Patna High Court
Subodh Gopal Bose vs Mines Tribunal And Anr. on 31 August, 1966
Equivalent citations: AIR1967PAT257, AIR 1967 PATNA 257
JUDGMENT Narasimham, C.J.
1. This is an application under Articles 226 and 227 of the Constitution to quash the order dated the 23rd February, 1965, (Annexure F.), passed by the Mines Tribunal (hereinafter referred to as "the Tribunal") appointed under Section 12 of the Bihar Land Reforms Act, 1950 (Bihar Act 30 of 1950) (hereinafter referred to as "the Act") and for other consequential reliefs.
2. The petitioner was the former proprietor of an estate known as Kuchwar Mahal, bearing tauzi No. 10742, in the Subdivision of Sasaram of Shahabad District. Within the said estate the petitioner was carrying on the operation of quarrying limestone for several years, ever since he acquired the estate by purchase on the 30th September, 1933. Sometime in 1938 iron pyrites were discovered within the said property, and after giving notice to the appropriate authority under Section 14 of the Indian Mines Act, 1923, on the 2nd April, 1940, the petitioner began mining and developing the pyrites ores also. The entire tauzi vested in the State of Bihar under the provisions of the Act on the 27th October, 1953. But Section 9 of the Act conferred some rights on the ex-proprietor in respect of those mines which were in operation at the commencement of the Act and were being worked directly by the intermediary. I may quote Section 9 in full:
"9 (1): With effect from the date of vesing all such mines comprised in the estate or tenure as were in operation at the commencement of this Act and were being worked directly by the intermediary shall, notwithstanding anything contained in this Act, be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lessee thereof.
(2) The terms and conditions of the said lease by the State Government shall be such as may be agreed upon between the State Government and the intermediary or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12:
Provided that all such terms and conditions shall be in accordance with the provisions of any Central Act for the time being in force regulating the grant of new mining leases".
By the aforesaid Sub-section (1) the intermediary is deemed to be a statutory lessee of the State Govt. and as such entitled to retain possession of those mines which were (1) in operation at the commencement of the Act, and (2) were being worked directly by him on the date of vesting. Both these conditions should be satisfied before the intermediary could claim the right of a statutory lessee. The expression "a mine shall be deemed to be in operation" is defined in Clause (m) of Section 2 of the Act. But even if the intermediary's mine comes within the scope of that definition, nevertheless, unless it could be further shown that the mine "was being worked directly by the intermediary" he cannot get the benefit of retaining possession of the same as a statutory lessee. Sub-section (2) says that the terms and conditions of the said lease shall be such as may be agreed upon between the State Government and the intermediary, or in the absence of agreement, as may be settled by a Mines Tribunal appointed under Section 12.
Prior to the amendment made by the Bihar Land Reforms (Amendment) Act, 1953 (Bihar Act 20 of 1954) the relevant words in Sub-section (2) were "or in default of agreement, as may be settled by a Mines Tribunal appointed under Section 12". By that amending Act the words "the absence" were substituted for the word "default". Thus the mere absence of agreement between the State Government and the intermediary as regards terms and conditions of the lease is sufficient to give jurisdiction to the Tribunal to settle those terms and conditions It is not necessary that there should be an express disagreement between the parties regarding the terms and conditions, nor is it necessary that there should be actual default, either on the part of the State Government or on the part of the intermediary, in arriving at an agreement regarding such terms and conditions.
3. On the 5th February, 1954, and the 24th May, 1954, the petitioner himself applied to the Collector of Shahabad for formal execution of a, lease for the purpose of giving him the benefit of Section 9 of the Act. He claimed that he was entitled to lease in respect of 1258 acres of land used as limestone quarry and at least 10 square miles for pyrites mines. His claim was partially supported by the Additional Collector of Shahabad, but the Government of Bihar in their G.O. No. 4398/M L.B. Mining 4018/59 (Annexure C-1) informed the Collector of Shahabad that they were willing to recognise the petitioner as a statutory lessee only in respect of 2.26 acres for iron pyrites and 118.06 acres for limestone under Section 9 of the Act. Apart from thus fixing the area of the lease for purposes of that Section, the said G. O. contained the terms and conditions of the lease as regards the period, the surface rent, dead rent, royalty and other conditions as regards the employment of qualified engineers, etc. The Government directed the Collector to see that necessary draft leases were executed and sent to them for approval at an early date, A copy of this letter of the Government was communicated to the petitioner by the Deputy Collector in charge. Shahabad, (Annexure C), on the 28th December, 1959, and he was requested "to get the lease executed immediately" in accordance with the terms and conditions offered by the Government The petitioner thereupon submitted a lengthy representation, dated the 4th/7th January, 1960, (Annexure D), protesting against the abnormally low area that was offered for lease, reiterating his original claim as regards the area actually being worked by him in respect of the said two minerals, namely, limestone and pyrites. In the last paragraph of that representation he made the following prayer:
"It is therefore respectfully requested that as provided under Clause 2 of Section 9 of the Bihar Land Reforms Act this matter kindly he referred to a Mines Tribunal appointed under Section 12 of the Bihar Land Reforms Act to determine the extent of the properties deemed to have been leased by the State and also to my reasonable requirements for the future development of my mining concern."
There is one significant omission in this lengthy representation. It was nowhere stated that, apart from the dispute about the actual area, the petitioner was willing to accept all the terms and conditions laid down in the Government letter dated the 16th December, 1959, (Annexure C-1). The representation is entirely silent about this. It is true that there is no express disagreement with the terms and conditions offered, but there is no agreement either. He followed up this representation by filing a writ application before this court on the 12th May, 1960. (Miscellaneous Judicial Case No. 383 of 1960), wherein his main prayer was that the State Government should be directed to appoint a Mines Tribunal under Sections 9 and 12 of the Act "to determine the extent of the property deemed to have been leased by the State of Bihar to the petitioner" On the 17th August, 1960, however, the Government of Bihar issued Notification No E/VIII-P-26/60-6426 L. R. constituting five Mines Tribunals in the State of Bihar and specifying their territorial jurisdiction. For the petitioner's mines the District Judge of Gaya was appointed as the Chairman of the Mines Tribunal, and one Dr. R. P. Sinha, Director of Mines and Geology, was appointed a mining Expert and member of the Tribunal. In view of this constitution of the Tribunal, the petitioner's writ (Miscellaneous Judicial Case No 383 of 1960) became infructuous, and hence a Bench of this court, by its order dated the 23rd January, 1962, dismissed the same as infructuous.
On the 1st July, 1963, the petitioner instituted a suit (Title Suit No. 95 of 1963) in the court of the Subordinate Judge of Sasaram for a declaration of his title as lessee under the State in respect of the said mines and minerals over the entire area of the tauzi and for injunction. For the purpose of this petition it is not necessary to refer to interlocutory proceedings in that suit, such as refusal to grant interim injunction and the order of the High Court on appeal against that refusal The State Government on the 16th December. 1904, filed a formal application before the Mines Tribunal for settling the terms and conditions of the mining lease and also for determining the area This was registered as Miscellaneous Case No. 64 of 1963. The petitioner entered appearance and stated that there was no dispute between the parties as regards the terms and conditions of the lease and the dispute was solely as regards the area of the lease. He then raised the following three preliminary objections to the hearing of the case by the Tribunal, namely. (1) the Tribunal was not constituted in accordance with the statutory provisions (2) as there was no dispute as regards the terms and conditions of the lease, the Tribunal had no jurisdiction to decide the question about the area of the lease, and (3) as the civil suit had been filed for a decision of this question prior to the filing of the application by the State before the Tribunal, that court alone had jurisdiction to decide this matter. All these three points were decided against the petitioner by the Tribunal
4. Section 12 of the Act may now be quoted:
''12. (1) Any Mines Tribunal appointed for the purposes of Sections 9, 11 and 31 shall consist of a Chairman who shall be a District Judge and a member who shall be a mining expert, both of whom shall be appointed by the State Government with the previous approval of the Central Government.
(2) In settling the terms and conditions of a lease by the State Government under Section 9, the Mines Tribunal shall have power to deter mine the extent of the property deemed to have been leased by the State and in so doing shall have regard to the reasonable requirements for the future development of lessee's mining con-
corn.
(3) The Tribunal shall follow such procedure as may be prescribed by the State Government.
(4) If there is a difference of opinion between the Chairman and the member in regard to any matter, it shall be referred by the Chairman to a Judge of the High Court nominated by the Chief Justice in this behalf, and the decision of such Judge shall be binding on the Tribunal".
It will be noticed that by virtue of Sub-section (1) of this section the Mines Tribunal is a high powered Tribunal consisting of the Chairman, who is required to be of the rank of District Judge, and a member, who is required to be a mining expert. The State Government is required to obtain the previous approval of the Central Government before collecting the mining expert. Thus the competence of the said Tribunal to decide the questions validly referred to the Tribunal is beyond doubt. Sub-section (3) deals with the procedure to be followed by the Tribunal, and Sub-section (4) provides for reference to a Judge of the High Court if there is a difference of opinion between the Chairman and the member. Sub-section (2) is very important. It says that in settling the terms and conditions of the lease the Mines Tribunal shall have power to determine the extent of the property deemed to have been leased by the State, and in so doing shall have regard to the reasonable requirements for the future development of the lessee's mining concern.
The language of this sub-section must be carefully examined, bearing in mind the provisions of Sub-section (2) of Section 9. Sub-section (1) of Section 9 makes the ex-intermediary a statutory lessee only in respect of that area where the mining operations were carried on at the commencement of the Act and where mines were being worked directly by the intermediary. But Sub-section (2) of Section 12 expressly authorised the Tribunal in determining the extent of the leasehold properly to have regard to the reasonable requirements for the future development of the lessee's mining concern. Thus the Tribunal was conferred jurisdiction to extend the area of the leasehold property by having regard to the future development of the mines, even though in that extended area no mining operation was actually carried on, nor was any mine being worked directly by the intermediary, Sub-section (2) of Section 12 further made it clear that this jurisdiction of the Tribunal should be exercised "in settling the terms and conditions of a lease". The word "in" would in the context mean "in the process of", that is to say, that in the process of settling the terms and conditions of a lease the Tribunal is conferred jurisdiction to determine the question of the area of the leasehold property also.
5. I may now refer to Section 35 of the Act which bars the jurisdiction of the civil court in certain matters:
"35. No suit shall be brought in any civil Court in respect of any entry in or omission from a Compensation Assessment-roll or in respect of any order passed under chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said chapters".
The portion of the Section relevant for our purpose is "or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters" (meaning Chapters II to VI). Sections 9 and 12 occur in chapter II.
6. The three grounds urged before the Tribunal were also urged before us by Mr. Ghosh for the petitioner, but, in our opinion, for the reasons given below, they are all untenable.
7. The first ground as regards the illegality in the constitution of the Tribunal was pressed only half heartedly, (if I understood Mr. Ghosh correctly). The main argument in this connection is that the jurisdiction of the Government to constitute a Tribunal can be exercised only after a dispute has arisen between the parties as regards the terms and conditions of the lease. The Government have no jurisdiction to constitute Tribunals throughout the State of Bihar long before the occasion for the exercise of the jurisdiction by the Tribunals arises. Here admittedly the Tribunal was constituted as early as 1960, whereas this dispute was referred to the Tribunal by the State Government only in 1964. Hence, according to Mr. Ghosh, there was invalidity in the constitution of the Tribunal. This argument cannot stand. There is nothing in the language of Sub-section (1) of Section 12 to show that the Tribunal can be appointed only after a specific dispute has arisen. The words "specially appointed in this behalf", which might have supported the contention of Mr. Ghosh, are completely absent from Sub-section (1) of Section 12. There is no legal bar to the Government constituting Mines Tribunals throughout the State of Bihar, leaving it to the Tribunals to exercise their jurisdiction whenever occasion arises in future, on receipt of proper application from the parties concerned.
8. The second ground is based on a narrow interpretation of the words "terms and conditions of a lease". According to Mr. Ghosh, the subject-matter of the lease, namely, the area of the leasehold property, can never come within the meaning of "terms and conditions" and he invited our attention to the fact that while Sub-section (1) of Section 9 deals with the subject matter of the lease, namely, the area of the leasehold property, Sub-section (2) deals with the terms and conditions, which, as a matter of construction, should, therefore, be held to exclude the area of the leasehold property. On the basis of this argument he further contended that unless there is a dispute between the parties regarding the terms and conditions of the lease, the Tribunal will have no jurisdiction to proceed under Section 12 (2) to determine the area of the leasehold properly. Here, in the present case, the petitioner never disagreed with the terms and conditions (in the narrow sense) offered by the Government and made this absolutely clear before the said Tribunal. The dispute between the parties was solely in respect of the area of the leasehold property. Mr. Ghosh, therefore, urged that the Tribunal had no jurisdiction to decide this dispute alone.
9. There are two answers to this contention. Firstly, it is not correct to say that the jurisdiction of the Tribunal to settle the terms and conditions (even in the narrow sense) under Sub-section (2) of Section 9 arises only if there is a dispute as regards the terms and conditions. I have already shown that by changing the word "default" and putting the words "the absence" by the amending Act of 1954, the Legislature made it absolutely clear that in the mere absence of an agreement the Tribunal will have the jurisdiction to settle the terms and conditions. Here, on the facts staled by the petitioner himself, there is absence of such an agreement regarding the terms and conditions. These terms and conditions were offered by the Government in Annexure C-1, dated the 6th December, 1959, and they were communicated to the petitioner by the Deputy Collector on the 30th December, 1959 (Annexure C). In his lengthy protest (Annexure D) dated the 4th/7th January, 1960, though the petitioner vigorously challenged the area offered for lease, he nowhere stated that he accepted or expressed agreement with the terms and conditions offered. It was because of the absence of this agreement that the Government referred the case to the Tribunal on the 16th December, 1964, for settling the terms and conditions. This is made clear in paragraph 3 of the Tribunal's order, which is as follows:
"The terms and conditions of the aforesaid lease have not been agreed upon between the parties, and, therefore, it has become necessary to make this application to this Tribunal". In considering the jurisdiction of the Tribunal we must bear in mind the allegations marie in the application invoking its jurisdiction This was in the application dated the 16th December, 1964, and, as, admittedly, there, was no agreement about the terms and conditions, the Tribunal's jurisdiction is beyond doubt. It is true that during the early stages of the hearing of the case by the Tribunal the petitioner, after entering appearance, stated that there was no dispute as regards the terms and conditions of the lease and that the dispute was only as regards the area (See Paragraphs 7 and 8 of the Tribunal's order). But the order of the Tribunal does not show that the petitioner expressly agreed to the terms and conditions. In the absence of such an agreement, the Tribunal has clearly jurisdiction to settle those terms and conditions, even in the narrow sense, as urged by Mr. Ghosh.
It may be that in the final order the Tribunal may settle the terms and conditions on the statement made by the State Government, saying that, as no dispute was raised by the other side, it would accept them in full. But it has jurisdiction to settle those terms on the ground that there was no contest by the other side. It is not correct to say that it has no jurisdiction at all.
10. From the aforesaid conclusion it necessarily follows that the tribunal has also jurisdiction to decide the exact area of the leasehold property. There is undoubtedly a dispute between the parties on this question and the parties differed very widely as to the exact area in which mining operation was carried on and mines were worked directly by the intermediary. Sub-section (2) of Section 12 expressly conferred jurisdiction upon the Tribunal to decide this question of area in settling the terms and conditions, and for that purpose to have regard to the future development of the lessee's mining concern.
11. There is a second way of approaching the same problem. Though in narrow sense the terms and conditions of a lease may not include the subject-matter of the lease, nevertheless the Legislature by Sub-section (2) of Section 12 expressly widened the scope of these words by including the area of the leasehold property also. This is clear by the use of the words "in settling" which would mean, as already pointed out, in the very process of settling, that is to say, the process of settling the terms and conditions of the lease is expressly made by the Legislature to include the decision about the area of the leasehold property. If was a mere choice on the part of the draftsman to have conveyed this idea in Sub-section (2) of Section 12 instead of conveying the same by inserting an Explanation in Sub-section (2) of Section 9 to the effect that the settlement of the terms and conditions of a lease would include the decision regarding the area of the leasehold property, bearing in mind the reasonable requirements for future development. Sub-section (2) of Section 9 must be construed along with Sub-section (2) of Section 12, and when so construed it is reasonable to hold that the Legislature intended to avoid any ambiguity which may arise by the narrow construction of the words "terms and conditions of a lease" and expressly expanded the meaning to be given to those words by including the area of the leasehold property also.
There is sufficient authority for the view that the expression "term of a contract" in respect of property, for the purpose of Sections 91 and 92 of the Evidence Act, may include the area of the property also (see Tilakdhari Singh v. Kesho Prasad Singh, AIR 1925 PC 122; and Gobind Behari v. Shujaat Mand Khan, AIR 1938 All 364). Hence, even if there is a dispute between the parties only in respect of the area of the leasehold property, the jurisdiction of the Tribunal is not taken away.
12. The third ground is the most important one for consideration. Admittedly the petitioner filed Title Suit No. 95 of 1963 prior to the action of the State Government in filing an application before the Mines Tribunal on the 16th December, 1964. The main issue for decision before the Civil Court (Subordinate Judge, Sasaram) and the Mines Tribunal is the same, namely, what is the area of the leasehold property which is deemed to have been settled with the petitioner by Sub-section (1) of Section 9. It should, however, be mentioned here that though the Civil Court's jurisdiction to decide this question will be limited by the language of Sub-section (1) of Section 9 to the actual area where the mines were in operation at the commencement of the Act and where the mines were being worked directly by the intermediary, the jurisdiction of the Tribunal is enlarged by Sub-section (2) of Section 12 to include not only the said area but also additional area which may he reasonably required for future development of the lessee's mining concern Thus the petitioner stands to gain by having this dispute decided by the Tribunal under Section 12 (2) rather than by the Civil Court under Section 9 (1), even if it is assumed that the Civil Court has jurisdiction to decide this question. It is therefore, somewhat surprising that the petitioner should challenge the jurisdiction of the Tribunal to decide this matter and insist on his right of having it decided by the Civil Court though it might give him a lesser area.
13. The learned Advocate-General for the State of Bihar urged that this dispute can be decided only by the Tribunal and that the Civil Court's jurisdiction is wholly excluded for the following three reasons:
(1) The right of a statutory lessee conferred on the petitioner by Sub-section (1) of Section 9 is a new right and the Legislature has provided a special remedy in Section 12 for ascertainment of that right. The Civil Court's jurisdiction is, therefore, impliedly barred.
(2) The Civil Court's jurisdiction is expressly barred by Section 35 of the Act inasmuch as the reference of the State Government to the Tribunal on the 16th December, 1964, was itself based on the original application of the petitioner, dated the 5th February, 1954, and 24th May, 1954, which were reiterated in his prayer to the State Government on the 4th/7th January. 1960 (Annexure D) and that application was pending on the date on which the Civil Suit was filed, namely 1st July, 1963.
(3) The right conferred by Sub-section (1) of Section 9 on the intermediary is an inchoate and incomplete right, and until the terms and conditions and the area of the leasehold property are settled by the Tribunal under Section 12 (2) the petitioner has no right as a lessee which can be enforced in the Civil Court.
14. In my opinion these three grounds urged by the learned Advocate-General must be upheld. There is no doubt that the right of a statutory lessee conferred on the petitioner by Section 9 (1) of the Act is a new right. It was contended with considerable persistency by Mr. Ghosh that it is not a new right but it is a mere modification of the right which the petitioner had as an intermediary which, according to him, was merely transformed into the right of a lessee. This point is, however, concluded by two derisions of the Supreme Court. In Kamakshya Narain Singh v. Collector and Deputy Commissioner of Hazaribagh, AIR 1956 SC 63 the provisions of Section 7 (1) of the Act, which stated that certain class of buildings were deemed to be settled by the State with the intermediary was under consideration. Their Lordships observed that by virtue of Section 4 (a) all the rights in the estate of the intermediary were extinguished and became vested in the Government, subject of course to the other provisions of the Act. While construing Section 7 their Lordships observed as follows:
"Under Sections 5 and 7 the buildings mentioned therein also vest in the State, because the buildings in question are deemed to be settled by the State with the intermediary in possession. This could only be on the supposition that these buildings vested in the State and the person in possession held the same as settlee under the State".
In a later decision in Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, AIR 1961 SC 1790, where Section 18 of the U. P. Zamin-dari Abolition and Land Reforms Act, 1951, was under consideration, their Lordships observed as follows:
"We are of opinion that the proprietary rights in sir and khudkasht land and in grove land have Vested in the State and what is conferred on the intermediary by Section 18 is a new right altogether which he never had and which could not therefore have been mortgaged in 1914".
Section 18 of the U. P. Act corresponds to Section 6 of the Act, under which also certain classes of land in the possession of the intermediary are deemed to be settled by the State with such an intermediary as a raiyat. Here their Lordships made it absolutely clear that the "deemed settlement" with an ex-intermediary conferred a new right on him which he never had before. It is not a mere transformation of a greater right to a lesser right as urged by Mr. Ghose.
15. The same reasons must apply in construing Sub-section (1) of Section 9 which refers to the deeming settlement with the intermediary as a lessee. So far as the "deeming" part is concerned there is no material difference in the language of Sections 6, 7 (1) and 9 (1) and the aforesaid decision of the Supreme Court must apply. As pointed out in Kamakshya Narain Singh's case, AIR 1956 SC 63 at P. 66, the mines and minerals also must first vest in the State before they can be deemed to have been settled with the intermediary as a lessee.
16. Mr. Ghosh laid considerable emphasis on the existence of the non obstante clause "notwithstanding anything contained in this Act" in Section 9(1) and the absence of those words in Sections 6 (1) and 7 (1). But I do not think this is material. The extinguishment of the rights of an intermediary on the vesting of an estate is provided in Clause (a) of Section 4, which says that all interests of the intermediary, including interest in mines, are extinguished "other than the interests expressly saved by or under the provisions of this Act." Hence even in the absence of the non obstante clause "notwithstanding anything contained in the Act" in Section 9 (1) the statutory right of the intermediary as a lessee will always survive and there is no material difference between the "deeming" right conferred by Section 9(1) and that conferred by Sections 6(1) and 7(1).
17. Once it is recognised that the right conferred by Sub-section (1) of Section 9 is a new right expressly conferred by the Act, it necessarily follows that the special remedy provided in the Act for the determination of that right will exclude the ordinary jurisdiction of the Civil Court. This principle, which was emphasised in Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 C. B. (N. S.) 336, has been uniformly followed in India (see Bhaishankar Nanabhai v. Municipal Corporation of Bombay, ILR 31 Bom 604 : Secretary of State v. Kameshwar Singh. AIR 1936 Pat 87), and the recent judgment of their Lordships of the Supreme Court in K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, 1966 (1) SCA 571 at p. 578: (AIR 1966 SC 1089 at p. 1094). To quote their Lordships of the Supreme Court :--
"A suit is expressly barred if a legislation in express terms says so. It is impliedly barred if a statute creates a new offence or a new right and prescribes a particular penalty or special remedy. In that event, no other remedy can, in the absence of evidence of contrary intention, be resorted to."
Here the very relief which the petitioner has asked for from the Civil Court, with some additional relief, can be granted to him by the Tribunal under Section 12(2) of the Act, and as the right of the petitioner itself is a pure creation of the statute, being based on Section 9 (1), the remedy provided in the Act will impliedly exclude the jurisdiction of the Civil Court to that extent. It cannot also be contended that the remedy is not adequate. The qualifications of the Chairman of the Tribunal and of the mining expert, and the provision of a reference to the High Court Judge in the event of a difference of opinion between the two members of the Tribunal, show clearly that the intention of the Legislature was to have a complete self-contained machinery for the determination of this question, thereby impliedly excluding the jurisdiction of the Civil Court.
18. Apart from the implied exclusion, the language of Section 35 will also operate as an express bar. In particular I refer to the words "or concerning any matter which is or has already been the subject of any application . . .. under the said Chapters". Here the petitioner admitted in Paragraph 15 of his petition that on the 5th February, 1954, and 24th May, 1954 he himself filed a petition before the Collector of Shahabad for action under Section 9 of the Act. That has not yet been disposed of finally. The Government offered certain terms and conditions, including the area, and those have not yet been settled. Moreover the petitioner himself in the last portion of his protest petition (Annexure D) dated the 4th/7th January, 1960 (already quoted) requested the State Government to refer this matter to the Tribunal under Section 12. This prayer and the earlier petition of 1954 would both amount to "application" for the purpose of Section 35 of the Act. They are both applications under Section 9(2) which occurs in Chapter II. Mr. Ghosh contended with considerable ingenuity that unless the word "application", or an equivalent expression, is expressly found in Sub-section (2) of Section 9, mere prayer by the petitioner for reference to a Tribunal under Section 9 will not amount to an "application" made under Section 9 for the purpose of Section 35 of the Act. I am unable to accept this ingenious argument. The expression "application" has nowhere been defined in the Act and must, therefore, be understood to be a prayer or request made to the appropriate authority. Here the petitioner has been requesting the Collector to take steps to refer this matter to the Tribunal, and such request in writing must be construed to be an application for action under Section 9(2) of the Act for the purpose of Section 35. Admittedly these two prayers were made long before the institution of the suit by the petitioner on the 1st of July, 1963. Hence the matter that was sought to be agitated before the Civil Court on the 1st July, 1963, "is or has already been the subject of an application" under Section 9(2) prior to that date. The Civil Court's jurisdiction will thus be expressly ousted by virtue of Section 35.
19. The third contention of the learned Advocate General, that the right of the petitioner under Section 9 is itself inchoate and incomplete and hence cannot justify the action of the Civil Court, is also equally sound. That right is incomplete and the machinery for determining that right is provided in Section 12 (2), read with Sub-section (2) of Section 9. The petitioner cannot claim the right of a lessee unless the area of the leasehold property is accurately determined and the terms and conditions of the lease are also settled according to law. The learned Advocate-General cited Loftus v. Roberts, (1902) 18 TLR 532, Milnes v. Gery (1907) 33 ER 574, Babbage v. Coulburn, (1882) 9 QBD 235, Robson v. Collins, (1802) 32 ER 53, Vickers v. Vickers, (1867) LR 4 Eq 529, and the leading decision of the House of Lords in Scott v. Avery, (1856) 10 ER 1121 where it was held that an incomplete contract cannot bo the basis for action in law Courts until the contract is completed. The only distinction between these cases and the present case is that here there is no voluntary contract for lease but an involuntary statutory lease is created by Section 9(1). But the principles laid down therein will apply with equal force The petitioner cannot claim any right of action until his rights as a lessee are completely determined.
20. This does not mean that the petitioner will have no right to approach the Civil Court under any circumstances whatsoever. Against the decision of the Tribunal there may be a limited right to go to Civil Court as indicated in the well known case, Secretary of State v. Mask and Co., 67 Ind App 222: (AIR 1940 PC 105), and subject to certain limitations referred to by their Lordships of the Supreme Court in (1966) 1 SC A 571 at p. 579: (AIR 1966 SC 1089 at p. 1094), in the following terms:--
"It has been held that a suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. It is also equally well established that civil Courts have power to entertain a suit in which the question is whether the executive authority has acted ultra vires its power"
As laid down in that decision, civil suit will also lie if the Tribunal had acted on the basis of a statutory provision which is ultra vires or unconstitutional. But these are not the grounds on which the civil suit has been filed in the present case. In Paragraph 25 of the petition it is stated that Title Suit No. 95 of 1963 is "for declaration of his title as lessee under the State of the said mines and minerals over the entire area of Kuchwar Mahal and for injunction." A suit for that purpose cannot lie for the reasons fully explained in the preceding paragraph."
21. For these reasons the Tribunal's order is upheld and the petition is dismissed with costs Hearing fee Rs. 200/- payable to respondent No 2.
Sahai, J.
22. I agree.