JUDGMENT
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment and decree dated 31/10/1990 passed in Civil Suit No. 5-A/83 by District Judge, Shahdol, the defendants have preferred this first appeal under Section 96 of Code of Civil Procedure, 1908.
2. Before deciding the case of its own merit it will be appropriate to mention that respondent is the plaintiff and the suit was filed by it against the State of Madhya Pradesh through Collector, Shahdol and Nagar Palika Parishad, Nourozabad through its Chief Municipal Officer. The suit was decreed by the trial Court and this first appeal has been filed on behalf of Municipal Council Nourozabad as appellant No. 1 and the State of Madhya Pradesh, through Collector, Shahdol as appellant No. 2. After the change of the nomenclature of appellant No. 1, Nagar panchayat, Nourozabad, Distt. Shahdol has been placed as appellant No. 1. Though, the State of M.P. has been arrayed as appellant No. 2, but no Vakalatnama has been filed by the Officer-incharge of State of M.P. or Collector, Shahdol. The Vakalatnama which has been filed on behalf of appellants is only on behalf of appellant No. 1 on whose behalf Chief Municipal Officer Yatindrs Kumar who is also Officer-incharae has signed the Vakalatnama. There is no Vakalatnama on behalf of State of Madhya Pradesh though Collector or any O.I.C. Thus, it is held that the State of Madhya Pradesh has not preferred any appeal against impugned judgment and decree.
3. The respondent who is plaintiff filed civil suit for declaration that the plaintiff is the owner of the lands in question and on account of some illegal orders, the right, title and interest of the plaintiff does not come to an end. A further declaration has also been sought that the lands. In question which are shown in the name of the State of Madhya Pradesh in revenue record, those entries are forged illegal, ineffective and void-ab-initio. The order of State of Madhya Pradesh holding that the suit lands are of appellant No. 1 in Case No. 48-A/20(i)77-78 dated 12/1/1978 is without jurisdiction, illegal and void-ab-initio and by the said order no right, title and interest is vested in appellant No. 1. A decree of injunction has also been sought that in future the suit lands may not be alienated by any of the defendants. A further decree of injunction has also been sought against appellant No. 1 that it should not raise any construction on the suit land.
4. Under the Coal Mines (Nationalization) Act, 1973 (hereinafter referred to as ‘the Act’) plaintiff/respondent is the subsidiary company of the Coal India Ltd. and the same is registered under the Indian Companies Act. The plaintiff whose old name is WCL and new name is SECL was a private colliery before coal nationalization. Under the Act Nourozabad Colliery owned by ACC was nationalized. The Central Government handed over the property to the Coal Mines. The entire property of the Coal Mines vested with Central Government free from all encumbrances including surface right and all right over the land.
5. Before acquisition of the lands, the publication was duly issued and after assessing the compensation the same was paid to the Bhumiswamis. The possession of the Colliery was given to the Officers of the company. Thereafter the land was diverted and mutation was also made in the name of the plaintiff. On coming into the force of Act, by operation of law the plaintiff became the owner of the lands in question.
6. The acquisition of the lands and the ownership, interest vested in the plaintiff-company. After delivering possession to the plaintiff, without any authority of law, behind the back of the plaintiff, its name was deleted from the revenue record and in its place, name or State of Madhya Pradesh, Revenue Department, was got entered. Thereafter the State of Madhya Pradesh without any authority of law, the suit lands of which plaintiff is the owner and having possession, holding these lands of Nazool, allotted in the name of appellant No. 1. The order of State of Madhya Pradesh (Defendant No. 1) allotting the disputed lands to defendant No. 2 vide order dated 12/1/1978 in Case No. 48/A20(1)77-78 is null and void and deserves to be set aside.
7. The defendants by filling their written statement refuted the averments made in the plaint and it has been Pleaded that the lands belonging to State of Madhya Pradesh and the same has been allotted to defendant No. 2. It was prayed that the suit be dismissed.
8. The trial Court on the application filed under Order 39 Rule 1 and 2 (I.A.No. 1) vide order dated 20/4/1933 directed parties to maintain status-quo. The said order was modified vide order dated 28/6/84 by the trial Court and it was directed that the defendants at their own risk may raise the construction on the suit property. It was further made clear that whatever the decision shall be taken in the final judgment that shall be abide by the parties. The order dated 20/4/1983 passed earlier to maintain status-quo was, accordingly, modified by the trial Court.
9. Against the said order a Misc. Appeal No. 199/94 was filed before this Court. In this appeal an undertaking was given by the appellant No. 1 that they will abide by the judgment of the trial Court.
10. The trial Court after framing the issues and recording the evidence decreed the suit of the plaintiff. Hence, this appeal has been filed.
11. On 27/4/1992 this Court passed the following order:
Shri Saxena undertakes on behalf of the appellant that the appellant shall not put any construction on the suit land till the stay application is decided.
This Court again on 28/8/1992 passed the following order:
I.A.No. 859/91 made by the defendants/appellants for stay of execution of the decree passed against him is allowed, subject to the condition that they shall not make any construction on the suit land till the disposal of the present appeal.
12. The trial Court by the impugned judgment and decree declared that plaintiff is the owner of the suit land and by passing decree or mandatory injunction, directed that whatever the construction has been, raised on the suit land, it may be removed by the defendants. The trial Court further passed decree of injunction restraining the defendants not to interfere in the possession of the plaintiff.
13. It has been contended by Shri Choubey, learned Counsel for the appellants, that appellant No. 1 on the basis of the allotment of the disputed lands by the State of Madhya Pradesh raised constructions of Bus stand etc. and it is in the public interest and, therefore, this Court may direct to pay compensation to the plaintiff and by setting aside the impugned judgment, decree of the trail Court be modified accordingly.
14. On the other hand Shri Nair, learned senior counsel for plaintiff/respondent, argued in support of the impugned judgment and has submitted that by virtue of Section 3 of the said Act the Central Government has become absolute owner and as per Sub-section (3) no person other than the persons who are mentioned in Sub-section (3) shall carry on coal mining operation in India in any firm. The Central Government handed over the property to the Coal Mines ultimately to WCL and now SECL and, therefore, since the plaintiff is the owner of the suit land, by affirming the judgment and decree of the trial Court, this appeal be dismissed.
15. After having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed.
16. On going through Section 3 of the Act which pertains to acquisition of right of owners in respect of coal mines, it is gathered that on coming into force of the said Act on the appointed day the right title and interest of the owners in relation to the coal mines shall Stand transferred to, and vested absolutely in the Central Government free from all encumbrances. The trial Court while deciding Issue No. 3 came to hold that earlier the owner of these coal mines was ACC. However, on coming into force of the Act when there was nationalisation of all the coal mines, the suit lands vested in plaintiff-company which is subsidiary of Coal India Limited, as a result of which the plaintiff became owner of the suit land. Indeed this is the law but by the evidence of Ram Kripal Singh (P.W.1) it has also been so proved and there is no cross-examination by the defendants in that regard.
17. I have given my anxious and bestowed consideration to the reasonings assigned by the trial Court in that regard and I do not find anything in order to hold that the findings are not in accordance with law. Indeed the finding and decision of Issue No. 3 is in consonance to the law.
18. If we go to the preamble of the said Act, it is made crystal clear that the said Act has been enacted in order to provide that the acquisition and transfer of the right, title and interest of the owners in respect of the coal mines specified in the schedule with a view to re-organising and re-constructing such coal mines so as to ensure the rational, co-ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country, in order that the ownership and controller such resources are vested in the State and thereby so distributed as best to subserve the common good and for matters connected therewith or incidental thereto.
19. By operation of law since the plaintiff became the owner of the suit property, therefore, the State Government was not having any authority under the law to allot the sand in question to appellant No. 1 and, thus, the order of allotment of the State Government allotting the suit land to appellant No. 1 is not only without jurisdiction but is also void-ab-initio since the State Government was not at all the owner of that land.
20. The singular contention of learned Counsel for appellant No. 1 is that instead of passing of decree of demolition of construction of appellant No. 1, it may be directed to pay compensation to plaintiff. This contention cannot be accepted because if the said contention is accepted, it would not only in contravention to Sub-section (3) of the said Act but would also put a deep dent on the aim and object of the said Act and the preamble thereof.
21. Before the trial Court undertaking was given by appellant No. 1 that it will abide the judgment which shall ultimately be passed by the trial Court and permission may be allowed to raise construction. Thus, appellant No. 1 is required to abide the undertakings given by it. Before this Court on 27/4/1992 it was undertaken by learned Counsel for the appellant that appellant shall not put any construction on the suit land. Thereafter on 28/8/1992 the stay of execution of the impugned decree was allowed subject to condition that appellant shall not make any construction on the suit land till the disposal of the appeal. Thus the appellant is bound to remove the constructions which were made by it. Otherwise also the law cannot be allowed to bend before the equity. If the impugned construction shall be allowed to continue, it would be an illegality in perpetuity which cannot be permitted and allowed to be done.
22. During the pendency of this appeal, the appellant filed an application (I.A.No. 2545/2003) to amend the written statement. The facts narrated in the proposed amendment are not based on subsequent events. These facts were in the knowledge of appellant earlier also. Why these facts were not pleaded earlier, there is nothing in the application. The proposed amendment is malafide. Hence, I.A.No. 2545/2003 is hereby dismissed.
23. No other point has been pressed before me by learned Counsel for the appellant.
24. In the result, this appeal is found to be devoid of any substance and the same is hereby dismissed with costs. Counsel fee as per Schedule if pre-certified.