Jainty Central Colliery Ltd. and another vs Jagdish Prasad Singh

Wort, J.—This is an appeal from a decision of the learned Subordinate Judge of Deoghor given on 25th April 1932, in which he allowed the plaintiff''s claim which sought a declaration that the mineral rights in village Madankanta between miles 173 and 174 now occupied by a line of the East Indian Railway Company were his property. That learned Judge also allowed an injunction against the defendants restraining them from working the coat mines under that land.

The question which we have to consider is what was the effect of a declaration made on 7th February 1866 by the Government purporting to be under Act 6 of 1857 by which the Government for the purpose of constructing a railway line between Sitarampur and Luckiserai acquired the land in dispute together with other lands.

The defendants who are the appellants before us, are the Jainty Central Colliery Co. Ltd., who at a time which is not material to mention acquired the mining rights from the plaintiff on cither side of the railway line in question. Abutting on what are called "B" lands are the lands immediately on either side of the railway lines between miles 173 and 174 as I have stated. One of the questions which came to be determined by the learned Subor ordinate Judge was whether the plaintiff being a Ghatwal of Birbhum was entitled to the mineral rights. That was decided in favour of the plaintiff and no question arises before us with regard to the matter.

Another question which was canvassed before the Judge was whether on a proper construction of an agreement made on 13th January 1927 between the Secretary of State for India in Council and the defendant Colliery Co. the right to work the coal under "B" lands passed to the defendants. But whatever view may be taken of this point the question is immaterial. If it is once established that the plaintiff is entitled to the mineral rights under the "B" lands no agreement entered into between the Secretary of State and the Colliery Company could give the defendants those rights. The question therefore as I have said, is to be determined upon the exact effect of the declaration of 7th February 1366 which purported to be made under Act 6 of 1857. It was the view of the learned Judge that the Act of 1357 was amended by Act 22 of. 1863 or so it appears and the rights of the parties depended upon the latter Act. If that view is correct, the case of the plaintiff would necessarily succeed by reason of S. 50 of Act 22 of 1863 which is as follows:

Whenever land shall be taken under this Act for the construction of any work, the taking thereof shall not be held to convey, or include, the right to any mine of coal, or other minerals, lying under such land ; except only such part thereof as shall be necessary to he dug or carried away or used in the construction of the works, unless compensation for the same shall have been expressly allowed in the award made in favour of the persons interested in the land.

It is admitted that if this section does not apply then by the acquisition of 1866 the land and the minerals passed to the Government. Had the declaration acquiring the land been made under the Act of 1863 and having regard to the fact that compensation was not allowed as provided by S. 50, it is admitted that the decision of the learned Subordinate Judge would be correct. But the question arises as to the effect of Act 6 of 1857 and Act 22 of 1863. It seems to me that a perusal of the two Acts will show that the conclusion of the learned Judge is clearly erroneous. Act 6 of 1857 by its preamble provides:

Whereas it is expedient to mate better provision for the acquisition of land needed for public purposes within the territories in the possession and under the Government of the East India Company and for the determination of the amount of compensation to be made for the same, it is enacted as follows.

and then the first section of importance which is to be noticed is S. 2 which provides:

Whenever it appears to the Local Government that any land is required to be taken by Government at the public expense for a public purpose, a declaration shall be made to that effect under the signature of a Secretary to the Government or of some officer duly authorized to certify the orders of the Government and such declaration shall be conclusive evidence that the purposes for which the land is needed is a public purpose ; and after mating such declaration the Government may take any such land in the manner hereinafter provided.

The subsequent provisions of the Act, the details of which it is unnecessary to state provide the machinery by which the Government may take land which is the subject-matter of the declaration which is made under S. 2. The Act of 1857 contains no such provision as S. 50 of Act 22 of 1863. There was Act 2 of 1861 which repealed Ss. 9 and 37 of the Act of 1857, but those sections it is unnecessary to consider. We come to Act 22 of 1863, which, as I have stated, the learned Subordinate Judge in the Court below held, amended the Act of 1857. It is the contention of Mr. Sushil Madhav Mullick who appears on behalf of the respondent, admitting that Act 22 of 1863 does not amend the Act of 1857 that the rights given to the Government under the latter Act are those only which are given to the Government under the Act of 1857: in other words the two Acts are to be read together. Now the scheme of Act 22 of 1863 must be noted. In the first place the preamble states:

It is an Act to provide for taking land for works of public utility to be constructed by private persons or companies, and for regulating the construction and use of works on land so taken.

The first thing to the noticed is this, that this Act is for works of public utility to be constructed by private persons or companies in contradistinction to the purposes of the Act of 1857 which was for the acquisition of land for "public purposes." The earlier sections of the Act, of 1863 make provision for the machinery by which the promoters, as they are called in the Act, are to satisfy the Government that the matter in hand is a matter of public utility and a matter for the purpose of which the land should be acquired under the Act, and amongst other things, provision for the survey of the lands which are sought to be acquired. S. 26 of the Act provides:

When the boundaries of the land acquired for the work shall have been settled as aforesaid and the promoters shall have caused the said land to be measured and suitable land plans to be prepared of the same, the Local Government shall cause a declaration to be made under the signature of a Secretary to such Government or some officer duly authorized to certify the orders of the Local Government that the land aforesaid is required for the said work and such declaration shall be conclusive that the land may betaken under this Act.

A distinction is sought to be drawn by Mr. Mullick in his favour between the words which I have just read in S. 26 and the words in S. 2 of the Act of 1857. The distinction is based on the provision in S. 26 of the Act of 1863:

After making such declaration the Local Government may proceed to take any such land'' as though it had been required to he taken at; the public expense and for a public purpose and as though a declaration had been made as required under Act 6 of 1857 for the acquisition of land for public purposes.

Mr. Mullick''s argument is that the declaration under S. 26 of Act 22 or 1863 is merely for the purpose of giving the acquisition of the land the sanction of law and that the declaration contemplated by the section is always that provided for by S. 2 of the Act of 1857, whether the acquisition is under the Act of 1857 for a public purpose or for "public utility" under the Act of 1863, in other words the mere mention of Act 6 of 1857 in the declaration is immaterial and that if the acquisition is for a work of public utility to be constructed by a private person or company the acquisition is under the Act of 1863 whatever the declaration may state. In my judgment that argument cannot be supported What is quite clearly contemplated by S. 26 is a definite declaration by the Government that they are proceeding under the Act of 1863 and that the land is required for the said work; and that when once that declaration is made the declaration is conclusive for the authority to exercise their powers under the Act to acquire land for purposes of public utility. The latter part of the section is equally clear and that merely provides that after the declaration has been made under the earlier part of S. 26 the Government proceeds to acquire the land by the use of the machinery provided in the earlier sections of the Act of 1857.

The argument to which I have referred is based on the contention that under the Act of 1857 the Government were not authorised to acquire land for a third party. Exactly what the position in this case was does not appear. We do know that the East Indian Railway Company was incorporated under a private Act of the Imperial Parliament (12 and 13 Vict. Ch. 93) but whether the Government having acquired the land under the declaration of 1866 handed the land over to the Railway Company or retained its rights over the land as I have said does not appear but it does seem to be abundantly clear that whatever the Government may do with the land which it purported to acquire under the Act of 1857, when once it is declared that the land is for a public purpose it is not competent for any one to canvass the question whether the land was used for a public purpose or not. This argument addressed to us on behalf of the respondent was partly based upon the wording upon the declaration itself which was to the effect that:

Whereas it appears to the Lieutenant Governor of Bengal that land is required to be taken by Government at the public expense for a public purpose, namely, for a line of railway between Sitarampur and Lackheserai it is hereby declared etc.

The mention of the purpose for which the land had been acquired, it is said, modified the declaration that the land was acquired for a public purpose and that therefore the Government was proceeding under Act 22 of 1863. This position is untenable. Having exercised powers under Act 6 of 1857 and made the declaration, it is not open to any Court to hold that it was not for a public purpose. The two Acts give powers of acquisition for different purposes. The declaration under the one Act that the acquisition was for a public purpose is conclusive as is the declaration under the other that "the land may be taken under the Act." It is these words that are conclusive of the matter and as in this case it had been declared that the acquisition had been made for a public purpose, and as the acquisition was for a public purpose in contradistinction to the acquisition for public utility, it can be made only under the Act of 1857, whether that act of acquisition was made under Act 6 of 1857. On this view of the effect of the declaration the mines and minerals under the land so acquired did pass to the Government, and consequently the plaintiff is not entitled to the relief which he claims in the action.

In my judgment therefore this appeal must succeed, the judgment of the Subordinate Judge will be set aside, and the action dismissed with costs throughout.

Agarwala, J.

I agree.