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2013 (7) TMI 1024
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....ea 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 Parts of Kerala popularly known as Malabar area which earlier formed part of the erstwhile Madras prov....
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....fect 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 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. 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 abs....
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....m 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; an....
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....ition 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 From To 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 Ma....
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....ere governed by the Standing Orders of the Board of Revenue. 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 ....... the possession of the ryoti land. 7 By necessary implication it follows that the landholder had the legal right and title to the minerals /s ubsoil 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 /s ubsoil 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....
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.... therefore that falls for decision in these appeals is whether shrotriemdars can be said to have rights in the minerals. (para 7) 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. 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 Judicia....
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....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 ....
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....prietor 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 17 th 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 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 provi....
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....ellesley 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 31 st December 1799 and the 18 th June 1801, have not been adduced, but their purport appears from the despatch of the 19 th 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 ....
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....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. 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 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. 28 th 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 - de....
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....s (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 7 th 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 sti....
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....espectively 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. 20 Section 297 was amended by the Constitution (Fortieth Amendment) Act, 1976. 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 enacted21] 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 happe....
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....ven 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 / m i neral 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. 28 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 abovemention....
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....rt 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 / m i nerals vest in the State is (a) recitals of a patta which is already noted by us ....
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....rt 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 19 th 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 7 th 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 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, exce....
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....ion) 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 (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 not....
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....he 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. Section 10 - Compulsory acquisition of rights to work minerals 56. Similarly, the Oilfields (Regulation and Development) Act, 1948 deals with the oilfields containing crude oil, petroleum etc. which are th....