ORDER Pandey, J. This petition under Article 226 of the Constitution is directed against the proceedings initiated u/s 218 (4) of the Central Provinces Land Revenue Act, 1917 (hereinafter called the Act), at the instance of Thakur Ajitsingh (respondent No. 4). The petitioner, who would thereby be prejudicially affected, seeks a writ of certiorari to quash the order of the Collector of Chhindwara dated 24th March 1953 and the appellate orders of the Commissioner and the Board of Revenue dated 21st June 1953 and 20th June 1960 respectively. The petitioner has also prayed for a writ of mandamus directing these authorities to forbear from usurping the jurisdiction, and continuing the proceedings under the aforesaid provision of the Act in pursuance of the application made by the respondent No. 4. The petitioner carries on the business of mining and holds an assignment of the mineral rights in relation to certain areas situate in villages Dongaria and Kolhia, which, prior to the commencement of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Abolition Act), formed a part of the Pachmarhi Estate and belonged to the respondent No. 4 For the proper enjoyment of the mineral concessions granted to the petitioner, it wanted to acquire the surface rights over 8.98 acres of the area and entered into correspondence with the respondent No. 4. It transpired that a part of the area was built upon by others who bad in the buildings thereon erected their shops. The respondent No. 4. expressed his inability to hand over that part of the area to the petitioner, who, thereupon, by a letter dated 29th September 1950 abandoned the idea of acquiring 6.65 acres of the area. In 1955, the respondent No. 4 applied to the Collector (respondent No. 3) for a direction to the petitioner for payment of compensation for occupation of the area and disturbance of its surface. While the proceedings were pending before the Sub-Divisional Officer, the petitioner raised two preliminary objections before the Collector. One was that compensation was a matter within the exclusive jurisdiction of civil Courts and the other was that, upon the commencement of the Abolition Act, the respondent No. 4 ceased to be entitled to any compensation. These objections were overruled. While the proceedings were pending before the Sub-Divisional Officer, the petitioner raised two preliminary objections before the Collector. One was that compensation was a matter within the exclusive jurisdiction of civil Courts and the other was that, upon the commencement of the Abolition Act, the respondent No. 4 ceased to be entitled to any compensation. These objections were overruled. The petitioner then filed two successive appeals urging that it had not in fact occupied or disturbed the surface of the area and that, in view of the provisions of the Abolition Act, no compensation was payable to the respondent No. 4. The first ground was repelled because it was not raised before the Collector and also for the reason that it was a question of fact which bad still to be investigated. In regard to the second ground, the Board took the view that the right of the respondent No. 4 to claim compensation was saved by section 4(3) of the Abolition Act. The petitioner has challenged the validity of the proceedings, firstly, on the ground that the respondent No. 4 is disentitled to claim any compensation for trespass on his land which, under the provisions of the Abolition Act, has vested in the State and, secondly, for the reason that a trespass simpliciter, being an actionable wrong, is outside the purview of section 218 of the Act. For a consideration of the matter in dispute, the provisions of section 218 of the Act are relevant. They read as follows: 218. (1) Unleee it is otherwise expressly provided in the records of a settlement or by the terms of a grant made by the Crown, the right to all minerals, mines and quarries and to all fisheries in navigable rivers shall vest in Crown, which shall have all powers necessary for the proper enjoyment of such rights. (2) The right to all mines and quarries includes the right of access to land for the purpose of mining and quarrying and the right to occupy such other land as may be necessary for purposes subsidiary thereto, including the erection of offices, workmen's dwellings and machinery, the stacking of minerals and deposits of refuse, the construction of roads, railways or tram lines, and any other purpose which the Chief Commissioner may declare to be subsidiary to mining and quarrying. (3) If the Crown has assigned to any person its right over any minerals, mines or quarries, and if for the proper enjoyment of such right it is necessary that all or any of the powers specified in sub-sections (1) and (2) should be exercised, the Deputy Commissioner may, by an order in writing, subject to such conditions and reservations as he may prescribe, delegate such powers to the person to whom the right has been assigned : Provided that no such delegation shall be made until notice has been duly served on all persons having rights in the land affected, and their objections have been heard and considered. (4) If, in the exercise of the right herein referred to over any land, the rights of any person are infringed by the occupation or disturbance of the surface of such land, the Crown or its assignee shall pay to such persons compensation for such infringement, and the amount of such compensation shall be calculated by the Deputy Commissioner, or if his award is not accepted by the civil Court, as nearly as may be, in accordance with the provisions of the Land Acquisition Act, 1894. (5) No assignee of the Crown shall enter on or occupy the surface of any land without the previous sanction of the Deputy Commissioner, unless the compensation has been determined and rendered to the persons whose rights are infringed. (6) If an assignee of the Crown fails to pay compensation as provided in subsection (4), the Deputy Commissioner may recover such compensation from him on behalf of the person entitled to it, as if it were an arrears of land revenue. (7) Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in and has not been assigned by the Crown, shall, without prejudice to any other action that may be taken against him, be liable, on the order in writing of the Deputy Commissioner, to pay a penalty not exceeding a sum calculated at the rate of fifty rupees per ton or a fraction thereof, of the minerals so extracted or removed: Provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Deputy Commissioner may impose. Explanation. Explanation. - In this section "minerals' include any sand or clay which the Chief Commissioner may declare to have a commercial value or to be required for any public purpose. It is not well recognised that there can be different ownership of different strata of the soil, at all events where minerals are involved: Bhupendra Narayan Sinha v. Rajeswar Prasad Bkakat AIR 1981 PC 162 : 58 IA 228. Section 218 of the Act recognised this principle and provided : (i) When the Government made a grant of land with sub-soil rights, including the right to minerals, the grantee, and not the Government, owned the right to the underground minerals. (In old Madhya Pradesh such grants were made by what were usually called Damani Pattas). (ii) In the absence of an express grant of the sub-soil rights, the mere grant of land did not include the right to minerals, mines and quarries which remained vested in the Government. (iii) The right to all minerals, mines and quarries included the right of access to land for the purpose of mining and quarrying and the right to occupy such land as might be necessary for purposes subsidiary thereto. (iv) Since this right of access to, and where necessary occupation of, land for mining or quarrying was likely to infringe the right of the owner of the surface, who might be a different person, neither the Government owning the underground minerals nor its assignee could occupy or disturb the surface without compensation payable to the owner of the surface as nearly as may be in accordance with the provisions of the Land Acquisition Act, 1894. (v) In order to exercise the aforesaid right of access to, and occupation of, the surface, the assignees of the Government had further to fulfill two precedent conditions: (a) They had to apply to the Deputy Commissioner to delegate the power so to do by an order in writing. (b) They could not enter on, or occupy, the surface of any land owned by another without the sanction of the Deputy Commissioner unless the compensation had been determined and tendered to the owner of the surface. (b) They could not enter on, or occupy, the surface of any land owned by another without the sanction of the Deputy Commissioner unless the compensation had been determined and tendered to the owner of the surface. It is obvious from these provisions that an assignee from the Government had no undefined or unqualified right to occupy the surface of land owned by another, that he could do so only in the manner and to the extent permitted by section 218 of the Act and that, if he did BO in violation or disregard of the provisions of that section, he could not justify his action on the basis of a right, apart from these provisions of the statute, said to be implied in the very assignment of the right over underground minerals. Therefore, any occupation of land by an assignee otherwise than in accordance with these provisions amounted to trespass actionable at law. In the instant case, it is conceded that the alleged occupation of the surface was without the requisite delegation or sanction of the Deputy Commissioner and also without tendering, after determination in accordance with the provisions of the Act, the compensation payable to the respondent No, 4. That being so, the petitioner, assuming that it did occupy the land, thereby committed trespass for which it rendered itself liable to pay damages to the respondent No. 4. The right to recover damages for trespass on land is neither property nor an actionable claim. There is a divergence of judicial opinion whether it can be transferred with the land. Apart from the land, it is a mere right to sue and cannot be transferred at all: Chandrasekaranlingam v. Nagabhushanam AIR 1927 Mad. 817, Jai Narayan Pande v. Kishun Dutta Misra AIR 1824 Pat. 551 : ILR 3 Pat. 575 and Bal Krishna Sharma Vs. Paij Singh and Another . It is also not a legal incident of land in that it is not necessary for its permanent use and beneficial enjoyment. As section 8 of the Transfer of Property Act provides, the rents and profits accruing after a sale of land must be regarded as included in the legal incidents of the property, but the profits that accrued prior to the sale, not being necessary to make the sale operative and effective, cannot be said to be subsidiary to the enjoyment of the property. That being the position, when land passes to another by transfer inter vivos or by operation of law, it does not, by itself and without more, carry with it the preexisting right to recover damages for trespass : Sri Sri Iswar Gopal Jew Vs. Globe Theatres Ltd., . In this case, the land trespassed upon vested in the State under the provisions of sections 3 and 4 of the Abolition Act with effect from 31st March 1951. We find no words in these provisions to indicate that thereunder the right to claim damages for trespass on land accruing prior to the date of vesting also vested in the State along with the land. We were, however, referred to the following provision of clause (b) of sub-section (1) of section 4 of the Abolition Act: all grants...of...any right or privilege in respect of such property...shall, whether liable to resumption or not, determine, It was urged that the right to claim compensation u/s 218 of the Act was a grant made by statute and should be regarded as having determined in consequence of the aforesaid provision. We are unable to accept this contention because, in our opinion, that section merely recognised the pre-existing rights of owners of different strata of the soil and provided for payment of compensation to the owner of the surface for compulsory use of his land, as nearly as may be, in accordance with the provisions of the Land Acquisition Act, 1894. We were also referred to sub-section (3) of section 4 of the Abolition Act which reads as follows: Nothing contained in sub-section (1) shall operate as a bar to the recovery by the out going proprietor of any sum which becomes due to him before the date of vesting by virtue of his proprietary rights and any such sum shall be recoverable by him by any process of law which but for this Act would be available to him. It was argued that, since only the right to recover sums which had become due before the date of vesting was saved, it should be inferred that the right to claim un-liquidated damages was not saved and impliedly vested in the State. It was argued that, since only the right to recover sums which had become due before the date of vesting was saved, it should be inferred that the right to claim un-liquidated damages was not saved and impliedly vested in the State. While we agree that un-liquidated damages, until they are determined and quantified in a manner provided by law, do not ripen into any sum which can be regarded as due, we are unable to accept the further contention that, as a consequence of the provision made in sub-section (3) mentioned above, the pre-existing right to claim damages for trespass also vested in the State. As we have indicated earlier, such a right does not ordinarily pass with the land and there are no words in the vesting sections of the Abolition Act to indicate that this right also vested in the State. We think that this principle also applies to sums accrued due before the date of vesting by virtue of the proprietary rights and the above mentioned sub-section (3) should, therefore, be regarded as having been enacted ex a bundanti cautela. The only other question which survives for consideration is whether the respondent No. 4 is entitled to invoke the aid of the provisions of section 218 of the Act to claim damages for trespass on land committed by a holder of mineral concessions in defiance of those provisions. In our opinion, the provisions of sub-section (4) of section 218 of the Act were a part of the integrated process by which the holder of a mineral concession was enabled to occupy such land belonging to another as might be necessary for mining and quarrying and purposes subsidiary thereto. He had no right to occupy any land without a delegation in writing of the right so to do. Even after such delegation, he was expressly prohibited from occupying any land without the sanction of the Deputy Commissioner unless the compensation payable to the owner was first determined in accordance with the provisions of the Act and tendered to him. This being the position, a concession-holder occupying land in contravention of all those provisions could not be regarded as one doing so in the exercise of the right available to him u/s 218 of the Act and sub-section (4) of that section does not apply to such a case. This being the position, a concession-holder occupying land in contravention of all those provisions could not be regarded as one doing so in the exercise of the right available to him u/s 218 of the Act and sub-section (4) of that section does not apply to such a case. On the facts and circumstances like those present in this case, the concession-holder is a trespasser from whom damages can be recovered under the general law. In this view, the remedy pursued by the respondent No. 4 is misconceived and the revenue authorities, in entertaining his application u/s 218 of the Act and proceeding with it, are acting without jurisdiction. We must, however, state that the position would have been entirely different if, before occupying the land, the petitioner had acted in consonance with the provisions of section 218 ibid. The result is that the petition succeeds and is allowed. The proceedings initiated on the application of the respondent No. 4 are quashed. In the circumstances of the case, we direct the parties to bear their own costs. The security amount shall be refunded to the petitioner. Final Result : Allowed