Amar Jyoti Stone Crusting Co vs The Union Of India And Others

There were, however, two facts before the. Courts on the basis of which the title to the, minerals could have been decided. The first was that the appellant had been working the minerals only on the strength or permits obtained from the Collector and, as we have pointed out earlier, this could have happened only if its lessor was not the owner of the minerals. Learned Counsel, no doubt, sought to explain this conduct of the appellant on the basis that it might have made application for a permit under a mistake as to its rights. This however does not help him, because the making of the application would constitute an admission which would throw upon the appellant burden of proving that it was done under a mistake and the mistake established to the satisfaction of the Court. This was not even attempted. This apart, a plaintiff who comes to Court with an allegation that be is the owner of the minerals would have to prove his title to the property before he, could succeed in the suit, but the appellant led no evidence to prove his title. Mr. Bindra made a submission that a presumption in favour of the plaintits ownership arose under s. 110 of the Indian Evidence Act by reason of the appellant's admitted possession of the property. This however is entirely without force, since the possession of the minerals, with which alone we are now concerned was under the permit granted by the Collector-a situation which clearly negatived the plaintif fs ownership of the minerals having regard to the schemes of the Minor Mineral Rules. The Courts below were therefore right in holding that the appellant's claim on the basis of established proprietary rights to the quarry should fail 69 The respondents have filed in this Court an application for the admission of additional evidence and the items of evidence so sought to be admitted are the entries in the wajib-ul-arz of the record-ofrights of the suit-village prepared in 1880 and 1908-09. These clearly recite the fact that the Government were owners of the stone-quarries in the village. Learned Counsel for the appellant strenuously objected to the admission of additional evidence at this stage and submitted that if the application were allowed he should be given an opportunity of adducing evidence to disprove the correctness of these entries. In view of our conclusion as regards the rights of the appellant even without these additional documents, we do not consider it necessary to admit them. We hold that the appellant has not proved its title to the mineral rights in the suit-lands and that its claim for a declaration on that basis was properly dismissed by the Courts below.

The other point urged by learned Counsel was that even if it be that the Government were the proprietors of the minerals and the permission of the-Collector was necessary to be obtained under the Minor' Mineral Rules, 1938, still the Collector was under a legal obligation to grant a permit to the appellant sunless there were proper grounds for refusing the permit and that the grounds of his refusal in the present case were improper and mala fide. In this connection it was pointed out that the Collector had refused the permit sought by the appellant because of a resolution of the Delhi Development Provisional Authority constituted under Act 53 of 1955. By reason of proceedings of that authority the land in suit bad been included in "a controlled area", i.e., an area which was reserved for other purposes, with the result that it was thought proper and expedient to prohibit quarrying in it. In the plaint it was alleged that the Collector acted improperly 70 in giving effect to the recommendation of the Board in the matter of prohibiting quarrying on the suit-land. Before us, however, learned Counsel did not seriously contest, the position that if the land was in "a controlled area" under Act 53 of 1955 and there was need to prohibit quarrying in the interests of the health of the people inhabiting the residential area, adjoining the quarries, and the Collector was appraised of this fact by the Development Authority, the order of the Collector refusing permission could not be successfully impugned. But learned Counsel urged that Act 53 of 1955 had ceased to be operative after December 30, 1957 when it was replaced by the Delhi Development Act of 1957 and that under the latter enactment the area had not been so notified. Having regard to this changed situation the contention was, that at the date when the trial Court passed judgment it should have taken judicial notice of the fact that Act 53 of 1955 had ceased to be in force and that the notification thereunder had lapsed, and that if these matters were taken into account the appellant had a clear legal right to the relief of mandamus which he prayed for, directing the Collector to grant the permission sought. It is not necessary for the purpose of this case to examine the limits subject to which a Court could take into account subsequent facts and afford relief on the basis of such facts. The position so far as the appellant was concerned was this : It had made an application to the Collector to permit it to quarry stones and this had been refused. It was this refusal which was challenged as illegal and it was on this basis that the relief of mandatory injunction was sought in the plaint. It would be one thing if the appellant was able to make out the case that the Collector's refusal to grant the permission in April-May 1957 was improper but that is not the situation her.-. The argument was that the Trial Court ought to have taken into account the fact that long subsequent to the filing 71 of the plaint the statute or order which justified the refusal of the permission had ceased to exist and that this vested in the appellant a right to obtain the grant of a permit. The argument, in our opinion, proceeds on a fallacy. If the application of the appellant was properly refused by the Collector before the suit, the result was that there was no pending application before the authority for the grant of a permit. It is common ground that during the pendency of there proceedings in the trial Court no fresh application was made to the Collector on the basis of the altered state of facts. There was corsequently no application pending before the Collector which he could be directed by the issue of a mandatory injunction by the Court to grant. It is clear therefore that the change in the law in the shape of Act 53 of 1955 ceasing to be operative does not assist the appellant to obtain any relief in this suit. In the view we have taken it is not necessary for us to 'canvass the point which has been discussed in the Courts below as to whether in cases where the Government is the owner of a property its discretion in its management and control could be the subject of directions by the Court unless, of course, the statute or statutory rule enables individuals to claim any particular rights. The appeal fails and is dismissed with costs. Appeal dismissed.

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