# 196] The Corporalion of Calcutta v. Sm. Padma Debi

- **Citation:** [1962] 3 S.C.R. 62
- **Court:** Supreme Court of India
- **Decided:** 1960-09-26
- **Case number:** Civil Appeal No. 112 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/196-the-corporalion-of-calcutta-v-sm-padma-debi-2465
- **Pages:** 10

## Headnote

196]
The Corporalion
of Calcutta
v.
Sm. Padma Debi
Subba Rao J.
G'.!
SUPREME COURT REPORTS
[1962]
the history of the legislation. In the result, we
hold, on a fair rlladi11g of the express provision of
s.l:2i (a) nf the Act in
th~ Jicrht of the decisions
.
0
cons1<lercd, that the r<'ntal ndue cannot he fixed
higher than the Rtanrlarcl r0nt
under the Rent
Control Act ..
Th<' next question is, what is the meaning
of the phrase "at the time nf assessment" occurring in s.12i(a) of the Act.. The majority view of
the High Court was that as8CSfment commences
with the making of the valuation under s. l:ll of
the Art ancl ends with the dc,termination of the
objection under s.140 thereof, anrl t.hat an event
vrhirh took place during thii; period may be relied
upon for assessini; the annual vahic unr!cr >d2i(a)
of the Act. The correctness of this view has not
seriously been contestccl before us.
'l'hat apart,
for the reasons mentio11ed by Lahiri an<l Sen, J.T.,
thRt conulu8ion is justified on the provisions of the
Act.
No other question iR raisecl. The appeal fails
ancl is dismissed with costB.
APJieal dismisBed.
A:\1AR JYOTI STONE CJH~STING CO.
t'.
THE UNION OF INDIA AND OTHER::i
(R. r. sn<nA, c .. J., s. K. DAs, A. K. SAHKAR,
N. RAJAGOPAJ.A AYYA!S'GARandJ.R. MvDHOLKAn,J.T.)
Quorry·-Refusal of permit.-01,.nership "f mf~ral•-Pr~
sumplion-I'unjab Land RP>'fnue Act, 1881
().:~II of 1881)
d. 42.
The appellant had been granted a permit by the Collec:
tor for quarrying stone upto June 30, 1957 under the Delhi
Minor Mineral Rule& 1938 framed under s.155(1) ofthe
Punjab Land Revenue Act, 1837.
On the expiry of the tcrr:i
of this permit the appellant applied for another permit but 1t
W-' refused on the ~ound that the land ha<;! been inelu\lcc;\
..
•
•
'
-
•
•
3 S.C.R. SUPREME COURT REPORTS
63
in "a controlled area" reserved for other purposes by proceedings under the Delhi (Control of Buildings) Act, 1955. The
appellant filed a suit praying for a declaration that it had a
right to quarry stones from the land in suit without a permit
as the ownership of the minerals was vested in the landowner
from whom it had taken the land and for a mandam'U8 to the
collector to grant the permit as the 1955 Act had ceased to be
operative after December 30, 1957.
Held, that the appellant had not proved its title to the
mineral rights in the land and was not entitled to the declaration.
Section 4i(2) Punjab Land Revenue Act, 1887,
provided that when in any record of rights, completed after·
November 18, 1871, it was not expressly mentioned that any
quarry belonged to the Government it shall be presumed to
belong to the landowners. In the present case neither party
produced any such record of rights, and no presumption
could be invoked in favour of the owner. The presumption
arises only when such a record of ri~hts is before the court
and flows from the contents of the document.
Held, further, that the application for a permit was
refused on good and relevant grounds.
The subsequent
repeal of the Delhi (Control of Buildings) Act, 1955, did not
entitle the appellant to an order directing the issue of a
permit as no other application for a permit was pending at
that titne.

## Text

196]
The Corporalion
of Calcutta
v.
Sm. Padma Debi
Subba Rao J.
G'.!
SUPREME COURT REPORTS
[1962]
the history of the legislation. In the result, we
hold, on a fair rlladi11g of the express provision of
s.l:2i (a) nf the Act in
th~ Jicrht of the decisions
.
0
cons1<lercd, that the r<'ntal ndue cannot he fixed
higher than the Rtanrlarcl r0nt
under the Rent
Control Act ..
Th<' next question is, what is the meaning
of the phrase "at the time nf assessment" occurring in s.12i(a) of the Act.. The majority view of
the High Court was that as8CSfment commences
with the making of the valuation under s. l:ll of
the Art ancl ends with the dc,termination of the
objection under s.140 thereof, anrl t.hat an event
vrhirh took place during thii; period may be relied
upon for assessini; the annual vahic unr!cr >d2i(a)
of the Act. The correctness of this view has not
seriously been contestccl before us.
'l'hat apart,
for the reasons mentio11ed by Lahiri an<l Sen, J.T.,
thRt conulu8ion is justified on the provisions of the
Act.
No other question iR raisecl. The appeal fails
ancl is dismissed with costB.
APJieal dismisBed.
A:\1AR JYOTI STONE CJH~STING CO.
t'.
THE UNION OF INDIA AND OTHER::i
(R. r. sn<nA, c .. J., s. K. DAs, A. K. SAHKAR,
N. RAJAGOPAJ.A AYYA!S'GARandJ.R. MvDHOLKAn,J.T.)
Quorry·-Refusal of permit.-01,.nership "f mf~ral•-Pr~
sumplion-I'unjab Land RP>'fnue Act, 1881
().:~II of 1881)
d. 42.
The appellant had been granted a permit by the Collec:
tor for quarrying stone upto June 30, 1957 under the Delhi
Minor Mineral Rule& 1938 framed under s.155(1) ofthe
Punjab Land Revenue Act, 1837.
On the expiry of the tcrr:i
of this permit the appellant applied for another permit but 1t
W-' refused on the ~ound that the land ha<;! been inelu\lcc;\
..
•
•
'
-
•
•
3 S.C.R. SUPREME COURT REPORTS
63
in "a controlled area" reserved for other purposes by proceedings under the Delhi (Control of Buildings) Act, 1955. The
appellant filed a suit praying for a declaration that it had a
right to quarry stones from the land in suit without a permit
as the ownership of the minerals was vested in the landowner
from whom it had taken the land and for a mandam'U8 to the
collector to grant the permit as the 1955 Act had ceased to be
operative after December 30, 1957.
Held, that the appellant had not proved its title to the
mineral rights in the land and was not entitled to the declaration.
Section 4i(2) Punjab Land Revenue Act, 1887,
provided that when in any record of rights, completed after·
November 18, 1871, it was not expressly mentioned that any
quarry belonged to the Government it shall be presumed to
belong to the landowners. In the present case neither party
produced any such record of rights, and no presumption
could be invoked in favour of the owner. The presumption
arises only when such a record of ri~hts is before the court
and flows from the contents of the document.
Held, further, that the application for a permit was
refused on good and relevant grounds.
The subsequent
repeal of the Delhi (Control of Buildings) Act, 1955, did not
entitle the appellant to an order directing the issue of a
permit as no other application for a permit was pending at
that titne.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 112 of 1961.
Appeal by special leave from the judgment
and order dated September 26, 1960, of the Punjab
High Court, (Circuit Bench) at Delhi in R. S. A.
No. 123.D of 1959.
N. S. Bindra, I. C. Jain and 0. P. Rana, for
the Appellant.
C. K. Daphtary, B. Sen and T. lfl. Sen, for
Respondents Nos. 1 to 3. Tarachand Brijmohan Lal
for Respondent No. 4.
'
1961. August 8. The Judgment of the Court
was delivered by '
AYYANGAR,,J.-This appeal has been filed
pursuant to leave granted by this Court unqef
1961
Amar Jif,ti Stone
C!'U•tlngCo.
••
The Union of
India
Ayyangar J,
1961
A.ma,. Jyot; Stan,.
Crwtiong Co.
v.
Tl~ Union of
India
Ayyangar J.
64
SUPREME COURT REPORTS
[1962]
Art. 136 of the Constitution againgt the decision of
the Punjab High Court in second appeal No. 123-D
of 1959.
The appellant-firm is
the
leHsee under a
lease date<l December 21, 1955 of kasra Nos. 1621,
j(j.J6, IG52, IG5il
1rn<l 1703 in Xaraina Village
within the administration of the Chief Commissioner
of Delhi.
As !Pssee the firm wa.s working certain
stone-quarries in the fields which were the subjectmatter of its lease.
The right of pNsons to quarry
in the area is subject to the pro1•isions contained
in the Delhi l\Iinor ;\fincral Rul<'s, l!l:IS framed in
exercise of the powers conferred by s.155(1) of
the Puujab Land Revenue Act, 188i.
Under these
rules an application has to Le made to the Collector
for the grant of permits to effect qurirrying who
was empowered to grnnt them at his discretion,
the duration of these permits being one vcar,
When such qunnying took placn the royalty at
the rates specified in the rules was payable
b~- the
permit-holder. The rules, hO\rnvcr, expressly saved
from their operation and from t.he need for a
permit or the payment of royalty, the quarryiniz
of any mineral proved to be on lane! belonging to
the land-mvner in which he had the ri!'"ht. to the
mineral under sA2 of the Punjab Larnl H.e,·enue
Act, 188i. The appellant-firm had a.ppliccl for
ancl obtained permits under these rules and w<'re
p:iying the royalty prescribed therefor from the commencement of their lease ri~ht up to .Tune 30, Hl!ii.
For quarrying thereafter
it~ application for a
permit was not granted. The appellant-firm thereupon issued notice to the governmental authorities
under s,80 of the Civil Procedure Code and filed the
suit out of which the present appeal arises, on
October 8, Hl5i.
t
..
•
•
,·
Tho appellant praye<l in the suit for two
..._
main reliefs : (l) a declaration that it had a right
to quarry stones from the suit-land apparently
•
3 S.C.R.
SUPREME COURT REPORTS
65
even without a permit, and (2} alternatively for a
perpetual injunction directing the defendants-the
Union of India and the Collector and the Delhi
Development Authorities-to issue the required
permit on payment of royalties as before. The
first of the above re!iefa was based on the plea that
the land-owner from 1vhom it claimed title under
the lease, had vested in him the ownership of the
minerals with the result that the appellant had a
right to effect the qtrn.rrying without the necessity
for a permit under the Delhi Minor Mineral Rules
referred to earlier.
The other alternative prayer
was rested on the ground that even if the mineral
rights in the suit-land vested in Government, the
appellant had a legal right to carry on quarrying
operations on the land and that there was an
obligation on the part of the Collector to grant the
permit applied for. It was the further case of the
appellant that the Collector refused the permit
mala fide, and for reasons which were extraneous
to the purpose for which the power to grant permits
was vested in him under the statutory rules. The
Trial Court dismissed the suit holding against the
appellant on every crucial issue and this judgment
has been affirmed by Courts right up to the High
Court in the judgment now under appeal.
Two principal points have been urged by
Mr. Bindra-learned counsel for the appellant in
support of its plea. His first contention was that
the learned Judge of the High Court had misunderstood and misapplied tlie provisions of s.42 of the
Punjab Land Revenue Act and that if that section
were properly construed, the appellant's lessor
should bo held to be the owner of the mineral
rights in t,he suit-lands.
For understanding this
contention it is necessary to set out the terms of
s.42. It reads :
"42. ( 1) When in
oompleted before the
any record-of-rights
eighteenth day of
1961
Amar Jyoti, Stffle
Crusting Co.
v.
The Union of
India
Ayyangar J,
•
1961
A.mar Jyoti S101u
Cru11ing Co.
v.
Tl~ Union of
India
Ayya"f'Sr J.
66
SUPREME COURT REPORTS
November, 18il, it is not expressly provided
that any forest, quarry, unolaimed, un·
occupied, deserted or waste land, spontaneous
produce or other accessory interest in land
belongs to the land-owners, it shall bo
presumed to belong to the Government.
(2) When in any record-of-rights completed after that date it is not expressly
providecl that any forest or quarry or any
such land or interest belongs to tho Govornment it shall be preRUmed to belong to the
land-owners.
(3) The presumption created by sub·
section ( 1) may be rebutted by showing-
( a) from the record or report made
by tho assessing officer at the time of
assessment, or
(b) ifthe record or report is silent,
then from a comparison between the
assessment of villages in which there
existed, and the assessment of villages of
similar character in which there
did
not exist, any forest or quarry, or any
such land or interest,
that the forest, quarry, land or interest was
taken into account in the assessment of the
land-revenue. ,
(4) Until the presumption is so rebutted,
the forest, quarry, land or interest shall bo
held to belong to the Government."
"t
-
y
Learned Counsel is, no doubt, right in his submission that the learned single Judge of the High
Court wrongly treated sub-el. (4) of this section
afs equallfy
1
app
1
li<~dablc tobthe pbresu
2
mptbion rha~sed
1
in
,
0
0 g
avour o t 10 an ownor y su ·s. ( ), ut t is c oes
not, however, establish that the appellant is, on
t4e facts of t4is case, entitleq to invoke the pre,
,,
, "
~·.·:,,.·/.:.---,.,
3 S.C.R.
SUPREME COURT REPORTS
67
sumption enacted in sub-s.(2). It\vas common
ground that records-of-rights had been prepared in
respect of the village of . N araina twice after 1871,
though the relevant entries in these documents were
not placed ... before the · Court by either side.
~Ir. Bindra submitted that if once it was proved that
a record-of-rights had been prepared for a village
after 1871, the presumption in sub-s.(2) in favour
of ·the land-owner being entitled to the minerals
was attracted and that as the defendants in the
11resent case had not produced the record-of-rights
the· Court should have proceeded on the basis that
the appellant had proved its title . to the minerals ..
\Ve are wholly unable to accept this construction
of the section. Section 42 (2) raises a presumption
against the Government when in any record-of-·
rights completed after November 18, 1871 it is not
expressly provided that any quarry belongs ·to·
the Government, but this presumption arises only
when therecord-of.rights is before the Court and
flows from the contents of the produced document.
The sub-section is no authority whatsoever . for
raising a presumption as to the contents of a recordof-rights which is not produced and is not.before
the Court. Learned Counsel for t11e appellant is
not also justified in inviting the Court to draw a
presumption against the defendants from
the
non-production
of the document, because the
record-of-rights is a public document an·d therefore
available to the appellant as well who could have
obtained a certified copy and filed it if it supported
its case; · The appellant produeed for the year
1948-49 merely the .Jamabandi account of the.
village· and relied on the fact that there was no
mention therein of the Government being proprietor
of the mineral rights ; but obviously the contents
of this document could have no bearing on the
custom obtaining in the village as to the proprietor-.
ship of the minerals which would find ·mention
only in a wajib-ul:arz and a. jamabandi account· is
certainly not a document on the basis of which ;th~ .
-·---· -
Amar Jyoti Stone
Cruetin[j Co.
v.
The Union of
Irwlia;-
A.yyangar, J.
1961
Amar Jyoti Stone
Cruattng Co.
v.
Thi Union of
India
Ayyan1ar J,
•
68
SUPREME COURT REPORTS
[1962]
prcRumption in
s.42(2) could be invoked. The ~
position, therefore, was that the relevant recordof-rights was not 6efore the Court and consequently
the presumptions raised neither by sub-ss.(l) or (2)
of s.42 could be invoked in favom of Go\·errunent
or the owner.
There were,. however, two facts before the
Courts on thll hnsis of which the title to the •
rninrrals eouHl have been decided. The first was
t.hat the appellant harl been working the minerals
only on the strength or permits obtained from tlw
Collector and, as we have pointed out earlier, this
could have happened only if its lessor was not tl1e
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 docs not help him, because the making of
the application would constitute an admission which
would throw upon the appellant hurnen 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 he is
the owner of the minemls would have to prove his
title to the property before he could succeed in
the suit, but the appellant led no evidence to provo
his title. J\fr. Bindra made a submission that a
presumption in favour of the plaintiff's 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 poAsession of the minerals, with
which alone we are now concerned wa.s under the
permit granted by the Collector-a situation which
clearly ncgativerl the plaintiff's ownership of the
minerals having regard to the schemes of the Minor_..-.
Mineral Rules. The Courts below were thereforoil9 ·
right in holding that the appellant's claim on the"'
basis of established proprietary rights to the quar7
•
sJiould fail,
·
3 S.C.R.
SUPREME COURT REPORTS
The respondents have filed in this Court an
7 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 appellants unless there were proper
grounds for refusing the permit and that the
grounds of his refusal in the present case were
-,, improper and inala 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 Dellii Development Provisional
Authority constituted under Act 53 of 1955. By
reason of proceedings of that authority the land in
suit had been included in "a controlled 11,rea", i.e.,
-
a~ area which was r~served for 0th.er 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
1961
A mar Jyoti Ston~
Crusting Co.
v.
T1" Union of
India
Ayyang<1' J;
1961
Amar Jyot~ Ston,
Cr11atin11 Co.
v.
n.,. Un.o>I of
Tndirr
f
70
SUPREME COURT REPOTITS
[1062]
in giving effect to the recomme1.dntion of the _
Board in the matter of prohibiting quarrying on~
th(• suit-land.
Before us, however, learned Counsel
did not sr.riousl.r rontest tho position that if the
land was in "a controlled area" under Act 53 of
1!)55 and there was ncc<l to prohibit quarrying in
the interests of the health of the people inhabiting
the residential arc~. adjoining the quarries, and the
Collector was appraised of this fact by the ..
Development Authority, the order of the Collector
refusing p13rmission could not be 1:mccess(ully
impugned. But learnerl Counsel urgPd that Act 53
of
1955 had
ceased
to be operative
after
December ao, I 95i when it W<l.H r0pla.ced by the
Delhi Development Act of 1957 and that under tho "'
latter enactment tho area had not been so notified.
Haviug regard to this changed situation the contoution was, that nt the date when the trial Court
passed judgment it should have taken judicial
notice of the fact that Ac:t 5a of 1955 had ceased to
be in force and t.hat tho notification thereunder had
lapsed, and that if these mattrrs wero taken into
account the appellant had a clear legal right to the
relief of mandmnu.i; which he prnyed for, directing ...
the Collector t9 grant the permission sought. It is
not neceSHary
for the purpose of this case to
examine tho limits subject to which a Court could
take into account subsequent facts and afford
relief on the basis of such facts.
The position so
for as the appellant was concerned was this : It
had mnde an application to the Collector to permit ~
it to quarry stones llnd this hacl been refused. It
was this refusal which was challenged as illegal
ancl it was on this basis that the relief of mandatory
injunction was sought in the plaint. It would be
one thing if the appellant \Vas a.blo to ma.kc out the -
ca.so that the Collector's refusal to grant the
permission in April-May 195i was improper but
that is not the situation here. The argument was
t.ha.t the TriaJ Court ought to have ta.ken into
account the fact. that long euLecqucnt to the filing
t
3 S.C.R.
SUPREME COURT REPOR1'S
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 these proceedings in
the trial Court no fresh application was made to
the Collector on the basis of the altered state of
facts. There was corsequent!y 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 11,
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.
1961
A mar Jyoti Ston1
O,.rmingCo.
v.
The Union of
India
Ayyangar J.