{"id":124227,"date":"1961-08-08T00:00:00","date_gmt":"1961-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amar-jyoti-stone-crusting-co-vs-the-union-of-india-and-others-on-8-august-1961"},"modified":"2016-09-05T22:41:16","modified_gmt":"2016-09-05T17:11:16","slug":"amar-jyoti-stone-crusting-co-vs-the-union-of-india-and-others-on-8-august-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amar-jyoti-stone-crusting-co-vs-the-union-of-india-and-others-on-8-august-1961","title":{"rendered":"Amar Jyoti Stone Crusting Co vs The Union Of India And Others on 8 August, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Amar Jyoti Stone Crusting Co vs The Union Of India And Others on 8 August, 1961<\/div>\n
Equivalent citations: 1967 AIR 46, \t\t 1962 SCR (3)\t 62<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nAMAR JYOTI STONE CRUSTING CO.\n\n\tVs.\n\nRESPONDENT:\nTHE UNION OF INDIA AND OTHERS\n\nDATE OF JUDGMENT:\n08\/08\/1961\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nSINHA, BHUVNESHWAR P.(CJ)\nDAS, S.K.\nSARKAR, A.K.\nMUDHOLKAR, J.R.\n\nCITATION:\n 1967 AIR   46\t\t  1962 SCR  (3)\t 62\n\n\nACT:\nQuarry-Refusal of permit-Ownership of  minerals-Presumption-\nPunjab Land Revenue Act, 1887 (XVII of 1887) s. 42.\n\n\n\nHEADNOTE:\nThe appellant had been granted a permit by the Collector for\nquarrying  store  upto,June 30, 1957 under the\tDelhi  Minor\nMineral Rules 1938 framed under s.155(1) of the Punjab\tLand\nRevenue Act, 1887.  On the expiry of the term of this permit\nthe appellant applied for another permit but it was  refused\non the ground that the land had been included\n63\nin  \"a\tcontrolled  area\" reserved  for\t other\tpurposes  by\nproceedings  under  the Delhi (Control\tof  Buildings)\tAct,\n1955.  The appellant filed a suit praying for a\t declaration\nthat  it had a right to quarry stones from the land in\tsuit\nwithout a permit as the ownership of the minerals was vested\nin  the landowner from whom it had taken the land and for  a\nmandamus  to the collector to grant the permit as  the\t1955\nAct had ceased to be operative after December 30, 1937.\nHeld,  that  the appellant had not proved its title  to\t the\nmineral rights in the land and was not entitled to the\tdec-\nlaration.   Section  42(2) Punjab Land\tRevenue\t Act,  1887,\nprovided that when in any record of rights, completed  after\nNovember  18, 1871, it was not expressly mentioned that\t any\nquarry\tbelonged to the Government it shall be\tpresumed  to\nbelong to the landowners.  In the present case neither party\nproduced any such record of rights, and no presumption could\nbe  invoked in favour of the owner.  The presumption  arises\nonly  when such a record of rights is before the  court\t and\nflows from the contents of the document.\nHeld, further, that the application for a permit was refused\non good and relevant grounds.  The subsequent repeal of\t the\nDelhi (Control of Buildings) Act, 1955, did not entitle\t the\nappellant to an order directing the issue of a permit as  no\nother application for a permit was pending at that time.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 112 of 1961.
\nAppeal\tby special leave from the judgment and\torder  dated
\nSeptember 26, 1960, of the Punjab
\nHigh Court, (Circuit Bench) at Delhi in R. S. A.
\nNo. 123-D of 1959.\n<\/p>\n
N.   S.\t Bindra,  I.  C.  Jain\tand  O.\t P.  Rana,  for\t the
\nAppellant.\n<\/p>\n
C. K. Daphtary, B. Sen and T. M. sen, for
\nRespondents  Nos.   1  to 3. Tarachand\tBrijmohan  Lal,\t for
\nRespondent No. 4.\n<\/p>\n
1961.  August 8. The Judgment of the Court was delivered by
\nAYYANGAR,  J.-This appeal has been filed pursuant  to  leave
\ngranted by this Court under
\n64<\/span>
\nArt.  136  of the Constitution against the decision  of\t the
\nPunjab High Court in second appeal No. 123-D of 1959.
\nThe  appellant-firm  is\t the  lessee  under  a\tlease  dated
\nDecember  21, 1955 of kasra Nos. 1621, 1646, 1652, 1653\t and
\n1703  in  Naraina Village within the administration  of\t the
\nChief Commissioner of Delhi.  As lessee the firm was working
\ncertain stone-quarries in the fields which were the subject-
\nmatter\tof its lease; The right of persons to quarry in\t the
\narea  is  subject to the provisions contained in  the  Delhi
\nMinor  Mineral Rules, 1938 framed in exercise of the  powers
\nconferred by s.155(1) of the Punjab Land Revenue Act,  1887.
\nUnder  these  rules  an application has to be  made  to\t the
\nCollector  for the grant of permits to effect quarrying\t who
\nwas empowered to grant them at his discretion, the  duration
\nof  these permits being one year; When such  quarrying\ttook
\nplace  the royalty at the rates specified in the  rules\t was
\npayable by the permit-holder.  The rules, however, expressly
\nsaved from their operation and from the need for a permit or
\nthe payment of royalty, the quarrying of any mineral  proved
\nto  be on land belonging to the land-owner in which  he\t had
\nthe  right  ‘to the mineral under s.42 of  the\tPunjab\tLand
\nRevenue\t Act, 1887.  The appellant-firm had applied for\t and
\nobtained  permits  under  these rules and  were\t paying\t the
\nroyalty\t prescribed therefor from the commencement of  their
\nlease  right up to June 30, 1957.  For quarrying  thereafter
\nits   application  for\ta  permit  was\tnot  granted.\t The
\nappellant-firm\tthereupon issued notice to the\tgovernmental
\nauthorities under s;80 of the Civil Procedure Code and filed
\nthe suit out of which the present appeal arises, on  October
\n8, 1957.\n<\/p>\n
The appellant prayed in the suit for two main reliefs :\t (1)
\na declaration that it had a right to quarry stones from\t the
\nsuit-land apparently
\n65<\/span>
\neven without a permit, and (2) alternatively for a perpetual
\ninjunction  directing the defendants-the Union of India\t and
\nthe Collector and the Delhi Development Authorities-to issue
\nthe required permit on payment of royalties as before.\t The
\nfirst  of the above reliefs was based on the plea  that\t the
\nland-owner  from whom it claimed title under the lease,\t had
\nvested in him the ownership of the minerals with the  result
\nthat  the  appellant  had a right to  effect  the  quarrying
\nwithout\t the  necessity for a permit under the\tDelhi  Minor
\nMineral\t Rules referred to earlier.  The  other\t alternative
\nprayer\twas  rested on the ground that even if\tthe  mineral
\nrights in the suit-land vested in Government, the  appellant
\nhad  a legal right to carry on quarrying operations  on\t the
\nland  and  that there was an obligation on the part  of\t the
\nCollector  to  grant  the permit applied for.\tIt  was\t the
\nfurther case of the appellant that the Collector refused the
\npermit\tmala fide, and for reasons which were extraneous  to
\nthe purpose for which the power to grant permits was  vested
\nin him under the statutory rules.  The Trial Court dismissed
\nthe  suit  holding against the appellant  on  every  crucial
\nissue and this judgment has been affirmed by Courts right up
\nto the High Court in the judgment now under appeal.
\nTwo  principal points have been urged by Mr.  Bindra-learned
\ncounsel for the appellant in support of its plea.  His first
\ncontention was that the learned Judge of the High Court\t had
\nmisunderstood and misapplied the provisions of s.42) of\t the
\nPunjab\tLand Revenue, Act and , that, if that  section\twere
\nproperly construed, the appellant’s lessor should be held to
\nbe the owner of the mineral rights in the suit- lands.\t For
\nunderstanding this contention it is necessary to set out the
\nterms of s.42. It reads
\n\t      “42.   (1)   When\t in   any   record-of-rights
\n\t      completed before the eighteenth day of
\n\t      66<\/span>
\n\t      November,\t 1871, it is not expressly  provided
\n\t      that   any  forest,  quarry,  unclaimed,\t un-\n<\/p>\n
\t      occupied, deserted or waste land,\t spontaneous
\n\t      produce  or other accessory interest  in\tland
\n\t      belongs  to  the\tland-owners,  it  shall\t  be
\n\t      presumed to belong to the Government.\n<\/p>\n
\t      (2)   When  in any record-of-rights  completed
\n\t      after  that date it is not expressly  provided
\n\t      that any forest or quarry or any such land  or
\n\t      interest belongs to the Government it shall be
\n\t      presumed to belong to the land-owners.\n<\/p>\n
\t      (3)   The\t presumption created  by  subsection
\n\t      (1) may be rebutted by showing-\n<\/p>\n
\t      (a)   from  the record or report made  by\t the
\n\t      assessing\t officer at the time of\t assessment,
\n\t      or\n<\/p>\n
\t      (b)   if the record or report is silent,\tthen
\n\t      from  a comparison between the  assessment  of
\n\t      villages\tin  which  there  existed,  and\t the
\n\t      assessment of villages of similar character in
\n\t      which  there  did\t not exist,  any  forest  or
\n\t      quarry, or any such land or interest,
\n\t      that the forest, quarry, land or interest\t was
\n\t      taken  into account in the assessment  of\t the
\n\t      land-revenue.\n<\/p>\n
\t      (4)   Until  the presumption is  so  rebutted,
\n\t      the forest, quarry, land or interest shall  be
\n\t      held to belong to the Government.”\n<\/p>\n
Learned Counsel is, no doubt, right in his sub. mission that
\nthe  learned single Judge of the High Court wrongly  treated
\nsub-cl.\t (4)  of this section as equally applicable  to\t the
\npresumption raised in favour of the landowner by sub-s. (2),
\nbut this does not, however, establish that the appellant is,
\non the facts of this case, entitled to invoke the pre-\n<\/p>\n
\t\t\t     67<\/span><\/p>\n
sumption  enacted  in sub-s.(2). It was common\tground\tthat
\nrecords\t of-rights  had\t been prepared\tin  respect  of\t the
\nvillage\t of Naran  twice after 1871  though  the  relevant
\nentries in the documents were not placed before the Court by
\neither side.  Mr. Bindra submitted that if once it was roved
\nthat  a\t record-of-rights had been prepared  for  a  village
\nafter  1871, the presumption in sub-s.(2) in favour  of\t the
\nland-owner being entitled to the minerals was attracted\t and
\nthat as the defendants in the present case had not  produced
\nthe record-of-rights the, Court should have proceeded on the
\nbasis  that  the  appellant  bad proved\t its  title  to\t the
\nminerals.  We are wholly unable to accept this\tconstruction
\nof the section.\t Section 42 (2) raises a presumption against
\nthe  Government when in any record-ofrights completed  after
\nNovember  18,  1871 it is not expressly\t provided  that\t any
\nquarry\tbelongs\t to  the Government,  but  this\t presumption
\narises\tonly when the record-of-rights is before  the  Court
\nand  flows from the contents of the produced document.\t The
\nsub-section  is\t no  authority\twhatsoever  for\t raising   a
\npresumption as to the contents of a recordof-rights which is
\nnot  produced and is not before the Court.  Learned  Counsel
\nfor  the  appellant is not also justified  in  inviting\t the
\nCourt to draw a presumption against the defendants from\t the
\nnon-production of the document, because the record-of-rights
\nis  a  public  document\t and  therefore\t available  to\t the
\nappellant  as well who could have obtained a certified\tcopy
\nand  filed  it\tif it supported\t its  case.   The  appellant
\nproduced  for the year 1948-49 merely the Jamabandi  account
\nof  the\t village and relied on the fact that there  was\t no
\nmention\t therein of the Government being proprietor  of\t the
\nmineral rights ; but obviously the contents of this document
\ncould have no bearing on the custom obtaining in the village
\nas  to the proprietorship of the minerals which\t would\tfind
\nmention\t only in a wajib-ul-arz and a jamabandi\t account  is
\ncertainly’not a document on the basis of which the
\n68<\/span>
\npresumption  in\t s.42(2) could be  invoked.   The  position,
\ntherefore,  was that the relevant record of-rights  was\t not
\nbefore\tthe Court and consequently the\tpresumptions  raised
\nneither\t by  sub-ss.(1) or (2) of s.42 could be\t invoked  in
\nfavour of Government or the owner.\n<\/p>\n
There  were, however, two facts before the.  Courts  on\t the
\nbasis  of which the title to the, minerals could  have\tbeen
\ndecided.  The first was that the appellant had been  working
\nthe  minerals only on the strength or permits obtained\tfrom
\nthe  Collector\tand, as we have pointed\t out  earlier,\tthis
\ncould have happened only if its lessor was not the owner  of
\nthe minerals.  Learned Counsel, no doubt, sought to  explain
\nthis  conduct  of the appellant on the basis that  it  might
\nhave made application for a permit under a mistake as to its
\nrights.\t This however does not help him, because the  making
\nof the application would constitute an admission which would
\nthrow upon the appellant burden of proving that it was\tdone
\nunder\ta  mistake  and\t the  mistake  established  to\t the
\nsatisfaction  of  the Court.  This was not  even  attempted.
\nThis  apart,  a\t plaintiff  who\t comes\tto  Court  with\t  an
\nallegation  that be is the owner of the minerals would\thave
\nto prove his title to the property before he, could  succeed
\nin the suit, but the appellant led no evidence to prove\t his
\ntitle.\t Mr. Bindra made a submission that a presumption  in
\nfavour of the plaintits ownership arose under s. 110 of\t the
\nIndian\tEvidence Act by reason of the  appellant’s  admitted
\npossession  of\tthe  property.\t This  however\tis  entirely
\nwithout\t force, since the possession of the  minerals,\twith
\nwhich  alone  we  are now concerned  was  under\t the  permit
\ngranted by the Collector-a situation which clearly negatived the  plaintif
\nfs ownership of the minerals having regard  to
\nthe  schemes of the Minor Mineral Rules.  The  Courts  below
\nwere  therefore right in holding that the appellant’s  claim
\non the basis of established proprietary rights to the quarry
\nshould fail
\n69<\/span>
\nThe respondents have filed in this Court an application\t for
\nthe  admission\tof  additional evidence\t and  the  items  of
\nevidence  so  sought to be admitted are the entries  in\t the
\nwajib-ul-arz  of  the record-ofrights  of  the\tsuit-village
\nprepared in 1880 and 1908-09.  These clearly recite the fact
\nthat the Government were owners of the stone-quarries in the
\nvillage.   Learned  Counsel for\t the  appellant\t strenuously
\nobjected  to  the admission of additional evidence  at\tthis
\nstage and submitted that if the application were allowed  he
\nshould\tbe  given  an opportunity of  adducing\tevidence  to
\ndisprove  the correctness of these entries.  In view of\t our
\nconclusion  as\tregards\t the rights of\tthe  appellant\teven
\nwithout\t these additional documents, we do not\tconsider  it
\nnecessary to admit them.  We hold that the appellant has not
\nproved its title to the mineral rights in the suit-lands and
\nthat its claim for a declaration on that basis was  properly
\ndismissed by the Courts below.\n<\/p>\n
The other point urged by learned Counsel was that even if it
\nbe that the Government were the proprietors of the  minerals
\nand  the  permission of the-Collector was  necessary  to  be
\nobtained  under\t the Minor’ Mineral Rules, 1938,  still\t the
\nCollector was under a legal obligation to grant a permit  to
\nthe appellant sunless there were proper grounds for refusing
\nthe  permit  and  that the grounds of  his  refusal  in\t the
\npresent\t  case\twere  improper\tand  mala  fide.   In\tthis
\nconnection it was pointed out that the Collector had refused
\nthe  permit sought by the appellant because of a  resolution
\nof  the Delhi Development Provisional Authority\t constituted
\nunder  Act  53 of 1955.\t By reason of  proceedings  of\tthat
\nauthority  the\tland  in  suit\tbad  been  included  in\t  “a
\ncontrolled area”, i.e., an area which was reserved for other
\npurposes,  with\t the result that it was thought\t proper\t and
\nexpedient to prohibit quarrying in it.\tIn the plaint it was
\nalleged that the Collector acted improperly
\n70<\/span>
\nin  giving effect to the recommendation of the Board in\t the
\nmatter\tof prohibiting quarrying on the\t suit-land.   Before
\nus, however, learned Counsel did not seriously contest,\t the
\nposition  that if the land was in “a controlled area”  under
\nAct  53 of 1955 and there was need to prohibit quarrying  in
\nthe  interests\tof the health of the people  inhabiting\t the
\nresidential area, adjoining the quarries, and the  Collector
\nwas appraised of this fact by the Development Authority, the
\norder  of  the Collector refusing permission  could  not  be
\nsuccessfully  impugned.\t But learned Counsel urged that\t Act
\n53  of\t1955 had ceased to be operative after  December\t 30,
\n1957  when it was replaced by the Delhi Development  Act  of
\n1957  and that under the latter enactment the area  had\t not
\nbeen  so notified.  Having regard to this changed  situation
\nthe  contention was, that at the date when the\ttrial  Court
\npassed judgment it should have taken judicial notice of\t the
\nfact that Act 53 of 1955 had ceased to be in force and\tthat
\nthe  notification thereunder had lapsed, and that  if  these
\nmatters\t were taken into account the appellant had  a  clear
\nlegal  right to the relief of mandamus which he prayed\tfor,
\ndirecting the Collector to grant the permission sought.\t  It
\nis not necessary for the purpose of this case to examine the
\nlimits\tsubject\t to which a Court could\t take  into  account
\nsubsequent  facts  and afford relief on the  basis  of\tsuch
\nfacts.\t The position so far as the appellant was  concerned
\nwas  this : It had made an application to the  Collector  to
\npermit\tit to quarry stones and this had been  refused.\t  It
\nwas this refusal which was challenged as illegal and it\t was
\non  this basis that the relief of mandatory  injunction\t was
\nsought\tin  the\t plaint.   It would  be\t one  thing  if\t the
\nappellant was able to make out the case that the Collector’s
\nrefusal\t to  grant  the permission  in\tApril-May  1957\t was
\nimproper  but that is not the situation her.-. The  argument
\nwas  that the Trial Court ought to have taken  into  account
\nthe fact that long subsequent to the filing
\n71<\/span>
\nof  the\t plaint\t the statute or order  which  justified\t the
\nrefusal of the permission had ceased to exist and that\tthis
\nvested\tin  the appellant a right to obtain the grant  of  a
\npermit.\t  The  argument,  in  our  opinion,  proceeds  on  a
\nfallacy.   If the application of the appellant was  properly
\nrefused\t by  the Collector before the suit, the\t result\t was
\nthat  there was no pending application before the  authority
\nfor the grant of a permit.  It is common ground that  during
\nthe  pendency  of there proceedings in the  trial  Court  no
\nfresh application was made to the Collector on the basis  of
\nthe  altered  state  of facts.\tThere  was  corsequently  no
\napplication  pending before the Collector which he could  be
\ndirected by the issue of a mandatory injunction by the Court
\nto grant.  It is clear therefore that the change in the\t law
\nin the shape of Act 53 of 1955 ceasing to be operative\tdoes
\nnot assist the appellant to obtain any relief in this suit.
\nIn  the\t view we have taken it is not necessary\t for  us  to
\n‘canvass  the point which has been discussed in\t the  Courts
\nbelow  as  to whether in cases where the Government  is\t the
\nowner  of  a property its discretion in its  management\t and
\ncontrol\t could\tbe the subject of directions  by  the  Court
\nunless,\t of  course, the statute or statutory  rule  enables
\nindividuals to claim any particular rights.
\nThe appeal fails and is dismissed with costs.
\nAppeal dismissed.\n<\/p>\n
72<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Amar Jyoti Stone Crusting Co vs The Union Of India And Others on 8 August, 1961 Equivalent citations: 1967 AIR 46, 1962 SCR (3) 62 Author: N R Ayyangar Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: AMAR JYOTI STONE CRUSTING CO. Vs. RESPONDENT: THE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-124227","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAmar Jyoti Stone Crusting Co vs The Union Of India And Others on 8 August, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/amar-jyoti-stone-crusting-co-vs-the-union-of-india-and-others-on-8-august-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amar Jyoti Stone Crusting Co vs The Union Of India And Others on 8 August, 1961 - 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