MADAN LAL Vs. GIRI RAJ

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) THE petitioner's case is that a mining lease was given to him on February 22, 1974 fora period of 20 years by the State Government for extracting Silica Sand mineral from the disputed land and that he was extracting the mineral from the land in dispute since the year 1974. On May 12, 1977 a lease was granted by the State Government to the non -petitioner Girraj Prasad in respect of Silica Sand mineral. The case of the petitioner is that the area of the mining lease granted to Girraj Prasad over -lapped the portion marked by the letters ABCD shown in the site plan produced by plaintiff -petitioner along with the plaint which formed part of the area in respect of which mining lease had already been granted to the petitioner in the year 1974. The petitioner raised objection before the Mining Department and the Mining Engineer by his order dated August 22, 1978 directed Girraj Prasad not to carry on mining operations in the disputed area ABCD, which according to the Mining Engineer, formed part of the area under the mining lease of petitioner Madan Lal Purohit. The petitioner's case further is that inspite of the order of the Mining Engineer, the defendant non -petitioner did not desist from carrying on mining operations on the disputed area marked ABCD. As such the petitioner filed a suit for perpetual injunction in the Court of Munsif, Bayana. A temporary injunction was granted by the learned Munsif on September 26, 1978 restraining the defendant -non -petitioner from carrying on mining operations in the area marked ABCD. After hearing both the parties the ad -interim injunction order passed by the trial Court was made absolute by the order of the Munsif, Bayana dated February 12, 1979.

(3.) THE main contention advanced on behalf of the non -petitioner, which prevailed with the learned Civil Judge was that the disputed point TI 920 could be located at a particular spot outside the area allotted for mining operations to the plaintiff -petitioner. In this respect, the learned Civil Judge completely over looked to take into consideration the order of the Mining Engineer dated August 22, 1978. The learned Civil Judge observed that there was a dispute between the parties regarding the location of the point TI 920 and that there was a difference of opinion between the two Surveyors of the Mining Department regarding the location of the said point TI 920. It is surprising that instead of prima facie accepting the opinion of the Mining Engineer in respect of the location of the point TI 920 and the description of the area leased out to the plaintiff -petitioner, the learned Civil Judge thought it proper to go into consideration of the question as to where the point TI 920 should be located. When the Mining Engineer after the survey by an Inspector had formed one opinion as to the location of the point TI 920 and also regarding the dimensions of the area leased out to the petitioner, first appellate Court should have taken into consideration the view of the Mining Engineer as an expert and should have prima facie accepted the same as was done by the trial Court unless there could be some valid objection in respect of the view accepted by the Mining Engineer. It is also note worthy that the first appellate Court totally failed to take into consideration the circumstance that the lease granted in favour of defendant -non -petitioner has been cancelled by the State Government and in pursuance of the order of cancellation of the lease, the possession of the leased area has also been taken away from him on June 12, 1979. Learned Counsel for the non -petitioner submitted that the non -petitioner was still working in the leased area. However, the non petitioner has not produced any document what so ever to show that a revision petition has been preferred by him before the Central Government or any other Government in order to support his case that possession of leased area should be restored to him in pursuance of some lawful order. If the possession of the leased area had already been taken away from the non -petitioner, then prima facie be had no right to continue the mining operations in that area. The first appellate Court should not have interfered with the temporary injunction granted by the trial Court in the aforesaid circumstances more so in face of the order of the Mining Engineer dated August 22, 1978 which strongly supports the prima facie case in favour of the petitioner. As the first appellate Court totally failed to take into consideration the order of the Mining Engineer and also failed to appreciate the fact that the State Government has already taken over possession of the leased area from the non -petitioner on June 12, 1979 the first appellate Court was not justified in reversing the order passed by the trial Court granting a temporary injunction in favour of the petitioner.