Deewan Chandra Giri S/O Late Shri Hari Giri Vs. Pooran Giri S/O Late Shri Heera Giri - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]prafulla c. pant, j.1. this appeal preferred under section 100 of code of civil procedure, 1908, is directed against the judgment and decree dated 20.11.1998, passed by v additional district judge, nainital, in civil appeal no. 97 of 1995, whereby said appeal has been dismissed, confirming the judgment and decree dated 11.12.1995, passed by civil judge(jr. div.) nainital, in civil appeal no. 72 of 1994.2. heard learned counsel for the parties and perused record.3. brief facts giving rise to this appeal are that plaintiff/appellant instituted suit no. 72 of 1994, for a decree of permanent injunction against the defendant/respondent, restraining him from interfering in the peaceful possession of the plaintiff, over plot no. 276 situated in village pandey gaon, bhimtal, district nainital. it is pleaded by him that the parties to the suit are related to each other by following pedigree;(common ancestor)_________________|_________________| |mohan giri manorath giri| ______________|___________hari giri | | || mahesh giri hira giri gaura girideewangiri ___________________________(plaintiff/appellant) | | |pooran giri narendra giri bhuwanant(defendant/respondent) giri4. it is further, pleaded by the plaintiff in the plaint that the property in suit i.e. plot no. 276 was owned and possessed by his grandfather after it came into his share in partition. in the year 1990, when the defendant's uncles mahesh giri and gaura giri raised dispute relating to said plot no. 276, the matter was amicably settled on 16.07.1990, and a deed was executed to that effect leaving plot no. 276 in possession of the plaintiff as its owner. however, on 16.10.1994, defendant pooran giri started digging the land in suit for raising constructions thereon. hence, the suit was filed seeking permanent prohibitory injunction against the defendant.5. the defendant pooran giri contested the suit and filed his written statement. he admitted the pedigree but denied that plot no. 276 had gone into the share of the plaintiff's grandfather as pleaded by him. it is pleaded by the defendant that plot no. 276 came into the share of his grandfather manorath giri and since then the defendant has been possession over the land in suit from the time of his grandfather. it is further, pleaded by the defendant that in plot no. 276, there was an old cow-shed which got demolished due to lighting in the year 1993. he has further pleaded that his uncles gaura giri and mahesh giri have no concern whatsoever in plot no. 276. it is further pleaded by the defendant that after getting sanctioned map from town area committee, bhimtal, the defendant started construction in plot no. 276. lastly it is pleaded that suit filed by the plaintiff is liable to be dismissed. the trial court, on the basis of plea of the parties, framed following seven issues;(i) whether the plaintiff is owner of the disputed plot no. 276 by way of partition?(ii) whether the defendant is owner of the disputed plot no. 276 by way of private partition?(iii) whether the plaintiff is in possession over the suit property?(iv) whether the defendant is in possession over the suit property?(v) whether the defendant has caused any interference in suit property as alleged in para 5 of the plaint? if so, its effect?(vi) whether the suit is under valued and court-fee paid is insufficient?(vii) to what relief if any, the plaintiff is entitled?6. after recording evidence and hearing the parties the trial court decided issue no. 1,2 and 6 in favour of the plaintiff, and issue no. 3, 5, 4 and 7 in favour of defendant and dismissed the suit. aggrieved by said judgment and decree dated 11.12.1995, passed by civil judge (jr. div.) nainital, the plaintiff preferred civil appeal no. 97 of 1995 before the district judge, nainital. said appeal was heard and disposed of vide impugned order judgment and decree dated 20.09.1998, by v additional district judge, nainital, dismissing the same and affirming the decree passed by the trial court. hence, this second appeal was filed by the plaintiff before allahabad high court on 22.12.1998. the appeal is transferred to this court under section 35 of u.p. reorganization act, 2000 (central act 29 of 2000), to this court for its disposal.7. this court vide its order dated 06.06.2003, admitted the second appeal on substantial question of law as formulated at serial no. 1 of the memorandum of appeal. said substantial question of law reads as under;whether the court of first appellate court can disagree with the trial court on any issue decided by it on the basis of evidence recorded before the trial court without assigning any reason therefor8. answer the substantial question of law:admittedly the parties are related to each other as shown in the pedigree mentioned above. plaintiff's case is that the property in suit i.e. plot no. 276 came into share of his grand father while the defendant's case is that the same came in the share of his grandfather. the evidence of partition on the record is simply oral from both the sides. however, the plaintiff has pleaded and filed a settlement deed dated 16.07.1990, showing that when a dispute raised by uncles of the defendant said deed (exh.i) executed leaving plot no. 276 in the share of the plaintiff. the deed dated 16.07.1990, (exh.i) infact is not a partition deed. partition is pleaded by the plaintiff to have taken place 60 year before filing of the suit in 1994. the deed is of the year 1990, i.e. just 4 years before filing of the suit. apart from this, what is most important about the relevancy of this deed for the purposes of this suit is that defendant pooran giri has not signed it, nor it is mentioned in the said deed that pooran giri has agreed to the terms of the statement mentioned in it. as such merely for the reason, two uncles of the defendant signed the deed it does not bind the defendant. it is pertinent to mention here that the two uncles namely mahesh giri and gaura giri, who have signed the deed, were not successor in title of the defendant nor have they been authorized by the defendant to sign on his behalf. as such there is no evidentiary value of the document (exh.-i) as against defendant pooran giri. the first appellate court has taken note of said fact and held that the plaintiff has not proved the title over the property in suit. it is relevant to mention here that the trial court had dismissed the suit holding that though, plaintiff is the owner of the property in suit (relying on the deed dated 16.07.1990), but he could not prove his possession over it. the lower appellate court has on reassessment of evidence on record found even the title is not proved and disagreed with the trial court on said point.9. learned counsel for the plaintiff/appellant argued before this court that the lower court has reversed the finding of the trial court on the point of title without sufficient reason. i have gone through the entire record and also impugned order challenged before this court. the first appellate court has given detailed reasons, and discussed every piece of relevant evidence on record, before coming to the conclusion that the plaintiff has failed to prove the title over the plot no. 276.10. shri b.p. nautiyal, learned counsel for the plaintiff/appellant drew the attention of this court to the statement of p.w.3 bhuwan chandra giri, real brother of the defendant pooran giri, who has adduced the evidence in favour of the plaintiff and it is contended that the lower appellate court is erred in law in discarding his evidence given in favour of the plaintiff. why this witness is making statement against his real brother (defendant) is not difficult to be searched out. in cross-examination p.w.2 bhuwan chandra giri, has stated that he is in litigation with his brother pooran giri (defendant) he further states in the cross-examination that he and plaintiff deewan giri do not want pooran giri be allowed to construct house in plot no. 276 he denies having any knowledge sanction of map of house, planned be constructed by pooran giri ,from town area committee at bhimtal. the witness states that in plot no. 276 there was a ruined building. p.w. 3 bhuwan chandra giri discloses in cross-examination that in the year 1984, he had left bhimtal after his transfer from such place. he further admitted that plaintiff deewan giri is in service in kotabagh and before that he had been posted in pilibhit,sitapur and almora. as such in what manner the plaintiff continued his possession over plot no. 276, is not clear.11. lastly it is argued on behalf of the plaintiff/appellant that assuming for a moment partition is not proved between parties, even then the respondent has no right to raise construction over the plot no. 276 to exclude the possession of the plaintiff, and the courts below have erred in law in refusing the relief of injunction to the plaintiff. however, i am unable to accept the argument advanced on behalf of the plaintiff/appellant for the reason that in a case of unpartitioned property the plaintiff cannot seek injunction against co-owner, without seeking relief of partition of the property. otherwise also it is nobody's case that the property is jointly owned by the parties and the injunction is not sought on that ground. what is not pleaded cannot be prayed by the plaintiff/appellant.12. for the reasons as discussed above this court does not find any illegality in the impugned judgment and decree passed in lower court. accordingly substantial question of law stands answered in favour of the defendant/respondent.13. and, this second appeal is dismissed. however costs easy.