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1997 Supreme(Bom) 695
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
NJ. Pandya, J.
Smt. Kunda Fiaghuvir Gharse
..... Petitioner.
Versus
M/s. Timble Planting Private Ltd. ....
Respondent.
Civil Revision Appin. No. 61 of 1997, decided on 17-12-1997.
Advocates appeared:
V.B. Nadkami, S.A. with A.N.S. Nadkarni and Y.V. Nadkarni, for the petitioner.
P.M. Reis, for the respondent.
Headnote:Section 24-A-Specific Relief Act, 1963, Section 3S-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2-lnterim injunction on issue of mining lease-When lessees have only got lease hold rights on land of Government, their compensation can be determined by a proper authority, but, where the lessees are allowed to hold the lease with conditions, prima facie no case for injunction is made out, instead Court can direct respondent to deposit a lump sum amount to be paid to ultimate concerned party at conclusion of the matter.-It is also an accepted position that the area leased out to the defendant/petitioner is much larger and does include the disputed area and thus covered by lease. The invasion thus, complained of is neither unwarranted not wanton in character. The operation to be carried out has been permitted to be so done and so far as the obligation of the leaseholder or the lessee is concerned, the provisions of the said Act along with the Rules framed there-under, will govern the case between the parties. So far as the ownership of the immovable property is concerned, the law would jealously determine the right of the owners. However, looking to the complicated character of the society which is greatly enhanced particularly with reference to the present day complex economic activities one would expect there to be some sort of curtailment of the constraint to be on the ownership right and this will be more so in relation to mineral under the relevant law existing in India, though, the surface land may belong to a private individual mineral ownership belongs to the State, representing the people.
In this background, if, the controversy between the parties is assessed, one thing becomes clear as per the provisions of the Specific Relief Act, itself, when the suit is for permanent injunction and, therefore, to be gathered from Section 38(3) of the Specific Relief Act, 1963. Promptly, the Courts attention was drawn to clause (b).
Mean that perpetual injunction can be granted where there exists no standard for ascertaining actual damage caused by accepting the principle that by granting interim relief, the Court has to look to the final relief that has been asked for and whether there is possibility of it being granted in the first place,
Looking from the point of prima facie case, also there is no substance in the plaintiffs case because while accepting the right of ownership the defendant when she is authorised under a statute, namely, the aforesaid Act, and the requirement of the prescribed Rules as to compensation too having been fulfilled, the question of his right being invaded and, therefore, required to be protected under the aforesaid statutory background, cannot be said to be arising prima facie for the purpose of grant of injunction at this interim stage.
What could be the amount of compensation, can be and is a matter of dispute. On what basis it should be fixed is a matter of the dispute. According to the plaintiff, principles of the Land Revenue or the Land Acquisition Act have been taken into consideration while granting compensation to the defendant under Rule 72. This being within the ambit of the competent authorities under the said Act.
On behalf of the petitioner, case of, Haripada Bandappadya v. Equitable Coal Co. Ltd., AIR 1923 Cal 335, was cited where with reference to the relevant mining clause, it is held that a right of using the surface to which the mine owner may be entitled by implication, is confined to such things as are reasonably and strictly necessary for the convenient working of the mines. The mine owners have no other rights of any description whatsoever unless these rights are to be found within the four comers of the grant. With reference to the aforesaid described Section 24-A, the aforesaid judgment will clearly indicate the extent to which the mining operations are necessary and in the background, as already was done, so if, the area covered as lease is required to be occupied as new original land subject to the requirement of the Act and the Rules as to payment of compensation, they can do so, and that is what exactly has been done.
The net result, therefore, is the courts below instead of applying their mind to the applicability of the relevant statutory material to the rights claimed by the plaintiff with reference to the aforesaid Act and the Rules framed, there-under, have misdirected themselves in exercise of their jurisdiction. This, therefore, calls for interference of this Court.
While allowing the revision petition in favour of the petitioner, recalling the earlier offer of putting the petitioner to terms, the Court directs that they shall deposit in the trial Court a sum of Rs. 1,20,000/ - within a period of two weeks from date of judgment. The amount shall stand invested in the name of the Nazir of the trial Court, in a Nationalised Bank, initially for a period of one year. As and when it is required to be disbursed to either of the parties in accordance with the order of compensation or in accordance with the outcome in the suit, the same shall be paid along with the interest earned thereon.
"(a) That by an order and decree in the nature of permanent injunction, the defendant be restrained from entering or interfering or undertaking any mining operations or disturbing the possession of the plaintiff or the suit property beyond the mining pit which exists and is as shown within brown colour on the plan annexed."
2. As can be gathered from the aforesaid para that a permanent injunction is sought restraining the defendant from doing the mining operations beyond the mining pit which exists.
3. So far as the area of the mining pit is concerned, initially there was some dispute. According to the plaintiff, with reference to the plan attached to the plaint by it, that an area was limited to the portion described in brown colour. Later on, the Mamlatdar along with Field Surveyor visited the said place and as can be gathered from the additional areas marked 'B', 'C' and 'D' were also found to have been covered by mining operation. The report being at page 211 and the map being at page 212.
4. For all essential purposes, therefore, the areas under the marked portions, on the date of the filing of the suit was the entire area covered by brown portion along with the portions marked 'B', 'C' and 'D'. The disputed portion, therefore remains is the one covered under letter 'A'.
5. As stated in the plaint, the disputed area is forming part of large property owned by the plaintiff/respondent and the right of an owner that the plaintiff has, is being invaded and threatened to be invaded by the defendant by bringing mining machinery on the spot and carrying out mining operations in the disputed area.
6. Ordinarily when a party approaches the Court with a case that his rights are being invaded, the Court will immediately protect his right by an interim relief and that is what exactly has been done. However, when the question is in form of such interim relief, the case put forth by the other side has to be considered. It is at this juncture, the Court is required to consider whether the invasion is totally unwarranted and wanton in character or there is some basis or semblance of right in the defendant.
7. It is an admitted position that the defendant/petitioner does have mining lease subsisting in her favour as on the date of suit. The lease was granted to her from 1-11-1957 and it has been renewed on three different dates. It related back to 1-11-1957. Dates of renewal for the period it has related back to 1-11-1957 are as under:
Lease 230 renewed on 23-9-1990;
Lease 229 renewed on 25-9-1990; and
Lease 234 renewed on 26-9-1990.
8. At this juncture, I may take into consideration the provisions of the Mines and Minerals (Regulation Development) Act, 1957. The definition thereof is stated as under:
"Section 3, Clause (d):
'mining operation' means any operation undertaken for the purpose of winning
any mineral;".
9. The mining is lease and nothing else. It is a legal permission for the lease-holders to carry out mining operation, meaning of which for the purpose of the aforesaid Act has been clearly defined.
10. His also an accepted position that the area leased out to the defendant/petitioner is much larger and does include the disputed area and thus covered by lease.
11. The invasion thus complained of is neither unwarranted nor wanton in character. The operation to be carried out has been permitted to be so done and so far as the obligation of the lease-holder or the lessee is concerned, the provisions of the said Act along with the Rules framed thereunder will govern the case between the parties. So far as the ownership of the immovable property is concerned, the law would jealously determine the right of the owners. However, loo
