GULZARILAL AGARWALLA Vs. ONKARMAL AGARWALLA

JUDGEMENT

(1.) This reference to the Full Bench has arisen in the following circumstances. On the 17th September. 1960, a suit was instituted by the plaintiffs-respondents for the relief that the defendants' lease had expired by effluxion of time which was the period of ten years under the lease. The lease was executed in favour of the defendants on the 11th of May. 1951, by the Receivers of the estate of the lessor. Shri Baldeo Singh and Shri Bholanath Dey. The mining area covered by this lease is in village Birsinghpur (mouza No. 70), measuring 300 bighas approximately, in the registration District of Manbhum, of which the proprietor was Pandra Raja. The lease was executed by the proprietor in favour of the East India Coal Company who granted a lease in favour of Rabindra Nath Sarkar in 1917 and after a few intermediate transactions the leasehold interest came to Baidyanath Dutt and other members of his family (hereinafter called the Duttas). There was a title partition suit No. 44 of 1950 in the family of the Duttas in which two Receivers were appointed, being Baldeo Singh and Bholanath Dey. They granted the managing contract to defendant No. 1 on the 11th of May, 1951, for ten years. The plaintiffs claim to have acquired the sub-lessee's interest from various members of the Dutta family by a series of documents (Extg. 14 series) included in Schedule B to the plaint. This covered nine transactions beginning from the 2nd of June. 1952, to the 24th of March, 1955. The case set up on behalf of the defendants was that the plaintiffs acquired no title by their alleged purchases as they were all in violation of Rule 48 of the Mineral Concession Rules, 1949, which was numbered as Rule 46 under the 1960 Rules. It is not denied that this rule applies to grant of mineral concession by private persons, whereas Rule 37 applies to grant of mineral rights in respect of land belonging to the Government. Hence the transfers relied upon by the plaintiffs are void. The defendants also claim an affirmative title on the ground that the managing contract, on a proper construction, was a sub-lease, and hence, after the vesting of the estate under the Bihar Land Reforms Act, the defendants had the status of a sub-lessee and, as such, they were paving rent and royalty to the State of Bihar.

(2.) The trial Court passed a decree in favour of the plaintiffs on the finding that the managing contract of the defendants had expired and, as such, they were mere trespassers. The defendants could not challenge the title of the landlord. Secondly, since the leases were of a date prior to 1949, the new rules for that reason were inapplicable. The trial Court also held that the contract in favour of the defendants was not a lease.

(3.) The defendants have come up in appeal to this Court. In course of hearing of the appeal before the Division Bench, it appeared that there was some conflict of opinion between two Division Bench decisions of this Court, the earlier one being Sm. Kamla Bala Devi v. Ojha Brothers, Ltd.. (1962) ILR 41 Pat 412 and the later one Messrs. Bhowra Kankanee Collieries Ltd. v. Sunil Kumar Boy. 1968 Pat LJR 486. The relevant provisions for consideration are the Mines and Minerals (Regulation and Development) Act, 1948 (Act LIII of 1948), hereinafter to be called the 1948 Act, and Rule 48 issued under this Act, which was later on re-numbered as mentioned above. Act LIII of 1948 was, however, replaced by Act LXVII of 1957, hereinafter to be called the 1957 Act. Then, four months after the passing of the 1957 Act another provision was made by the Parliament and incorporated in the 1957 Act as Section 30-A of this Act.