STATE OF U P Vs. DISTRICT JUDGE AGRA

JUDGEMENT

(1.) G. P. Mathur, J. Babu Lal Goyal and Jagdish Prasad Goyal, respon dent No. 2 and 3 (hereinafter referred co as the plaintiffs) filed Suit No. 144 of 1993 against the State of U. P. through Collector, Agra (hereinafter referred to as the defendants) in the Court of Munsif, Fatehabad, Agra praying that a decree of permanent prohibitionary injunction be passed against the defendants restraining them from interfering in the possession of the plaintiffs over the property in dispute either by execution of a contract of lease or by an auction lease of the lease hold rights or by delivering possession thereof to anybody else by dispossession of the plaintiffs. At the foot of the plaint, the details of the property in dispute was given. The plaintiffs also moved an application under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying that defendants be restrained from interfering with the plaintiffs possession over the property in dispute either by auction or execution of lease or by authoris ing any one else to interfere with the plaintiffs' right of removal of the red stones from the plots in question. The State filed an objection to the injunc tion application. The learned Munsif by his order dated 22-4-1993 dismissed the injunction application. The plaintiffs preferred an appeal under Order XLIII, Rule 1, CPC and the same was partly allowed by VIth Addl. District Judge, Agra by his judgment and order dated 30-4-1994. It was directed that a Vakil Commissioner will get a survey done of 37. 5 acres of land claimed by the plaintiffs and till the survey of the disputed land was done and the same had been identified on the spot, parties will maintain status quo regarding possession. Subsequently a review application was tiled by the plaintiffs which was allowed on 16-5-1994 and it was directed that defendants will not interfere with the plaintiffs possession over the property in dispute.

(2.) IN view of the amendment to Section 115, CPC in the State of U. P. a revision against the appellate order of the Addl. District Judge is not main tainable. This view has been taken by a Fuii Bench of our Court in M/s. Jupitar Chit Fund v. Dwarikadas, AIR 1979 All 218, which was affirmed by Supreme Court in Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 899 and Vishnu Awatar v. Sheo Awatar, AIR 1980 SC 1575 Feeling aggrieved by the orders passed by the Addl. District Judge, the State (defendants) has preferred the present writ petition under Article 226/227 of the Constitution. The plaintiffs (respondent Nos. 2 and 3) had put in appearance at the time of admission hearing of the writ petition and by the order dated 16-11-1994 they were given opportunity to file counter affidavit annexing therewith all the documents on which they rely in support of their title and also a copy of the lease deed on the basis whereof they claim title to excavate red stones from the land in dispute. Since the parties have exchanged affidavits, the writ petition is being disposed of finally at the admission stage.

(3.) THE plain reading of the aforesaid provisions will show that all rights, title and interest of the intermediaries in mines and minerals ceased on July 1, 1952 and the same vested with the State of U. P. free from all encum brances. However under Section 7 of the Act such intermediaries were given rights to continue to operate the mines. Under Section 107 all mines in the estate acquired under the provisions of the Act were deemed to have been leased by the State Government to the intermediary and such intermediary was entitled to remain in possession of the mines as a lessee thereof. It however provides that terms and conditions of the aforesaid lease shall be such as may be agreed between the State Government and the intermediary or may be settled by a Mines Tribunal. THE precise question as to whether the intermediary or the erstwhile zamindar had any title to the mines and minerals after the notification had been issued under Section 4 of U. P. Act No. 1 of 1951 has been considered by the Supreme Court in Bhagwan Dass v. State of U. P. , and others, AIR 1976 SC 1393 wherein in paragraph 5, the Court rules as follows: "these provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile zamindars possessed, stood extinguished and became vested in the State Government. " Again in paragraph 9, it was held as follows: "the right of the former zamindars to mines and minerals was extin guished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar: he was entitled to mines and minerals. With the abolition of Zamindari by the 1951 Act, that right has passed on not to the appellant but to the State Government. THE appellants writ petition filed to restrain the State Government from auctioning the right to undertake mining operations must therefore fail. " In view of the language of the statute and the authorative pronouncement by the Apex Court, there can be no doubt whatever that the plaintiffs, who claim to be intermediaries and erstwhile Zamindars, have no legal right or title over the disputed land including the mines and minerals and the same now vests with the State Government. THE plaintiffs therefore cannot claim any legal right to excavate the minerals unless they show that a lease has been executed in their favour by the State Government under Section 107 of the Act.