Smt. Aparna Dhir Singh Vs. Debendra Nath Jenamani and Two ors. - 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]orderm.m. das, j.1. heard2. the appellant as plaintiff has filed the suit for declaration of right, title, interest and confirmation of possession along with a relief to set aside the sale deeds executed by her mother and sister in favour of the opp. parties-defendants, who were the purchasers. an interim application under order 39, rules 1 and 2 c.p.c. was filed by the plaintiff for injuncting the purchasers from coming over the suit land. the said application having been rejected, the present appeal has been preferred.3. it is the admitted case of the plaintiff that the plaintiff claims exclusive title over the disputed property basing on a will executed by her deceased father. it is a well known principle of law and also section 213 of the indian hindu succession act prescribes that unless the will is probated, no title accrues favour of the legatee. in the instant case, the claim of the plaintiff is on the basis of a will as stated above, but the said will is pending to be probated in a probate misc. case.4. dr. a.k. rath in support of the above principle of law relied upon the decisions in the case of kanhialal sarda v. state of orissa and ors. : 49 (1980) clt 155 and hem nolini judah v. mrs. isolyne sarojbashini bose and ors. : air 1962 sc 1471. in the case of kanhialal sarda (supra), a division bench of this court interpreting section 213 of the indian succession act and relying upon the case of hem nolini judah (supra) held that section 213 of the indian succession act lays down a peremptory rule of law and the appellant who was the legatee in the said case cannot obtain the aid of the court to establish his right as the executor under the alleged will so long as he is not able to produce the probate of the will before the court. the court further held that want of a probate may not affect his right as executor under the will, but if he seeks the aid of any court of law to establish any of the rights of an executor under the will, the court will not come to his aid till he produces the probate of the will. in the case of hem nolini judah (supra), the supreme court has categorically laid down that section 213 of the indian succession act clearly creates a bar to the establishment of any right under the will by an executor or a legatee unless the probate or letters of administration of the will have been obtained. the supreme court has further held that it is a settled principle of law that it is immaterial whether the right under the will is claimed as a plaintiff or as a defendant; in either case, section 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained.5. in view of such position, unless the will is probated, the plaintiffs claim cannot be sustained. however, considering the fact that the property has been sold in favour of the respondents by the mother and sister of the plaintiff, which is admittedly an ancestral property, it is necessary that the nature and character of the property should not be changed during the pendency of the suit.6. in view of the above, it is directed that the opp.parties shall maintain status quo, as on today, over the disputed property till disposal of the suit. the impugned order is modified to the above extent. since the suit is of the year 2008, the trial court is directed to dispose of the suit expeditiously, preferably within a period of six months from today. as it is stated at the bar that the pleadings are complete, parties are directed to cooperate in the trial.7. the appeal is accordingly disposed of.urgent certified copy of this order be granted as per rules.

Judgment:
ORDER

M.M. Das, J.

1. Heard

2. The appellant as plaintiff has filed the suit for declaration of right, title, interest and confirmation of possession along with a relief to set aside the sale deeds executed by her mother and sister in favour of the opp. Parties-defendants, who were the purchasers. An interim application under Order 39, Rules 1 and 2 C.P.C. was filed by the plaintiff for injuncting the purchasers from coming over the suit land. The said application having been rejected, the present appeal has been preferred.

3. It is the admitted case of the plaintiff that the plaintiff claims exclusive title over the disputed property basing on a Will executed by her deceased father. It is a well known principle of law and also Section 213 of the Indian Hindu Succession Act prescribes that unless the Will is probated, no title accrues favour of the legatee. In the instant case, the claim of the plaintiff is on the basis of a Will as stated above, but the said Will is pending to be probated in a Probate Misc. Case.

4. Dr. A.K. Rath in support of the above principle of law relied upon the decisions in the case of Kanhialal Sarda v. State of Orissa and Ors. : 49 (1980) CLT 155 and Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose and Ors. : AIR 1962 SC 1471. In the case of Kanhialal Sarda (supra), a Division bench of this Court interpreting Section 213 of the Indian Succession Act and relying upon the case of Hem Nolini Judah (supra) held that Section 213 of the Indian Succession Act lays down a peremptory rule of law and the appellant who was the legatee in the said case cannot obtain the aid of the Court to establish his right as the executor under the alleged Will so long as he is not able to produce the probate of the Will before the Court. The Court further held that want of a probate may not affect his right as executor under the Will, but if he seeks the aid of any Court of law to establish any of the rights of an executor under the Will, the Court will not come to his aid till he produces the probate of the Will. In the case of Hem Nolini Judah (supra), the Supreme Court has categorically laid down that Section 213 of the Indian Succession Act clearly creates a bar to the establishment of any right under the Will by an executor or a legatee unless the probate or letters of administration of the Will have been obtained. The Supreme Court has further held that it is a settled principle of law that it is immaterial whether the right under the Will is claimed as a plaintiff or as a defendant; in either case, Section 213 will be a bar to any right being claimed by a person under a Will whether as a plaintiff or as a defendant unless probate or letters of administration of the Will have been obtained.

5. In view of such position, unless the Will is probated, the plaintiffs claim cannot be sustained. However, considering the fact that the property has been sold in favour of the respondents by the mother and sister of the plaintiff, which is admittedly an ancestral property, it is necessary that the nature and character of the property should not be changed during the pendency of the suit.

6. In view of the above, it is directed that the opp.Parties shall maintain status quo, as on today, over the disputed property till disposal of the suit. The impugned order is modified to the above extent. Since the suit is of the year 2008, the trial Court is directed to dispose of the suit expeditiously, preferably within a period of six months from today. As it is stated at the Bar that the pleadings are complete, parties are directed to cooperate in the trial.

7. The appeal is accordingly disposed of.

Urgent certified copy of this order be granted as per rules.