follows, the respondents, central.....
Judgment:
ORDER

B.C. Ray, J.

1. The petitioner No. 1, Messrs. Industrial Fuel Marketing Co., a partnership firm duly registered under the Partnership Act and the petitioners Nos. 2, 3 and 4 who are the partners of the aforesaid firm have assailed in this writ application the institution of the criminal case being Petarbar P. S. Case No. 2 dated 4th April, 1982 on the ground that the said criminal proceeding was wrongly started against the petitioners and also for a mandate restraining the respondents from interfering with the petitioners right to collect sludge or slurry elected, from the coal washeries known as Kathaya Kargaji and Swang washeries belonging to the respondent No. 3, the Central Coalfields Ltd.

2. The sallent facts as appear from the petition are as follows, the respondents, Central Coalfields Limited and Coal India Limited are Government Companies, previously, the National Coal Development Corporation Limited (commonly referred to as NCDC) was the Owner of Goal Washeries known as Kathara, Karsali and Swang washeries situate in the District of Giridih in the State of Bihar. The said Coal Washerieshave now vested in the respondent No. 3, the Central Coalfields limited. In these washeries a large quantity of coal from Hazaribagh/Giridih Coalfields is brought in for the purpose of processing in order to bring out the good qualities of coal which are required in the Steel Plants. In the course of such processing very fine particles of coal known as slurry are ejected and the same are taken in the several ponds known as slurry ponds or tants wherein the coal particles ejected with the water coming out of the aforesaid washeries are deposited. These slurry ponds or tanks cannot keep all the ejects coming out of the coal washeries and the water with coal particles ejected from the washeries overflows these tanks or ponds into the neighbouring fields and also into the river Damodar. As a result, this elected sludge or slurry with the coal particles He on the agricultural fields as well as on the river teed. It has been pleaded that this causes great 'damage to the fertility of the soil and pollutes the water of the river and the streams. It has been pleaded that this coal ejects overflowing from the reservoirs and after escaping from the limits of the concerned washeries become part and parcel of the soil with which it gets mixed up. As regards the ejected sludge deposited in the river bed it becomes part and parcel of the river bed.

3. The petitioners on 19th Aug., 1974, applied to the respondent No. 2, State of Bihar for permission to remove the ejected sludge deposited in the manner aforesaid for the purpose mentioned in the said letter a copy of which is annexed as Annexure 'A' to the petition. The State of Bihar the respondent No. 2, by an Indenture dated 9th April, 1975 entered into between the State Government on the one hand and the petitioners Nos. 2, 3 and 4 on behalf of the aforesaid firm granted settlement in favour of the firm of the right to remove the aforesaid ejects or effluents from the river bed of River Damodar as well as from the agricultural fields belonging to the raiyat on taking the consent of these raiyats as well as from the lands belonging to the State Government for a period of 10 years from 9th April, 1975 on payment of royalty as specified in the said Indenture. It has been further recited in the said Indenture of lease that these elects/sludge being a mineral the State Government is the owner ofthe same by virtue of the entire estate including the minerals having vested in the State Government under the provisions of Bihar Land Reforms Act. It has also been recited therein that in the second Schedule attached to the Mines & Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957) there are six groups of coal and the ejects/ sludge have been grouped under Group No. VI Coal-ejects and the rate of royalty payable in respect of the same has been fixed at 40 paise per tonne. A copy of the said Indenture of lease has been annexed as Annexure 'C' to the writ application. It has been stated in the petition that by letter dated 22nd April, 1975 the District Mining Officer of the respondent No. 2 authorised the petitioner to lift the ejected sludge or slurry from the concerned sites on and from the said date, A copy of the said letter was annexed as Annexure 'E' to the petition. It has been pleaded that after lifting the ejected sludge or slurry the petitioners are converting the same into a particular type of soft coke, that is, briquette, suitable for domestic purpose and have from time to time sold the same as such in the market, it has been further pleaded that after lifting the ejected sludge or slurry from the northern side of the river bed the petitioners kept the same on the southern side of river Damodar, The petitioners have paid all up-to-date outstanding dues of the respondent No. 2, the State of Bihar. under the said Indenture by a challan dated 5th April, 1982.

4. It has been stated that on or about 2nd, April, 1980, six trucks loaded with ejected sludges and soft coke manufactured out of the same were seized by the police when the trucks were about to leave the site for the purpose of transportation of the loaded goods. On enquiry it was revealed that a case being Petarbar P. S. Case No. 2 dated 4-4-80 had been started under Section 379 of the I.P.C. against the petitioners for theft of the sludge or slurry. It has been also pleaded that the petitioners noticed that the representatives of the respondent No. 3 were trying to remove the accumulated ejected sludge already lifted by/and/or on behalf of the petitioners and deposited on the southern side of the said river to the said washeries.

5. It has been pleaded that the interference with the right of the petitionersunder the said Indenture of lease is totally illegal and without jurisdiction as the respondent No. 3 has no right, title and interest in respect of the ejected sludge flowing into the field and/or into the streams and rivers and which is the subject matter of the said Indenture. It has been further submitted that the said Indenture constitutes a grant in favour of the petitioners and confers upon the petitioners valuable property rights. It has been pleaded also that the respondent No. 3 have acted and are acting arbitrarily and without authority of law in causing obstruction and/or interference with the rights of the petitioners under the said Indenture. It has, therefore, been prayed for issuance of a writ in the nature of Mandamus commanding and/or directing the respondents to forthwith withdraw, recall and/or rescind the said case No. Petarbar P. S. Case No. 2 dated 4-4-80 and to show cause why the said proceeding should not be quashed or set aside. A further mandate has also been asked for directing the respondent Nos. 3 and 4 from interfering with the rights of the petitioners under the said Indenture dated 9th April, 1975. There was also a prayer for an interim injunction restraining the respondents from interfering with the petitioner's right to collect sludge or slurry from the agricultural fields and also from the river beds granted to the petitioners under the Indenture of lease dated 9th April, 1975 as well as restraining the respondents from proceeding with the said criminal case being Petarbar P. S. Case No. 2 dated 4-4-80.

6. This application was moved on 11th April, 1980 and a Rule was issued and interim order was made in terms of prayer (e) of the petition restraining the respondents, their servants or agents from interfering with or in any way obstructing the petitioners, their agents or employees in the exercise of their rights under the said Indenture dated 9-4-75 mentioned in annexure 'C' to the petition for two weeks with liberty to apply for extension of the interim order or further interim orders upon notice to the respondents. This interim order was extended until further orders by order dated 25th April, 1980.

7. On an application for variation of the interim order moved on behalf of the respondents it has been further ordered on 5th Jan., 1981 that the in-terim order issued already shall not prevent the respondents from proceeding with the Petarbar P. S. Case No. 2 dated 4-4-80. It was also directed by the said order that any interim order passed herein will riot prevent the respondent? from taking any such action in respect of such goods as they may be entitled to do in accordance with law.

8. On Appeal in F.M.A.T. No. 118 of 1981 the interim order that was granted previously was modified to this extent that the respondents Nos. 1 to 4, however, will be entitled to collect sludge/ slurry from the Damodar river bed in terms of the registered Indenture of lease dated April 3, 1975 granted by the State of Bihar subject to this that the said respondents will not interfere with the removal of the sand by the appellant under the indenture of lease dated 3rd June, 1970 granted by the State of Bihar. The appeal was thus disposed of. An appeal was filed before the Supreme Court in Civil Appeal No. 3131 of 1981. The Supreme Court modified the interim order to this extent that the respondents shall be entitled, to account for the sludge or slurry removed from the river bed under the said indenture. There was also a further direction that the respondents shall furnish a Bank guarantee to the satisfaction of the Registrar of this court once in every two months till the disposal of the writ application before this court.

9. An affidavit-in-opposition has been filed on behalf of the respondent No. 3, the Central Coalfields Limited. The said affidavit has been affirmed by one Sri M. P. Rao Adhikari, Superintending Engineer, Kargali Washery on 17th Dec., 1981. In paragraph 4 of the said affidavit it has been stated that the writ application does not disclose that this court has jurisdiction to try the writ application. It has also been pleaded therein that no part of the alleged cause of action of the writ petition arose within the `erri-torial jurisdiction of this Hon'ble Court. The alleged lease was executed and registered in the State Bihar. The alleged interference with the right of the writ petitioners also was alleged to have taken place at Kathara in the District of Giridih in the State of Bihar, outside the territorial jurisdiction of this Hon'ble Court. Moreover, all the respondents are situate and/or residing outside the territorial jurisdiction of this Hon'ble Court. It has been further averred that there is no averment in the writ petition that any action has been taken from the Calcutta office of the respondent No, 3. It has also been pleaded that the application is wholly misconceived inasmuch as there is no legal or statutory duty on the part of the respondents which is required to be enforced by a writ of mandamus. In para 5 of the said affidavit it has also been pleaded that the indenture of lease and/ or settlement is without previous approval of the Central Government and without the knowledge of the predecessor-in-interest of the concerned company. It has also been pleaded that the slurry is fine particles of coal ejected during the process of washing the raw coal in the washery belonging to the respondent No. 3 and the same is supplied to priority industries like steel plants, power houses etc. It has also been pleaded that the said sludge of coal ejects also belonged to the predecessor-in-interest of this respondents and also it now belongs to the respondents. It has been averred that to meet the need of steel plants and power houses the raw coals are washed in the washery and some quantities are ejected with the effluents. These ejected fine coal particles which are commonly known as slurry are permitted to accumulate in pond or ponds specifically constructed by respondent No. 3 herein for its storage. These ponds are known as slurry ponds. It may so happen that after the pond is full, the fine coal particles/slurry may as a result of overflow is spread over the adjoining lands. The adjoining lands where the coal particles/slurry are permitted to be spread over have been acquired by respondent No. 3 either under the provision of Coal Bearing Areas (Acquisition and Development) Act or by mutual settlement by private individuals only with a view that the fine coal particles/ slurry are not lost and could be sold to the steel plants and/or power houses who are badly in need of such Quality, of coal. After the requirement of steel plants and power houses are met the left over fine coal particles/slurry are also being sold in the market through open tender for preparation of briquettes. The respondent No. 3, therefore has been selling all the time this fine coal particles/slurry not only to its valuable customers like steel plants and power houses for an attractive price but also to manufacturer of briquettes for an attractive price. A chart has been given showing the quantity in tonnes of the said slurry/sludge and the price fetched on sale of such fine coal particles/slurry. It has also been pleaded that the respondent No. 3 having obtained a sand lease executed by the State of Bihar with respect to these river beds and streams such accumulation of fine coal particles/ slurry are the property of respondent No. 3. It has been further pleaded that the alleged right under the indenture of lease granted by the respondent No. 2 to the petitioners have already been acquired by the Central Government under the Coal Bearing Areas (Acquisition and Development) Act. 1957 by Notification No. 3810 dated 23-11-67. The said areas have now vested in the Central Coalfields Ltd. (known as C.C.L.), respondent No. 3. It has been pleaded further that the State of Bihar also granted a lease to National Coal Development Corporation Limited now known as Central Coalfields Limited in respect of which the petitioners are claiming the right under the said agreement. The petitioners therefore have no right title and interest over the said area and the purported lease alleged to have been granted by the State of Bihar have no existence in the eye of law. It has been further stated that the coal extracted from the mines is sent to the washery for washing as a result of which better quality of coal is separated from what is described as Group VI Coal-rejects in Sch. II, Item 9 and explanation (iii) thereto in the Mines and Minerals (Regulation and Development) Act, 1957 and the prescribed rate of royalty is 40 paise per tonne in 1975. This mineral is coal of Group VI variety and falls within Item 2 of the Second Sch. of the Mines and Minerals (Regulation and Development) Act, 1957. It has been further pleaded that the purported lease was granted without any prior or subsequent approval of the Central Government and without the knowledge of the respondent No. 3, It has been further stated that for the first time in the year 1979 the petitioners through, their agents tried to steal the mineral in question belonging to and owned by the respondent No. 3 which the respondent No. 3 resisted. The respondent No. 3 filed a first information report with the police. It has also been stated that the royalty was paid by the petitioners to the State of Bihar for the first time in 1980 and not before that. It has also been pleaded that the deed of lease was inoperative from its very inception being void ab initio according to the provisions of Section 5(2) of the Mines and Minerals (Regulation and Development) Act, 1957 and also because it was in respect of the property belonging to the respondent No. 3. Even assuming but not admitting that the lease is a valid one, yet the lease being undisputedly for the winning of coal such a lease stood terminated with effect from April, 1976 when the Amendment Act came into force. As such the petitioners cannot claim any right whatsoever under the said lease dated 4-4-80 and cannot lift the mineral in question belonging to the respondent no. 3. These are all the material averments made in the affidavit-in-opposition.

10. Another affidavit-in-opposition has been filed on behalf of the respondent No. 2 the State of Bihar. The said affidavit was sworn by one Harihar Prasad Mahato, a Legal Assistant in the Department of Mines and Geology, Government of Bihar. It has been stated in paragraph 5 of the said affidavit that the petitioner have deposited a sum of Rs. 14,670 paise 36 against the total demand of Rs. 21,760 paise 53 up to 8th Oct., 1979 as reported by the District Mining Officar, Giridih. It has been stated in para 6 that the State of Bihar executed the aforesaid indenture of lease settling the right to remove sludge/ slurry from Kathara, Kargali and Swang Coal Washeries, in the District of Giridih for over an area of 391.21 hectares for ten years in favour of the petitioners. It has also been stated therein that the said is denture do not contemplate any mining operation whatsoever under the said indenture per se and the process of collection do not involve any excavation or digging the soil. It has also been stated that the said indenture has not been granted under the Mines and Minerals (Regulation and Development) Act, 1957. The said lease or settlement was granted by the State of Bihar in exercise of its right as owner of the adjoining lands as well as of the river bed and benefits accruing thereon.

11. Another affidavit-in-reply sworn by one M. P. Rao Adhikary, Superintending Engineer has been filed on 8th Dec., 1982. It has been stated that the slurry flowing out of the washeries get deposited on the adjoining lands and river bed which have been acquired by the respondent No. 3. It has also been stated in para 5 of the said affidavit that the said overflow of coal after leaving the boundary of the coal washeries get mixed up with sand and loses its identity. It has been stated that no such mixing up as alleged takes place and the slurry do not lose its identity as alleged. It has been reiterated in para 7 of the affidavit that the registered Indenture dated 9th April, 1975 by which the coal mining lease has been granted in favour of the writ petitioner is void and ab initio and/or in any event the said lease stands terminated for the reasons more fully stated in the affldavit-in-opposition filed by and on behalf of the Central Coalfields Limited respondent No. 3. It has also been stated that the Indenture-in-question is nothing but a coal mining lease in favour of the writ petitioner and the said lease contemplates mining and/or winning operation. The said lease is, therefore, void, illegal and of no effect and/or in any event stands automatically terminated by virtue of the provisions of Section 3(3) of the Coal Mines (Nationalisation) Act. 1973. It has been further stated that the adjoining lands have been acquired for miniing and allied purposes by the respondent No. 3 under the relevant provisions of the Coal Bearing Areas (Acquisition and Development) Act, 1957 and as such the State of Bihar has no authority to gram any lease for winning minerals in question which is coal included in schedule II as Group VI variety without obtaining previous approval and/or consent of the Central Government. It has also been submitted that the indenture has been granted under the Mines and Minerals (Regulation and Development) Act, 1957 as otherwise the State Government has no authority to grant any mining lease in respect of coal which is a schedule one mineral under the said Act.

12. An affidavit-in-reply has been filed on behalf of the petitioner. The same has been sworn by Mahendra Kumar Agarwalla a partner of tbe re-spondent No. 1 firm. It has been stated in para 6 that the said indenture was to be performed and is being performed by the petitioner from its Head Office and main place of business at No. 15, Park Street, Calcutta. AH payments under the said indenture have been made by bank drafts issued from banks at Calcutta. It has been denied that the respondent No. 3 has got only its sale office in Calcutta. The Administrative Office, Office of the Finance Department. Office of the Managing Director of the respondent No. 3 are situated at No. 15, Park Street. Calcutta. It has been stated also that the decision to obstruct or interfere with the petitioners' right to collect and remove sludge/slurry under the indenture of settlement dated 9th April, 1975 must have been taken after consultation with the Legal Department at No. 15, Park Streel, Calcutta. In para 8 of the said affidavit, it has been stated that the State of Bihar is the owner of such substance after the same leave the boundary wall of the coal Washery. Moreover, the river bed of the river Damodar have not been acquired, The purported acquisitions under the Coal Bearing Areas (Acquisition and Development) Act, 1957 have been challenged by writ petition filed in his Hon'ble Court which is now pending decision of this court. This court is also pleased to issue a Rule Nisi and to make an interim order in the said matter. It has also been submitted that the land adjoining the said coal washery are not mines as in order to be mines there must be natural deposits of minerals. It has been further submitted that the said indenture does not provide for any mining operation nor it is for winning of coal as alleged or at all and as such respondent cannot interfere with the petitioners' right to collect and re- move the sludge or slurry deposited or to be deposited on the river bed as well as on the lands of other persons which are the subject-matter of the Indenture of lease.

13. Mr. A. N. Mitra, learned Advocate appearing on behalf of the petitioner has submitted in the first place that the petitioners have acquirerd a right on the basis of the indenture of lease dated 9th April, 1975 to collect and to remove the sludge or slurry coming out of the limits of the coal washeries and deposited on the river bed as well as on the agricultural fields nearby belonging to private persons as well as to the Government. The impugned action on the part of the responded No. 3, the Central Coalfields Limited which is a Government undertaking is arbitrary and unwarranted and as such the same is liable 10 be quashed and set aside. It has been further submitted in this connection by Mr. Mitra that even if it is assumed for argument's sake without admitting the same that the said indenture does not confer a legal right on the petitioner still then the petitioner being in possession and having been collecting and removing the said ejects even as trespasser it is illegal and arbitrary on the part of the State to interfere with his such right without taking recourse to law. In support of this submission the decision reported in : [1962]2SCR69 was cited. It has been next submitted that the lease-in-question is not a mining lease within the meaning of Mines and Minerals Regulation and Development) Act, 1957 (Act 67 of 1957) as it does not involve any mining operation which means excavation of earth for the purpose of drawing up of minerals lying underneath the earth or soil. The river bed is undoubtedly owned by the State of Bihar and anything lying on the river bed that is the sludge or slurry belongs to the State of Bihar which is competent to lease out the right to remove the same from the river bed as well as from the lands belonging to the State to the petitioners. As such it has been submitted that the indenture of lease giving such right to collect the sludge or slurry from the river bed or from the adjoining lands not belonging to the respondent No, 3 is not a void document nor it is an ineffective document being made in violation of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and of the Coal Mines (Nationalisation) Act, 1973 (Act 26 of 1973). It has been further submitted in this connection that to be a mine there must be natural deposit of resources. Railway dumping yard where coal is dumped and removal of coal wherefrom cannot be regarded as a mining operation. It has been submitted that the river belongs to the State of Bihar and land also belongs to the State and so the State is competent to settle the right to remove wastes deposited on river beds or on lands. It has been further submitted that the coal particles elected from washeries and being mixed up with sand and mud loses its identity as a mineral and as such the right to collect the sludge or slurry comprising of the coal particles from lands and places belonging to the State) of Bihar other than from mines is not winning within the meaning of Mines and Minerals (Regulation and Development) Act, 1957, It has been submitted in this connection that the work mines as defined in Section 2 of the Mines Act, 1952 defines 'mine' meaning as any excavation where any operation for the purpose of searching for or obtaining minerals has been or is carried on. Therefore, it is submitted, that the indentoure-in-question is not a void document nor the same is illegal or unenforceabla in law. On the other hand, it confers a legal right on the petitioners to collect the sludge or slurry or coal wastes deposited on the river bed and lands belonging to the State. It has been next submitted that the said sludge or slurry with the coal particles elected out of the coal washetries vested in the respondent No. 3 and deposited on the adjoining river bed and the agricultural lands do not constitute the property of the respondent No. 3 as the respondent No. 3 loses its right, title or interest in the same by voluntary abandonment of property and the person who collects and removes the same becomes the owner of the property by possession. It is in the nature of res derelicta, that is, voluntary abandonment of the property. In support of this submission reference has been made to C. W. Paton's Jurisprudence, 4th Edition. It has been further submitted in this respect that in Black's Law Dictionary, 5th Edition, p. 1173 the words res derelicta means abondoned property, that is, property thrown away or forsaken by the owner so as to become open to acquisition by the first taker or occupant. For the last 25 years, it has been submitted, the respondent No. 3 never tried to retrieve the slurry deposited on the river bed or on other's lands. It has been further submitted that the registered lease-in-question can be cancelled by the director or by the Central Government but the Central Government has not decided to cancel the lease and as such the attempt on the part of the respondent No, 3 to frustrate the lease is wholly illegal and arbitrary. It has therefore, been submitted that the Rule should be made absolute.

14. Mr. R. C. Deb, learned Advocate, appearing on behalf of the respondent No. 3, the Central Coalfields Limited has contended in the first place that the instant application having involved disputed questions of title to property such as right to land and river bed where coal particles are deposited and also it involves the question as to who is entitled to this coal particles and/or wastes, such questions cannot be decided in this forum. For decision of these disputed questions of fact the appropriate forum is the civil court and as such this application should be rejected on this score. It has been next submitted by Mr. Deb that the instant petition is not maintainable in this court inasmuch as no part of the cause of action accrues and/or arises within the territorial jurisdiction of this court nor any of the defendants against whom relief is sought resides or carries on business or has its principal office within the territorial jurisdiction of this court. It has been further submitted in this connection that the office of the respondent No. 3 at 15, Park Street is a mere Sales Office and no action has been taken in relation to the matters which have been impugned in the instant writ application from this office. As such this writ application is not maintainable in this court. Mr. Deb has thirdly submitted that the indenture of lease annexed as Annexure 'C' to the writ petition dated 9th April, 1975 which was executed by the State of Bihar, the respondent No, 2 in favour of the petitioner is, in fact, and in substance a mining lease for winning of sludge/slurry and as such such a lease cannot be granted without the previous approval of the Central Government in respect of the coal particles which is undoubtedly a mineral being Group VI coal-ejects as mentioned in Item No. 6 of the second Schedule to the Mines and Mineral (Regulation and Development) Act, 1957, The lease which was purported to have been granted by the respondent No. 2 is invalid and ineffective lease which does not create or confer any right, title Or interest on the lessee to win or to collect and remove the sludge or slurry, i.e. a coal wastes coming out of the washeries of respondent No. 3 and lying deposited either in the river bed or in the adjoining fields. It has also been submitted in this connection that the respondent No. 3 in which the washeries have vested has the sole right and absolute right to take away and/or to collect that is to win coal particles that is sludge or slurry from the river bed as well as from the adjoining lands which have been taken lease of from the respondent No. 2 as well as which have been acquired under the Coal Bearing Areas (Acquisition and Development) Act. 1957. It has, therefore, been submitted that the petitioners have not right and title to collect and remove the coal wastes coining out with the water of the washeries overflowing the slurry ponds and lying deposited on the river bed as well as on the nearby fields. There has been no abandonment of the right to win and/or to collect the slurry that is coal particles lying on the river bed or on the fields by the respondent No. 3. On the other hand, the respondent No. 3. it has been submitted, has been collecting and selling the same to the steel plants and power houses who require them and also to outsiders on inviting tenders at a higher price and thus the respondent No. 3 has earned a large sum of money out of such transaction.

15. Before proceeding to decide upon the merits of the contentions raised on behalf of the parties it is necessary to deal with and dispose of the preliminary objections raised on behalf of the respondents as to the maintainability of the instant writ petition in this forum In deciding this question it is apposite to refer to the provisions of Article 226 (1) and (2) of the Constitution which run as follows:

'226. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by Cl. (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arses for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories;'

It appears from the aforesaid provisions that every High Court can issue writs in the nature of mandamus or of certiorari or of quo warranto etc. to any person or authority including in any appropriate case on Government within the territories in relation to which such High Court exercises jurisdiction. Thus the writs can be issued by the High Court to any person or authority or Government when such person, authority or Government is either resident or located within the territorial jurisdiction of the High Court. Secondly, Sub-article (2) of the said Article also empowers the High Court to issue directions, orders or writs to any Government, authority or person when the cause of action either wholly or in part arises within the territoriess in relation to which the High Court exercises its jurisdiction. In the instant case the impugned criminal proceedings which have been challenged in the writ petition has undoubtedly been started or commenced outside the territorial jurisdiction of this Court and the action taken by the respondent No. 3 in interfering with the rights of the petitioners to win and remove the sludge/slurry, that is, the coal wastes coming out of the limits of the washerles belonging to the respondent No. 3 also took place outside the territorial limits of this court nO part either of the cause of action nor the cause of action has arisen within the territorial jurisdiction of this Court. So under Sub-article (2) of the Article 226 of the Constitution this application cannot be maintained in this jurisdiction. The other preliminary objection on behalf of the respondent No. 3 that the application will fail as it involves disputed questions of fact cannot be sustained as, in my view, the principal issue and/or questions that have been raised in this writ petition involves substantial questions of law necessitating the issuance of the Rule and the determination of those questions by this writ court. For determining these questions it is not necessary to launch into a detail investigation of facts though, of course, some investigation into facts are necessary for this purpose. But merely on this plea it will be unjust and unfair to dismiss this application on this preliminary ground. I therefore, cannot uphold the contention made on behalf of the respondent No. 3 on this score and in my view this writ application is maintainable. As regards the question whether the respondent No. 3 against whom the writs have been prayed for is located within the territorial jurisdiction of this court as required under Sub-article (1) of Article 226, it has been contended on behalf of the petitioners that the respondent No. 3 has got its office at 15, Park Street within the jurisdiction of this court and as such this writ application is maintainable. It has been stated in para 7 of the affidavit-in-reply swom on behalf of the petitioners on 12th, Feb., 1982 that the administrative office of the Finance Department as well as office of the Managing Director of the respondent No. 3 are situated at 15, Park St. Calcutta. It has also been stated that the law office of the respondent No. 3 is also situated at 15, Park St. Calcutta. This statement in the affidavit-in-reply of the petitioner clearly goes to show that the respondent No. 3 have some of its office located within the territorial jurisdiction of this court. In these circumstances it will not be just and proper to reject this writ application as not maintainable on this preliminary ground. I am, therefore, constrained to hold in favour of the petitioner on this issue.

16. As regards merits the pivotal question that poses itself for consideration is whether the State of Bihar, the respondent No. 2, has got any right, title or interest to the coal particles which come out of the washeries overflowing the slurry ponds kept for this purpose and deposited on the river bed belonging to the State of Bihar and on the adjoining fields belonging to private persons, as well as to the State of Bihar. Unless and until it is proved that the respondent No. 2, the State of Bihar, is entitled to the said slurry that is coal wastes the indenture-in-question executed by the respondent No. 2 in favour of the petitioners do not confer any right title or interest in their favour to win, to collect and to remove he said coal wastes, that is, slurry from the river bed as well as from the adjoining fields. Undoubtedly the coal wastes coming out from the washeries belonging to the respondent No. 3 and deposited on the river bed as well as on the fields nearby belonging to the respondent No. 2 is a mineral being a Group VI coal as mentioned in the second schedule of the Mines and Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957} within the meaning of Section 3(a) of the said Act. The rate of royalty was fixed at 40 paise per tonne previously and subsequently it was raised at Rs. one per tonne, it has been vigorously contended on behalf of the petitioner that the indenture-in-question cannot bo construed as a mining lease inasmuch as no lease was granted for undertaking mining operation. It has been further submitted that under the Mines Act, 1952. 'Mine' has been defined as extracting of mineral by excavation of earth. It has been submitted that there is no question of taking out any mineral lying underneath the soil but the petitioners have been merely granted the right to collect coal particles which are mixed up with sand and earth losing its identity as coal from the river bed as well as from the adjoining fields. This is not a mining operation nor this indenture can be termed as a mining lease within the meaning of Section 3(c) of the Act. Nor it is a mining operation within the meaning of Section 3(d) of the Mines and Minerals (Regulation & Development) Act. 1957. This contention of the learned Advocate is per se, devoid of any merit inasmuch as mining operation as defined in Section 3(d) of the said Act means `any operation undertaking for the purpose of winning of any mineral'. In the Concise Oxford Dictionary. 6th Edn.. Page 1335 the word 'win' has been referred as meaning 'get' (ore etc.) from mine. So winning does not necessarily mean extracting a mineral by excavating earth or soil it means also collecting of mineral from he surface of the earth such as in the instant case the coal particles that is Group VI coal wastes lying on the river bed or on the adjoining fields. Reference may be made in this connection to the decision reported in : [1979]3SCR18 Shri Tarokeswar Sio Thakur Jiu v. Bar Dass Dev & Co. where Sarkaria, J. who spoke for the Supreme Court observed that the 'definition of 'mining operation' and 'mine', noticed above are very wide. The expression 'winning of mineral' in the definition of 'mining operation' is spacious enough to comprehend every activity by which the mineral is extracted or of trained from the earth irrespective of whether such activity is carried out onthe surface or in the bowels of the earth. As pointed out by this Court in B. Dass v. State of U. P. : [1976]3SCR869 it is wrong to assume that mines and minerals must always be subsoil and there can be no minerals on the surface of the earth.' Similar view has been expressed in : [1967]1SCR707 (Bihar Mines Ltd. v. Union of India} where Bachawat, J. observed (at p. 891):

'In the collocation of words 'work and win' the expression 'win' might be construed to mean some activity preparatory to the working and extraction of the mineral. But we see no reason for giving this narrow meaning to the expression 'winning' in Article 31-A(1)(e) of the Constitution or in Section 3(d) of the Mines and Minerals (Regulation and Development) Act, 1957. In a popular sense, winning a mineral means setting or extracting it from the mine. This is one of its dictionary meanings, see The Shorter Oxford Dictionary. The plain and popular import of the expression furnishes the true rule of the interpretation of Article 31-A(1)(e).'

The decision in (1967) 1 Ch 93 Rogers v. Longsdon do not give any assistance to the petitioner inasmuch as in he said case the question was whether the deposits of Fluorspar and other minerals which were failings or miner's dumps from old bed workings of materials which were worthless when the lead was worked many years ago but were not of value and were covered with Willow Weeds and other trees were part of the land or chattels. It was held that the mines or dumps of artificial deposits described by Robinson as failings or wastes from mining operation have become part of the land and have ceased to be chattels.

17. For the reasons aforesaid this contention has got no merits and as such the same is overruled. The Indenture of lease-in-question does amount, to a mining lease as it purports to confer the right on the lessor (lessee?) that is the petitioners to win that is to set coal particles that is slurry deposited on the river bed as well as on the adjoining fields. Under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 it has been expressly prohibited by Section 4(2) that no such prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the Rules made thereunder. Section 5. Sub-section (2) expressly prohibits the grant of such mining lease without the previous approval of the Central Government. Moreover Section 4(a) provides for premature termination of mining lease in respect of any mineral other than a minor mineral. Moreover, the Coal Mines (Nationalisation) Act, 1973 which was amended in 1976 by Act 57 of 1976. By the said amendment Sub-section (3) was added to Section 3 which provides that after the enforcement of the said provisions on 29th April, 1976 all coal mining leases and sub-leases Granted before the commencement of the Act in favour of any company or corporation other than a Government Company or corporation shall insofar as the same relate to winning or mining of coal stand terminated. The instant lease which was granted on 9th April, 1975 for winning of Group VI coal-ejects therefore in accordance with the provisions of this Act stood terminated. The petitioners cannot, therefore, claim any right even assuming for argument's sake without admitting that the respondent No. 2 the State of Bihar has right to settle the right to win coal particles, that is, slurry from the river bed as well as from the fields nearby whereon the same is deposited. I am also constrained to hold that though the State of Bihar is entitled to the river bed or to the land whereon such deposits are lying by virtue of the provisions of the Bihar Land Reforms Act still then in view of the coming into force of the Coal Mines (Nationalisation) Act, 1973 as amended in 1976 read with Mines and Minerals (Regulation and Development) Act, 1957 the State of Bihar is not legally competent to settle the right to win coal particles coming out of the washeries with the water overflowing the slurry ponds and lying on the adjoining fields and river bed as the same is the property of the respondent No. 3. Moreover, it is a mining lease which can only be granted with the express permission of the Central Government and this being not done the petitioners are not competent to claim any alleged right on the basis of the said Indenture of lease to win the fine coal particles lying on the river bed or on the adjoining fields. Moreover, it being clearly stated that the river bed has been taken on lease from the respondent No. 2 by the respondent No. 3 and the nearby fields whereon the deposits of coal wastes are lying have been acquired under the Coal Bearing Areas ((Acquisition and Development) Act, 19557 the petitioners cannot claim any right to win the said slurry from these lands and the river bed. Therefore the submission made on behalf of the petitioner on this score is wholly unsustainable and as such the same is rejected.

18. It is necessary to consider in this connection the other submissions attempted to be advanced on behalf of the petitioners namely that the petitioners have acquired a right in respect of the slurry by taking possession of the same on the basis of the theory of abandonment of claim of title to the same by the respondent No. 3. This submission cannot be upheld in view of the express averments made in the affidavit-in-opposition sworn on 17th Dec., 1981 as well as on 8th Dec., 1982 by Sri M. P. Rao Adhikary, Superintending Engineer on behalf of the respondent No. 3. It has been stated in para 5 (c) of the affidavit-in-opposition sworn in December. 1981 that the adjoining lands whereon the coal particles/slurry are permitted to be spread over have been acquired by the respondent No. 3 either under the provisions of the Coal Bearing Areas (Acquisition and Development) Act or by mutual settlement by private individuals with a view that the fine coal particles/ slurry are not lost and can be sold to the steel plants and/or power houses who are badly in need of such quantity of coal. It has been further stated therein that after the requirement of steel plants and power houses are met the left over fine coal particles/slurry are also being sold in the market through open tender for preparation of briquettes. The respondent No. 3 herein therefore has all the time been selling this fine coal particles/slurry not only to its valuable customers like steel plants and power houses for an attractive price but also to manufacturer of briquettes for an attractive price. Therefore on a consideration of the aforesaid averments made in the affidavit-in-opposition sworn on behalf of the respondent No. 3 it is impossible for, this court to upheld the contentions made on behalf of the petitioner that the respondent No. 3 has lost title over the fine particles of coal/slurry by abandonment and the petitioners by taking possession on the basis of the Indenture of lease as stated hereinbefore have acquired title to the same. It is pertinent to refer in this connection to a passage from Salmond on Jurisprudence, 12th Edn., pages 116-117 which is quoted hereinbelow:

'The possession of a material object is title to the ownership of it. He who claims a chattel or a piece of land as his, and makes good his claim in fact by way of possession makes it good in law also by way of ownership. There is, however, an important distinction to be drawn. If, when, possession if it is taken by the claimant, it is as yet the property of no one -- res nullius as the Roman Law said -- the possessor acquires a title good against all the world. The fish of the sea and the fowls of the air belong by an absolute title to Mm who first succeeds in obtaining possession of them. This mode of possession is known in Roman Law as 'occupatio'.

On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity against the true owner.'

19. In (19681 3 All ER 271 Moffatt, v. Kazana it was observed that if the owner of chattels cannot be shown to have parted with his title to them he must continue to be the owner and to have a title to the chattels superior to any that might be claimed by any one else including the finder or the person on whose property the chattels were found. On a conspectus of these decisions and also the observations made by Salmond in his 'Jurisprudence' I hold that this contention is, therefore, without any merit and so it cannot be sustained as I have already held that the mineral coal-wastes, belong to respondent No. 3 who is the owner of them and the respondent No. 3 did not abandon his right, title or interest in the said mineral.

20. For the reasons aforesaid all the contentions advanced on behalf of the petitioners having failed this Rule fails and as such the same is discharged without any order as to costs. All interim orders are vacated. The money or bank guarantee that has been furnished in favour of the Registrar, Appellate Side of this court will be utilised towards the price of the slurry which have been removed by the petitioners and are sold in the market and if any balance is left the same will be returned.

Prayer for stay is rejected.


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