D.G.R. Patnaik, J.
1. In this writ application, the petitioner has prayed for a writ or order in the nature of mandamus commanding upon the Respondents not to make settlement of any land in any manner with any person which is within the lease hold area of 13007 Bighas of the petitioner as mentioned and described in the indenture dated 1st March, 1946 and as accepted by the State of Bihar by indenture dated 29th March, 1973 and for a further writ of mandamus commanding upon the Respondents not to pass any order with regard to any claim made by any person in respect of any surface land in lease hold area of the petitioner with an additional direction to the Respondents to refrain from interfering in any manner directly or indirectly with the possession of the petitioner over the lease hold land.
2. The case of the petitioner is that the then Maharaja Kamakhya Narayan Singh, Raja of Ramgarh being the proprietor of villages Durukasmar, Banji, Parej, Pundi, Barughuttu, Kedla, Parsabera and Duni within the Mandu Police Station in the District of Hazaribagh executed a mining lease on 21st November, 1946 and the supplemental of the same deed (Annexure-1/1A) in favour of Bokaro and Ramgarh Ltd. for a period of 999 years commencing from 1st March, 1946 with liberty to the lessee that on payment of Salami and royalty on coal to search, raise coal from quarries or through pits, inclines, or shalts, work, make market and carry away coal and further power for all other purposes connected therewith. The lessee under the terms and conditions and the covenants were entitled to have right and interest of the surface rights and in the properties demised by the lease deed, which may be required for colliery purposes. The total area of the land so leased out was more or less 13007 Bighas. The Bokaro and Ramgarh Ltd. thereafter executed a sub-lease and its supplemental in favour of West Bokaro Ltd. both on 23rd January, 1947 (Annexures-2 and 2/A). The terms and conditions of the sub-lease were the same as in the Head lease executed on 21.11.1946. Later the entire right, title and interest of the properties of Ramgarh Raja vested in the State of Bihar under the provisions of Bihar Land Reforms Act, 1950 on 3rd November, 1951. Upon such vesting, the State of Bihar filed Title Suit No. 45 of 1960 in the court of the Subordinate Judge, Hazaribagh against Bokaro and Ramgarh Ltd., claiming Royalty payable under the lease deed. The West Bokaro Ltd., being the sub-lessee was also made a party to the said suit. Pursuant to the amendment in the Bihar Land Reforms Act by the amendment No. 4 of 1965 in Section 10A of the Act, the sub-lessee, namely, the West Bokaro Ltd. became a direct lessee of the State. An amicable settlement between the State of Bihar and the West Bokaro Ltd. was made and the same was filed in the aforesaid Title Suit No. 45 of 1960 in the court of the Subordinate Judge, Hazaribagh. On 29th March, 1973, an agreement (Annexure-3) was entered into by and between the State of Bihar and the West Bokaro Ltd. on the basis of the out of court settlement arrived at between the parties, whereby the State of Bihar admitted and acknowledged the West Bokaro Ltd. on the lessee of the State of Bihar on the same terms and conditions and the covenants as embodied in the sub-lease with regard to the area and land mentioned in the Head-lease dated 21st November, 1946, namely, Annexure-1A and 1B. Later by an order of the Hon'ble Calcutta High Court passed in Company Petition No. 353 of 1973 connected with Company application No. 204 of 1973, the West Bokaro Ltd. was amalgamated with the petitioner-Company with effect from 1st April, 1973. The petitioner became thus a statutory mining lessee under the State of Bihar in terms of the lease granted to the West Bokaro Ltd and accepted by the State.
The further case of the petitioner is that out of the entire 13,007 Bighas (4,299.88 acres) of land covered under the lease and an area of about 2,054.70 acres of land recorded as Gair Majarua lands in possession of the State. The petitioner in order to carry out its mining operations, both underground and open cast mining, required the surface right and, accordingly, applied to the State of Bihar for permission in response vide different letters (Annexure-4 series), under Rule 27(i)(d) of the M.M.R.D. Act, the State of Bihar granted permission to the petitioner for use and occupation of the entire 2054.70 acres of Gair Majarua lands located within the petitioner's colliery lease and the petitioner has been paying rent regularly to the State.
The grievance of the petitioner is that despite such recognition of the petitioner's surface rights and acceptance of surface rent paid every year, the respondents in recent years have been making arbitrary and illegal settlements of the Gair Majarua lands to the villagers on the plea of grant of lands to the landless under the Bihar Bhudan Yojna Act and also under the Chhotanagpur Tenancy Act. The petitioner contend that the Respondents have been indiscriminately receiving applications from the outsiders for the settlement of grant of lands, and have been making settlements without giving notice of any such applications to the petitioner. By such illegal settlements of the surface land made by the Officers of the State Government within the lease hold area of the petitioner, the Respondents have been creating complications and interference in the petitioner's use of lands for its smooth mining operations in the area. The further contention of the petitioners is that in view of the permission granted to it under Rule 27(i)(d) of the Mineral Concession Rules, 1960 for payment of surface rent, the petitioner is entitled to use the surface area of the lands for its mining operations and the State Government has no right to make settlements of such lands in favour of any person. The further contention of the petitioner is that in order to increase the total coal supplies, it was necessary for the petitioner to expand production at the West Bokaro Collieries and, therefore, by way of abundant caution, the petitioner applied, vide Annexure-5, to the District Mining Officer, Hazaribagh on 09.09.1976 for permission under Rule 27(i)(d) of the Mineral Concession Rules, 1960 for carrying out mining operations over the entire surface land measuring 775.12 acres of mining land belonging to the State of Bihar and in confirmation that the permission was granted with the approval of the Deputy Commissioner, a letter dated 05.08.1977, issued by the Additional Collector, Hazaribagh was received by the petitioner. Similarly, in respect of some surface lands in Village Barughuttu, which was one of the villages covered under Annexure 1, the petitioner had filed a similar application for grant of settlement and while the matter was pending before the concerned authority, the Respondents had granted a Cinema Hall license to one Pyara Singh for construction of the Cinema Hall on part of the land for which the petitioner had already applied and when the petitioner's objection proved futile, he filed a writ application before the Patna High Court vide C.W.J.C. No. 573 of 1985 (R), challenging the jurisdiction of the State to grant the aforesaid Cinema license. The writ application was allowed by the Court and vide order passed in the writ application, the order issuing Cinema license was quashed.
By way of a supplementary affidavit, the petitioner has given details of settlements of lands made in favour of private individuals within the petitioner's lease-hold area over a period of time in spite of persistent protests made by the petitioner. The settlements, according to the petitioner were made without the knowledge of the petitioner and from the details as collected subsequently, the petitioner learnt that the settlements were made under the four heads, namely, (i) Bihar Bhudan Yojana Act, 1954 (ii) under the land to landless Scheme under the 20 Point Programme (iii) under Section 67A of the Chhotanagpur Tenancy Act and (iv) on the basis of the ex-landlord's papers. The petitioner's contention is that the settlement of lands under the Bihar Bhudan Yojana Act is prohibited since no such settlement of lands, where mining is carried on, can be made.
3. The questions of law, which have been raised for adjudication are given herein below:
(i) Whether the Respondents have jurisdiction to settle Surface lands in Raiyati or otherwise, which is within the subsisting lease of the petitioner and whether the Respondents can entertain any claim of any person with regard to any surface land within the lease-hold area, without the knowledge of the petitioner?
(ii) Whether the State-Respondents can deprive the petitioner-lessee of coal bearing areas under the Mineral Concession Rules, 1960, from any portion of lands, which is part of the lease by making settlement with third parties?
4. The Respondents have contested the claim of the petitioner by filing their counter affidavit, denying and disputing the entire allegations of the petitioner. The Respondents contend that the writ petition is not maintainable for the reliefs claimed under the facts and circumstances of the case. The Respondents have opposed the claims of the petitioner on the ground that neither the indenture executed by the Raja of Ramgarh in favour of the Bokaro and Ramgarh Ltd. (Annexure-1 and 1/A), nor the indenture dated 29th March, 1973 between the Government of Bihar and the West Bokaro Ltd. (Annexure-3), inhibits the Government or the Collector of Hazaribagh from settling any piece of land comprised in the lease-hold area, for agricultural purposes since there is no provision in the aforesaid lease deeds, which could prevent the Deputy Commissioner, Hazaribagh from granting permissions to the legal claimants under the provisions of Section 4 of the Chhotanagpur Tenancy Act. It is further contended that the aforesaid lease deeds cannot deprive the statutory rights of occupancy in Korkar lands under Section 67 of the Chhotanagpur Tenancy Act. The further ground advanced by the Respondents is that though the petitioner may have availed the lease-hold rights for mining purposes but the petitioner is not in actual possession of the entire lands, so far the surface area is concerned. The petitioner-Company has been authorized only to carry out underground coal mining operations and nothing else. The Respondents have claimed that they are entitled to settle the rent of lands, which has been granted to the Bihar Bhudan Yojana Committee under the Bihar Bhudan Yojana Act, since under the terms and conditions of the lease agreement (Annexure-3), only the underground coal mining rights have been given unto the lessee while the proprietary rights of the Government on the surface lands remained intact. While acknowledging the fact that settlements have been made in favour of private individuals, the Respondents contend that such settlements either under the Bihar Bhudan Yojana Act or under the provisions of the Chhotnagpur Tenancy Act have been made only after proper enquiry and prior public notice inviting objections but the petitioner had never raised any objections in the process of the settlement of the lands. Referring to the averments made by the petitioner in the writ petition, the Respondent-State contend chat even the petitioner has admitted the fact that there were some tenants who were in occupation of pieces of lands in one or the other eight villages demised under the original Head lease (Annexure-A) and this clearly indicates that the surface rights was reserved to the raiyats and Sariyati interest or the tenure in the surface lands was reserved to the Raja and after vesting of estate or tenure, such right had vested to the State and not to the Company. The further contention of the Respondents is that the authority to grant permission for surface rights for the purpose of the mining operations is vested only with the State and no application was ever made by the petitioner under Rule 31 of the Mineral Concessions Rules, 1936 for the grant of any such permission.
5. Thus, the jist of the petitioner's case on the basis of which the reliefs in this writ application has been prayed for is that by virtue of an agreement executed between the Respondents-State and the petitioner, the lease hold rights for mining purposes was granted to the petitioner in respect of the lands mentioned in the agreement (Annexure-3). The petitioner had applied for and was granted permission by the Respondent-State under the M.M.R.D. Act and the Rules thereunder for using the surface area of the leased lands for carrying out mining operations and for which the Respondents have been collecting surface rent from the petitioners regularly. In spite of such rights granted to the petitioner, the Respondents have been making arbitrary and illegal settlements of lands falling within the lease hold area for the private individuals that too without the knowledge of the petitioner and without affording the petitioner any opportunity to be heard.
6. The main objection of the Respondents to the claim of the petitioner is that the petitioner never acquired any right over the surface area since the indentures of the lease had confined the rights of the petitioner to carry out underground mining operations only. The Respondents claimed that the State Government is not divested of its powers to settle the lands in favour of individuals.
7. The antecedent facts relating to the grant of the mining lease, which had eventually devolved upon the petitioner have not been disputed by the respondents. It is not denied that by virtue of Annexure-1 and 1/A, the ex-Raja of Ramgarh had granted lease hold rights in respect of the lands mentioned in the Schedule of the indentures for mining purposes in favour of Bokaro and Ramgarh Ltd., which was a Company incorporated in the Indian Companies Act, 1882. The indentures (Annexure-1 and 1/A) declaring that the grants unto the lessees was of the underground coal mining rights with full liberty and power to the lessees to search for, work, make merchantable and carry away coal, there found and also with liberty and power for the purposes aforesaid all other purposes connected therewith to dig, sink, drive, make, repair and use of all such pits, shalts, drifts, levels, Watergates, Planes, Waterways and Airways and to form and irrigates Indian machinery, Dressing flares, Buildings, Workshops, Storehouses, Cottages, Godowns, co-covens, Furnace, brickles, land clines, irrigation and things and to form all such Railways, Tramways and other roads and communications as may be necessary in the premises.
The indentures (Annexure-1 and 1/A), did contain covenants, binding the lesser and the lessee respectively. Clause 2 of the Lesser's covenants, declares that the lesser does grant and makes offer to the lessees of the Raja's rights, interests in so much of the surface rights and in the properties demised under the indentures as may be required for colliery purposes subject to the payment of the rent in the case of waste lands @ four annas per annum and in the case of the cultivated lands, all such rent and Salami as may be customary in the village in which the said lands are situated, provided always that upon the lessees ceasing to require any such surface rights for such colliery purposes, they shall forthwith surrender the same to the Raja.
The covenants on the part of the lessees as stated in Clause 6 of the lessees covenants declare that in case the lessees at any time or times during the said term, take or occupy or use any of the cultivated portions of the said lands, which on the date of the execution of the indenture or thereafter is in occupation of tenants or other persons or cause any injury or damage to the said part of the said land of any building erections or trees or crops thereon and then in every such case, the lessee will pay to the tenants or the occupiers of the said lands so taken, occupy, used injury as aforesaid, proper compensation or for such undertaking, occupation, use or injury, the amount of such compensation to be assessed between the lessees or the tenants or the occupiers and the lessee shall indemnify the Raja from and against all actions, proceedings, claims and demands in respect of any such occupation, cause or injury.
8. It is apparent from the above recitals in the aforementioned indentures that the lease so granted to the lessee by the ex-Raja of Ramgarh primarily to occupy the lands for carrying out underground mining operations within the leased areas of the land. However, the surface rights were reserved for the lessee in respect of lands and the cultivated lands, based within the leased area as may be required by the lessee for the colliery purposes subject to the payment of the rent and occupation.
9. It is not denied that by virtue of a sub-lease granted by the original lessee under the Head-lease (Annexure-1 and 1/A) in favour of West Bokaro Ltd., all such lease hold rights for mining purposes, which were conferred upon the original lessee, were granted to the sub-lessee, namely, the West Bokaro Ltd. It is also not denied that after the promulgation of the Bihar Land Reforms Act, the West Bokaro Ltd. had acquired the status of a statutory lessee and by virtue of an agreement dated 29.03.1973 (Annexure-3), the State of Bihar had not only recognised the West Bokaro Ltd. as a lessee but had granted the underground coal mining rights in the lease hold lands in favour of the West Bokaro Ltd. The covenant made by the lessor, namely, the State of Bihar included all the interest of the lessor in surface rights required for the colliery purposes in favour of the lessee. It is also not denied that pursuant to the order passed by the Calcutta High Court, in Company Petition No. 353 of 1973, the West Bokaro Ltd. was amalgamated with the petitioner-Company with effect from the 1st April, 1973, whereafter the petitioner acquired the status of the statutory lessee under the Respondent-State in terms of the lease granted to the West Bokaro Ltd. and accepted by the Respondent-State. It is also not disputed that out of the entire lease hold area, an area comprising of 2054.70 acres of lands was recorded as Gair Majarua lands in the name of the State. The petitioner has claimed that for the purpose of expansion of its mining operations, it had applied for granting permission to carry out the mining operations over the Gair Majarua lands under the provisions of the M.M.R.D. Act and the Mineral Concession Rules, 1960 and that such permission was granted by the concerned authorities on behalf of the State Government and the Respondent-State has been realizing surface rent from the petitioner regularly.
10. From the above stated facts, what emerges is that the lease was primarily granted to the petitioner for carrying out mining operations and the petitioner was allowed to exercise surface rights over portions of the lease hold areas for carrying out their mining operations. By a clarification issued on 18.01.1999 by the concerned Department of the State of Bihar and in the light of the Notification issued by the Ministry of Coal, Government of India, it has been clarified that under a lease deed in mining operations the lessee is entitled to carry out quarrying operations in addition to underground mining operations. Thus, the lessee is entitled to carry out open cast mining over the surface areas within the lease hold lands. The lessees, therefore, cannot be denied access over the surface of the lease hold areas particularly When the permission under the Mineral Concession Rules to use and occupy the surface areas over the specified lands within the lease-hold area is granted to the lessee on payment of rent/royalty. It may be mentioned here that as reflected from the various annexures filed by the petitioner in July, 1976, the petitioner had filed an application before the District Mining Officer, Hazaribagh in terms of Rule 27(i)(d) of the Mineral Concession Rules, 1960 as also in terms of the deeds of the mining lease for grant of settlement in respect of specific operations of Gair Majarua lands pertaining to various Khatas. The matter on being referred by the District Mining Officer to the Additional Collector, Hazaribagh, the order of settlement as prayed for by the petitioner was passed in favour of the petitioner after obtaining prior approval of the Deputy Commissioner, Hazaribagh and such settlement was made by affixing rent payable by the petitioner according the rate stipulated in the order. Thus, after grant of settlement in respect of the Gair Majarua lands, the petitioner took possession of the demised lands and began to pay the stipulated rent as fixed in terms of the deed of mining lease. As the mining lessee of the State, the petitioner is entitled to use any surface land for the purposes of the mining operations although if in carrying out the mining operations, any damage is caused to the surface lands, the petitioner would be liable to pay compensation. Thus, whenever the State grants the mining lease, it leases out its right over the surface lands and it is deemed, therefore, that on granting the mining lease in favour of the petitioner, the State has leased out its right over the surface lands in favour of the petitioner.
11. Learned Counsel for the Respondents would argue that even under the original indentures, namely, Annexure-1 and 1/A, the lessees were granted only underground mining rights and further, that there were in existence lands, within the lease hold area, which were under the occupation of the tenants either for agricultural purposes or persons, who had constructed house structures thereon and the lessee was bound under the deed of lease to compensate any person, who was in occupation of the operations of the lands within the lease-hold areas. Learned Counsel for the Respondents further submits that the petitioner did not have actual physical possession of the entire lands although permission under the mining lease and under the Mineral Concessions Rules, was given to the petitioners and neither did the petitioner make use of the lands for any mining purposes and, therefore, the Respondent-State was entitled to make settlements of such unoccupied lands which were either in occupation of private individuals as Korkar lands or to individuals who were landless.
12. This argument of the learned Counsel cannot be accepted. Undisputedly, even though the lease for mining purposes was granted for (sic) the possession of which was promptly taken by the lessees, but an area of more than 2,000 acres of lands remained as waste lands and recorded as Gair Majarua lands of the Respondent-State. This was the condition as it existed even in the year 1976, when the petitioner had applied for the use of the surface lands, falling within these Gair Majarua lands and for which permission was granted by the representatives of the Respondent-State in favour of the petitioner. The inference from these facts is that prior to 1976 when the lands under reference is this case were recorded as Gair Majarua lands, it remained as waste lands without any portion thereof being in occupation of any private individual. The matter would have been different, in case of persons, who were in occupation of the lands at the time when the indenture of lease were executed in favour of the lessees. In view of the fact that the Respondent-State had granted the mining lease and had also granted permission to use the surface lands for mining purposes in favour of the petitioner and had accepted surface rent from the petitioner and in view of the fact that the petitioner had expressed that they had required the lands for mining operations including quarrying operations, the Respondent-State could not have made settlement of any such lands in favour of private individuals. Even if, applications for settlement of the lands were filed by private individuals on the grounds that they had subsequently prepared and developed the lands as Korkar lands, it was incumbent upon the concerned authorities of the Respondent-State to give notice to the petitioner and to offer the petitioner opportunity to be heard on the claims of the private individuals, since such claims had the effect of being adverse to the interest of the petitioner over the lease hold lands. Though the Respondents had claimed that before making settlements of the private individuals, prior general notice was issued inviting objections but the Respondents have not stated that the petitioner were specifically informed or notified about such applications. The consistent assertions of the petitioner is that all such settlements, the details of which have been mentioned in the supplementary affidavit, were made by the representatives of the Respondent-State, without the knowledge and behind the back of the petitioner. The petitioner have also claimed that such settlements were being made arbitrarily and in an irregular manner in spite of repeated protests lodged by the petitioners. When the matter was brought to the notice of this Court by the petitioner in the writ application, this Court vide its order dated 05.03.1997 while, directing the Respondents to file a counter affidavit to clearly indicate as to under what circumstances, the lease-hold area of the petitioner is being settled to others had further ordered that the settlement, if any, made during the pendency of this writ application shall be subject to the (sic) result of the writ application. The petitioner's grievance is that even after passing of the aforesaid order by this Court, in this writ application the Respondents have continued to make settlements of various portions of all the lease-hold lands to private individuals. Learned Counsel for the petitioner has referred to the list contained in Para 4 of the petitioner's third supplementary affidavit, which (sic) and the date or period when such settlements in favour of the private individuals were made by the representatives of the Respondent-State, some of which referred to the years between 2001 to 2005. The Respondents have not given specific details as to under what circumstances and on what grounds such settlements were made in favour of the settlees referred to by the petitioner.
13. As declared above, the Respondents have no jurisdiction to settle surface lands in Raiyati or others in the subsisting lease of the petitioners and neither can the Respondent-State deprive the petitioner-lessee of the coal bearing areas under the Mineral Concession Rules, 1960 from any portion of the lands, which is part of the lease by making settlement with the private individuals. The Respondent cannot, therefore, entertain any claim of any person with regard to any surface lands within the lease-hold area of the petitioner without prior notice to the petitioner and without offering opportunity to the petitioner of being heard on such claims of private individuals.
(i) The Respondents are therefore, prohibited hereby from making any fresh settlements of lands within the lease hold areas of the petitioner in favour of private individuals.
(ii) All such settlements of lands within the lease-hold area of the petitioner in the areas covered under the mining lease for which surface right has been sanctioned to the petitioner under Rule 27(i)(d) of the Mineral Concession Rules, 1960, made in favour of private individuals, during the pendency of this writ application and made after 05.03.1997 are hereby quashed.
(iii) In the cases of settlement of such lands made in favour of private individuals prior to 05.03.1997, such settlements shall be subject to the scrutiny and verification by an Officer specially designated by the Respondent-State, who shall make enquiry into the individual settlements, after hearing the settlees and the petitioner and, if any such settlement is found to be illegal, the same shall be deemed as cancelled. The Respondent-State shall designate such Officer for the aforesaid purposes within two months from the date of this order and such designated officer shall conduct enquiry into each of the settlements made in favour of the private individuals and conclude the same within six months from the date of his being appointed as the designated Officer.