MACHHUA MATSYA VIKAS SAHAKARI SAMITI LTD Vs. STATE

JUDGEMENT

(1.) This writ petition has been filed by amongst others Machhua Matsya Vikas Sahkari Samiti Ltd., Allahabad for a Mandamus directing respondents Nos. 1 to 3 not to allow Hira Lal, respondent No. 4 to undertake the mining operations over plot Nos. 702 and 703, situated in village Mohabbat Ganj, Allahabad pursuant to the mining permit granted by the District Officer.

(2.) State of U.P. published a notification dated 2nd January, 1967, in the Official Gazette dated 7th January, 1967 under R. 23 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Minerals Rules) notifying a large number of plots which could be leased out only by auction. At the bottom of this notification what was recited was :- "IS ZILE MAIN ATHVA GANGA THATA ANYA NADION KE KINARE KE SABHI CHETRYA JAHAN BALU UPLABDH HO".

(3.) Claiming himself to be the Bhumidhar of plots Nos. 702 and 703, Hira Lal respondent No. 4 filed a suit number 142 of 1971 in the Court of Civil Judge, Allahabad for injunction and recovery of damages of Rs. 600/- against the State of U. P. and Sub-Divisional Officer. The claim of the respondent No. 4 was that he was the Bhumidhar of the aforesaid two plots and also a Sirdar of several other plots (with which we are not concerned in the present writ petition). He claimed that the aforesaid two plots were situated on the bank of river Jamuna and during rainy season, they were flooded and when the river receded in winter and summer, the said respondent No. 4 became entitled to exclusive possession and undisturbed use of the land. He claimed that he had the right also to lift the sand, which got collected on the same. The suit was dismissed by the Civil Judge. Respondent No. 4 went up in appeal, which was numbered as Civil Appeal No. 5 of 1973. The appeal was allowed and the suit in respect of the aforesaid plots as well as others decreed for permanent injunction prohibiting the defendants of that suit from interfering with the possession and cultivatory rights of the respondent No. 4 over the plots in question in respect of extraction of sand, the Court observed:- "Had the appellant been carrying on the mining operation i.e. removing and extracting the sand from the land, he would be debarred from doing so but if he is not using the land as Miner, I think he cannot be prohibited from cultivating the same..........". The second appeal filed against the aforesaid judgment of the Additional District Judge by the State of U.P. and others, was dismissed by the High Court.