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2012 Supreme(Kar) 16
High Court of Karnataka
RAM MOHAN REDDY
M/s MSPL Limited
Versus
M/s S.B. Minerals & Another
REGULAR SECOND APPEAL No. 5418 OF 2009 (DEC & INJ)
Decided on : 11-01-2012
For the Petitioner:C.S. Vaidyanathan, Sr.Adv. for M.M. Swamy, Advocate. For the Respondents:D.L.N.Rao, Sr.Adv. for Ananth Mandagi, Sr. Adv. & Smt.S.R. Anuradha, Advocate, N. Devadas, Sr.CGSC for B. Papegowda, S.B. Kanvi &
H.C. Sundaresh, CGSC.
Headnote:EVIDENCE ACT, 1872 - Section 83: [Ram Mohan Reddy, J] Maps or plans made by the State Government or Central Government - Maps or Plans made for the purposes of any cause - Accuracy and Measurement - Held, Section 83 of the Evidence Act lays down that Court shall presume that maps or plans purporting to be made by the Central Government or any State Government were so made, and are accurate’ but maps or plans made for the purposes of any cause must be proved to be accurate. Accurate means accuracy of the drawing and correctness of the measurements - Further held, Regard being had to well established law the sketches annexed to the lease deeds executed by the Department of Mines and Geology6, Government of Karnataka, in favour of the parties, not shown to be substantiated on actual survey, accurate drawing as also correctness of measurements, coupled with the failure to produce the field book effects over survey conducted by the Surveyors.,, who are not examined as witnesses, none of the maps or sketches were proved in evidence. The discrepancies between the areas bounded in the maps enclosed to the lease deeds and the survey sketches being substantial, and the boundaries when not accurate to points of compass in manner provided to denote them as boundaries, in fact, no reliance can be placed on the sketches marked in evidence. - On fact, held, There being no material worth the while to establish the accuracy of description and measurements of the areas leased to the parties under the lease deeds and sketches annexed thereto, there is force in the submission of the Learned Senior Counsel for the defendant that the Lower Appellate Court was not justified in recording a finding that the Defendant was working the mine outside its mining area though correctly held that it was not in the Plaintiff’s lease are.
MINERAL CONCESSION RULES, 1960 - Rules 22-A, 27 and 29(1) second proviso: [Ram Mohan Reddy, J] Mining lease - Demarcation of area. Rule 22-A under Chapter IV of the ’MC Rules’ providing for grant of mining leases in respect of land in which minerals vest in the Government, states that mining operations shall be undertaken in accordance with the duly approved mining plan, while, Rule 22-B requires the plan to be prepared by a qualified person duly recognised in that behalf by the Central, Government. Iron are falling under part-C of the I Schedule to the MMRD Act of 1957’ requires the submission for approval the mining plan through the authority notified by the Controller General of Indian Bureau of Mines or by the State Government, as mandatory by Rule 22(bb)(i)……. Rule 27 provides for conditions of every mining lease whereunder clause (g) of sub-rule (1) requires the lessee at its expense to erect and maintain and keep in good repair boundary marks and pillars necessary to indicate the demarcation shown in the plan annexed to the lease, while clause (u) requires the lessee to comply with the Mineral Conservation and Development Rules, for short ’MCD Rules’, framed under Section 18 of the ’MMRD Act of 1957’…… the second proviso to sub-rule (1) of Rule 29 states that when a lessee applies for surrender of the whole or a part of the lease-hold area, permission can be granted only if the State Government is satisfied that: -
a) The lease-hold area to be surrendered has been properly surveyed and is contiguous;
b) The lease has paid all the dues to the Government under the lease up to the date of application and;
The lease has obtained a certificate under Rule 29-A (inserted w.e.f. 10.4.21003). Sub-rule (2) states that every application for surrender of a part of lease-hold area in accordance with provisions f sub-rule (1) shall be accompanied by a deposit of Rs.200/- for meeting the expenditure for the purpose of survey and demarcation of the area to be surrendered……. Rule 29-A (inserted w.e.f. 10.4.2003) provides for closure only after a mine closure plan is duly approved by the regional controller or authorised officer of the State Government. Rule 33 provides for survey and demarcation of the area granted under lease by the State Government…… Chapter IV of the ’MCD Rules’ provides for plans and sections while sub-rule (1) of Rule 27 stipulates the general requirement about plans and sections. Sub-rule (2) requires the plans and sections to be compliant with the conventions prescribed under the Metalliferrous Mines Regulations, 1961, while sub-rule (3) requires the plans and sections to be accurate within such limits of error as the controller General may specify by a general or special order….. Rule 28 specifies the types of plans and sections to be kept at every mine. Sub-rule (5)(a) requires a key plan on a scale of 1: 63000 or 1: 50000 incorporating the administrative surface map showing the boundaries of the mining lease, and the adjoining area lying preferably within five kilometers thereof; contuours at not more than 20 mtrs intervals; natural drainage system such as rivers, streams etc.; roadways and railways, forest with trees; boundaries of all villages and towns with their population, while, clause (g) mandates an environmental plan of the area of mining lease inclusive of the adjoining are within 500 mtrs of the boundary of a leased area in 1:5000 scale incorporating amongst others, the area occupied by the mine working area covered by the dump etc. Rule 29 requires the owner or mine engineer or manager to submit to the Controller General on or before the 30th June of every year copies of the plans and sections.
1. The defendant in O.S.No.82/2006 on the file of the Prl.Civil Judge (Jr.Dn) and JMFC, Hospet, aggrieved by the Judgment and decree dt. 8.2.2008 allowing the suit, preferred RA 19/2009 whence the Addl. Civil Judge (Sr.Dn), Hospet reversed the Judgment and decree and dismissed the suit by Judgment and decree dt. 29.6.2009. Hence this second appeal by the plaintiff.
2. Parties, hereinafter, are referred to as described in the plaint.
3. The panorama of factual position as set out in the pleadings of the parties is:
I. PLAINT ASSERTIONS:
(i) The plaintiff is a limited company incorporated under the Companies Act, 1956 engaged in the business of mining and marketing all minerals including iron ore. One K.Narayanaiah was grantee of a lease by the then Government of Madras to mine iron ore for a period of 10 years in portions of land in Sy.Nos.1, 4, 5 and 6 of Vyasanakere village, Hospet taluk together measuring 858 acres, said to be transferred to the plaintiff during the year 1962 by the erstwhile State of Mysore and renewed from time to time for block periods of 20 years each, the latest during June 2003 w.e.f. 14.11.2002, followed by the execution of the lease deed of M.L.No.2416 in Form No.K under The Mineral concession Rules, 1960, for short ‘MC Rules’ framed under The Mines and Minerals (Development & Regulation) Act, 1957, for short ‘MMRD Act of 1957’.
(ii) One B.N.Shankar Singh was granted a lease to mine iron ore in 200 acres in Sy.No.1 of Vyasanakere village, for 29 years, in M.L.2068 under lease deed 13.10.1958. That area, allegedly is the northern portion of land in Sy.No.1 while the grant of land in favour of Sri.K.Narayanaiah, is in the Southern portion.
(iii) It is the allegation of the plaintiff that the said grantee encroached upon the plaintiff’s mining area during the year 1976 and transferred the lease to the defendant-a Partnership Firm, which too continued to occupy the encroached area. The illegal act of the defendant, it is asserted, time and again was brought to the notice of the authorities of the Department of Mines in the State.
(iv) Defendant’s lease having come up for renewal during the year 1997, the State of Karnataka permitted the renewal subject to compliance with certain terms and conditions, one of which was, verification, after actual survey and demarcation of the area, under Rule 33 of the ‘MC Rules’ before execution of the lease deed, since in law, it is held that every renewal is a fresh grant.
(v) It is asserted that a common boundary between the two leasehold areas, was fixed after notice to both the parties and in their presence, whence the defendant’s encroachment into the plaintiff’s leased land was noticed and recorded in the Survey report dt. 3/17.07.1999, following which the Director of Mines and Geology by letter dt. 10.8.1999 directed it to stop illegal activity outside the mining area and show cause as to why the lease should not be cancelled.
(vi) The Department of Mines and Geology, State of Karnataka, it is said, addressed a letter dt. 15.9.1999 to the plaintiff over the alleged encroachment by the defendant and directed it to maintain the boundary marks and pillars and carry on mining operations in M.L.1801 including the area encroached upon. According to the plaintiff, the Senior Geologist submitted a report dt. 9.9.1999 indicating that the plaintiff was in possession of the encroached area, after evicting the defendant therefrom.
(vii) It is alleged that on the instructions of the Minister for Mines and Geology, the Senior Geologist addressed a letter dt. 14.10.1999 proposing re-survey of M.L.2068 the area leased to the defendant, pursuant thereto in a re-survey conducted on 3.11.1999 to 5.11.1999 and 16.11.1999 to 24.11.1999, after notice to all parties, it was observed that the defendant was mining outside its area and in the leased area in M.L.1801 of the plaintiff as recorded in the three reports and combined sketches.
(viii) Petitioner filed W.P.37
