Page 1 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 8

th

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

Page 2 the Kerala High Court dated 2

nd

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

1

Parts of Kerala popularly known as Malabar area which earlier formed part of

the erstwhile Madras province in the British India

Page 3 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.

Page 4 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 30

th

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.

Page 5 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 19

th

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).

Page 6 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

Page 7 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

Page 8 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 19

th

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,

Page 9 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.”

4

[Vol.31, 4

th

Ed. pp.28-29]

Page 10 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

Page 11 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

Page 12 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

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.

Page 13 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

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.

Page 14 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

10

AIR 1963 SC 264

11

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)

12

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)

Page 15 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

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)

Page 16 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

13

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.

Page 17 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

19

th

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:-

14

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.

Page 18 “.. 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

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 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

15

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

Page 19 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:-

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.

16

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.

Page 20 “…………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 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

under British rule, all the forests were claimed as

private property (I.R.R., 3 Bom. 586). 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 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….”

Page 21 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

17

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.

18

RESOLUTION – dated 19

th

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 -

Page 22 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 7

th

October, 1870, in

G.O. 26

th

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. 28

th

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 7

th

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. 8

th

October 1883 No.1248.(a) In lands occupied for agricultural purposes under ryotwari

pattas G.O. 23

rd

January 1881 No.121(b) In janmom lands in MalabarG.O. 16

th

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 10

th

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.

Page 23 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.

Page 24 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 19

th

March, 1888, no law to the contra is brought to our

notice. Nor any law made by the Republic of India is

Page 25 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

]

19

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.

20

Section 297 was amended by the Constitution (Fortieth Amendment) Act, 1976.

21

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

Page 26 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,

under any law made by Parliament.

Page 27 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

Page 28 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

Page 29 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

22

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.

Page 30 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.

Page 31 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

23

“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”.

24

“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”.

Page 32 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

Page 33 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 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.”

Page 34 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

25

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.

Page 35 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

26

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.

Page 36 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

27

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).

Page 37 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.

(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.

28

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--

Page 38 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

(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.

Page 39 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.

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