advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, July 21, 2013

mines and minerals = whether the owners of jenmom lands in the Malabar area[1] are the proprietors of the soil and the minerals underneath the soil = full Bench of the Kerala High Court was called upon to examine the question (on a reference by another Division Bench) - whether the owners of jenmom lands in the Malabar area[1] are the proprietors of the soil and the minerals underneath the soil - and answered the said question in the negative: “Hence, we are of the view that so far as the lands in question are concerned, the minerals belong to the Government…” (para 31) = Section 10 - Compulsory acquisition of rights to work minerals (1) Where it appears to the Central Government that any minerals from which in its opinion any of the prescribed substances can be obtained are present in or on any land, either in a natural state or in a deposit of waste material obtained from any underground or surface working, it may by order provide for compulsorily vesting in the Central Government the exclusive right, so long as the order remains in force, to work those minerals and any other minerals which it appears to the Central Government to be necessary to work with those minerals, and may also provide, by that order or a subsequent order, for compulsorily vesting in the Central Government any other ancillary rights which appear to the Central Government to be necessary for the purpose of working the minerals aforesaid including (without prejudice to the generality of the foregoing provisions)-- (a) rights to withdraw support; (b) rights necessary for the purpose of access to or conveyance of the minerals aforesaid or the ventilation or drainage of the working; (c) rights to use and occupy the surface of any land for the purpose of erecting any necessary buildings and installing any necessary plant in connection with the working of the minerals aforesaid; (d) rights to use and occupy for the purpose of working the minerals aforesaid any land forming part of or used in connection with an existing mine or quarry, and to use or acquire any plant used in connection with any such mine or quarry; and (e) rights to obtain a supply of water for any of the purposes connected with the working of the minerals aforesaid, or to dispose of water or other liquid matter obtained in consequence of working such minerals. (2) Notice of any order proposed to be made under this section shall be served by the Central Government-- (a) on all persons who, but for the order, would be entitled to work the minerals affected; and (b) on every owner, lessee and occupier (except tenants for a month or for less than a month) of any land in respect of which rights are proposed to be acquired under the order. (3) Compensation in respect of any right acquired under this section shall be paid in accordance with section 21, but in calculating the compensation payable, no account shall be taken of the value of any minerals present in or on land affected by the order, being minerals specified in the order, as those from which in the opinion of the Central Government uranium or any concentrate or derivative of uranium can be obtained.= we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the instant appeals, no such deprivation is brought to our notice and therefore we hold that the appellants are the proprietors of the minerals obtaining in their lands. We make it clear that we are not making any declaration regarding their liability to pay royalty to the State as that issue stands referred to a larger Bench.

                 published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40542                               

            Reportable


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOS.4540-4548 OF 2000
Threesiamma Jacob & Ors.                     …Appellants
                       Versus
Geologist, Dptt. of Mining &
Geology & Ors.                                 …Respondents
                             WITH

                        CIVIL APPEAL NO. 4549 OF 2000


                               J U D G M E N T

Chelameswar, J.

1.    These appeals are placed before us pursuant to  the  Order  dated  8th
December, 2004 of a Division Bench of  this  Court  which  opined  that  the
points involved in these and certain other appeals “need to be decided by  a
three Judge Bench.”

2.    These appeals arise out of a common judgment rendered in a  number  of
writ petitions by a full Bench of the Kerala High Court  dated  2nd  August,
1999 by which all the writ petitions were dismissed.

3.    The said full Bench of the  Kerala  High  Court  was  called  upon  to
examine the question (on a reference by another Division  Bench)  -
whether
the owners of jenmom lands in the Malabar area[1]  are  the  proprietors  of the soil and the minerals underneath  the  soil  -  and  answered  the  said question in the negative:
          “Hence, we are of the view that so far as the  lands  in  question are concerned, the minerals belong to the Government…”   (para 31)




4.    To illustrate the background in which such  question  arises,  we  may
quote the facts of one of the writ petitions considered by  the  full  Bench
as narrated by the full Bench.
          “2.  According  to  the  petitioner  in  this  case,  her  husband
          obtained jenmon assignment of 2 Acres of granite rocks situated in
          Dhoni Akathethara Amsom and Village, palakkad Taluk, Malabar.  The
          petitioner’s husband  obtained  the  property  from  the  previous
          jenmy, C.P. Thampurankutty Menon.   Thereafter,  the  petitioner’s
          husband executed  a  registered  gift  deed.    According  to  the
          petitioner, the property was enjoyed  by  the  earlier  jenmy  and
          thereafter by the petitioner without  any  interference  from  the
          Government.    Due  to  ignorance  of  the  legal  position,   the
          petitioner entered into a lease agreement with the  Department  of
          Mining  and  Geology  to  conduct  quarrying  operations  in   her
          property.   Later on she realised that it was not necessary to pay
          any  royalty  to  the  Government  with  regard  to  the  property
          belonging to her.   In the above circumstances, she made  a  fresh
          application to the Department for licence.   But  the  respondents
          failed to provide necessary permits to the petitioner.   When  she
          received a notice from the Kerala Minerals Squad directing her  to
          stop the quarrying activities, she gave a reply to reconsider  her
          contention.   Thereafter, by Ext. P6,  she  was  informed  by  the
          Department to renew the lease.”

5.    It can be seen from the above that the appellants asserted  that  they
are holders of jenmom rights in the lands in question and the State  has  no
legal authority to demand payment of royalties on the minerals excavated  by
the holder of jenmom right.

6.    Such a claim of the appellants is based on the  belief  and  assertion
of the appellants (1) that the holder of the jenmom rights is not  only  the
proprietor of the soil for which he has jenmom rights, but  also  the  owner
of the mineral wealth lying beneath the soil.   (2) that  the  understanding
of the appellants that a claim of royalty can be made only by the  owner  of
the mineral against a person who is excavating the mineral with the  consent
of the owner.

7.    We must straightway record that  the  second  of  the  above-mentioned
propositions regarding the character and legal nature  of  royalty,  (though
was considered by this Court on more than one occasion) stands  referred  to
a larger Bench by an Order of reference dated 30th March, 2011 of  a  three-
Judge  Bench  in  Mineral  Area  Development  Authority  &  Ors.  Vs.  Steel
Authority of India & Ors.¸(2011) 4 SCC 450, therefore, we are  not  required
to examine and decide the question.   We are only required  to  examine  the
amplitude of the rights of the jenmom land  holders  called  jenmis  in  the
Malabar area of the Kerala State and decide whether a jenmi is  entitled  to
the rights of subsoil/the minerals lying beneath the surface of the land.

8.    The appellants’ case is that a ‘jenmi’[2]  holds  jenmom[3]  lands  as
absolute owner and has proprietary rights over both the  soil  and  subsoil.
The ryotwari settlement made by the British Government in the  Malabar  area
of the erstwhile Madras Province only obligated the jenmis  to  pay  revenue
to the State but did not in any way affect their proprietary rights  in  the
lands.  Nor did the ryotwari settlement have the effect of transferring  and
vesting the ownership either of the land or the subsoil  (minerals)  to  the
State.  In support of this submission, the appellants heavily  relied  on  a
judgment of this Court in Balmadies Plantations Ltd. and Anr. v.  The  State
of Tamil Nadu AIR 1972 SC 2240 and also a standing order  of  the  Board  of
Revenue of the erstwhile Madras Province dated 19th March  1888  and  argued
that earlier full Bench decision of the Kerala High Court in  S.  Sabhayogam
v. State of Kerala, AIR 1963 Kerala 101 required a reconsideration.

9.    On the other hand, the State of Kerala took the stand that  subsequent
to the extension of the ryotwari settlement  to  the  Malabar  area  of  the
erstwhile Madras Province, the jenmis ceased to be the absolute  owners  and
proprietors of the lands held by  them.  The  ryotwari  settlement  had  the
effect  of  transferring  the  ownership  of  subsoil  (minerals)   to   the
Government.   The  ryotwari  pattadars  rights  are  only  confined  to  the
surface.

10.   The High Court rejected the contentions of the petitioners.  The  High
Court attempted to distinguish the  decision  of  this  Court  in  Balmadies
Plantations (supra):


           “Even though there is  some  force  in  the  contention  of  the
           petitioners, the above observations of the Supreme Court are not
           inconformity with the observations made by the Full Bench (which
           followed the decision  of  the  Supreme  Court  in  Kunhikoman’s
           case), that does not mean that the view taken by the Full  Bench
           is not correct, because it can be seen from paragraph 14 of  the
           above judgment itself that the Supreme Court has  observed  that
           in the Kerala case documents were produced and on the  basis  of
           the documents, the Court took the view that the nature of rights
           has changed after the Ryotwari settlements.”




11.   We must confess that we have some difficulty to understand  the  exact
purport of the above extract.   Be that as it may.  The High Court  recorded
two conclusions (1) that the earlier full Bench decision of the Kerala  High
Court in the case  of  S.  Sabhayogam  case  (supra)  did  not  require  any
reconsideration as contended by  the  petitioners;  and  (2)  the  lands  in
question cannot be classified any more as jenmom lands but  are  lands  held
on a ryotwari patta.

                 “The State has produced certain documents to show that  the
           lands are Ryotwari lands.  Ext.R1(a)  produced  will  show  that
           there are only two  categories  of  lands,  Ryotwari  and  Inam.
           Thus, on a consideration of the documents produced by the  State
           and on a consideration of the decisions cited, we are  satisfied
           that the decision reported in S. Sabhayogam v. State of Kerala –
           AIR 1963 Kerala 101 – does not require  reconsideration  in  the
           light  of  the  decision  of  the  Supreme  Court  in  Balmadies
           Plantations v. State of Tamil Nadu – AIR 1972 SC  2240.   Hence,
           we hold that the lands in question are not jenmom lands and they
           are Ryotwari patta lands.”


12.   In view of such a conclusion the High Court  rejected  the  submission
that the petitioners are entitled to the rights  over  the  subsoil  relying
upon certain passages from Secretary of State v. Sri  Srinivasachariar,  AIR
1921 PC 1, T. Swaminathan (Dead) and Another v. State Of Madras and  others,
AIR 1971 Mad 483, Sashi Bhushan Misra v. Jyoti Prasad Singh  Deo,  AIR  1916
PC 191, Kaliki Subbarami Reddy v. Union of  India,  ILR  1969  AP  736   and
Gangarathinam v. State of Tamil Nadu, 1990 TNLJ 374;  and  certain  recitals
(in Malayalam) made in the patta issued to one of the petitioners before  it
which is translated by the High Court as follows:




             “The assessment shown in the pattayam is the share due  to  the
             Government for the agricultural produce on the surface  of  the
             property. If  minerals  are  found  in  the  property  and  the
             minerals are worked  by  the  pattadar  with  regard  to  those
             properties a separate tax is to be paid in addition to the  tax
             shown in the pattayam.”




13.   The High Court though referred to the standing  order  of  the  Madras
Revenue Board dated 19th March  1888,  it  did  not  record  any  conclusive
finding on the effect of the said order.

14.   Before us the same submissions which were made before the  High  Court
were repeated by both the parties, therefore, we  are  not  elaborating  the
submissions made before us.

15.   Before we examine the correctness of the  judgment  under  appeal,  we
deem it necessary to take note of the legal position  regarding  the  rights
over minerals as they obtain in  England.   Halsbury’s  Laws  of  England[4]
state the legal position:
        “19.  Meaning of ‘land’ and cognate terms.  Prima facie  ‘land’  or
        ‘lands’ includes everything on or under the surface, although  this
        meaning has in some cases been held to have been restricted by  the
        context.  ‘Soil’ is apt to denote the surface and everything  above
        and below it, but similarly its meaning may be  restricted  by  the
        context so as to exclude the mines. ‘Subsoil’  includes  everything
        from the surface to the centre of the earth…….


        20……Mines, quarries and minerals in  their  original  position  are
        part and parcel of the land.  Consequently  the  owner  of  surface
        land is entitled prima facie to everything beneath  or  within  it,
        down to the centre of the earth.  This principle applies even where
        title to the surface has been acquired by prescription, but  it  is
        subject to exceptions.   Thus, at common law,  mines  of  gold  and
        silvery belong to the Crown, and by  statute  unworked  coal  which
        was,  at  the  restructuring  date,  vested  in  the  British  Coal
        Corporation is vested in the Coal Authority.  Any minerals  removed
        from land under a compulsory rights order or  opencast  working  of
        coal become the property of  the  person  entitled  to  the  rights
        conferred by the order. The property in petroleum existing  in  its
        natural condition in strata is vested by statute in the Crown.”


16.   We are required to examine whether the law of this  country  and  more
particularly with reference to Malabar area regarding the  rights  over  the
mines and minerals is the same as it obtains in England or different.


17.   By the time South India came under control of the British  Government,
there were in vogue innumerable varieties of land tenures in  various  parts
of South India which eventually came to be  called  the  Madras  Presidency.
The history of these tenures and how they were dealt under the various  laws
made either by the East India Company government or the  British  government
(hereinafter in this judgment both the above are referred  to  as  ‘British’
for the sake of convenience) was examined in detail  in  two  seminal  works
titled - the Land Systems of British  India  by  Bedan  Henry  Powell  first
published  in  1892  and  Land  Tenures  in  the  Madras  Presidency  by  S.
Sundararaja Iyengar,  published in 1916.


18.   Both the above-mentioned works examined the nature and legal  contours
of various kinds of land tenures in vogue. While Powell’s  book  dealt  with
the pan Indian situation, Iyengar’s book is confined  to  Madras  presidency
alone.   Both the books took note of the existence of a  land  tenure  known
as jenmom in the present State of Kerala.

19.   The history of the land tenures in South India  and  salient  features
of jenmon rights or the rights of a jenmi  fell  for  the  consideration  of
this Court on more than one occasion.   Two  Constitution  Benches  of  this
Court had occasion to examine the above questions in Karimbil Kunhikoman  v.
State of Kerala [AIR 1962 SC 723], and Balmadies Plantations Ltd.  and  Anr.
v. The State of Tamil Nadu [AIR  1972  SC  2240],  wherein  their  Lordships
examined in some detail the nature of land tenures as they  existed  in  the
erstwhile Madras province generally and the Malabar area specifically.

20.   In the case of Kunhikoman (supra), this Court  held  that  there  were
two varieties of tenures in existence in the erstwhile province  of  Madras.
Those tenures were known as landlord tenures and ryotwari tenures.   It  was
held by this Court that the landlord tenures were governed  by  the  various
enactments in force from time to time  whereas  the  ryotwari  tenures  were
governed by the standing orders of the Board of Revenue  -  in  other  words
the orders issued by the Executive Government of the Madras province[5].


21.   Eventually, the landlord tenures in the erstwhile province  of  Madras
came to be governed by the enactment known as Madras Estates Land  Act,  No.
1 of 1908 which admittedly did not apply to Malabar area.[6]


22.   The Madras Estates Land Act, 1908, which extensively  dealt  with  the
rights  and  obligations  of  the  landlords/landholders  owning  an  estate
(popularly known  as  Zamindars)  expressly  recognises  the  right  of  the
landholder  to  reserve  mining  rights  while  admitting  a  ryot  to   the
possession of the ryoti land.[7] By necessary implication  it  follows  that
the landholder had the legal right and title to  the  minerals/subsoil  over
the lands comprising his estate and he is legally entitled either  to  grant
the mining rights to the ryot  or  withhold  the  same.    This  implication
which we drew gets fortified by Section 3 of  Estates  Abolition  Act  which
expressly declares that with effect from the ‘notified  date’  -  a  defined
expression under Section 1(10), the estate with  all  the  assets  including
mines and minerals shall stand transferred to and vest in the State. If  the
minerals/subsoil did not belong to the estate holder, there was no  need  to
make an express declaration such as the one made in Section 3(b).[8]

23.   Similarly, it can  also  be  noticed  that  under  various  enactments
abolishing the various lands tenures in South  India  such  as  inams  etc.,
express provisions were made that the mines and minerals  existing  in  such
abolished tenures shall stand transferred to the Government and vest in  the
Government.  See, for example, Section 2-A[9] of The Andhra Pradesh  (Andhra
Area) Inams (Abolition and Conversion into Ryotwari)  Act,  1956.   We  must
remember that Andhra area of the present State of Andhra  Pradesh  was  part
of the old Madras Province.

24.   State of Andhra Pradesh v. Duvvuru Balarami Reddy  &  Ors.[10]  was  a
case where the respondents before this Court secured a lease of a  piece  of
land in an inam village (shrotriem) and  sought  to  carry  on  mica  mining
operation and applied for permission from the State of Andhra Pradesh  under
the  Mineral  Concession  Rules,  1949  made  under  the  Mines  &  Minerals
Regulation & Development Act, 1948.  The question  was  whether  the  lessor
(shrotriemdar) had rights over the subsoil/minerals  and  whether  he  could
pass rights therein by a lease.[11]  A  Constitution  Bench  of  this  Court
examined the rights of the Inamdar under the legal regime  that  existed  in
the Madras province and came to the conclusion on the basis  of  a  decision
of the Privy Council[12] that every Inamdar  necessarily  did  not  own  the
subsoil rights.  Such right depended upon the terms of the original grant  –
Inam.   It, therefore, follows that in a given case if  the  original  grant
of Inam specifically conveyed the  subsoil  rights  (by  the  grantor),  the
Inamdar would become the owner of the mineral wealth also.


25.   The necessary inference is that the British recognised that the  State
had no inherent right in law to be the owner of all mineral wealth  in  this
country.    They  recognised  that  such  rights  could  inhere  in  private
parties, at least Zamindars and Inamdars or ryots claiming under them  in  a
given case.


26.   Coming to the  ryotwari  tenures,  this  Court  held  that  they  were
governed by the standing orders issued from time  to  time  by  the  Revenue
Board. Under the ryotwari system land was given on lease by  the  government
to the ryot under a patta.   Noticing the salient features of  the  ryotwari
system as explained in various authoritative works, this Court  opined  that
“though a ryotwari pattadar is virtually like a proprietor and has  many  of
the advantages of such a proprietor”, such pattadar was never  considered  a
proprietor of land but only a tenant.[13]


27.   We  must  remember  that  in  the  case  of  Kunhikoman  (supra),  the
petitioners did not claim any adjudication of their  rights  as  holders  of
jenmom lands.   On the other hand, the appellants asserted  that  they  were
holders of ryotwari pattas issued according to ryotwari  settlement  in  the
erstwhile State of Madras under the revenue  Board  Standing  Order.    This
Court further recorded:-
        “……..it is not in dispute that the ryotwari system  was  introduced
        in the South Canara District in the earlier years of this century”




28.   The question before this Court  was  whether  the  holder  of  such  a
ryotwari patta could be called the holder of an estate  within  the  meaning
of the Kerala Agrarian Relations Act and  therefore,  precluded  by  Article
39A of the Constitution to claim  the  benefit  of  the  fundamental  rights
under Articles 19(1)(d) and 31 of the Constitution.


29.   The legal nature of the rights of a jenmi was  considered  in  greater
detail in the case of Balmadies Plantations (supra).    At  para  6  of  the
said judgment, the Constitution Bench recorded:-
          “6.    ………Originally  the  janmis   in   Malabar   were   absolute
          proprietors of the land and  did  not  pay  land  revenue.   After
          Malabar was annexed by the British in the beginning  of  the  19th
          century,  the  janmis  conceded  the   liability   to   pay   land
          revenue……..”




30.   This Court took note of  a  decision  of  the  Madras  High  Court  in
Secretary of State v. Ashtamurthi [(1890)  ILR  13  Mad  89][14]  where  the
Madras High Court recorded:-
          “..  At  the  annexation  of  Malabar  in  1799,  the   Government
          disclaimed any desire to act as the proprietor of  the  soil,  and
          directed  that  rent  should  be  collected  from  the   immediate
          cultivators.  Trimbak Ranu v. Nana Bhavani (1875) 12 Bom  HCR  144
          and Secretary of State v. Vira Rayan (1886) ILR  9  Mad  175  thus
          limiting its claim to revenue.  Further in their despatch of  17th
          December 1813 relating to the settlement of Malabar the  Directors
          observed that in Malabar they had  no  property  in  the  land  to
          confer, with the exception of some forfeited estates.  This may be
          regarded as an absolute disclaimer by the Government of the day of
          any proprietary right in the janmis’ estate. …. .”

 31.    This  Court  in  Balmadies  Plantations  case  (supra)  quoted  with
approval the above extracted passage from  Ashtamurthi’s  (supra)  judgment.


32.   It was specifically argued on behalf of Balmadies Plantations that  by
virtue of a resettlement which took place in 1926, the  jenmom  rights  were
converted into ryotwari tenure.   This Court on examination of the  relevant
standing orders reached the conclusion that the effect of  the  Resettlement
of 1926 was to retain the jenmom estates and not to  abolish  the  same  and
convert into ryotwari estates.[15]

33.   But neither of the cases dealt with the question whether  a  jenmi  is
entitled either before or after the abovementioned  settlement  of  1926  to
the subsoil rights or minerals in the land held by him.  Therefore,  we  are
required to decide the same.

34.   In Balmadies Plantations case (supra) this  Court  took  note  of  two
facts  –  (1)  that  originally  jenmis  of  Malabar  area   were   absolute
proprietors of the land; and (2) when Malabar area was annexed, the  British
expressly disclaimed the proprietorship  of  the  soil.   These  conclusions
were recorded on the basis of Ashtamurthi case (supra).


35.   Ashtamurthi case (supra) itself relies upon  an  earlier  decision  of
the Madras High Court in Secretary of State v. Vira Rayan [(1886) ILR 9  Mad
175][16] wherein the High Court found that the land  in  dispute  appertains
to the District of Malabar and recorded as follows:-
          “ …………and we agree with the Judge that there is no presumption  in
          that district and in the tracts administered as part of  it,  that
          forest lands are the property of the Crown.   At the  commencement
          of the century it was the policy of the Government  to  allow  all
          lands  to  become  private  estates  where  that   was   possible.
          Despatch of Lord Wellesley quoted in Baskarappa v.  The  Collector
          of North Canara [I.L.R., 3 Bom., 550]. The despatch and  order  of
          the Governor-Gneral in Council on the annexation of Malabar, dated
          the 31st December 1799 and the  18th  June  1801,  have  not  been
          adduced, but their purport appears from the despatch of  the  19th
          July 1804, quoted in Vyakunta Bapuji v. Government of  Bombay  [12
          Bom. H.C.R. 144].   It  was  intimated  that  it  never  could  be
          desirable that the Government itself should act as the  proprietor
          of the lands and should  collect  the  rents  from  the  immediate
          cultivators of the soil.   When  in  1808  the  Board  of  Revenue
          suggested that an augmentation of revenue might  be  derived  from
          waste lands reserved, they were informed that the  Government  did
          not look to any advantage of that nature  beyond  the  benefit  of
          increasing the amount of the public taxes  in  proportion  to  the
          existing taxes of the country (Fifth  Report,  Appendix  30,  page
          902.  Revenue and Judicial Selection, Volume I, p. 842).   It will
          be seen that at that time the Government so  far  from  abrogating
          the Hindu law intended to  assert  no  proprietary  right  to  the
          waste, but limited itself to its claim to revenue.   At  the  time
          Malabar came under British rule, all the forests were  claimed  as
          private property (I.R.R., 3 Bom. 586).   In their despatch of 17th
          December  1813,  relating  to  the  settlement  of  Malabar,   the
          Directors observed that in Malabar they had  no  property  in  the
          land to confer, with  the  exception  of  some  forfeited  estates
          Revenue Selection, Volume  I,  p.  511).    Although  a  different
          policy  was  subsequently  pursued  in   other   districts,   and,
          especially in more modern times, rules have been  framed  for  the
          sale of waste lands, there is nothing to show that any such change
          was notified in Malabar up to a period much  later  than  that  at
          which there is considerable evidence  to show that the respondents
          Nos. 1 and 2 were in possession of and recognised  as  proprietors
          of the lands they claim by Government officials….”


36.   This Court in Balmadies Plantations case (supra) after taking note  of
the above legal position with reference  to  the  jenmom  lands  of  Malabar
rejected the contention that as  a  result  of  the  resettlement  of  1926,
jenmom rights stood converted into ryotwari estate.[17]

37.   We have already taken note of the legal position with respect  to  the
minerals  obtaining  subsoil  in  the  lands  held  under  landlord  tenures
(zamindari or inam estates), and  also  the  law  of  England,  we  find  it
difficult to believe with respect to ryotwari tenures in the  British  India
and particularly the Madras province, the government assumed  the  ownership
of the subsoil.  On the contra, there is  positive  evidence  in  the  Board
Standing Order No. 10 dated 19.03.1888[18] (hereinafter referred to  as  BSO
No.10) that the State did not claim any proprietary right over  the  mineral
wealth obtaining in lands held over a ryotwari patta or in jenmom  lands  in
Malabar.    The State/British in express terms declared by  the  said  order
dated 19.03.1888 that while “it lays no claim” at all to minerals
        (a) In estates held on sanads of permanent settlement
        (b) In enfranchised inam lands
        (c) In religious service tenements confirmed under the  inam  rules
        on perpetual service tenure.
        (d) In lands held on title – deeds, issued  under  the  waste  land
        rules, prior to 7th October, 1870, in which no reservation  of  the
        right of the State to minerals is made.


the State/British claimed a limited right in minerals w.r.t. lands
           (a)   occupied for agricultural purposes under RYOTWARI PATTAS”,




           (b) JENMOM LANDS IN MALABAR”


                                                         [emphasis supplied]


38.   The limited right claimed is  “to  a  share  in  the  produce  of  the
minerals worked, if  thought  necessary  by  government.”   That  right  was
exercised by the same order with  reference  to  gold,  diamonds  and  other
metals and w.r.t. minerals like coal etc. it was left to the  discretion  of
the  government  to  be  exercised  from  time  to   time.    By   necessary
implication, it follows that the State recognised the  legal  right  of  the
land holder to the subsoil metals and minerals – whatever  name  such  right
is called – proprietary or otherwise.

39.   In view of BSO No. 10 referred to above, we need  not  unduly  trouble
ourselves  with  the  metaphysical  analysis  whether  jenmom  rights  still
subsist in lands  of  Malabar  area  or  whether  they  are  converted  into
ryotwari lands.   Apart  from  the  legal  implication  of  BSO  No.10  with
respect to Malabar,  this  Court  had  already  opined  that  British  never
claimed proprietary rights over the soil and jenmis were  recognised  to  be
the absolute owners of the soil.  It is obvious from the BSO No.10 that  the
British never claimed any proprietary right in any land in  the  Old  Madras
Province whether estate land  and  therefore  both  ryotwari  pattadars  and
jenmis  must  also  be  held  to  be  the   proprietors   of   the   subsoil
rights/minerals until they are deprived of the same by some  legal  process.
   Even if we accept the conclusion recorded in the  judgment  under  appeal
that the lands in question have been converted to be lands held on  ryotwari
settlement, the conclusion  recorded  by  us  above  w.r.t.  subsoil/mineral
rights will still hold good for the reason that even in the  lands  held  on
ryotwari patta the British did not assert proprietary rights.


40.   Nothing is brought to our notice  which  indicates  that  the  British
intended and in fact did deprive the ryotwari land holders of the  right  to
subsoil/minerals.   Subsequent to 19th March, 1888, no law to the contra  is
brought to our notice.  Nor any  law  made  by  the  Republic  of  India  is
brought to our notice.  Though we notice  laws  to  the  contra  w.r.t.  the
lands held under landlords tenures.
41.   Article 294[19] of the Constitution provides  for  the  succession  by
the Union of India or the corresponding State, as the case may  be,  of  the
property  which  vested  in  the  British  Crown  immediately   before   the
commencement of the Constitution.  On the other hand, Article 297[20]  makes
an express declaration of vesting in the Union of India of all minerals  and
other things of value underlying the ocean.
           “297. All lands, minerals and other things of  value  underlying
           the ocean within the territorial waters or the continental shelf
           of India shall vest in the Union and be held for the purposes of
           the Union.”
                                                 [as originally enacted[21]]


The contradistinction between both the articles is very clear  and,  in  our
opinion, is not without any significance.  The makers  of  the  Constitution
were aware of the fact that the mineral wealth obtaining in  the  land  mass
(territory of India) is not vested in the State in  all  cases.   They  were
conscious of the fact that under the law, as it existed, proprietary  rights
in minerals (subsoil) could vest in private parties who happen  to  own  the
land.  Hence the difference in the language of the two Articles.

42.   The above conclusion of ours gets fortified from the fact  that  under
the Mineral Concession Rules, 1960 framed by  the  Government  of  India  in
exercise of the powers conferred in  Section  3  of  the  Mines  &  Minerals
Regulation & Development Act, 1957, different  procedures  are  contemplated
and different sets of rules are  made  dealing  with  the  grant  of  mining
leases in respect of the two categories  of  lands  in  which  the  minerals
vest, either in the Government or in a person  other  than  the  Government.
While Chapter 4 of the said rules deals with the lands  where  the  minerals
vest in the Government, Chapter 5 deals with the lands  where  the  minerals
vest in a person other than  the  Government.   Correspondingly,  the  Minor
Mineral Concession Rules made by the State of Kerala also recognises such  a
distinction in Chapters V and VI.


43.   In those areas of the Old Madras Province to which  the  Estates  Land
Act applied, the minerals came to be vested in the State by  virtue  of  the
subsequent statutory/declarations (which are already taken  note  of).   But
with  reference  to  those  areas  where  the  above-mentioned  Act  had  no
application, such as the Malabar area of the Old Madras Province,  which  is
now a part of the State of Kerala, or areas where the  ryotwari  system  was
in vogue, the proprietary right to the subsoil should vest in the holder  of
the  land  popularly  called  pattadar  as  no  law  in  the  pre  or   post
constitutional period is brought to our notice which transferred such  right
to the State.

44.   We must also hasten to add that even with reference to those areas  of
Old Madras Province, whether the  ryots  securing  pattas  pursuant  to  the
abolition of the estates under the Estates Abolition Act, 1948  etc.,  would
be entitled to subsoil rights or not is a question pending in other  matters
before this Court. Whether the patta granted pursuant to the  provisions  of
the  Estate  Abolition   Act   etc.,   would   entitle   the   pattadar   to
subsoil/mineral rights or is confined only to surfacial rights is  a  matter
on which we are not expressing  any  opinion  in  this  case.  We  are  only
dealing with the legal rights of  the  pattadars  holding  lands  under  the
ryotwari system of the Old  Madras  Province,  i.e.  other  than  the  lands
covered by the Estates Land Act – Inam Lands.

45.   That leaves us with another aspect of the matter.  We are required  to
examine the correctness of the conclusion recorded by the High Court on  the
basis of the four judgments referred to in para 12 (supra) that  a  ryotwari
pattadar is not entitled to the subsoil (minerals) in his patta land.

46.    The  first  decision  relied  upon  is  Secretary  of  State  v.  Sri
Srinivasachariar, AIR 1921 PC 1.  In our view, the reliance  placed  by  the
High Court on the abovementioned judgment is wholly  misplaced.   It  was  a
case where the holder of shrotriem inam granted some 160 years prior to  the
decision “by the Government that existed prior to  the  British  Government”
claimed that the shrotriemdas had unfettered rights to quarry stone  in  the
shrotriem village without payment of any royalty.   The Privy  Council  held
that the rights of the shrotriemdas depended upon the language and terms  of
the original grant.  We have already noticed  that  the  said  judgment  was
considered and relied upon by this Court  in  Duvvuru  Balarami  Reddy  case
(supra).  What is important in the present context is that the issue in  Sri
Srinivasachariar (supra) is not with  reference  to  any  claim  of  subsoil
rights in a land held under ryotwari patta.  Whatever was  decided  in  that
case  is  wholly  inapplicable  to  the  rights  of  a  ryotwari   pattadar.
Nowhere it was laid down in the  said  decision  that  irrespective  of  the
nature of the tenure – all mineral wealth in  this  country  vested  in  the
Crown or the State.

47.   The next case relied upon by the High Court is T.  Swaminathan  (Dead)
and Another v. State Of Madras and others, AIR 1971 Mad 483.  A  passage[22]
occurring in the said judgment was relied upon in support of the  conclusion
that a ryotwari pattadar has  no  right  to  the  subsoil/minerals.   It  is
unfortunate that the Madras High Court opined that it is a well  established
proposition that all minerals underground belong to the  Crown  and  now  to
the State. Such a statement of  law  is  recorded  without  any  explanation
whatsoever nor examination of any legal principle.  From our  discussion  so
far, we have already reached the conclusion that neither in England  nor  in
this country, at least in  the  Old  Madras  Province,  during  the  British
regime, there was any such established  proposition  of  law  that  all  the
minerals belong to the Crown.  On the other  hand,  the  available  material
only leads to an inevitable conclusion otherwise.


48.   The next case relied upon by the Kerala High Court  is  Sashi  Bhushan
Misra v. Jyoti Prasad Singh Deo, AIR 1916 PC 191.  This decision once  again
dealt with the rights of an inamdar particularly an inam which was not  part
of the Old Madras Province.  Therefore, the decision  is  wholly  irrelevant
in deciding the rights of a ryotwari pattadar especially in the  Old  Madras
Province.


49.   We are only sorry to notice that the next  case  relied  upon  by  the
Kerala High Court according to the judgment under appeal is ILR 1969 AP  736
titled Kaliki Subbarami Reddy v. Union of India.  We  searched  in  vain  to
secure this judgment. Though there is a case reported by the  abovementioned
cause title, which was decided in 1979 i.e. AIR 1980 AP 147 : 1980 (1)  APLJ
117.  At  any  rate,  in  the  light  of   our   earlier   discussion,   the
observation[23] relied upon by the judgment  under  appeal,  allegedly  from
the above case, should not make any difference.


50.   Equally the observations[24] made in the case of V.  Gangarathinam  v.
State of Tamil Nadu, 1990 TNLJ 374 is without any basis.


51.   The other  material  which  prompted  the  High  Court  to  reach  the
conclusion that the subsoil/minerals vest in the State is (a) recitals of  a
patta which is already noted by us earlier (in para 12)  which  states  that
if minerals are found in the property  covered  by  the  patta  and  if  the
pattadar exploits those minerals, the pattadar is liable for a separate  tax
in addition to the tax shown in the patta and (2)  certain  standing  orders
of the Collector of Malabar which provided  for  collection  of  seigniorage
fee in the event of the mining operation being carried on.  We  are  of  the
clear opinion that the recitals in the patta  or  the  Collector’s  standing
order that the exploitation of  mineral  wealth  in  the  patta  land  would
attract additional tax, in our opinion,  cannot  in  any  way  indicate  the
ownership of the State in the minerals.  The power to  tax  is  a  necessary
incident  of  sovereign  authority  (imperium)  but  not  an   incident   of
proprietary rights (dominium).  Proprietary right is a compendium of  rights
consisting of various constituent, rights.   If a person has  only  a  share
in the produce of some property, it can never be  said  that  such  property
vests in such a person.   In  the  instant  case,  the  State  asserted  its
‘right’ to demand a share in the ‘produce of  the  minerals  worked’  though
the expression employed is right – it is in  fact  the  Sovereign  authority
which is asserted.  From the language of the BSO  No.10  it  is  clear  that
such right to demand the share could  be exercised only  when  the  pattadar
or somebody claiming through the pattadar,  extracts/works  the  minerals  –
the   authority of the State to collect money on the happening of  an  event
– such a demand is more  in  the  nature  of  an  excise  duty/a  tax.   The
assertion of authority to collect a duty or tax  is  in  the  realm  of  the
sovereign authority, but not a proprietary right.

52.   On the other hand, it appears from the judgment under appeal that  the
State  of  Kerala  itself  produced  the  BSO  No.10  referred  to  (supra).
Unfortunately, neither the content of the said order nor  the  legal  effect
of the said order has been examined by the High Court  and  the  High  Court
with reference to the said order made a cursory observation as follows:
               “The State has also produced the proceedings of the Board of
          Revenue, dated 19th March, 1888 as Ext.R1(L). By that proceedings,
          standing order No.10 is issued in  supersession  of  the  existing
          standing order.  It categorises four kinds of  lands.   The  first
          head is the estates held on sanads of permanent settlement, second
          is the enfranchised inam lands and  the  third  is  the  religious
          service tenements conferred under  the  inam  rules  on  perpetual
          service tenure and the fourth is the lands  held  on  title-deeds,
          issued under the waste land rules, prior to 7th October  1870,  in
          which no reservation of the right of  the  State  to  minerals  is
          made.”

53.   The only other submission which we are required to  deal  with  before
we part with this matter is the argument of  the  learned  counsel  for  the
State that in view of the scheme of the Mines and Minerals (Development  and
Regulation) Act, 1957 which prohibits under Section 4[25]  the  carrying  on
of any mining activity  in  this  country  except  in  accordance  with  the
permit, licence or mining lease as the case may be, granted under  the  Act,
the appellants cannot claim any proprietary right in the sub-soil.  
In  our view, this argument is only stated to be rejected.

54.   Mines and Minerals Act is an  enactment  made  by  the  Parliament  to
regulate the mining activities in this country.  
The said Act  does  not  in
any way purport to declare the  proprietary  rights  of  the  State  in  the
mineral wealth nor does it contain any provision divesting any  owner  of  a
mine of his proprietary rights.  
On the other hand, various enactments  made
by the Parliament such as Coking Coal Mines (Nationalisation) Act, 1972  and
Coal Bearing Areas (Acquisition and  Development)  Act,  1957  make  express
declarations  under  Section  4  and  7   respectively[26]   providing   for
acquisition of the mines and rights in or over the land from which  coal  is
obtainable. 
If the understanding of the State of Kerala that in view of  the
provisions of the Mines and Minerals  Development  (Regulation)  Act,  1957,
the proprietary rights in mines stand transferred and vest in the State,  it
would be wholly an unnecessary exercise on the part  of  the  Parliament  to
make laws such as the ones mentioned above dealing with the  nationalisation
of mines.

55.   Even with regard to the  minerals  which  are  greatly  important  and highly sensitive in the context  of  the  national  security  and  also  the security of humanity like uranium  -   the  Atomic  Energy  Act,  1962  only provides under  Section  5[27]  for  prohibition  or  regulation  of  mining activity in such mineral.  Under Section 10[28] of the Act, it is  provided
that the Government of India may  provide  for  compulsory  vesting  in  the
Central Government of exclusive rights to work  those  minerals.
The  said Act does not in any way declare the proprietary right of the State.

56.   Similarly, the Oilfields (Regulation and Development) Act, 1948  deals with the oilfields containing crude oil, petroleum etc. which are  the  most important minerals in the modern world.   
The Act does not anywhere  declare the proprietary right of the State.
57.   For the above-mentioned reasons,
we are of the opinion that
 there  is nothing in the law which declares that all mineral  wealth  sub-soil  rights vest in the State, on the other  hand,  the  ownership  of  sub-soil/mineral wealth should normally follow the ownership of the land,  unless  the  owner of the land is deprived of the same by some valid process.  In  the  instant appeals, no such deprivation is brought to our notice and therefore we  hold
that the appellants are the proprietors of the minerals obtaining  in  their lands.
We make it clear that we are not making  any  declaration  regarding their liability to pay royalty to the State as that  issue  stands  referred to a larger Bench.
                                                            ………………………………….J.
                                                 (R.M. LODHA)

                                                            ………………………………….J.
                                                 (J. CHELAMESWAR )
                                                            ………………………………….J.
                                                (MADAN B. LOKUR )
New Delhi;
July 8, 2013.







|                      |

                           -----------------------
[1]    Parts of Kerala popularly known as Malabar area which earlier  formed
part of the erstwhile Madras province in the British India

[2]    The expression  jenmi  etymologically  means  the  holder  of  jenmom
rights in a piece of land.  Though the expression is defined in some of  the
enactments pertaining to the present State of Kerala, such  definitions  are
enactment  specific  but  not  comprehensive  to  describe  the  full  legal
contours of the jenmom rights.

[3]    In Malabar the exclusive right to, and hereditary possession of,  the
soil is denoted by the term jenmam which means  birthright  and  the  holder
thereof is known as jenmi, jenmakaran or mutalalan.   Until the conquest  of
Malabar by the Mahomedan princes of Mysore, the jenmis appear to  have  held
their lands free from any liability to make any payment, either in money  or
in produce, to government and therefore until that period, such an  absolute
property was vested in them as was not  found  in  any  other  part  of  the
Presidency.  The late Sir Charles Turner after noticing  the  various  forms
of transactions prevalent in  Malabar  remarked  that  they  pointed  to  an
ownership of the soil  as  complete  as  was  enjoyed  by  a  freeholder  in
England.

      These jenmis have been from time immemorial exercising  the  right  of
selling, mortgaging, or otherwise dealing with the property.  They had  full
absolute  property  in  the  soil.   (Ref.  “Land  Tenures  in  the   Madras
Presidency”, S. Sundararaja Iyengar, Second Edition, Page 49-50).

[4]    [Vol.31, 4th Ed. pp.28-29]

[5]    Kunhikoman case – Para 12.  …..The usual feature  of  land-tenure  in
Madras was the ryotwari form but in some districts,  a  landlord  class  had
grown up both in the northern  and  southern  parts  of  the  Presidency  of
Madras as it was before the  Constitution.   The  permanent  settlement  was
introduced in a part of the Madras Presidency  in  1802.   There  were  also
various tenures arising out of revenue free grants  all  over  the  Province
(see Chap. IV, Vol. III of Land Systems of British India  by  Baden  Powell)
and sometimes in some districts both  kinds  of  tenures,  namely,  landlord
tenures and the ryotwari tenures were prevalent.   There were various  Acts,
in force in the Presidency of Madras with respect to landlord tenures  while
ryotwari tenures were governed by  the  Standing  Orders  of  the  Board  of
Revenue.
[6]    Para 12 of Kunhikoman (supra) - …..Eventually, in 1908, the Madras
legislature passed the Madras Estates Land Act, No. 1 of 1908 ………………… This
Act applied to the entire Presidency of Madras except the Presidency town
of Madras, the district of Malabar and …….
[7]    Section 7 – Reservation of mining  rights  -   Nothing  in  this  Act
shall affect any right of a landholder  to  make  a  reservation  of  mining
rights on admitting any person to possession of ryoti land.
[8]    Section 3(b) -   the  entire  estate  including  minor  imams  (Post-
settlement or pre-settlement)  included  in  the  assets  of  the  zamindari
estate at the permanent settlement of that estate; all  communal  lands  and
porambokes; other non-ryoti lands; waste lands; pasture lands; Lanka  lands;
forests; mines  and  minerals;  quarries;  rivers  and  streams;  tanks  and
irrigation works; fisheries; and ferries, shall  stand  transferred  to  the
Government and vest in them,  free  of  all  encumbrances;  and  the  Andhra
Pradesh (Andhra Area) Revenue Recovery Act, 1864 the Andhra Pradesh  (Andhra
Area) Irrigation Cess Act, 1865  and  all  other  enactments  applicable  to
ryotwari areas shall apply to the estate;
[9]     2-A. Transfer to, and vesting in  the  Government  of  all  communal
lands,  porambokes  etc.  in   inam  lands  -     Notwithstanding   anything
contained in this Act all communal  lands  and  porambokes,  grazing  lands,
waste  lands,  forest  lands,  mines  and  querries,  tanks,  tank-beds  and
irrigation works, streams and rivers, fisheries  and  ferries  in  the  inam
lands shall stand transferred to the Government and vest  in  them  free  of
all encumbrances.
[10]
      [11] AIR 1963 SC 264

[12]    The main  question  therefore  that  falls  for  decision  in  these
appeals is  whether  shrotriemdars  can  be  said  to  have  rights  in  the
minerals. (para 7)
[13]   This matter has been the subject of consideration by the Madras  High
Court on a number of occasions and eventually the  controversy  was  set  at
rest by the decision of the Judicial Committee in Secy. Of State  for  India
v. Srinivasachariar, 48 Ind App 56 : (AIR 1921 PC 1).   That  case  came  on
appeal to the Judicial Committee from the decision of the Madras High  Court
in Secy. Of State for India v. Srinivasachariar, ILR 40 Mad 268 : (AIR  1918
Mad 956).  The controversy before the Madras High Court was with respect  to
a shrotriem inam which was granted by the Nawab of Carnatic in 1750 and  had
been enfranchised by the British Government in 1862. (para 7)

              The Judicial Committee held that the grant  of  a  village  in
inam might be no more than an assignment of revenue, and  even  where  there
was included a grant of land, what interest in the land passed  must  depend
on the language of the instrument and the circumstances of each  case.   The
Judicial Committee also considered the  standing  orders  of  the  Board  of
Revenue of 1890 and 1907 which have been referred to by the appeal court  in
the judgment under appeal.  This decision thus  establishes  that  the  mere
fact that a person is the holder of an inam grant would  not  by  itself  by
enough to establish that the inam  grant  included  the  grant  of  sub-soil
rights in addition to the surface rights and  that  the  grant  of  sub-soil
would depend upon the language used in the grant.  If there are no words  in
the grant from which the grant of sub-soil rights can be  properly  inferred
the inam grant would only convey the surface rights to the grantee, and  the
inam grant could not by itself be equated to a complete transfer  for  value
of all that was in the grantor.  (para 8)
[14]   Para 13 of Kunhikoman (supra) – ……The  other  class  of  land-tenures
consisted of ryotwari pattadars which were governed by the Board’s  Standing
Orders, there being no Act of the legislature with  respect  to  them.   The
holders of ryotwari pattas used to hold  lands  on  lease  from  Government.
The basic idea of ryotwari settlement is that every bit of land is  assessed
to a certain revenue and assigned a survey number for  a  period  of  years,
which is usually thirty and each occupant of such land holds it  subject  to
his paying the land-revenue fixed on that land.   But  it  is  open  to  the
occupant to relinquish  his  land  or  to  take  new  land  which  has  been
relinquished by  some  other  occupant  or  become  otherwise  available  on
payment of assessment (see Land Systems of british  India  by  Baden-Powell,
Vol. III, Chap. IV S. II, p.  128).   Though,  theoretically,  according  to
some authorities the occupant of ryotwari  land  held  it  under  an  annual
lease (see Macleane, Vol. I Revenue Settlement, p. 104), it appears that  in
fact the Collector had no power to terminate the tenant’s  holding  for  any
cause whatever  except  failure  to  pay  the  revenue  or  the  ryot’s  own
relinquishment or abandonment.  The ryot is generally called  a  tenant,  of
Government but he is not a tenant from year to year and cannot be ousted  as
long as he pays the land revenue assessed.   He has also the right  to  sell
or mortgage or gift the land or lease it and the transferee  becomes  liable
in his place for the revenue.   Further, the lessee of a  ryotwari  pattadar
has no rights except those conferred under the lease and is generally a sub-
tenant at will liable to ejectment at  the  end  of  each  year.     In  the
Manual of Administration, as quoted by Baden Powell, in  Vol.  III  of  Land
Systems of British India at p. 129, the ryotwari  tenure  is  summarized  as
that
      “of a tenant of  the  State  enjoying  a  tenant-right  which  can  be
inherited, sold, or burdened for debt in precisely  the  same  manner  as  a
proprietary right, subject always to payment  of  the  revenue  due  to  the
State”.
      Though therefore the ryotwari pattadar is virtually like a  proprietor
and has many of  the  advantages  of  such  a  proprietor,  he  could  still
relinquish or abandon his land in favour of the Government.   It is  because
of  this  position  that  the  ryotwari  pattadar  was  never  considered  a
proprietor of  the  land  under  his  patta,  though  he  had  many  of  the
advantages of a proprietor.
[15]   In the said case, the Madras High Court had to deal with  the  rights
of a jenmi whose lands were leased out to a third  party  by  the  Collector
(State) without reference to the jenmi and when the tenant defaulted in  the
payment of revenue, property was attached and sold under the  provisions  of
the Madras Revenue Recovery Act.   The  jenmi  successfully  challenged  the
legality of such a sale.

[16]   Para 11 of Balmadies (supra) …….. It  would  appear  from  the  above
that the effect of the  resettlement  of  1926  was  to  retain  the  janmam
estates and not to abolish  the  same  or  to  convert  them  into  ryotwari
estates.   There was merely a change of  nomenclature.    Government  janman
lands were called the new holdings, while private janmam lands  were  called
the old holdings.   In respect of janmabhogam (janmi’s  share)  relating  to
Government janman lands, the order further directed that the  amount  to  be
paid to  the  Government  should  include  both  the  taram  assessment  and
janmabhogam.   It is difficult, in our opinion,  to  infer  from  the  above
that janmam rights in the lands in question were extinguished and  converted
into ryotwari estates.   The use of the word  Janmabhogam  on  the  contrary
indicates that the rights of janmis were kept intact.
[17]   It was an appeal decided by a  Division  Bench  of  the  Madras  High
Court (Sir Charles A. Turner, Kt., Chief Justice, and Mr. Justice  Muttusami
Ayyar).  The appeal  arose  out  of  a  suit  filed  by  the  State  seeking
declaration that certain lands (forest lands) which were the subject  matter
of dispute in the said suit were  the  property  of  the  government  and  a
consequential  injunction  restraining  the  defendants  from  in  any   way
interfering with the rights  of  the  Government.  The  defendants  asserted
their proprietary rights over the lands in dispute.
[18]   Para 11.  …. It would appear from the above that the  effect  of  the
resettlement of 1926 was to retain the janmam estates  and  not  to  abolish
the same or to convert them into ryotwari  estates.    There  was  merely  a
change of nomenclature.    Government  janmam  lands  were  called  the  new
holdings, while private janmam lands were  called  the  old  holdings.    In
respect of janmabhogam (janmi’s share) relating to Government janman  lands,
the order further directed that the account to be  paid  to  the  Government
should include both the term assessment and janmabhogam.   It is  difficult,
in our opinion, to infer from the above that janmam rights in the  lands  in
question were extinguished and converted into ryotwari  estates.    The  use
of the word ‘Janmabhogam’ on the  contrary  indicates  that  the  rights  of
janmis were kept intact.
[19]   RESOLUTION – dated 19th March 1888, No. 277.

      In supersession of the  existing  Standing  Order,  the  following  is
issued as Standing Order No. 10 :-

      1.    The State lays no claim to minerals -

      G.O. 26th May, 1882, No. 511 (Notification, paragraph 1).
      (a) In estates held on sanads of permanent settlementG.O. 28th October
 1882 No.1181(b) In enfranchised inam lands
       G.O.  28th  April  1881  No.861(c)  In  religious  service  tenements
confirmed under the inam rules on perpetual service tenure.
      (d) In lands held on title  –  deeds,  issued  under  the  waste  land
rules, prior to 7th October, 1870, in which no reservation of the  right  of
the State to minerals is made.

 2.   The right of the State in minerals is limited in the following  cases
    to a share in the produce of the minerals worked, commuted into a money
    payment,  if thought necessary, by Government, in like manner with  and
    in addition to the land assessment :-


      G.O. 8th October 1883 No.1248.(a) In lands occupied for  agricultural
purposes under ryotwari pattas G.O. 23rd January 1881 No.121(b)  In   janmom
lands in MalabarG.O. 16th December 1881 No.1384
      Persons intending to work minerals in those lands should  give  notice
of their intention to the Collector of the district,  specifying  the  lands
in which they intend to carry on mining operation  and  should  pay  in  two
half-yearly instalments a special assessment for  minerals  in  addition  to
the land assessment at the following rates:-
                                                         Per acre (Rs.)
   1.       For mining for gold                                     5
   2.       For mining for metals other than gold                         2
   3.        For   mining   for   diamonds   and   other   precious   stones
      15
   4.       For mining for coal, lime-stone or  quarrying for building stone
      … (Such rates as may be fixed by the Board from time to time


      The rates will be doubled if mining operations are carried on  without
giving notice to the

      Board’s  proceedings  dated  10th  July  1882  No.1751Collector.   The
special assessment will be entered in the patta granted  for  the  land  and
collected under the provisions of Act II of 1834 Madras.  No   charge   will
be   made   for merely prospecting for minerals in patta lands if mines  are
not regularly worked.  No remission will be granted in respect of  any  land
rendered unfit  for  surface  cultivation  by  the  carrying  on  of  mining
operations.  This rule does not of course afeet in any way the  right  which
all holders of lands on patta possess of digging wells in  their  lands  and
of disposing of the gravel and stones which may be thrown up in the   course
of such excavation.

[20]   294 -  As from the commencement of this Constitution –
       (a)   all  property  and  assets  which   immediately   before   such
commencement were vested in His Majesty for the purposes of  the  Government
of the Dominion of India and  all  property  and  assets  which  immediately
before such commencement were vested in His Majesty for the purposes of  the
Government of each Governor’s Province shall vest respectively in the  Union
and the corresponding State, and
      (b) all rights, liabilities and obligations of the Government  of  the
Dominion of India and of the Government of each Governor’s Province  whether
arising out of any contract or otherwise, shall be the  rights,  liabilities
and obligations respectively of the Government of India and  the  Government
of each corresponding State,
      Subject to any adjustment made  or  to  be  made  by  reasons  of  the
creation before the commencement of this Constitution  of  the  Dominion  of
Pakistan or of the Provinces of West Bengal, East Bengal,  West  Punjab  and
East Punjab.
[21]   Section 297 was amended  by  the  Constitution  (Fortieth  Amendment)
Act, 1976.
[22]
      [23] 297 –  Things of value within territorial waters  or  continental
shelf and resources of the exclusive economic zone to vest in the Union

      (1)   All lands, minerals and other things  of  value  underlying  the
ocean within the territorial  waters,  or  the  continental  shelf,  or  the
exclusive economic zone, of India shall vest in the Union and  be  held  for
the purposes of the Union.
      (2)   All other resources of the  exclusive  economic  zone  of  India
shall also vest in the Union and be held for the purposes of the Union.
      (3)   The limits of the territorial  waters,  the  continental  shelf,
the exclusive economic zone, and other maritime zones,  of  India  shall  be
such as may be specified, from time to time, by or under  any  law  made  by
Parliament.
[24]   So, as a ryotwari pattadar, he has every right  to  the  use  of  the
surface of the soil, but his proprietary right, if any, in  our  view,  does
not extend to  the  minerals  of  the  soil.   It  was  a  well  established
proposition that all minerals underground belonged to the Crown, and now  to
the State, except in so far as the State has parted with the same wholly  or
partly in favour of an individual or body.
[25]   “Not a single case has been cited before us in which it was held
that a ryotwari pattadar is the owner of sub-soil rights”.
[26]   “from the extracts given above, we do not think that it is possible
to arrive at any other conclusion except to hold that the State is the
owner of the minerals underneath the surface.   Therefore, we agree with
the learned Advocate General that the State is the owner of the minerals”.
[27]   4. Prospecting or mining operations to be under licence or lease :  -
(1)  No person shall undertake any  reconnaissance,  prospecting  or  mining
operations in any area, except under and in accordance with  the  terms  and
conditions of a reconnaissance permit or of a  prospecting  licence  or,  as
the case  may be, a mining lease, granted under this Act and the rules  made
thereunder]:

       Provided  that  nothing  in  this  sub-section   shall   affect   any
prospecting or mining operations undertaken in any area in  accordance  with
the terms and conditions of a  prospecting licence or mining  lease  granted
before  the  commencement  of  this  Act  which   is  in   force   at   such
commencement.

      Provided further that nothing in this sub-section shall apply  to  any
prospecting operations  undertaken by the Geological Survey  of  India,  the
Indian Bureau of Mines,  the Atomic  Minerals  Directorate  for  Exploration
and Research of the Department of Atomic  Energy of the Central  Government,
the Directorates of  Mining  and  Geology  of  any  State  Government  (  by
whatever name called ), and the Mineral Exploration Corporation  Limited,  a
Government Company within the meaning of Section 617 of the Companies   Act,
1956.

[28]   Section 4 of Coking Coal Mines (Nationalisation) Act, 1972 – 4(1)  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.

             (2)   For the removal of doubts, it  is  hereby  declared  that
if, after the appointed  day,  any  other  coal  mine  is  found,  after  an
investigation  made  by  the  Coal  Board,  to  contain  coking  coal,   the
provisions of the  Coking  Coal  Mines  (Emergency  Provisions)  Act,  1971,
shall, until that mine is nationalized by an appropriate  legislation  apply
to such mine.

      Section 7 of Coal Bearing Areas  (Acquisition  and  Development)  Act,
1957 – 7(1) If the Central Government is satisfied that coal  is  obtainable
in the whole or any part of the  land  notified  under  sub-section  (1)  of
section 4, it may, within a period of two years from the date  of  the  said
notification or within such further period not exceeding  one  year  in  the
aggregate  as  the  Central  Government  may  specify  in  this  behalf,  by
notification in the Official  Gazette,  give  notice  of  its  intention  to
acquire the whole or any part of the land or of any rights in or  over  such
land, as the case may be.

      (2)   if no notice to acquire the land or any rights in or over such
land is given under sub-section (1) within the period allowed thereunder,
the notification issued under sub-section (1) of section 4 shall cease to
have effect on the expiration of three years from the date thereof.
[29]     Section 5 - Control over  mining  or  concentration  of  substances
containing uranium

            (1) If the Central Government is satisfied that  any  person  is
      mining or is about to mine any substance from which, in the opinion of
      the Central Government, uranium can be or may reasonably  be  expected
      to be, isolated or extracted, or is engaged or is about to be  engaged
      in  treating  or  concentrating   by   any   physical,   chemical   or
      metallurgical process any substance from which, in the opinion of  the
      Central Government, uranium can be or may reasonably  be  expected  to
      be, isolated or extracted, the Central Government  may  by  notice  in
      writing given to that person either --


           (a) require him  in  conducting  the  mining  operations  or  in
        treating or concentrating the substance aforesaid  to  comply  with
        such terms and conditions and adopt such processes as  the  Central
        Government may in the notice, or  from  time  to  time  thereafter,
        think fit to specify, or


           (b) totally prohibit him from conducting the  mining  operations
        or treating or concentrating the substance aforesaid.


            (2) Where any terms and conditions are  imposed  on  any  person
      conducting any mining operations  or  treating  or  concentrating  any
      substance under cl. (a) of sub-section  (1),  the  Central  Government
      may, having regard to the nature of the terms and  conditions,  decide
      as to whether or not to pay any compensation to that  person  and  the
      decision of the Central Government shall be final :


           Provided that where the Central Government decides  not  to  pay
        any compensation, it shall record  in  writing  a  brief  statement
        giving the reasons for such decision.


            (3) Where the Central Government decides to pay any compensation
      under sub-section (2), the  amount  thereof  shall  be  determined  in
      accordance  with  section  21  but  in  calculating  the  compensation
      payable, no account shall  be  taken  of  the  value  of  any  uranium
      contained in the substance referred to in sub-section (1).


            (4) Where any mining operation or any process  of  treatment  or
      concentration of any substance is prohibited under clause (b) of  sub-
      section (1), the Central Government  shall  pay  compensation  to  the
      person conducting the  mining  operations  or  using  the  process  of
      treatment or concentration and the amount of such  compensation  shall
      be determined in accordance with section 21  but  in  calculating  the
      compensation payable, no account shall be taken of the  value  of  any
      uranium contained in the substance.


[30]     Section 10 - Compulsory acquisition of rights to work minerals

            (1) Where it appears to the Central Government that any minerals from which in its opinion any of  the  prescribed  substances  can  be obtained are present in or on any land, either in a natural  state  or in a deposit of  waste  material  obtained  from  any  underground  or surface working, it may by order provide for compulsorily  vesting  in the Central Government the exclusive  right,  so  long  as  the  order remains in force, to work those minerals and any other minerals  which  it appears to the Central Government to  be  necessary  to  work  with  those minerals, and may also provide, by that order  or  a  subsequent  order, for compulsorily vesting in the Central  Government  any  other
  ancillary  rights  which  appear  to  the  Central  Government  to  be  necessary for the purpose of working the minerals aforesaid  including
      (without prejudice to the generality of the foregoing provisions)--


           (a) rights to withdraw support;


           (b) rights necessary for the purpose of access to or  conveyance  of the minerals aforesaid or the ventilation  or  drainage  of  the    working;


           (c) rights to use and occupy the surface of  any  land  for  the
        purpose of erecting any  necessary  buildings  and  installing  any  necessary plant in connection with  the  working  of  the  minerals  aforesaid;


           (d) rights to use and occupy for  the  purpose  of  working  the  minerals aforesaid any land forming part of or used  in  connection with an existing mine or quarry, and to use or  acquire  any  plant  used in connection with any such mine or quarry; and


           (e) rights to obtain a supply of water for any of  the  purposes connected with the working of the minerals aforesaid, or to dispose  of water or other liquid matter obtained in consequence of  working   such minerals.


            (2) Notice of any order proposed to be made under  this  section shall be served by the Central Government--


           (a) on all persons who, but for the order, would be entitled  to   work the minerals affected; and


           (b) on every owner, lessee and occupier (except  tenants  for  a   month or for less than a month) of any land  in  respect  of  which  rights are proposed to be acquired under the order.


            (3) Compensation in respect of any  right  acquired  under  this   section  shall  be  paid  in  accordance  with  section  21,  but   in  calculating the compensation payable, no account shall be taken of the   value of any minerals present in or on land  affected  by  the  order,
      being minerals specified in the order, as  those  from  which  in  the  opinion of the  Central  Government  uranium  or  any  concentrate  or  derivative of uranium can be obtained.



-----------------------
39


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.