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PATNA HIGH COURT
Shambhu Prasad Singh and Shiveshwar Prasad Sinha JJ.
State Of Bihar
Versus
Saubhagya Sundari Devi
Appeal from Original Decree No. 248 of 1964 ; 304 of 1964 ;
Decided On : AUGUST 17, 1971
MINING LEASE - FORFEITURE - NOTICE - WAIVER - VESTING OF INTEREST IN STATE - EFFECT - SUIT FOR EVICTION AND ARREARS OF ROYALTY - MAINTAINABILITY.
Fact of the Case:
Plaintiffs filed a suit for eviction of defendant from the suit property, arrears of royalty and cess, and a declaration that the dues of the plaintiffs be declared as first charge on the suit property. The plaintiffs claimed that the defendant had committed breaches of the terms and covenants of the lease and that they had served a notice to determine the lease. The defendant denied the breaches and claimed that the suit was barred by limitation and that the plaintiffs had no right, title or interest in the suit land after vesting of their estate in the State of Bihar under the Bihar Land Reforms Act.
Finding of the Court:
The court held that the notice to determine the lease was valid and that the plaintiffs were entitled to a decree for khas possession on the ground of breach of the covenants regarding payment of royalties and commissions. The court also held that the plaintiffs were entitled to a preliminary decree against the defendant for royalty and interest thereon and for cess and damages. The court further held that the interest of the plaintiffs as lessee had not vested in the State of Bihar and that the decree of the court below granting to them the reliefs for eviction as well as for arrears of royalty etc, cannot be set aside on that ground.
Issues: 1. Whether the notice to determine the lease was valid? 2. Whether the plaintiffs were entitled to a decree for khas possession on the ground of breach of the covenants regarding payment of royalties and commissions? 3. Whether the plaintiffs were entitled to a preliminary decree against the defendant for royalty and interest thereon and for cess and damages? 4. Whether the interest of the plaintiffs as lessee had vested in the State of Bihar?
Ratio Decidendi: 1. The court held that the notice to determine the lease was valid as it was served on the defendant and the period intervening between the date of the notice and the date on which the lease was to be determined was reasonable. 2. The court held that the plaintiffs were entitled to a decree for khas possession on the ground of breach of the covenants regarding payment of royalties and commissions as the defendant had committed the breaches and failed to remedy them after the service of the notice. 3. The court held that the plaintiffs were entitled to a preliminary decree against the defendant for royalty and interest thereon and for cess and damages as the defendant was liable to pay the same. 4. The court held that the interest of the plaintiffs as lessee had not vested in the State of Bihar as the provisions of Sec.10-A of the Bihar Land Reforms Act, which provides for vesting of interest of a lessee which is subject to a sub-lease in the State of Bihar, did not apply to the present lease.
Final Decision: Both the appeals were dismissed. The plaintiffs-respondents were entitled to costs in F. A. 304 of 1964. In the circumstances of the case, parties shall bear their own costs of this Court so far F. A. 248 of 1964 is concerned.
Shambhu Prasad Singh, J.
1. These two appeals arise out of the same suit. Hence, they have been heard together and are being disposed of by a common judgment. F. A. 248 of 1964 is by defendant No. 2 the State of Bihar, which was added as a party to the suit on 11-12-1963 after its institution. F. A. 304 of 1964 is by defendant No. 1.
2. The plaintiffs-respondents claimed a decree for the following--
(i) khas possession of the suit property;
(ii) Rs. 44,791/- as arrears of royalty and cess etc., or higher amount if so found on accounting;
(iii) dues of the plaintiffs were first charge on the suit property;
(iv) damages; and
(v) costs and interest.
Their case was that during the minority Of the original plaintiff No. 1 (who died during the pendency of the suit and some of his heirs who were not already on record were substituted in his place) and the husband of plaintiff No. 4, when their estate was under the management of Court of Wards, its Manager granted a lease (Ext. 1) of coal and coal mining rights in and under the property mentioned in Schedule A to the plaint to the father of defendant No. 1 on 5th of September, 1914. In 1943, the original plaintiff No. 1 and the husband of plaintiff No. 4 brought Title Suit No. 17 of 1943 in the court of Subordinate Judge at Dhanbad for recovery of khas possession and royalty on the ground that on account of the breach of the terms and covenants of the lease and for non-payment of royalty etc., the lessee had forfeited his right to be in possession. This suit was compromised between the parties and the father of the present defendant No. 1, who was defendant in that suit, took a fresh lease of Schedule A properties with some modifications in the terms and covenants of the original lease. A decree (Ext. 4) was passed in terms of the compromise. On the death of -his father, the present defendant No. 1 as his successor-in-interest came in possession of the lease-hold property and committed the following breaches of the covenants and conditions of the lease:
(a) Royalties and commissions of the plaintiffs were not paid from September Kist, 1952, and Road Cess and Mines Board Cess from March Kist, 1945.
(b) The defendant No. 1 did not keep any weighing machine in the colliery though he was bound to do so under the terms of clause 10 of Part VII of the said Indenture of lease.
(c) The defendant No. 1 did not furnish, as required by the terms of the said lease, any statement of coal raised and despatched or sold or of coke manufactured and sold and despatched from the property from September Kist 1950 either to the plaintiffs or their Officer.
The plaintiffs then served a notice (Exhibit 3) dated 12th October, 1961 on defendant No. 1 by registered post. The notice informed defendant No. 1 about the breaches of the covenants and also about the plaintiffs intention to determine the lease just on the expiry of 31st March, 1962. Defendant No. 1 got the said notice on 17-10-1961 but did not remedy thereafter any of the breaches nor paid the plaintiffs their dues. On the 1st day of April, 1962, the plaintiffs sent their officer to take possession of the property, but defendant No. 1 did not vacate the premises and has been in illegal possession of the same since then.
3. Defendant No. 1 in his written statement averred that the suit was barred by limitation and bad for nonjoinder of the State of Bihar which was a necessary party to the suit. The plaintiffs were left with no right, title or interest in the suit land after vesting of their estate in the State of Bihar under the Bihar Land Reforms Act and, therefore, the suit was not maintainable. He admitted that there was a lease in favour of his father dated 5th September, 1914 and a compromise in Title Suit No. 17 of 1943, but challenged the correctness of the terms of the lease as stated in the plant. He denied to have committed any breach of the covenants and conditions of the lease. No royalty or commission payable under the lease was p
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