Case: Kaviraj Basudevanand Vs. Mahant Harihar Gir (Dead) &amp; Ors

definition of the expression khas possession in the Bihar Land Reforms Act, if anything is stronger from the point of view of the person who is actually cultivating the lands than that of a person who is working directly (the mines) under Section 9 of the Act. Therefore, the appellant would be entitled to his share in mines which had been worked directly by any co-sharer.8. Though the view of the Patna High Court on this point is wrong, there are a number of other difficulties which the plintiff has to face. Under Section 9 of the Bihar Land Reforms Act though all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lease thereof, there are a number of conditions which are to be satisfied. Under sub-section (2) of that section the terms and conditions of the siad lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12. Furthermore, all such terms and conditions shall be in accordance with the provisions of any Central Act for time being in force regulating the grant of new mining leases. Under Section 12(2) in settling the terms and conditions of a, lease by the State Government under Section 9, the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessees mining concern. In this case there is no averment in the plaint or anywhere on record as to what mines were in operation on the date of vesting of the estate in the State. Quite obviously, if any of the intermediaries had begun operating a mine after that date they would not be entitled to any rights in those mines. Even though the mines shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to take possession of those mines as a lessee, it could be only in accordance with theterms and conditions of lease by the State Government and those terms and conditions should be agreed upon between the State Government and the intermediary or be settled by the Mines Tribunal. The appellant would be entitled to a share only in such mines. We have no means of knowing what those mines are.9. There is again the question of the area of the mine. For instance, in an area of 100 sq. miles a mine might have been opened by the intermediary in one corner and might be working on the date of the vesting; but it does not mean that he would be entitled to a mining lease in respect of all the 100 sq.miles. The area to be covered by the lease should be decided under Section 12. The words in the section regarding mines being in operation should be interpreted in the light of the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The mining lease will have to conform to the provisions of S.6 of the Mines and Minerals (Regulation and Development) Act regarding the maximum area for which the mining lease will have effect. Furthermore, under Section 10 of the Bihar Land Reforms Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the lease-hold property. The appellant will have no right in such mines.10. There is no allegation and no evidence in the plaint or anywhere else on record as to who among the co-sharers of the plaintiff were working the mines, and if so to what extent on the date of the vesting in the State. Even if they had been so working the normal term of a lease is 20 years and that term would have come to an end even in 1972.11. It would not, therefore, be possible to give effect to the consent decree passed by the trial Court in respect of the mines. Nor is it possible, as contended on behalf of the appellant to pass a final decree in respect of bakhast and zirat lands in favour of the plaintiff and then leave the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines. The subject is too complicated to be dealt with in the final decree proceedings in the suit. The plaintiff would have to make proper allegations as to which among his co-sharers were operating the mines in 1952. If they have been operating any mines it may be that the appellant would be entitled to a share. But if the term of the running lease has come to an end it would be a matter of accounting between the co-shares who had actually worked the mines and the appellant. The first respondent has disclaimed all interest in the mines. If all the mines are being worked by lessees no question of the appellant being entitled to any right would arise at all. If there had been a renewal of the mining leases a further question whether the plaintiff would be entitled to a share in them would arise.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The submission is undoubtedlyAny decree which the plaintiff might get in respect of bakhast and zirat lands in this suit will not enable him to avoid the provisions of any law regarding ceiling on land in force in the State of Bihar.5. As regards the mines, however, there are certain difficulties. The Patna High Court was in error in holding that the benefit of S.9 of the Bihar Land Reofrms Act is not available to all persons jointly interested therein before the date of vesting and that it is restricted to the intermediary directly working the mines. In Sukhdeo Das v. Kashi Prasad, (ILR 37 Pat 918) = (AIR 1958 Pat 630  ) (FB) the Full Bench of the Patna High Court held that the provisions of the Bihar Land Reforms Act have to be construed in the light of the existing law and in the light of the history behind the legislation, and therefore, aas defined in Section 2 (r) does not mean a person who is actually in possession of the tenure and consequently the expression "khas possession of an intermediary" on the date of such vesting in Section 6 of the Act....does not mean the possession of the intermediary who was actually in possession on the date of the vesting to the exclusion of theKhas possession of the intermediary means the possession of the intermediary who was cultivating land either for his own benefit or in trust for others. If this be the position of an intermediary under the Act, then obviously the words "khas possession" occurring in Section 6 of the Act do not exclude constructive possession".6. Another Full Bench of the Patna High Court in (AIR 1965 Pat 117   (FB)) took the view that the decision under appeal in the present case that when the estate vested in the State of Bihar, awho was ot in possession of lnds used for agricultural or horticultural purposes was not entitled to any interest in it, was wrong and must be overruled.7. The matter has been finally settled by a decision of this Court inSCR 639) = (AIR 1971 SC 2251  ) in a case that had arisen under the Bihar Land Reforms Act itself. In that case it was observed "even if the appellants were in actual khas possession within the meaning of S.2(k) of the Act, it must be held that the plaintiff respondent, who was awas in constructive possession through the appellants, as, under the law, possession of oneis possession of alldeeming provision of S.6 must, therefore, enure for the benefit of all, who in the eye of law would be regarded as in actual possession". It was therefore, held that the plaintiff had not lost his share in the bakhast lands and had a right to them though not as aor proprietor but certainly as a raiyat under the provisions of the Act. This Court also observed that there was no reason to hold that the observations of this Court that in law possession of ones possession of all, as was held in P. L. Reddy v. L. L. Reddy (1957 SCR 195  , 202) = (AIR 1957 SC 314  ) were not applicable to the case before this Court. If that is so writ regard to bakhast and zirat lnds and aThough the view of the Patna High Court on this point is wrong, there are a number of other difficulties which the plintiff has to face. Under Section 9 of the Bihar Land Reforms Act though all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lease thereof, there are a number of conditions which are to be satisfied. Under(2) of that section the terms and conditions of the siad lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12. Furthermore, all such terms and conditions shall be in accordance with the provisions of any Central Act for time being in force regulating the grant of new mining leases. Under Section 12(2) in settling the terms and conditions of a, lease by the State Government under Section 9, the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessees mining concern. In this case there is no averment in the plaint or anywhere on record as to what mines were in operation on the date of vesting of the estate in the State. Quite obviously, if any of the intermediaries had begun operating a mine after that date they would not be entitled to any rights in those mines. Even though the mines shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to take possession of those mines as a lessee, it could be only in accordance with theterms and conditions of lease by the State Government and those terms and conditions should be agreed upon between the State Government and the intermediary or be settled by the Mines Tribunal. The appellant would be entitled to a share only in such mines. We have no means of knowing what those minesinstance, in an area of 100 sq. miles a mine might have been opened by the intermediary in one corner and might be working on the date of the vesting; but it does not mean that he would be entitled to a mining lease in respect of all the 100 sq.miles. The area to be covered by the lease should be decided under Section 12. The words in the section regarding mines being in operation should be interpreted in the light of the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The mining lease will have to conform to the provisions of S.6 of the Mines and Minerals (Regulation and Development) Act regarding the maximum area for which the mining lease will have effect. Furthermore, under Section 10 of the Bihar Land Reforms Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of theproperty. The appellant will have no right in such mines.10. There is no allegation and no evidence in the plaint or anywhere else on record as to who among theof the plaintiff were working the mines, and if so to what extent on the date of the vesting in the State. Even if they had been so working the normal term of a lease is 20 years and that term would have come to an end even in 1972.11. It would not, therefore, be possible to give effect to the consent decree passed by the trial Court in respect of the mines. Nor is it possible, as contended on behalf of the appellant to pass a final decree in respect of bakhast and zirat lands in favour of the plaintiff and then leave the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines. The subject is too complicated to be dealt with in the final decree proceedings in the suit. The plaintiff would have to make proper allegations as to which among hiswere operating the mines in 1952. If they have been operating any mines it may be that the appellant would be entitled to a share. But if the term of the running lease has come to an end it would be a matter of accounting between thewho had actually worked the mines and the appellant. The first respondent has disclaimed all interest in the mines. If all the mines are being worked by lessees no question of the appellant being entitled to any right would arise at all. If there had been a renewal of the mining leases a further question whether the plaintiff would be entitled to a share in them would arise.