UNITED COLLIERIES Vs. ENGINEER IN CHIEF SOUTH EASTERN RLY

JUDGEMENT

(1.) THIS is an application under Articles 226 and 227 of the Constitution of India for the issue of a command to the State Government, the Collector of Surguja, the divisional Forest Officer, Sur-guja, and South Eastern Railway Administration and its Engineer-in-chief at Manindragarh to secure and preserve the rights of the petitioners granted to them under a mining lease by the State of Madbya Pradesh and to ensure the continued enjoyment of those rights by the petitioners and their quiet possession. The petitioners also pray for the issue of a prohibitory direction restraining the respondents from interfering in any way with the petitioners' rights under the lease.

(2.) THE material facts of the case are very simple. By an indenture of lease concluded between the first petitioner, the United Collieries Ltd. (hereinafter referred to as the Company), and the State Government on 9th April 1962 the company was granted for a period of thirty years, commencing from 3rd January 1946, a coal mining lease in respect of lands described in Part I of the Schedule to the indenture, known, as the North Chirimiri Colliery in the district of Surguja, "together with liberties, powers and privileges to be exercised or enjoyed" mentioned in Part II of the Schedule, subject to the restrictions and conditions as to the exercise and enjoyment of such liberties, powers and privileges specified in part III of the Schedule and subject to the liberties, powers and privileges mentioned in Part IV of the Schedule reserved to the State Government. The other petitioner is the Managing Agent of the Company. The petitioners claim that under the lease they are the absolute assignees of the rights of the State Government, have a restricted right to enter upon the reserved forest with the previous sanction in writing of the Divisional Forest Officer and to fell, cut and use timber trees in accordance with the terms of the lease and the conditions which the Government may impose and own surface rights also, and that they are entitled to the active protection of the lessor, the State Government, and its officers in the enjoyment of the rights, liberties and privileges granted to them under the lease. The grievance of the petitioners is that the respondents Nos. 1 and 2, namely, the engineer-in-chief of the South Eastern Railway and the South Eastern Railway administration, without obtaining any authority from the Government have begun constructing a railway track on a portion of the leased area; that in carrying out this project they have illegally cut down a substantial portion of the reserved forest on their area of lease and have also opened some portions of the earth exposing some fifty tons of coal which has been removed by the Railway administration, their contractors and labourers; that the railway line when completed will make the functioning of the petitioners' aerial ropeways impossible; that the petitioners have already driven galleries underground; that they are entitled to the right of support of the surface and the laying of the railway line on it has endangered safety in the working of the mines; and that by this act of the railway authorities their rights under the lease of excavating the mineral without let or hindrance from any outside authority has been seriously hampered. The petitioners further say that they brought their grievance to the notice of the collector and the Divisional Forest Officer of Sur-guja district but obtained no redress. They have, therefore, invoked the powers of this Court under Articles 226 and 227 praying that the directions stated earlier be issued to the respondents.

(3.) IN the returns filed on behalf of the respondents, the lease relied upon by the petitioners has been admitted. It has also been admitted that the South Eastern railway Administration is laying railway, line on a portion of the leased area. It is, however, denied that under the lease the petitioners are absolute assignees of the rights of the State Government in respect of the leased area or that they acquired any surface rights over the area, or that they have exclusive property rights or subsidiary rights in the reserved forest on the leased area. It has been averred that the liberties, powers and privileges conferred on the petitioners under the lease are subject to several restrictions and conditions mentioned in Part III and reservations made in favour of the Government in Part IV of the Schedule; that clause (2) of Part IV of the Schedule reserved to the State Government or any person authorized by it the liberty to enter into and upon the leased land and to make upon, over or through the same any railways, tramways, roadways or pipelines for the purposes specified in the said clause and to get from the said lands stones, gravel and earth for making, maintaining and repairing such railway, tramways etc. ; that the Railway Administration approached the local authorities for permission to lay the railway line in early March 1963; that on 13th March 1963 the Commissioner, Bilaspur Division commended to the State Government for ac-ceptance the proposal of the Collector that the Railway Administration should be permitted to construct a railway line; and that the Government gave to the Railway Administration the permission and communicated it to the Collector by its letter dated 8th April 1963 (Annex. R/i to the Return ). It has been further stated in the returns that the construction of the railway line is essential for the working of the Duman Hill Colliery run by the National Coal Development corporation Ltd. , that it does not substantially interfere with the operations of the petitioners' ropeways or with any of their rights under the lease, and if they do the petitioners can claim compensation in terms of Clause (2) of Part IV of the schedule and that the Railway Administration has been authorised to construct the railway line on the express condition that it will compensate the Company for any loss or damage sustained by it "by reason or in consequence of the exercise" by the South Eastern Railway of the authority given to it by the State Government. The respondents have further stated that as the authorisation by the State government to the Railway Administration for the construction of the railway tract and its construction by the railway authorities is in terms of the clauses of the lease and particularly in accordance with Clause (2) of Part IV and Clause 16 of part VII of the Schedule, the petitioners are not entitled to move this Court for the issue of the directions prayed for by them under Articles 226 and 227 of the constitution.