STATE Vs. KHAN SAHEB M. HASSONJEE AND SONS

JUDGEMENT

(1.) THIS is a first appeal filed by the defendant against the decision of the A.D.J. Chhindwara in C.S. No. 3 -A of 1951 decided on 26th September 1952, allowing the claim of the respondent for a sum of Rs. 40,865 and interest.

(2.) ONE Haji Zahiruddin of Bhopal, held a mining lease d/ 29 -5 -23 of 189.76 acres of land in Chhindwara for extracting coal. This lease was transferred on 4th September 1940 to the respondent. The respondent was anxious to acquire some land from two adjacent collieries. After protracted negotiations, the State Government agreed in 1947 to grant their consent to the transfer of the adjacent lands to respondent subject to the condition that the respondents took a consolidated lease for the whole area at an enhanced rate of royalty. The respondent agreed and executed an agreement dated 11th January 1949 (Ex. P -3) by which the royalty rate was raised from Rs. 5 per ton to Rs. 10 per ton. The respondent started working the mines, though no formal mining lease was executed as contemplated. The State Government claimed Rs. 40,865 being the difference between the old and new rates of royalty on the coal removed. The respondent paid the sum on different dates in February and March, 1950. He brought this suit for refund of the extra amount so paid with interest.

(3.) WE will first consider the position with reference to the Mining Rules which were framed in 1913. Prior to the coming into force of the Government of India Act 1935 the Provinces did not have any separate entity. All the lands, buildings and other property belonging to the Government of India vested in His Majesty and the Secretary of State for India acted for His Majesty. The constitutional position changed in 1935 and the Provinces were for the first time given an independent status in certain matters and the Government properties became vested in them. It was provided in Sec. 172 of the Government of Indian Act that all lands and buildings which were till then vested in "His Majesty for the purposes of the Government of India" were to vest either in "His Majesty for the purposes of the Government of Province" or in "His Majesty for the purposes of the Government of the Federation", according as the purposes for which the property was held were under that Act the purposes of the Government of the Province or of the Federation. The general effect of the section is that lands in the Provinces vested in His Majesty for the purposes of the Province except in a few cases.