Holding

The suit land is a mine under the Coal Mines (Nationalisation) Act, 1973, so the title vested in the Central Government, extinguishing the plaintiffs' claim.

Summary

The plaintiffs, K.P. Agarwala and others, claimed a homestead right over leasehold land based on a 1949 lease. The respondent, Bharat Coking Coal Limited, contended that the land formed part of a colliery that had vested in the Central Government under the Coal Mines (Nationalisation) Act, 1973, and that the lease was extinguished by a notification under the Bihar Land Reforms Act, 1950. The trial court decreed in favour of the plaintiffs, but the Patna High Court reversed the decision, holding that the land was a "mine" within the meaning of the Nationalisation Act and that the lease had been annihilated. The Supreme Court examined whether the land qualified as a mine and held that, because it was used for open‑cast mining and for ancillary activities such as coal stacking, it fell within sections 2(h)(iv) and 2(h)(vi) of the Act; consequently, under section 3 the title vested in the Central Government, extinguishing the plaintiffs' rights. The Court also rejected the appellants' plea to exclude the evidence already adduced. The appeal was dismissed.

Issues considered

Whether the suit land vested free of encumbrances in the State under section 3 of the Bihar Land Reforms Act, 1950 (the Court declined to decide).
Whether the suit land constitutes a "mine" within the meaning of the Coal Mines (Nationalisation) Act, 1973.
Whether the evidence already admitted at trial could be withdrawn or disregarded.

Legislation cited

Bihar Land Reforms Act, 1950s. 3
Coal Mines (Nationalisation) Act, 1973s. 2(h)(iv), s. 2(h)(vi), s. 3, s. 5(1), s. 6(1)

Subjects

leaseholdhomestead rightcoal minenationalisationvestingland reformsevidence admissibilityopen cast miningcentral governmentproperty extinguishment

Judgment

~
KALI PRASAD AGARWALLA & OTIIERS
A
v.
BHARAT COKING COAL LIMITED & OTIIERS

MARCH 31, 1989

j 1 [G.L. OZA AND K. JAGANNATHA SHETTY, JJ.) B
't Coal Mines (Nationalisation) Act, 1973: ss. 2(h)(iv ), 2(h)(vi), 3,
5 & ~Land used for carrying on mining operations adjacent to a coal
mine-Whether a mine-Whether vested in Central Government-
Owners right, title and interest-Whether extinguished.

,,._ Practice and Procedure: Whether parties entitled to retract from c
evidence let in.

Section 3 of the Bihar Land Reforms Act, 1950 provided for vest-
ing an estate or tenure in the State. Section 2(h) of the Coal Mines
(Nationalisation) Act, 1973 defines a 'mine' ,to mean any excavation 0
where any operation for the purpose of searching for or obtaining
minerals has been or is being carried on. Sub-clause (iv) thereto
includes therein all open cast workings aild sub-clause (vi) takes in all
lands, buildings etc., in or adjacent to a mine and used for the· purposes
of the mine. Section 3(1) provides for acquisition of rights of owners in
respect of coal mines by the Central Government. Section 5( l) empowers l?.
the Central Government to direct vesting of the said tights in a Govern-
ment company. Section 6(1) refers properties vested in the Central
Government free from mortgages etc.

The appellants instituted a suit in respect of a large expanse of
land for declaration of their homestead right thereto. The possession in F
the zamindari right was settled to their ancestor in 1949. They, there-
1 fore, claimed ownership of leasehold land.

The respondent Government-company resisted the suit on the
grounds, firstly, that the disputed land formed part of a colliery which
had vested in the Central Government and thereafter in the company G
under the provisions of the Coal Mines (Nationalisation) Act and
secondly, that the interest claimed by the plaintiffs, automatically stood
extinguished with the vesting of the estate of the plaintiffs' lessor by
reason of the notification issued under s. 3 of the Land Reforms Act.

l The trial court negatived all the defences and decreed the suit.
283
H
284 SUPREME COURT REPORTS [1989) 2 S.C.R.

A Reversing the said decree, the High Court held that the lease granted to
the plaintiffs was an encumbrance which was annihilated with the
issuance of the notification under s. 3 of the Land Reforms Act, and
that the lease having thus come to an end the plaintiffs had no title to be
declared. It further found that the suit lands were adjacent to a coal
mine and were being used for the purpose of the said mine. Therefore, it
B held that the suit lands were more within the meaning of the Nationali· f.
sation Act, and that what vests under that Act is the mine and not ~
merely the interest of the owner of the mine.

Dismissing the appeal,

HELD: 1.1 The evidence on record both for the plaintiff·
c appellants and the defendant-respondents makes it evident that the land
was being used for the purpose of the mine for carrying on the mining
operations in respect of the part of the seam lying immediately below
the surface. There cannot be any working mine without the surface
being included in that concept. If the surface does not form part of the
D concept of mine, it is not possible to have any excavation. Section
2(h)(iv) of the Coal Mines (Nationalisation) Act includes open cast
working within the definition of 'mine.' [289E-F[

1.2 The suit land was also adjacent to a coal mine and was being f-
used for the purposes of the said mine, namely, stacking of the coal and
E effecting local sale thereof. It was therefore, a mine as defined under
s. 2(h)(vi) of the Act. [289G)

2. Under s. 3 of the said Act, the right, title and interest of the
owners in relation to the coal mines stood transferred to and vested
absolutely in the Central Government free from encumbrances. It
F was immaterial whether the mine belonged to the State or to a private
party. The appellant's title to the said land, if any, thus stood
extinguished. [289H; 290A)

State of West Bengal v. Union of India, 1196411 SCR 371, refer·
red to.
G
3. The parties went to trial knowing fully well what they were
required to prove. They have adduced evidence of their choice in
support of the respective claims. That evidence has been considered
by both courts below. The appellants cannot now turn round and say
that the evidence should not be looked into. This is a well accepted
H principle. [290C-DI

r
K.P. AGARWALlA'v. BHARAT COAL [SHE1TY, J.] 285

Kunju Kesavan v. M.M. Philip & Ors., [1964] 3 SCR 634, refer-
red to. A

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2647
of 1980.

1 From the Judgment and Order dated 24.4.1980 of the Patna High
Court in Original Decree No. 289 of 1979(R).
B

~
Shankar Ghosh, S.P. Lal and H.K. Puri for the Appellant.

L.N. Sinha, R.N. Sachthey and A. Sachthey for the Respondents.

,._ The Judgment of the Court was delivered by c
K. JAGANNATHA SHETTY, J. This appeal by certificate
under Art. 133(1) of the Constitution is from a decision of the Patna
High Court which reversed the decree in the suit filed by the appellant
for declaration of title and confirmation of possession. D

In the court of the Subordinate Judge, the First Court at
Dhanbad, the plaintiff/appellants instituted a suit in respect of
l
-~ Schedule B of the plaint for a declaration of their homestead right
thereto and for confirmation of possession or in the alternative re-
covery of possession. The suit property consists of 30 bighas, 18 kattar E
and 11 chhataks being part of plot nos. 59 and 70 in village Dhansar.
The plaintiffs claim was based on a registered indenture of lease dated
December 9, 1949 by which it is said that the possession in the
Zamindari right of Kali Prasad was settled to Ruplal Aggarwal, father
..,, of plaintiff No. 1 and grand-father of plaintiff Nos. 2 and 3. The
plaintiffs' claim that they have become the owners of the lease hold F
land and are in possession of the same by exercising diverse acts of
possession, mutating their name and by payments of stipulated rents to
f\ the State of Bihar, who recognised the said lease.

The defendant is a Government company called Messrs. Bharat
Coking Coal Limited (The Company). The Company resisted the suit G

"' on three main grounds: firstly, that the disputed land formed part of
North Bhuggatdih Colliery which had vested in the Central Govern-
ment and thereafter in the company under the provisions of the Coal
Mines (Nationalisation) Act, 1973, secondly, that the interest claimed
by the plaintiffs automatically stood extinguished with the vesting of
the estate of the plaintiffs' l.essor, by reason of the vesting notification H
286 SUPREME COURT REPORTS [1989) 2 S.C.R.
I
~
A issued under sec. 3 of the Bihar Land Reforms Act, 1950. Lastly, that
actual lease of the land was taken much earlier expressly for the
purposes of the mines and that the instrument of 1949 is contaminated
with flaw and obtained with a view to certifying the vesting of the
estates in the State of Bihar and even that on a misapprehension that
the so-called homestead land would not vest.
B
The trial court negatived all the defences and dP-creed the suit.

Upon appeal by the company, the Patna High Court reversed the
decree of the trial court and dismissed the suit. There are two main
findings recorded by the High Court to allow the appeal. As to the
c scope and effect of the provisions of the Bihar Land Reforms Act,
1950 in respect of the suit property, the High Court held:

"For the reasons indicated above, I am of the view
that a lease granted to the plaintiffs in the instant case was
an encumbrance and it was annihilated with the issuance of
D
the notification under sec. 3 of the Act. The submission
urged on behalf of the appellants, therefore, in this behalf
must be accepted. The lease of the plaintiffs having come
to an end consequent upon the issuance of notification
under sec. 3 of the Act, the plaintiffs have no title to be
declared and the de~ree of the trial court is liable to be set
E
aside."

As to the nature of the suit property and the scope and effect of
the Coal Mines (Nationalisation) Act, 1973, the High Court on an
appraisal of the oral and documentary evidence led by both the parties
F said: \.-

"I would, therefore, prefer their positive evidence
(referring to the defendants/respondents evidence) than to
the negative evidence adduced on behalf of the plaintiffs. It
will, however, be seen that the suit lands are adjacent to a
coal mine, namely, North Bhuggatdih Colliery and were
G being used for the purposes of the said mine, namely,
stacking of coal and effecting local sales thereof. The con-
clusion is, therefore, inescapable that the suit lands are
more within the meaning of the Nationalisation Act. What
vests under the Nationalisation Act is the mine and not
merely the interest of the owner of the mine."
H
K.P. AGARWALLA v. BHARAT COAL ISHETTY, J.] 287

Having regard to these findings, the High Court did not find it
A
necessary to examine whether the instrument of 1949 was a genuine
transaction.
In this appeal, on the submission of counsel for both sides, two
questions arise for our consideration: (i) whether the suit lands had
~ vested, free from encumbrance in the. State consequent upon the
B
~ issuance of Notification under sec. 3 of the Bihar Land Reforms Act;
'\-l and (ii) whether the suit land is "mines" within the meaning of the
Coal Mines (Nationalisation) Act, 1973?
In our opinion, it is unnecessary to consider the first question
and indeed it is not proper also to consider the question in the absence
of the State which is a necessary party for adjudication of that dispute.
The State of Bihar is not impleaded as a party to the suit and we,
c
therefore, refrain from expressing any opinion on the first question.
0n the second question, the relevant provisions of the Coal Mines
(Nationalisation) Act, 1973 (The Act) may now be noted.

"Section 2(h) defines "mines" to mean any excava- D
tion where any operation for the purpose of searching for
or obtaining minerals has been or is being carried on, and
includes

xxx xxx xxx xxx xxx xxx
E
(iv) all open cast workings;

] xxx xxx xxx xxx XXJt xxx
0

(vi) all lands, buildings, works, adits, levels, planes,
machinery and equipments, instruments stores, vehicles, F
railways, tramways and sidings in, or adjacent to, a mine

t and used for the purposes of the mine;

xxx xxx xxx xxx xxx xxx

(x) all lands, buildings and equipments belonging to G
the owners of the mine, and in, adjacent to or situated on
the surface of, tfie mine where the washing of coal obtained
from the mine or manufacture, therefrom, of coke is car-
ried on.

xxx xxx xxx xxx xxx xxx'' H
288 SUPREME COURT REPORTS [1989] 2 S.C.R.

Section 3, so far it is relevant, reads.
A
"( 1) On the appointed day, the right, title and in-
terest of the owners in relation to the coal mines specified
in the Schedule shall stand transferred to, and shall vest
absolutely in, the Central Government free from all ,J)
B incumbrances .......... " y
Section 5(1) reads as under:
Ci
"(1) Notwithstanding anything contained in secs. 3
and 4, the Central Government may, if it is satisfied that a
Government company is willing to comply, or has comp-
c lied, with such terms and conditions as that Government
may think fit to impose, direct, by an order in writing, that
1
the right, title and interest of an owner in relation to a coa'I
mine referred to in sec. 3, shall, instead of continuing to
vest in the Central Government, vest in the Government
D Company either on the date of publication of the direction
or on such earlier or later date (not being a date earlier
than the appointed day), as may be specified in the
direction."
~
Section 6(1) provides as under:
E
"(1) All property which vests in the Central Govern-
0 ment or in a Government company under this Chapter
shall, by force of such vesting be freed and discharged from
any trust, obligation, mortgage, charge, lien and all other
~'
t
,
incumbrances affecting it and any attachment, injunction
F or decree or order of any court restricting the use of such
property in any manner shall be deemed to have been
withdrawn."

Sections 8 to 10 in chapter Ill provide for payment of compensa-
tion to owners of coal mines. Provisions under Chapter IV of the Act
G deal with claims to be made for compensation and for disbursing the
amounts payable to the owners of coal mines by Commissioner of
Payments. • "'
On behalf of the plaintiffs, 11 witnesses were examined including
plaintiff No. I himself. Most of the witnesses have not made any rele-
H vant statement on the question of location or user of the suit land.
•
•
K.P. AGARWALLA v. BHARAT COAL ISHETfY, l.l 289

. 1~
. However, Kanhaiya Lal Agarwal, witness No. 6 for the plaintiff
stated, "The land is full of collieries on all the four sides." Likewise
A
Ram B;ik'Sha Viswakarma, witness No. 8 for the plaintiffs has stated
..-J that the suit land is a fallow land and no crop is grown on it and there is
'nothing except the road in between the suit land and the North
Bliagatdih Colliery. The 9th witness of the plaintiffs B.K. Mukherjee,
~'. who surveyed the locality and submitted a report stated: B

~~~-
'<i
"At the time of my inspection, the defendants were
removing the over-burdened surface and then taking out
coal and this is called open cast working ..... I do not see
'
t the quarry by Southern side of the leased coal land but do
not remember whose quarry was there. There were coal all
over the land but it was after the burden of earth was re-
c
~- moved ..... The coal was being cut at the depth of 25'
from the surface. Adjoining the quarry, the land was not
for homestead purposes."
'
I The witnesses for the defendant company have specifically stated D
that the land in dispute constitutes the upper layer of the coal lying
beneath and above the surface. The working of the mines is by open
cast working system. When the mining operations are carried on in the
other parts of the Seam, the land is being used for the various purposes
1. c' connected with the mining operations .
E
In the light of this evidence, the location of the suit land and the
uses to which it is put to are beyond doubt. The land is being used for
carrying on the mining operations and it is adjacent to a mine. It is
used for the purposes of the mine for carrying on the mining opera-
lions in respect of the part of the Seam lying immediately below the
surface. Apparently, there cannot be any working mine without the F
surface being included in that concept. If the surface does not form
part of the concept of mine, it is not possible to have any excavation.
1 Section 2(h)(iv) includes open cast working within the definition of
I, "mine" .

• Secondly, the suit land is also adjacent to a coal mine, namely, G
s..r North Bhagatdih Colliery and is being used for the purposes of the said
mine, namely, stacking of the coal and effecting local sale thereof. It
is, therefore, a mine as defined under sec. 2(h)(vi) of the Act.

· ·• Under sec. 3 of the Act, the right, title and interest of the owners
• in relation to the coal mines stand transferred to and shall vest abso- H
h ·_.
290 SUPREME COURT REPORTS !1989] 2 S.C.R.

A lutely in the Central Government free from encumbrances. For the
purpose of acquisition and vesting, it is immaterial whether the mine
belongs to the State or to the plaintiffs. In either case, the Act exting-
uishes the title. A Constitution Bench of this Court in State of West
Bengal v. Union of India, 1196411SCR371 has held that under Entry
44 of List 3 of the Seventh Schedule to the Constitution, Parliament is
B competent to make a law for acquisition of property owned by th~
State.

It was, however, urged for the appellants that there is no proper
pleading or issue for determination of the aforesaid question and the
evidence let in should not be looked into. It is too late to raise this
c contention. The parties went to trial knowing fully well what they were
required to prove. They have adduced evidence of their choice in
support of the respective claims. That evidence has been considered by
both courts below. They cannot now tum round and say that the
evidence should not be looked into. This is a well accepted principle.
D In Kunju Kesavan v. M.M. Philip & Others, [1964] 3 SCR 634,
this Court has stated (as summarised in the headnote at p. 637):

" The parties went to trial, fully understanding the
central fact whether the succession as laid down in the
Ezhava Act applied to Bhagavathi Valli or not. The
E absence of an issue , therefore, did not lead to a material
sufficient to vitiate the decision. The plea was hardly
needed in view of the fact that the plaintiff stated in his
replication that the "suit property was obtained as mak-
kathayam property, by Bhagavathi Valli under the Ezhava
Act". The subject of exemption from Part IV of the Ezhava
F Act, was properly raised in the trial court and was rightly
considered by tM High Court."

On the facts and circumstances of the case we cannot; therefore,
accept the contention us:ged for the appellant in this regard.
G In the result and for the reasons stated above, the appeal fails
and is dismissed. In the circumstances, however. we make no order a~
to costs.

P.S.S. Appeal dismissed.