D.N.Sinha, J. -
(1.)The facts in this case are shortly as follows : The petitioner, Rajendra Colliery Ltd., is a sub-lessee of approximately 1570 bighas of coal-bearing land in village Chordhara Thana Ramgarh, District Hazaribagh, in the State of Bihar. The petitioner company obtained a sub-lease from the lessee Messrs, Karanpura Development Co. Ltd., by an instrument of sub-lease dated September 1946. On or about 29th May, 1947 the petitioner made an application for a permit to open a coal mine in the said area as is required under, the Colliery Control Order, 1944. This order was subsequently replaced by the Colliery Control Order, 1945 and paragraph 14 of the said order runs as follows :
"No colliery shall be opened and no colliery, the working whereof has been discontinued for a period exceeding two months, shall be re-opened except with the previous permission of the Central Government in accordance with such directions as the Central Government may at the time of granting the permission or subsequently give, to the owner or owners "themselves."
(2.)Briefly speaking, the Central Government has the power to constitute a Board called the Coal Control Board and the functions of the Central Government under the Order are exercisable by the Coal Controller with the Government of India, Deputy Coal Controller (Distribution), Deputy Coal Controller (Production) and the Joint Deputy Coal Controller (Distribution). In the application for permission to open a mine, it was stated that the petitioner company had obtained this virgin property from Messrs. Karanpura Development Co. Ltd. and intended to work the same. It was further stated that the property contained Kurse, Simana, Sirka and Argada qualities of coal, and the property had to be developed. It was also stated that the seams of coal were good seams and the geological plan was enclosed. On or about 11th July, 1947 the Deputy Coal Commissioner (Production), which I take it is the same as the Deputy Coal Controller (Production) granted permission under Clause 14 of the Colliery Control Order 1945 to open the 'Rajendra Collieries and Co.' A copy of the permission is annexure 'A' to the petition. According to the petitioner, after the permission was obtained, prospecting work was carried out and a quarry was opened to work the Argada seam near the Damodar river. It was found however that the coal was of inferior quality, and therefore, it was abandoned sometime in 1950. Thereafter, several bore-holes and trial-pits were dug, to find out the location where the quarrying could be resumed effectively. I must mention here that the rules and' regulations appertaining to Collieries, require that immediately after a mine is operated, returns must be filed snowing details of the working and the coal must be graded after due inspection of the authorities. During all this time, the returns made by the petitioner company showed that no coal had ever been raised. It appears from the correspondence that although official inspection was made, no grading was ever done. On or about 16th December, 1955 the petitioner, company made an application to the Coal Board, purporting to be under Rule 39 of the Coal Mines (Conservation and Safety) Rules 1952, for permission to open a coal mine which had been closed for more than six months. A copy of this application is annexed to the petition and appears at pages 12-14. This application clearly shows that the petitioner company had opened up a quarry to work the Argada seam near the Damodar river, but subsequently abandoned it because the coal was found to be of inferior quality. It was stated that the quantity of coal had since been determined by means of several trial pits and bore-holes, and all arrangements regarding planned development of the mine had been completed. It was further stated that the raising will be started as soon as permission to re-open was granted. Copies of the plans that were annexed to the application have been made an annexure to the affidavit of Akhtar Zaman, respondent No. 1, the Coal Controller, affirmed on 3rd February, 1960. These maps clearly show that a quarry was opened near the Damodar river and after its abandonment certain bore-holes were opened, the positions whereof are shown on the maps, as also the location of the 'proposed inclines', which means proposed quarries for Sirka and Simana Seams. These are situated away from the river. The reason why the mining of coal was abandoned has been clearly mentioned in the application and is as follows :
"Coal raised from quarry was of inferior quality and hence quarry working was abandoned. A detailed prospecting of the area was thereafter carried out as a result of which Sirka and Simana were subsequently proved in the property."
Against the heading 'Type of mine-pit, Incline or Quarry' -- the entry is, 'Previously quarry. At present a number, of inclines to be sunk'. It has been clearly stated in the application that the date of first opening of the mine was 12-7-1947 and the date of closure was 'sometime in 1950' and that the average output during the period of previous working was 'nil'. On or about 10th June, 1957 came into operation, a Central Act known as the 'Coal Bearing Areas (Acquisition, and Development) Act (XX of 1957)'. The preamble states that it is an Act 'to establish in the economic interests of India, greater public control over the Coal Mining Industry and its development, by providing for the acquisition by the State of unworked land containing or likely to contain coat deposits or rights in or over such land, for the extinguishment or modification of such rights accruing by virtue of any agreement, lease, licenses or otherwise, and for matters connected thereto.'
(3.)The provisions of Section 4 of the Act are important and the relevant part is set out below:
"4 (1) Whenever it appears to the Central Government that coal is likely to be obtained from land in any locality it may, by notification in the Official Gazette, give notice of its intention to prospect for coal therein. (4) In issuing a notification under this section the Central Government shall exclude therefrom that portion of any land in which coal mining operations are actually being carried in conformity with the provisions of any enactment, rule or order for the time being in force or any premises on which any process ancillary to the getting, dressing or preparation for sale of coal obtained as a result of such operations is being carried on are situate."