- (1.) THE present writ petition has been preferred for quashing of the order dated 7.10.2003 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh, the respondent no.2 herein, in C. N.T. Appeal No. 2/1998 whereby and whereunder the appeal filed by the respondent no.4 Sri Pradeep Kumar Bose under Rule 74 of the Chotanagpur Tenancy Rules, 1959 has been allowed. The further prayer is for confirmation of the order dated 5.12.1997 passed by the Settlement Officer, Dhanbad, the respondent no.3 herein, in case no. 163 of 1991 whereby and whereunder he has been pleased to allow the appeal of the petitioner by directing the opening of the Record under ownership of the petitioner in respect of the land situated at Mouza - Bhupatdih (Mouza No. 252) appertaining to Khata No. 20, Plot No. 169, measuring an area of 0.73 acres as vested land in the petitioner's company by virtue of the provisions contained in Section 3 of the Coal Mines (Nationalization) Act, 1973 specially in the light of the definition of ˜Mine' as contained in Section 2(h) (vii) of the said Act. The further prayer is for issuance of an appropriate writ, order or direction commanding upon the concerned respondents not to take any action and to forbear them from giving effect to and acting pursuant to or in furtherance of the order dated 07.10.2003 passed in C.N.T. Appeal No. 2/1998.
(2.) THE facts, in brief, are set out as under: One Profulo Chandra Mazumdar, Power of Attorney holder of Katras Raj Estate settled an area of 3.98 acres of land under Plot No.169, C.S. Khata No. 20 of Mouza -Bhupatdih in favour of Lalit Amulyo Mohan Basu on 26.9.1924 by a registered deed of Settlement vide Deed No. 3370, Mining and other allied purposes. On the death of Lalit Amulyo Mohan Basu the aforesaid land were inherited by N.K. Bose & Brothers and the private respondent no.4 is the legal heirs of N.K. Bose & Brothers. In the revisional survey records the said lands were recorded in the name of West Katras colliery which was nationalized under the Coal Mines (Nationalization) Act, 1973 which came into effect on 1.5.1973 and the same appears at Serial No. 207 in the Schedule to the Coal Mines (Nationalization) Act, 1973. It appears that the forefather of the private respondent who were excolliery owner had installed a workshop on the aforesaid land for casting, moulding, repair and maintenance of tubs/buckets used for loading coal from the colliery seam and bringing the same on rails to the pit head and the said workshop was named and styled as Ruby Engineering Works prior to the nationalization of the Coal Mines in the year 1961. The said respondent no.4 filed an application under Section 89 of the Chotanagpur Tenancy Act challenging the recording made in R.S. Khatiyan dated 20.3.1987. The case of the private respondent no.4 was that a family partition took place on 25/26.9.1974 and 73 decimals of lands on which the workshop is situated was allotted to his share. The Assistant Settlement Officer vide its order dated 7.9.1991 allowed the case of the respondent no.4 in respect of 73 decimals of land and directed the same to be entered in R.S. Khatiyan No. 31 in the name of respondent no.4 under a ˜Batta'(divided) Plot No.232/1 with the nature of land ordered to be recorded as ˜Makan Maisahan" Kabil lagan. The petitioner being aggrieved preferred a First Appeal F.A. No. 163/1991 in the court of Survey Settlement Officer at Dhanbad, under the provisions of Section 89(2) of the Chotanagpur Tenancy Act, 1908 read with Rule 74 of the Chotanagpur Tenancy Rules and the appeal was dismissed vide order dated 23.9.1993. Thereafter, the petitioner preferred a Second Appeal under Rule 74 of the Chotanagpur Tenancy Rules, 1959 stating that the related property by virtue of forming part of the West katras colliery already stood vested in the petitioner's Company on the enactment of the Coal Mines (Nationalization) Act, 1973 with effect from 1.5.1973 free from all encumbrances. It also pointed out that the work shop was set -up and established on the land which was exclusively engaged in the manufacture of coal mining machinery and the same was established by the excolliery owner. The respondent no.2 after hearing the matter set aside the order dated 23.9.1993 passed in Case no. 163/1991 and remanded the matter to the Settlement Officer to give a decision in accordance with law after making spot inspection. On remand, the Settlement Officer, respondent no.3 herein, made a spot/site inspection and heard the parties at length and vide its order dated 13.11.1997/5. 12.1997 allowed the appeal and directed the opening of R.S. Survey Khata in the name of petitioner in respect of the lands in question. The respondent no.4 being aggrieved filed an appeal under Rule 74 of the Chotanagpur Tenancy Rules, 1959 which was registered as C.N.T. Second Appeal No. 02/1998 and the second appellate court, respondent no.2 herein, vide its impugned Judgment dated 7.10.2003 was pleased to allow the said second appeal only on the basis of the possession.
(3.) THE main contention raised by the learned counsel for the petitioner is that the right, title and interest in a mine or mining area used in relation to a mine vested in the Central Government Coal Companies free from all encumbrance and Katras Colliery also vested and was included in the Schedule and compensation having been paid no claim survives of the private respondent. The next contention raised is that Section 2(h) of the Coal Mines (Nationalization) Act, 1973 defines mine which is an inclusive definition. The next contention raised by the learned counsel for the petitioner is that the issue has been fully considered and settled by a Bench of three Hon'ble Judges of Hon'ble Supreme Court in the matter of M/s B.C.C.L. V/s. Madan Lal Agrawal reported in (1997) 1 SCC pg 177.;