Decided on November 10,1952

V. Peddarangaswami Shreshti Appellant
State Of Madras, Represented By The Collector Of Bellary Respondents


Rajamannar, J. - (1.) THESE two appeals arise out of two suite tried together along with another suit (which, however, has net come up in appeal) and disposed of by a common judgment by the learned District Judge of Bellary. The appellant is the plaintiff in both the suits. For a determination of the questions which arise in these appeals it is necessary to relate the events which led up to the suits. It is sufficient to commence the narration with the grant of a prospecting licence to the appellant on 28 -5 -1941 (Ex. A. 1) which conferred on him the sole right, subject to the conditions contained in the licence, to mine, bore, dig and search for iron and work and carry away red oxide of iron within an area of 76 acres being a portion of S.No. 326 of Janikunta village in Bellary district. The licence was for a term of one year commencing from 28 -5 -1941. The contesting respondent in the appeals, one Vishnu Nimbkar, obtained a similar prospecting licence for red oxide on 11 -6 -1941 (Ex. B. 1) in respect of S. No. 3 in the village of Thumti in the same district measuring 288 acres. This survey number was adjacent to the area in respect of which the appellant had been granted a licence. Nimbkar also obtained a regular mining lease for a term of the ten years commencing from 5 -1 -1942 of two Other portions of Section 326 comprising about 304 acres (Ex. B. 26. a). It is common ground that the appellant did not do any prospecting during the period covered by the licence in his favour. It is also clear from the evidence that Nimbkar who was represented by his agent, C. Srinivasa Rao was engaged regularly in working and extracting ore in considerable quantities. On 19 -2 -1942 the appellant wrote to the District Collector, Bellary, complaining, that Srinivasa Rao, the agent of Nimbkar, had removed about 50 tons of red oxide from the area covered by his prospecting licence. This communication was forwarded by the Collector for inspection and report. On 23 -4 -1942 the appellant requested the Collector of Bellary to grant him a prospecting licence for one more year as he had not been able to do any prospecting owing to "unavoidable circumstances." The Collector granted this request and directed a renewal of the prospecting licence for a period of one year from 28 -5 -1942 (Ex. B. 6). Apparently no fresh licence was executed, because the office took the view that a fresh licence was not necessary for a renewal, as the conditions were the same and it was sufficient for the Collector to issue proceedings to the effect that the licence had been renewed (vide Ex. B. 6). On 20 -10 -1942, Srinivasa Rao on behalf of Nimbkar applied for the grant of a mining lease for the same area for which the appellant had obtained a prospecting licence (Ex. B. 2). The appellant raised objections as to the genuineness and validity of this application which were also pressed before us. But in our opinion there is no substance in these objections. The application was produced from proper custody and its genuineness is conclusively established by the challan (Ex. B. 2. a) obtained on 21 -10 -1942 for the deposit of a sum of Rs. 500 as the prescribed security which should accompany an application for a mining lease. Whether this application was duly stamped or not, it is difficult to be certain. But the absence of a stamp is a matter only for the consideration of the Government authorities, and the appellant cannot rely upon any defect, even assuming there was one. The appellant also presented an application for the grant of a mining lease for the same area on 6 -11 -1942 (Ex. B. 3). But this was not accompanied by the deposit of any security. It must, however, be mentioned that the appellant had deposited a sum of Rs. 100 in connection with the grant of the prospecting licence to him and under the rules this deposit could be carried over to his credit in connection with the application for the mining lease. On 26 -11 -1942 the appellant sent in another similar application.
(2.) MEANWHILE the appellant filed a suit against Nimbkar in the Court of the District Munsif of Bellary, O.S. No. 487 of 1942 on 21 -9 -1942 for the recovery of 65 tons of red oxide alleged to have been removed by him from the area covered by the prospecting licence in favour of the appellant or their value, Rs. 585 and for the issue of an injunction restraining Nimbkar from entering on the said area or removing any minerals therefrom. Nimbkar 'inter alia' pleaded that the ore was not dug from the area granted to the appellant. This suit was dismissed by the District Munsif on 5 -2 -1943 on the ground that it was not maintainable because there was no valid prospecting licence in plaintiff's favour, the renewal of the licence not having been registered. On 18 -3 -1943 the Collector passed an order directing that neither party, i.e., neither the appellant nor Nimbkar, should work in the disputed area for a period of one month. Nimbkar's agent protested against this order, but apparently with no effect. Meanwhile the term of the prospecting licence in favour of the appellant which had been renewed was drawing to a close. Therefore on 6 -4 -1945 he wrote to the Collector requesting him to grant the lease on or before the expiry of the period of the licence and in any event to extend the term of the licence until the lease was granted. He followed it up with another application for a lease on 27 -5 -1943 (Ex. B. 71). On the same day he also prayed that the licence may be extended till the grant of the lease. He repeated his request by his letter dated 17 -7 -1943. On 21 -8 -1943 the Collector passed an order permitting Nimbkar's agent to remove the ore from the disputed area after depositing Rs. 9 a month. The Circle Officer reported to the Collector on 30 -9 -1943 that under the orders of the Range Officer the boundary between Janikunta and Thumti had been revised and the portion under dispute had been included in Janikunta. Against the dismissal of his suit by the District Munsif the appellant filed an appeal to the District Court (A. S. No. 77 of 1943) but that appeal was dismissed on 24 -3 -1944. Thereupon he filed a second appeal (S. A. No. 1997 of 1944) which was eventually allowed by Kuppuswami Aiyar J. on 8 -8 -1945. The suit was remanded to the Court of first instance for trial and disposal. After remand it was transferred to the file of the District Judge where it was numbered as O.S. No. 11 of 1946.
(3.) ON 9 -5 -1944 the Collector submitted to the Board of Revenue his report on the two applications for the grant of a mining lease made by the appellant and Nimbkar respectively, in which he strongly recommended the grant of the lease to Nimbkar. The following portion of his report fully sets out the reasons for his recommendation: "5. Now both the parties have applied for the entire area of 76 acres on mining lease. Mr. Subbarangiah Chetti has not made any attempt to prospect for ore or even enter upon the land and he cannot, therefore, complain of encroachment. The prospecting licence held by him for the period from 28 -5 -1942 to 28 -5 -1943 is an unregistered one and not therefore valid. He has not undertaken any mining operations ever since the licence was granted to him. He appears to be a mere speculator who wants to keep away the other applicant out. His application for the mining lease was also received late on 20 -11 -1942 and is not accompanied by a security deposit of Rs. 500 as laid down in Rule 36. The application of Sri C. Srinivasa Rao was received much earlier on 20 -10 -1942 and was followed by the security deposit of Rs. 500 which was credited into the Imperial Bank of India" in challan No. 263 dated 21 -10 -1942. He has also enclosed to his application a statement showing the areas held by him in the province under mining concessions. He holds a certificate of approval renewed for 1944 and published at page 158 of Mis. Notifications part II of the F.S. Gazette dated 8 -2 -1944. He has been carrying on mining operations and it appears he had been supplying the Government of India, Supply Department, with the ore in large quantities and he is not, therefore, a mere speculator. He holds mining concessions in the adjoining lands in the same field and other fields in the vicinity. I, therefore, request that the Board may be pleased to accord sanction for the grant of a mining lease for the entire area of 76 acres In S. No. 326 of Janikunta village for red oxide of iron." The Board called for certain files relating to the matter and they were duly sent with a covering letter by the Collector (Ex. E. 70). The Board, white calling for the files, also asked the Collector to ascertain from both the applicants whether they were willing to have the lease for a period of five years subject to the condition that it would be liable to termination without compensation if the Government required the land after the War. In pursuance of this direction the Collector, on 14 -8 -1944, addressed letters to both the applicants (Exs. A. 4 and B. 39). In the letter addressed to Nimbkar's agent, the Collector, as directed by the Board, informed him that lie should stop further mining in the disputed area until final orders were passed by the Board of Revenue. The agents of both the appellant and Nimbkar on their behalf expressed their willingness to accept a lease for a period of five years subject to the condition suggested by the Board (Exs. B. 14 and B. 40). Nimbkar's agent also complained against the order directing him to stop further work in the disputed area. On 7 -12 -1944 the Board of Revenue passed proceedings with the previous approval of the Government sanctioning the grant of a mining lease for a period of five years to Nimbkar subject to certain special conditions which are not very material. The order directing Nimbkar to stop further work was consequently withdrawn. The Collector intimated to the appellant that his application had been rejected. A temporary lease was executed in favour of Nimbkar on 28 -12 -1944 (Ex. E. 16) & a pucca lease subsequently. The Government by that time had apparently realised that there had been a muddle as regards the boundaries of the areas granted under the prospecting licences to the appellant and Nimbkar and evidently adopted the solution of granting the lease to Nimbkar of the entire area of 114 acres in S. No. 326. Nimbkar was also granted a lease for S. No. 3 in Thumti village in accordance with the revised boundaries (Ex. B. 43 dated 17 -7 -1945).;

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