Case: A.K. Ghosh Vs. Bharat Coking Coal Limited

Mr. N. M. Kasliwal, J.1. This appeal by grant of special leave is directed against the judgment of the Patna High Court dated 26th February, 1981.2. The appellant filed a suit for declaration, permanent injunction and recovery of possession of a single storeyed pucca house standing on plot Nos. 294, 295 and 296 in village Koiridih, P.S. Baghmara in the district of Dhanbad. The case of the plaintiff was that he had purchased the plots by registered sale deed dated 10.3.1965 and thereafter constructed building on the plots. The building was let out to one Shri D.P. Gupta, Manager East Khas Bahiardih Colliery on a monthly rent of Rs. 100. Shri Gupta was transferred to Calcutta and as such he delivered the possession of the building to the plaintiff. The plaintiff alleged that he was the owner and in possession of the building at all material times. As the respondent was trying to take forcible possession of the property, he filed the aforementioned suit.3. The respondent filed a written statement and its main defence was that the land in question was purchased and the building was constructed by the New Govindpur Colliery Company Private Limited from its own funds. The purchase was not made by the plaintiff from his own money and he did not construct the building from his own fund. Mr. Gupta was not the tenant of the plaintiff bat was a tenant of the Company who owned New Govindpur Colliery. It was further alleged that the right, title and interest of the owners of New Govindpur Colliery vested in the Central Government under the Coking Coal Mines (Nationalisation) Act, 1972 (hereinafter referred to as ‘the Act’). It was farther alleged that the building in question is a mine as defined in Sec­tion 3(j)(vi) of the Act and as such it vested in the Central Government under Section 4 of the Act and subsequently in the respondent-Bharat Coking Coal Limited.4. The Trial Court held that the plots of land were purchased by the plaintiff from his own money and the building was also constructed by him from his own fund. It was also held that the building in question did not form part and parcel of the New Govindpur Colliery. It was further held that the building in question did not vest in the Central Government under the Act. The Trial Court, as such, decreed the suit of the plaintiff and also granted a decree for recovery of possession as the plaintiff had been dispossessed during the pen­dency of the suit. The Bharat Coking Coal Limited and Others aggrieved against the judgment of the Trial Court went in appeal. Learned Additional District Judge, Dhanbad affirmed the findings of fact regarding the ownership and possession in favour of the plaintiff. He also held that the house in ques­tion belonged to the plaintiff in his individual capacity. On a further appeal by Messrs Bharat Coking Coal Limited, Learned Single Judge of the High Court though agreed with the contention of the learned Counsel for the plaintiff but expressed his inability to decide the case in favour of the plaintiff as sitting singly, he was bound by a decision of the Division Bench of that Court given in F.A. No. 289 of 1979 titled Bharat Coking Coal Limited and Others v. Kali Prasad Agarwalla and Others, decided on 24.4.1980.5. Aggrieved against the aforesaid judgment of the learned Single Judge the plaintiff has come in appeal. It was contended by the learned Counsel for the defendant-respondent that K.P. Agarwalla’s case has been affirmed by this Court in Kali Prasad Agarwalla and Others v. Bharat Coking Coal Limited and Others, [1989 (2) S.C.R. 283]. It has thus been submitted that there is no force in this appeal and it ought to be dismissed as fully covered by the aforesaid decision in K.P. Agarwalla’s case. On the other hand, it was contended by the learned Counsel for the appellant that the case of K.P. Agarwalla’s (supra) is wholly distinguishable and the plaintiff’s suit in the present case ought to be decreed on the basis of the findings of fact recorded in favour of the plaintiff by all the Courts. 6. We have gone through the record and the judgment of the Courts below and we are clearly of the view that K.P. Agarwalla’s case (supra) is dis­tinguishable and is not applicable in the facts and circumstances of the present case. In K.P. Agarwalla’s case, (supra) the suit property consisted of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The claim of the plaintiff K.P. Agarwalla was based on a regis­tered indenture of lease dated December 9, 1949. The plaintiffs in that case claimed that they had become the owners of the lease hold land and were in possession of the same by exercising diverse acts of possession, mutating their name and by payments of stipulated rents to the State of Bihar, who had re­cognised the said lease. The Trial Court decreed the suit, but on appeal the High Court held that the lease granted to the plaintiffs was an encumbrance and it was annihilated with the issuance of the notification under Section 3 of the Act. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under Section 3 of the Act, the plaintiffs had no title to be declared and the decree of the Trial Court was liable to be set aside. The High Court further held that the suit lands were adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of said mine, namely, stacking of coal and effecting local sales thereof. This Court after considering the various provisions of the Act and the evidence led by the authorities in the aforesaid case held as under: “In the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the Seam lying immedia­tely below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the sur­face does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h)(iv) includes open cast working within the definition of “mine”.Secondly, the suit land is also adjacent to a coal mine, namely, North Bagatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale there­of. It is, therefore, a mine as defined under Section 2(h)(vi) of the Act.”This Court ultimately on the basis of the above findings dismissed the appeal and clearly observed that “on the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard”. 7. So far as the case before us is concerned, the property in question is a building used for residential purposes. All the Courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning of ‘mine’ under Section 3(j) read with Clause (vi) of the Act. As already mentioned above, the case of K.P. Agarwalla ‘s (supra) is totally distinguishable on facts and as such it lends no assistance to the respondent in the present case. The above appeal has to be allowed on its own facts and circumstances of the case without expressing any opinion on any question of law raised in the present case.

Decision:
1[ds]6. We have gone through the record and the judgment of the Courts below and we are clearly of the view that K.P.case (supra) isand is not applicable in the facts and circumstances of the present case. In K.P.case, (supra) the suit property consisted of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The claim of the plaintiff K.P. Agarwalla was based on aindenture of lease dated December 9, 1949. The plaintiffs in that case claimed that they had become the owners of the lease hold land and were in possession of the same by exercising diverse acts of possession, mutating their name and by payments of stipulated rents to the State of Bihar, who hadthe said lease. The Trial Court decreed the suit, but on appeal the High Court held that the lease granted to the plaintiffs was an encumbrance and it was annihilated with the issuance of the notification under Section 3 of the Act. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under Section 3 of the Act, the plaintiffs had no title to be declared and the decree of the Trial Court was liable to be set aside. The High Court further held that the suit lands were adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of said mine, namely, stacking of coal and effecting local sales thereof. This Court after considering the various provisions of the Act and the evidence led by the authorities in the aforesaid case held asthe light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the Seam lyingbelow the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If thedoes not form part of the concept of mine, it is not possible to have any excavation. Section 2(h)(iv) includes open cast working within the definition ofthe suit land is also adjacent to a coal mine, namely, North Bagatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local saleIt is, therefore, a mine as defined under Section 2(h)(vi) of theCourt ultimately on the basis of the above findings dismissed the appeal and clearly observed thatSo far as the case before us is concerned, the property in question is a building used for residential purposes. All the Courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning ofunder Section 3(j) read with Clause (vi) of the Act. As already mentioned above, the case of K.P. Agarwalla ‘s (supra) is totally distinguishable on facts and as such it lends no assistance to the respondent in the present case. The above appeal has to be allowed on its own facts and circumstances of the case without expressing any opinion on any question of law raised in the present case.