9911796707
TMI Blog1980 (8) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... and Development Act, 1952 upto the specified date, from a fund known as Conservation and Safety Fund, by such raising contractor prior to the appointed day, can be realised by the Central Government by virtue of their powers under sub-s. (3) of s. 22 of the Nationalisation Act, to the exclusion of all other persons including such contractor and applied under sub-s. (4) of s. 22 towards the discharge of the liabilities of the coking coal mine, which could not be discharged by the appointed day. To make the points intelligible, it is necessary to state a few facts. By an agreement dated February 7, 1969 made between Messrs Balihari Colliery Co. Pvt. Ltd. (hereinafter referred to as the 'owner' of the one part and Messrs Industrial Supplies Pvt. Ltd. (hereinafter referred to as 'the petitioners') of the other part, it was recited as follows: "WHEREAS the owners are the owners of a Working Colliery comprising an area of 800 Bighas more or less and known as Balihari Colliery particularly described in the first Schedule A hereunder written held under the lease and subleases mentioned in the said Schedule and in connection therewith have built various structures, dhewrahs coolie lines ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other properties comprised in the said colliery." Under the said agreement, the petitioners installed from time to. time various fixed assets like machinery, plants and equipment and erected structures and raised new roads within the said colliery and brought in various current assets and movables for the efficient working of the said mine. The petitioners were also raising contractors in respect of another coking coal mine known as 'Khas Dharmaband Colliery' owned by Messrs Khas Dharmaband Colliery Co. Pvt. Ltd., subsequently known as 'New Dharmaband Colliery'. They had similarly brought over various assets including stores which were being used in the said colliery. Under an agreement of October 1969, the New Dharmaband Colliery was brought over by Messrs Sethia Mining & Mfg. Corporation Ltd. An inventory was prepared of the assets like plants, machinery and stores belonging to the petitioners which were lying in the colliery, the value of which was approximately Rs. 1,21,000, On October 171 1971, the resident promulgated the Coking Coal Mines (Emergency provisions) ordinance 1971 to provide for . the taking over by the Central Government, in the public interest of the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court seeking a declaration that sub-s. (1) of s. 4 does not provide for the acquisition of the right, title and interest of the petitioners inasmuch as being raising contractors they were not an owner within the meaning of s. 3(n) of the Nationalisation Act and, therefore, they were entitled to dismantle and remove the fixed assets like machinery, plants and equipment installed in the two mines and also to remove the movables and current assets thereof like furniture, stores, etc. and were further entitled to recover the amount of subsidy of about Rs. 4,50,000 collected by the Central Government from the erstwhile Coal Board. They, accordingly, sought a writ or direction in the nature of mandamus requiring the Central Government to return the assets like machinery, plants, equipment and other assets and movables and all amounts collected by way of subsidy or other dues, or in any event pay Rs. 16,35,591 with interest thereon from May 1, 1972 till the date of payment. The High Court substantially disallowed the claim of the petitioners, holding that they fall within the meaning of the term 'owner' as defined in s. 3(n) of the Nationalisation Act read with s. 2(1) of the Mines Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct which were different, i.e., for the purpose of acquiring machinery, plants and equipment and \ other assets belonging to such raising contractor, lying within the mine, under sub-s. (1) of s. 4 of the Act. We are afraid, we cannot accept these contentions. The construction that is sought to be placed on the definition of 'owner' in s. 3(n) of the Nationalisation Act read with s. 2(1) of the Mines Act, upon the basis of which the argument proceeds would, if accepted, frustrate the very object of the legislation. The Nationalisation Act provides by sub-s. (1) of s. 4 that the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule, on the appointed day, i.e., on October 17, 1971 shall stand transferred to and shall vest absolutely in the Central Government free from all incumbrances. In the Nationalisation Act, 'owner' is defined in s. 3(n) thus: "3(n) "owner",- (i) when used in relation to a mine, has the meaning assigned to it in the Mines Act, 1952; 383 (ii) when used in relation to a coke oven plant, means any person who is the immediate proprietor or lessee or occupier of the coke oven plant or any part thereof or is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it is futile to contend that the petitioners were not occupiers of the mines. They had the actual use and occupation of the coal mine in question. We have carefully gone through the judgment in Lala Karamchand Thapar's case and, if we may say so, the decision is distinguishable on facts. There the question was whether the managing agent of a company owning a colliery was an occupier of the colliery, and the Court negatived this observing: "From the very collocation of the words "immediate proprietor, or lessee or occupier of the mine", it is abundantly clear that only a person whose occupation is of the same character, that is, occupation by a proprietor or a lessee-by way of possession on his behalf and not on behalf of somebody else is meant by the word "occupier" in the definition. Thus, a trespasser in wrongful possession to the exclusion of the rightful owner would be an occupier of the mine, and so be an "owner" for the purpose of the Act." The Court further observed: "That must be because possession on behalf of somebody else was not in the contemplation of the legislature such "occupation" as to make the person in possession an "occupier" within the meaning of s. 2(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which deals with the power, functions and duties of the Commissioner of Payments appointed under sub-s. (I) of s. 20, for the purpose of disbursing the amounts payable to the owner of each coking coal mine or coke oven plant. It appears in sub-s. (2) of s. 26, which provides: "(2) In relation to a coking coal mine or coke oven plant, the operations of which were, immediately before the 17th day of October, 1971 under the control of a managing contractor, the amount specified in the First Schedule against such coking coal mine or in the Second Schedule against such coke oven plant shall be apportioned between the owner of the coking coal mine or coke oven plant and such managing contractor in such proportions as may be agreed upon by or between the owner and such managing contractor, and in the event of there being no such agreement, by such proportions as may be determined by the Court." Under cl. 25 of the agreement, it was agreed upon between the parties that (i) in the event the colliery was nationalised, the agreement shall stand determine and all moneys then due and owing by the owners to the petitioners and vice versa shall at once become due and payable, and (ii) in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they still had substantial control over the mine. The plea that not they but someone else was the managing contractor is only an after thought. The petitioners having bound themselves by the terms of the agreement, cannot be permitted to escape from the provisions of sub-s. (1) of s. 4. as they come within the purview of the definition of 'owner' in s. 3(n) of the Nationalisation Act. It is then argued, in the alternative. that the term 'owner' as defined in s. 3(n) of the Nationalisation Act read with s: 2(1) of the Mines Act. 1952 does not in any event, include a raising contractor. It is not suggested that a raising contractor does not come within the description of a contractor in s. 2(1), but it is urged that the word 'includes' is not there. There was no need for Parliament to insert the word 'includes' because of the words 'as if he were'. Although the term 'owner' in common parlance, in its usual sense, connotes ownership of a mine. the term has to be understood in the legal sense, as defined. Parliament, with due deliberation, in s. 3(n) adopted by incorporation the enlarged definition of owner in s. 2(1) of the Mines Act, 1952 to make the Nationalisation Act all embra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.. The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " The whole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein. It provides by sub-s. (1) of s. 4 that on the appointed day, the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in the Central Government, free from all incumbrances. Now unless the term 'owner' in sub-s. (1) of s. 4 is given an extended meaning so as to include a contractor for the working of a mine or any part thereof, the very object of the legislation would be frustrated. It has to be presumed that Parliament was fully aware of the normal patte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividend, which was not implemented; the money, being still identifiable, was held to be impressed with a trust, and accordingly did not enure to the benefit of the general body of creditors, but was recoverable by the lender. In Coal Products Private Ltd. v. I.T.O. there was an extension of this principle by a Single Judge of the Calcutta High Court to "assistance" which was payable to the assessee and was sought to be 1 attached by the Income-tax Department by way of garnishee proceedings under s. 226(3)(i) of the Income tax Act, 1961. There was an application made for grant of assistance under r. 49 of the Coal Mines (Conservation and Safety Rules, 1952. There were conditions attached to the grant under r. 54. There was an affidavit filed before the Calcutta High Court showing that the grant was subject to the condition that it would be utilised for the purpose of stowing and other connected operations in the coal mine. The High Court quashed the garnishee notice on the ground that the Income-tax Department was not entitled to any part of the money for the payment of income-tax liabilities of the assessee, as it could only be utilized for the purpose of stowing and other safety o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
