- (1.) G. P. Mathur, J. Babu Lal Goyal and Jagdish Prasad Goyal, respon dent No. 2 and 3 (hereinafter referred co as the plaintiffs) filed Suit No. 144 of 1993 against the State of U. P. through Collector, Agra (hereinafter referred to as the defendants) in the Court of Munsif, Fatehabad, Agra praying that a decree of permanent prohibitionary injunction be passed against the defendants restraining them from interfering in the possession of the plaintiffs over the property in dispute either by execution of a contract of lease or by an auction lease of the lease hold rights or by delivering possession thereof to anybody else by dispossession of the plaintiffs. At the foot of the plaint, the details of the property in dispute was given. The plaintiffs also moved an application under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying that defendants be restrained from interfering with the plaintiffs possession over the property in dispute either by auction or execution of lease or by authoris ing any one else to interfere with the plaintiffs' right of removal of the red stones from the plots in question. The State filed an objection to the injunc tion application. The learned Munsif by his order dated 22-4-1993 dismissed the injunction application. The plaintiffs preferred an appeal under Order XLIII, Rule 1, CPC and the same was partly allowed by VIth Addl. District Judge, Agra by his judgment and order dated 30-4-1994. It was directed that a Vakil Commissioner will get a survey done of 37. 5 acres of land claimed by the plaintiffs and till the survey of the disputed land was done and the same had been identified on the spot, parties will maintain status quo regarding possession. Subsequently a review application was tiled by the plaintiffs which was allowed on 16-5-1994 and it was directed that defendants will not interfere with the plaintiffs possession over the property in dispute.
(2.) IN view of the amendment to Section 115, CPC in the State of U. P. a revision against the appellate order of the Addl. District Judge is not main tainable. This view has been taken by a Fuii Bench of our Court in M/s. Jupitar Chit Fund v. Dwarikadas, AIR 1979 All 218, which was affirmed by Supreme Court in Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 899 and Vishnu Awatar v. Sheo Awatar, AIR 1980 SC 1575 Feeling aggrieved by the orders passed by the Addl. District Judge, the State (defendants) has preferred the present writ petition under Article 226/227 of the Constitution. The plaintiffs (respondent Nos. 2 and 3) had put in appearance at the time of admission hearing of the writ petition and by the order dated 16-11-1994 they were given opportunity to file counter affidavit annexing therewith all the documents on which they rely in support of their title and also a copy of the lease deed on the basis whereof they claim title to excavate red stones from the land in dispute. Since the parties have exchanged affidavits, the writ petition is being disposed of finally at the admission stage. In order to judge whether the plaintiffs have any prima facie case to get an injunction order, their right to remain in possession and operate the mines and excavate the red stones (minerals) needs to be examined The case of the plaintiffs, in brief, is that they were the proprietors in possession of stones quarries situate in plot No. 1 and 14 of Village Basai-Jagner and plot No. 1 of Village Karahaki and Baghaur, Tantpur in Tehsil Kheragarh, district Agra for over 100 years since the time of their ancestors; that the Collector, Agra vide bib order dated 9-8-1953 invited applications from the zamindars of the stone-quarries to apply for lease and plaintiffs made application for the said purpose on 17-9-1953; that the Tehsildar in pursuance of the direction issued by the Collector tried to take the management and control over the stone quarries on 16-3-1954; that the plaintiffs and other co-owners then tiled writ petition No. 260 of 1954 in the High Court which was allowed on 18-3-1955 and the notice issued by the Collector was quashed and the plaintiffs were held entitled to continue to operate the said mines; that the State of U. P. made a reference to Mines Tribunal (hereinafter referred to as the Tribunal) which was decided on 24-11-1977 and the plaintiffs were found to be in possession and entitled to 37. 5 acres of land; that the Supreme Court has passed an order in favour of the plaintiffs on 4-12-1980 directing the defendants to determine the amount of royalty which is payable by the plaintiffs; that the Tribunal had passed another order in favour of the plaintiffs on 16-10-1986; that in another writ petition filed by plaintiffs, the High Court has passed order on 4-11-1992 for demarcating the plaintiffs land measuring 37. 5 acres; and that the plaintiffs have throughout been in possession and are entitled to excavate the minerals from the aforesaid 37. 5 acres of land and the defendants have no authority in law to interfere with the mining operation carried on by the plaintiffs. Before examining the question as to whether on the facts pleaded by the plaintiffs they have a legal right to remain in possession and excavate the minerals, it will be convenient to refer to the relevant provisions of U. P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 1951 ). Section 4 of the Act provides that all estates situate in Uttar Pradesh shall vest in the State on a date to be specified by notification and all such estates shall stand transferred to and vest, except as hereinafter provided, in. the State free from all encumbrances. The notification was issued on July 1, 1952 and thereafter with effect from the said date all estates vest in the State. The relevant portion of the Sections 6, 7 and Sections 106 and 107 are quoted below:- "section 6 - When the notification under Section 4 has been published in the Gazettee, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely; (a) All rights, title and interest of all the intermediaries- (i ). . . . . . . . . . . . . . (ii ). . in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances: Section 7 - Nothing contained in this chapter shall in any way affect the right of any person- (a) to continue to work any mines comprised in any estate herein before acquired which shall be governed by the law for the time being in force: Section 106 - Notwithstanding anything contained in this Act, the right to operate or work mines and to extract minerals therefrom shall, from the date of vesting, be governed by the provisions of this Chapter. Section 107 - (1) With effect from the date of vesting, all mines com prised in the estate or estates acquired under this Act as were in operation on the date immediately preceding the said date and were being worked directly by the intermediary shall, if so desired by him, be deemed to have been leased by the State Government to the intermediary, and such intermediary shall be entitled to retain possession of those mines as a lessee thereof. (2) The terms and conditions of the said lease by the State Govern ment shall be as may be agreed upon between the State Govern ment and the intermediary, or, in default of agreement, as may be settled by a Mines Tribunal appointed under Section 110: Provided that all such terms and conditions shall be in accordance with the provisions of any Central Act for that time being in force regulating the grant of new mining leases. "
(3.) THE plain reading of the aforesaid provisions will show that all rights, title and interest of the intermediaries in mines and minerals ceased on July 1, 1952 and the same vested with the State of U. P. free from all encum brances. However under Section 7 of the Act such intermediaries were given rights to continue to operate the mines. Under Section 107 all mines in the estate acquired under the provisions of the Act were deemed to have been leased by the State Government to the intermediary and such intermediary was entitled to remain in possession of the mines as a lessee thereof. It however provides that terms and conditions of the aforesaid lease shall be such as may be agreed between the State Government and the intermediary or may be settled by a Mines Tribunal. THE precise question as to whether the intermediary or the erstwhile zamindar had any title to the mines and minerals after the notification had been issued under Section 4 of U. P. Act No. 1 of 1951 has been considered by the Supreme Court in Bhagwan Dass v. State of U. P. , and others, AIR 1976 SC 1393 wherein in paragraph 5, the Court rules as follows: "these provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile zamindars possessed, stood extinguished and became vested in the State Government. " Again in paragraph 9, it was held as follows: "the right of the former zamindars to mines and minerals was extin guished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar: he was entitled to mines and minerals. With the abolition of Zamindari by the 1951 Act, that right has passed on not to the appellant but to the State Government. THE appellants writ petition filed to restrain the State Government from auctioning the right to undertake mining operations must therefore fail. " In view of the language of the statute and the authorative pronouncement by the Apex Court, there can be no doubt whatever that the plaintiffs, who claim to be intermediaries and erstwhile Zamindars, have no legal right or title over the disputed land including the mines and minerals and the same now vests with the State Government. THE plaintiffs therefore cannot claim any legal right to excavate the minerals unless they show that a lease has been executed in their favour by the State Government under Section 107 of the Act. The plaintiffs claim that they had filed some writ petitions in the High Court in which orders were passed recognising their right to operate the mines, and therefore they are entitled to an injunction order in their favour. The effect of these judgments may now be considered. The Collector, Agra issued notice on 9-8-1953 to the effect that intermediaries had lost all such rights in mines and minerals which had vested in the State of U. P. and they were directed to deposit the income which they had earned after 1-7-1952 and they were also directed to take steps to obtain leases in respect of the mines of which they claimed to be in possession. The plaintiffs or their predecessors made an application on 18- 9-1953 challenging the right of the State to take over the mines and further prayed that a lease be granted in their favour in accordance with provisions of Sections 107 and 108 of U. P. Act No. 1 of 1951, Another notice was issued on 16-3-1954 stating that the possession of all the stone quarries would be taken over. A notice was also given by the Forest Officer on 28-2-1954 stating that the quarries belong to the State Government. Another notice was issued on 24-3-1954 that the right to excavate stones (minerals) for the period 1-4-1954 to 30-6-1954 would be auctioned on 2-4-1954. The predecessors of the plaintiffs then filed writ petition No. 260 of 1954 in the High Court pray ing that a writ of mandamus be issued to the opposite parties not to enforce the order contained in the notices dated 9-8-1953, 16-3- 1954 and 2-4-1954 and further that a direction be issued for granting a lease. The writ petition was allowed on 18-3-1955, notices issued were quashed and the opposite party (State of U. P.) was directed not to hold auction and was further directed to consider the application moved by the petitioner for grant of a lease under Section 106 to 108 of the Act. It was also held that the petitioners were entitled to continue to operate the mines. In pursuance of the judgment in the writ petition, the Collector, Agra by his order dated 8-1-1964 offered the terms and conditions of the proposed mining lease to the plaintiffs and a draft of the lease for a period of 15 years containing the terms and conditions thereof was also sent. The plaintiffs filed an objection against the terms and conditions of the proposed lease especially with regard to the period fixed therein which was 15 years. They also filed a writ petition in the High Court challenging the direction containing in the order of Collector dated 8-1-1964. The writ petition was dismissed by the High Court on 9-2-1965 and it was held that in case of default of agreement between the State Government and the petitioner (plaintiffs), the terms and conditions of the lease may be settled by the Mines Tribunal under Section 110 of the Act. Thereafter the State Government constituted a Mines Tribunal under Section 110 of the Act by means of a notification dated 22-2-1965 of which the District Judge, Agra was the Chair man. The Collector, Agra then made an application dated 12-10-1966 to the Mines Tribunal for settling the terms and conditions of the lease which was to be granted in favour of the erstwhile Zamindars under Section 107 of the Act. The case of the plaintiffs was registered as Ref. No. 98 of 1966 and sixteen references were decided by a common order dated 24-11-1977. Copy of the judgment of the Tribunal has been filed as Annexure CA-2 to the counter affidavit. The Tribunal held that the period of lease would be for the previous period from 1-7- 1952 under the deeming effect and ten years from the date of order. Therefore the period of lease in favour of the plaintiffs, as per the terms of the order of the Tribunal could be from 1-7-1952 to 24-11- 1987.;