TMI Blog1983 (1) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... tuate in the District of Giridih in the State of Bihar. The said Coal Washeries have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revent 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 gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 14,670 paise 36 against the total demand of ₹ 21,760 paise 53 up to 8th Oct., 1979 as reported by the District Mining Officar, Giridih. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Shri Tarokeswar Sio Thakur Jiu v. Bar Dass Dev Co. where Sarkaria, J. who spoke for the Supreme Court observed that the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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