JUDGMENT : Sarkar, J. The appellant is the widow of Shyamsundar Nath Suthoo who was the proprietor of an impartible permanently settled estate, called Darpan Estate, situate in the State of Orissa. On December 12, 1949, the appellant's husband granted her a lease of certain lands, quarries, beds of stones and other minerals lying in the estate for a period of 99 years from December 12, 1949 at an annual rent of Rs. 1000. By a notification dated November 27, 1952, issued under Section 3(1) of the Orissa Estates Abolition Act, 1951, which had come into force on February 9, 1952, the Government of Orissa declared that the entire Darpan Estate had become vested in it. On March 10, 1955, the Collector of Cuttack made an order under Section 5(i) of the Act setting aside the lease. The appellant filed on appeal to the Board of Revenue, Orissa, against the Collector's order but the appeal was dismissed on November 26, 1959. The appellant then moved the High Court of Orissa under Article 226 of the Constitution for : a writ quashing the orders of the Collector and the Board. By a judgment passed on September 5, 1960, the High Court dismissed the application for the writ. The appellant has now appealed to this Court against the judgment of the High Court. 2. The question debated in the courts below was whether in view of the provisions of the Act, the lease could be properly cancelled. But it seems to me that the question does not really arise for the lease was void. However, as that question was discussed at great length at the bar and in the judgments of the courts below, I think it desirable to express my views on it also. I will deal with that matter first. 3. The question of the propriety of the order setting aside the lease naturally depends on the terms of the Act. Unfortunately, however, the Act is not what one would call a good specimen of draftsmanship and this has increased the difficulty of deciding it. Now, the Act defines an estate, as land held by or vested in an intermediary, and an intermediary, as a proprietor and other holder or owner or interest in land between a raiyat and the State. It is not in dispute that the appellant's husband was an intermediary and Darpan, an estate. Now, the Act defines an estate, as land held by or vested in an intermediary, and an intermediary, as a proprietor and other holder or owner or interest in land between a raiyat and the State. It is not in dispute that the appellant's husband was an intermediary and Darpan, an estate. Section 3(1) of the Act gives power to the State Government to declare by notification that an estate has passed to and become vested in the Government. Section 5, which occurs in : Chapter II of the Act, provides that "on the publication of the notification under sub-section (1) of Section 3 the following consequences shall ensue, namely: subject to the subsequent provisions of this Chapter the entire estate including all communal lands ... mines and minerals ... quarries........shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of this Act; Explanation. Encumbrance' means a mortgage of or a charge on any estate or part thereof and includes any rights in land or other immovable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat or an under-raiyat." The subsequent provisions of Chapter II which it will be necessary to consider in this case are clause (i) and (k) of Section 5 and Sections 10 and 11 and they will be referred to later. It is not in controversy that as a result of the notification dated November 27, 1952, the entire Darpan Estate vested in the Government free from all encumbrances as provided in clause (a) of Section 5 and the proprietor was divested of it and became entitled to certain compensation as provided in Chapter V of the Act. 4. The lease, as I have stated, was set aside by an order made under clause (i) of Section 5. The question is, Was it duly set aside? That clause so far as material is in these terms: "5. (i) Where the Collector is satisfied in respect of the settlement or lease of any land or mines or minerals comprises in such estate or ... made or created at any time after the 1st day of January, 1946, that such settlement, lease or ... That clause so far as material is in these terms: "5. (i) Where the Collector is satisfied in respect of the settlement or lease of any land or mines or minerals comprises in such estate or ... made or created at any time after the 1st day of January, 1946, that such settlement, lease or ... was made with the object of defeating any provisions of this Act or obtaining higher compensation thereunder, he shall have power to make enquiries ... and may ... set aside any such settlement, lease or ...." This clause would seem to imply that when the Collector does not take action under it the lease is continued even after the notification vesting the estate in the Government. It also expressly provides in another part not set out that if after the necessary enquiries the Collector finds that the lease had not been created with either of the objects mentioned in the clause, he shall refer the case to the Board of Revenue for confirmation of the lease and the order of the Board thereon would finally decide the fate of the lease. 5. The appellant's lease, as will have been noticed, was made after January 1, 1946 and therefore it was a lease which could be set aside under clause (i) of Section 5 if the conditions laid down in it were satisfied. Now a lease which can be set aside under clause (i) must be a lease of land or mines or minerals. I find no distinction between a lease of mines and that of minerals nor has any distinction been pointed out to us. So, it is unnecessary to consider separately a lease of minerals. A question then arises whether the appellant's lease was a lease of land or mines. The answer to this question will depend on the terms of the lease and on what is a mine within the contemplation of the Act. I may add that the Act does not contain any statutory definition of land or of minerals. 6. Now the lease so far as material is in these terms: " the lessor doth hereby demise unto the lessee all the lands, quarries, beds of stones and other minerals of every description (hereinafter called the said minerals) and pits in or upon the plots of land (hereinafter ... fully described in the Schedules ... 6. Now the lease so far as material is in these terms: " the lessor doth hereby demise unto the lessee all the lands, quarries, beds of stones and other minerals of every description (hereinafter called the said minerals) and pits in or upon the plots of land (hereinafter ... fully described in the Schedules ... (Together With All rights of searching for, getting, working, digging all the said minerals in or upon or under the surface, and of building such sheds or other structures as may be required for the use and habitation of the workmen employed in the said quarries and other incidental works and of erecting engine-houses and of doing all such other acts and things as may be necessary for effectively dealing with or disposing of the said minerals; Together with all rights, easements and appurtenances belonging to or appertaining to the said premises; ... further the lessee shall have full powers to work the existing quarries and remove and dispose of stones and minerals collected, open new quarries and issue permits and licences to others for the purposes of working the existing quarries, for opening up new quarries, collecting stones and minerals and to dispose of the same...." The Collector held on an interpretation of the lease that it was in respect of two things, namely, for working minerals and for working quarries of stones. He then held that insofar as the lease concerned minerals, covered by the Mineral Concession Rules, 1949, which I will term major minerals, it was made void by Section 4 of the Mines and Minerals (Regulation and Development) Act, 1948 under which the Rules had been made, as it was in breach of Rule 45 which provided that no lease of major minerals could be granted to a person who did not hold the prescribed certificate, because the appellant had not obtained such a certificate. What are major minerals will appear later but I may say at once that the stones covered by the lease are not such minerals. In this view of the matter the Collector proceeded on the basis that he had to consider the lease only insofar as it was for quarrying stones to which extent it was not void. The Board appears to have agreed with this view. These authorities apparently held, in my view wrongly, that the two parts of the lease were severable. In this view of the matter the Collector proceeded on the basis that he had to consider the lease only insofar as it was for quarrying stones to which extent it was not void. The Board appears to have agreed with this view. These authorities apparently held, in my view wrongly, that the two parts of the lease were severable. The High Court took the view that the lease was essentially a lease for quarrying into stones and no part of it concerned any major minerals or was void. 7. The result, therefore, was that all the courts below proceeded on the basis that they had before them only a lease for quarrying stones and they had to consider whether a lease for quarrying stones could be cancelled under Section 5(i) of the Act. The Collector said that the lease, as it did not affect minerals, was really a lease of land for purposes of quarrying stones and on that basis set it aside. I presume, though the Collector did not say so, that he dealt with the lease as a lease of lands because clause (i) of Section 5 did not expressly provide for setting aside a lease of stone quarries. Before he could cancel the lease under this clause, the Collector had however to be satisfied that the lease had been made with one of or both the objects mentioned in it. The Collector held that the lease had been so made and so set it aside. He gave two reasons in justification of this view. His first reason was that the lease gave the appellant a right to create further intermediaries by subletting and this was against the object of the Act. His second reason was that the lease was a benami transaction and was intended to retain the quarries, which would have otherwise been vested in the State under Section 5(a), for the proprietor's benefit. The Board rejected both these reasons. It held that the Act did not prevent the creation of intermediaries and that the lease was not benami but was intended to provide the appellant with an independent source of income in view of the fact that the estate was impartible and a son had been born to the proprietor. 8. The Board rejected both these reasons. It held that the Act did not prevent the creation of intermediaries and that the lease was not benami but was intended to provide the appellant with an independent source of income in view of the fact that the estate was impartible and a son had been born to the proprietor. 8. I will pause here to observe that the respondent State did not in the High Court or in this Court, challenge the correctness of either of these findings by the Board. I may add that I agree that the Act did not prevent creation of intermediaries, and as to benami, that that is a finding of fact which is binding on the High Court and this Court. The Board further held that the lease had not been executed with the object of obtaining higher compensation for the estate as before the lease the lessor had an income of about Rs. 10000 a year from the stone quarries covered by it while under it he only got Rs. 1000 a year. This also is obviously right because in view of the lease the compensation payable in respect of the lands covered by it had to be based on the income from the lease and not from the quarries themselves. The respondent State has not challenged the correctness of this view. 9. The Board while disagreeing with the Collector's reasons, however, confirmed his order setting aside the lease on a ground which may be stated in its own words: "The lease, as it stands, is a lease not only for quarrying but a lease for the land comprised in the Schedule with the right to hold such land with all rights, easements and appurtenances The lease, therefore, can be said to be with object of defeating the provisions of clause (a) of Section 5 of the Act which gives full right to all quarries to State free of all encumbrances.... The lease is, therefore liable to be set aside under clause (i) of Section 5 of the Act." I confess that this is not very clear to me. The lease is, therefore liable to be set aside under clause (i) of Section 5 of the Act." I confess that this is not very clear to me. Apparently the Board considered the lease to be an encumbrance and as under clause (a) of Section 5 the estate had to vest in the Government free from encumbrances, it thought that the creation of the lease could only have been to defeat such vesting of the estate in the Government. If this is what the Board intended to say, I feel no doubt that its view is untenable. If the lease was an encumbrance on the estate, it was annulled automatically by the provisions of clause (a) of Section 5 and no question of its cancellation under clause (i) of the section could arise; if the lease was made void and did not exist, it could not be cancelled. I would also add that I think that the lease was not an encumbrance and its object could not have been to defeat the provisions of clause (a) of Section 5, the reasons for which view I will state later. 10. What I have said earlier would show that none of the reasons on which the Collector and the Board set aside the lease can be sustained. No other reason justifying the annulment of the lease under Section 5(i) has been advanced in this Court on behalf of the respondent State. 11. I come now to the judgment of the High Court. I pause here to observe that the appellant's husband died not long before her application to that Court. The High Court dismissed the application on two grounds, namely, that in view of certain provisions of the Act to which reference will be made presently, the appellant had no subsisting right to the lease to enable it to move the application and alternatively, that the Board had rightly annulled the lease as defeating the provisions of the Act. I am unable to agree that either of these grounds is well founded. I am unable to agree that either of these grounds is well founded. As to subsisting right to the lease, the High Court held that the appellant had no such right, first, because the lease was an encumbrance which had been wiped out by clause (a) of Section 5 and secondly, because it was also a contract for gathering the produce of lands or for collecting sairati dues from them and as such was made void by clause (k) of the same section. 12. I will first examine the High Court's view that the lease was wiped out; by clause (a) of Section 5. It will be remembered that under that clause the estate vests in the Government free from encumbrances. Its effect is to annual all encumbrances on the estate. The High Court held the lease to be an encumbrance because, in its view, the lease was really a lease of stone quarries and such leases were encumbrances. I am unable to agree with the High Court's interpretation that the indenture created only a lease of stone quarries for reasons to be later stated but for the present I will assume that the lease was of stone quarries. Even so, in my opinion, it was not an encumbrance. 13. The question now is, Is a lease of stone quarries an encumbrance? Referring to the Explanation in clause (a) of Section 5, the High Court observed that under it, if read alone, all rights in lands and immoveable properties except the rights of an intermediary, raiyat or under-raiyat would be encumbrances. Then the High Court proceeded to state that leases of lands and mines were not encumbrances though they created rights in immoveable properties since clause (i) of Section 5 provided for cancellation or confirmation and continuance of such leases, for if they were, they would be automatically annulled and no question of their cancellation or confirmation or continuance could arise. It also pointed out that the vesting in the Government free from encumbrance under clause (a) of Section 5 had been expressly made subject to the other provisions of the Chapter and, therefore, subject to clause (i) of Section 5 and Section 11 which also contemplated a continuation of leases of mines. In its view, such leases must hence be taken to have been exempted from the definition of encumbrance given in the Explanation in Section 5(a). In its view, such leases must hence be taken to have been exempted from the definition of encumbrance given in the Explanation in Section 5(a). So far I agree. The High Court, however, held that a lease of quarries was neither a lease of lands nor a lease of mines with which Sections 5(i) and 11 were concerned and so, it could not be said that a lease of quarries also had been taken out of the definition of encumbrance in the Explanation. The High Court's view was that since a lease of quarries created a right in immoveable properties and as it was not a lease of mines or lands, it cannot be considered as having been taken out of the Explanation and, therefore, it would be an encumbrance. With this I am unable to agree. 14. The High Court's reason then for saying that a lease of quarries was an encumbrance was that it was neither a lease of lands nor a lease of mines as contemplated in the Act. The question then first arises, Is a lease of quarries a lease of mines as contemplated by the Act? Now a mine is defined in Section 2(1) the material part of which is in these terms: "Mine' means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on ...; a mine shall be deemed to be in operation' if a notice of the commencement of its operation has been given under Section 14 of the Indian Mines Act, 1923." What has to be decided is whether this definition of mine includes a quarry. This section, it is important to note, is in two parts. The High Court was of the view that the word "mine" occurring in the two parts of this section refers to the same kind of mine, and as in respect of a mine in operation, a notice under Section 14 of the Mines Act, 1923 is required, a mine in this definition does not include a quarry, for the Mines Act does not apply to quarries. This line of reasoning is, in my view, fallacious. 15. First, I think that the view that the Mines Act does not apply to quarries is ill founded. That Act defines a mine as any excavation for searching for or obtaining minerals. This line of reasoning is, in my view, fallacious. 15. First, I think that the view that the Mines Act does not apply to quarries is ill founded. That Act defines a mine as any excavation for searching for or obtaining minerals. This definition would include a quarry, for it is an excavation for searching for or obtaining minerals. It is true that quarries are excavations on the surface while mines are normally underground excavations, but that would not prevent a quarry from being a mine, for the definition of mine mentions any kind of excavation and does not restrict a mine to underground excavations. This is not disputed but it is said that by a notification dated July 26, 1924 issued under the Mines Act, mines of stones and certain other minerals were exempted from the operation of the Mines Act provided among other things, that the depth of the excavation did not exceed twenty feet and that this notification indicated that the Mines Act did not apply to a quarry. I am unable to agree with this view. It is true that in view of the notification the Mines Act would not apply to a quarry of stones less than twenty feet in depth but it would apply to such a quarry if it is of a greater depth. It would also apply to all quarries of minerals not exempted from the operation of the Mines Act by the notification. It, therefore, does apply to some quarries at least. In respect of such quarries a notice of commencement of operation has to be given under Section 14 of the Mines Act. The requirement in Section 2(1) of the Orissa Act as to notice under Section 14 of the Mines Act, cannot hence indicate that the Orissa Act did not contemplate a quarry as a mine. To avoid confusion, I would here remind that the question discussed is not whether the appellant's quarry is covered by the Mines Act, but whether all quarries are outside that Act and, therefore, also outside the Orissa Act, as the High Court held. 16. Then again I find no justification for the view that the mine contemplated in the two parts of Section 2(1) of the Orissa Act was the same kind of mine. 16. Then again I find no justification for the view that the mine contemplated in the two parts of Section 2(1) of the Orissa Act was the same kind of mine. Indeed one would think that this could not be so as the two parts of the section deal with two different matters; one states what a mine is and the other states when a mine shall be deemed to be in operation. The High Court appears to have thought that since a mine was defined in Section 2(1) as any excavation where mining operation "has been or is being carried on", the mine contemplated was only a mine which has been or is in operation and not an unexploited or abandoned mine and, therefore, only a mine in respect of which a notice under Section 14 of the Mines Act was given. This seems to me to be begging the question, for it assumes that mining operations cannot be carried on at all without a notice under the Mines Act. That assumption would not be justified in respect of a quarry exempted from the Mines Act. Indeed, it strikes me that if the view of the High Court was correct, the definition of mine would have been, "an excavation for searching for or obtaining minerals where a notice under Section 14 of the Mines Act, 1923 had been given." That however is not the definition. 17. Furthermore, it has to be noticed that the second part of Section 2(1) only states-when a mine shall be "deemed" to be in operation, that is, whether actually so or not. It is not intended to define a mine actually in operation; that may have to be decided on the facts of each case. This part of the section, therefore, only raises a presumption as to a mine being in operation when a notice under Section 14 of the Mines Act has been given. It cannot affect the wide definition of mine in the earlier part. I may point out that this part of Section 2(1) helps in deciding when a mine is to be considered "in operation" for the purposes of applying Section 10 of the Orissa Act to which I will later refer. 18. It cannot affect the wide definition of mine in the earlier part. I may point out that this part of Section 2(1) helps in deciding when a mine is to be considered "in operation" for the purposes of applying Section 10 of the Orissa Act to which I will later refer. 18. The High Court also observed that the fact that mines and quarries were both mentioned in clause (a) of Section 5 supported the view that mines did not include quarries. It rejected the contention that the words had been so used ex abundanti cautila. I am unable to agree with the High Court on this point either. If a mine as defined in the Act does not include a quarry, that is, a surface excavation, no further question arises. But if that definition clearly includes all quarries, as I think it does, then its scope cannot be restricted for the reason that both quarries and mines are expressly mentioned in clause (a) of Section 5. That user must then be held to have been ex abundanti cautila. That view becomes easier of acceptance when we consider that a whole set of words appears to have been used in clause (a) of Section 5 ex abundanti cautila. It says the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, pasture lands, forests, tanks, water channels, fisheries, ferries, hats, bazars and buildings and certain other things would vest in the State. The express inclusion of all these things within the word estate was clearly ex abundanti cautila, for without more that word would have included them all. 19. The result then is that a lease of a quarry is a lease of a mine and if so, it is not in dispute that it is not wiped out as an encumbrance. That being so, it cannot be said that the appellant had no subsisting right in her lease to be able to move the court as the lease had been wiped out by Section 5(a). 20. As in my view a lease of quarry is a lease of mine, it is unnecessary to discuss whether a quarry lease is a lease of lands, and since as such it can "be annulled under Section 5(i), it is not an encumbrance. 20. As in my view a lease of quarry is a lease of mine, it is unnecessary to discuss whether a quarry lease is a lease of lands, and since as such it can "be annulled under Section 5(i), it is not an encumbrance. But I think it proper to say that as at present advised, in my opinion, a lease of quarries would be a lease of lands if it were not a lease of mines, for a lease of quarries is only a lease of lands for quarrying purposes. When the High Court said that a lease of mines was taken out of the definition of encumbrance in the Explanation to clause (a) of Section 5 because of clause (i) of that section, it necessarily held that a lease of mines would otherwise have been an encumbrance as creating a right in land. If that is the correct view, as I think it is, it must for the same reason be held that a lease of quarries creates a right in land and is, therefore, a lease of land. The High Court said that there was no lease of land because the land was conveyed only for purposes ancillary to the quarrying operation. That may have been so, but quarry lease is a lease of land not because of the conveyance of ancillary land but because it is in itself a lease of land. 21. The High Court also observed that the appellant's lease having been for the reason stated by it wiped out by clause (a) of Section 5, it could not be annulled under clause (i) of that section at all and that the Board and the Collector were in error in proceeding under the latter provision. In my opinion, this view is erroneous. As a lease of mines or lands which, as I have said, the appellant's lease was, it was not an encumbrance which was wiped out by the operation of clause (a) of Section 5. It existed and could, therefore, be cancelled under clause (i) of Section 5. 22. Another ground on which the High Court held that the lease was wiped out was based on clause (k) of Section 5 of the Orissa Act which was introduced into it by the Orissa Estates Abolition (Amendment) Act, 1956. It existed and could, therefore, be cancelled under clause (i) of Section 5. 22. Another ground on which the High Court held that the lease was wiped out was based on clause (k) of Section 5 of the Orissa Act which was introduced into it by the Orissa Estates Abolition (Amendment) Act, 1956. That clause states, "With effect from the date of vesting or the date of commencement of the Orissa Estates Abolition (Amendment) Act, 1956 whichever comes later all contracts for gathering of produce from land or for collection of fees or toll from hats, bazars, ferries and such other sairati interests lying within the estate, entered into between an intermediary and any other person, shall, notwithstanding anything contained in any judgment, decree or order of any court, become void." The High Court thought that the lease was a contract either for gathering produce from land or for collection of sairati interests. I am unable to accept this view of clause (k). It would hardly be correct to talk of a contract to quarry stones as a contract for gathering produce of land. As regards sairati interest, which is a word inherited from Moghul times, the authorities show that it means the right to all sorts of imposts in addition to land revenue and does not include rights to underground minerals: Rajeshwar Prosad Bhakat v. Anil Kumar Roy, (1928) ILR 55 Cal 35, 50; see also Nityahari Roy v. Dunne, (1891) ILR 18 Cal 652. The lease, of whatever kind it was, cannot therefore be said to have become void under Section 5(k) of the Act. 23. I come now to the alternative ground on which the High Court based itself in dismissing the appellant's application. It had been contended on behalf of the appellant in the High Court that the Board having held that the object of the lease was bona fide and as it had been granted to provide a maintenance for the appellant, its view that the object of the lease was to defeat any of the provisions of the Act was inconsistent and untenable. It had also been contended that the effect of the lease might be to defeat the provisions of the Act but the effect was not the object with which the lease was granted. It had also been contended that the effect of the lease might be to defeat the provisions of the Act but the effect was not the object with which the lease was granted. In dealing with this argument the High Court observed that there was no inconsistency in the finding of the Board as a lease might be executed with two objects in view, namely, to provide an income for the lessee and also to defeat the provisions of the Act by preventing the quarries from vesting in the Government. The High Court therefore, held that the Board's order cancelling the lease could not be assailed on the ground that it did not defeat the provisions of the Act even if the correct reading of the Act was that quarries were included in mines as defined in it. I confess I am unable to understand the logic of this view. If the lease was of mines, it is not in dispute that it was not intended to be annihilated by Section 5(a) and could not hence have been intended to defeat that provision. If so, it cannot be cancelled under section 5(i) as defeating Section 5(i). Again if the lease was not of mines but of quarries as distinct from mines, it was, according to the High Court, automatically wiped out and, therefore, could not be cancelled. I do not see how it can be said that the Board was right in cancelling the lease under Section 5(i) on the view that the lease, of whatever kind it was, defeated the provisions of the Act. I do not wish to be understood as approving of the distinction that the High Court made between "object" and "effect". It is not necessary for me in the present case to express any opinion with regard to it. I would here remind that I have earlier said that I am unable to agree with the Board's reasons for upholding the Collector's order. 24. I pause here to deal with Sections 10(1) and 11(1) of the Orissa Act as some arguments had been based on them in the courts below. Section 10(1) is in these terms: "10. I would here remind that I have earlier said that I am unable to agree with the Board's reasons for upholding the Collector's order. 24. I pause here to deal with Sections 10(1) and 11(1) of the Orissa Act as some arguments had been based on them in the courts below. Section 10(1) is in these terms: "10. (1) With effect from the date of vesting all such mines comprised in the estate as were in operation at the commencement of this Act and were being worked directly by the intermediary shall, notwithstanding anything contained in this Act, be deemed to have been leased by the State Government to the intermediary and such intermediary shall be entitled to retain possession of those mines as a lessee thereof." It had been contended before the Collector that even if the lease was held to be liable to be set aside under Section 5(i), the lessor, the appellant's husband, was entitled under Section 10 to remain in possession of the quarries and mines covered by the lease as a lessee under the Government. The Collector rejected this contention apparently on the ground that Section 10 had no application as the evidence did not show that the lessor was himself working the stone quarries at the commencement of the Act. This view is obviously right. The evidence however is not before us. As no contention on behalf of the lessor had been pressed before the Board or in the High Court or this Court based on Section 10, it is unnecessary to deal with it further. 25. I come now to Section 11(1) which is in these terms: "11. This view is obviously right. The evidence however is not before us. As no contention on behalf of the lessor had been pressed before the Board or in the High Court or this Court based on Section 10, it is unnecessary to deal with it further. 25. I come now to Section 11(1) which is in these terms: "11. (1) Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate there is a subsisting lease of mines or minerals comprised in the estate or any part thereof, the whole or that part of the estate comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the leasehold property." It was contended that by the words "Notwithstanding anything contained in this Act" this section expressly overrode clause (i) of Section 5 and so a lease of mines could not be set aside under that latter provision at all. As I have earlier said, the Collector was of the view that insofar as the lease was of major minerals, it was void for want of a certificate under the Mineral Concession Rules, and what he had to consider was only a lease of the stone quarries. Apparently, the Collector was of the view that a mining lease contemplated by Section 11 was a lease of major minerals and not a lease of stone quarries. That being so, according to the Collector, no question of any protection under Section 11 arose. The Board also took the same view I have earlier stated that in the High Court's view the lease being entirely a lease of quarries and as quarries did not include mines Section 11 which dealt with leases of mines did not protect the appellant's lease. 26. In the view that I have taken, namely, that the appellant's lease was a mining lease liable to be set aside under clause (i) of Section 5, a question as to Section 11 immediately arises. It will be noticed by comparing Section 5(i) with Section 11 that there seems to be some conflict between them. 26. In the view that I have taken, namely, that the appellant's lease was a mining lease liable to be set aside under clause (i) of Section 5, a question as to Section 11 immediately arises. It will be noticed by comparing Section 5(i) with Section 11 that there seems to be some conflict between them. Under Section 5(i) some leases of mines may be set aside while under Section 11 all leases of mines are to be continued in the manner there mentioned. How then are they to be reconciled? 27. The High Court reconciled the two sections by holding that a lease cancelled under Section 5(i) is not a subsisting lease within Section 11. Therefore, according to the High Court, the opening words of Section 11 did not produce any conflict for that section only applied to subsisting leases. Another way of solving the conflict strikes me. Section 11 says that when at the date of vesting there is a subsisting lease of mines in respect of an area within the estate vested in the Government, that area shall with effect from that date be deemed to have been leased by the Government to the holder of the lease for the remainder of its term. It, therefore, only defines the rights of a lessee in respect of such a lease at the date of vesting. The opening words of the section "Notwithstanding anything contained in this Act" are hence to be related to those rights only. Their only effect is to say that nothing in the Act would take away a lessee's right to be deemed at the date of the vesting to have become a lessee under the Government. It is of interest to remind here that clause (a) of Section 5 by its opening words "Subject to the provisions of this Chapter" take away the rights of the proprietors at the date of vesting. It seems to me that the opening words of Section 11 likewise deal only with rights as at that date. If this is the correct point of view, then the opening words of Section 11 cannot affect anything that the Act permits to be done at any point of time after the vesting; it would not be concerned with any such thing. They would not justify the view that a lease to which Section 11 applies cannot subsequently be cancelled. If this is the correct point of view, then the opening words of Section 11 cannot affect anything that the Act permits to be done at any point of time after the vesting; it would not be concerned with any such thing. They would not justify the view that a lease to which Section 11 applies cannot subsequently be cancelled. They would not prevent the full operation of Section 5(i) in any way. I do not think it necessary further to discuss Section 11. 28. So long I had been discussing the provisions of the Orissa Act and the views of the courts below regarding them. I have said that I am unable to agree with them. For the purpose of discussing the judgments of the courts below I had assumed that the lease was a lease of stone quarries only. In my opinion, however, for reasons which I will immediately state, it was not such a lease. I think the lease of quarries is a lease of mines and if valid, it could be cancelled under clause (i) of Section 5. But the requirements of that provision for cancellation of the appellant's lease were not satisfied. As found by the Board, it was neither a benami transaction nor one to obtain larger compensation for the estate. Nor do I think that the lease was liable to cancellation as defeating the Act because it permitted the grant of sub-leases or licenses to work the quarries leased for I agree with the Board that the Act did not prohibit such sub-leases or licenses. In my view the Board was in error in holding that the lease was liable to be set aside as defeating the provisions of clause (a) of Section 5 which vested the estate in the Government free from encumbrances; the lease was not an encumbrance and if it had been one, it would have been wiped out by Section 5(a), and as it would not then have existed it could not have been cancelled under clause (i) of Section 5. If the lease was a valid lease, which I will presently show it was not, I would have been prepared to hold that the order cancelling it was illegal. I disagree with the High Court's view that the lease was not a lease of mines and was an encumbrance which was wiped out by Section 5(a). If the lease was a valid lease, which I will presently show it was not, I would have been prepared to hold that the order cancelling it was illegal. I disagree with the High Court's view that the lease was not a lease of mines and was an encumbrance which was wiped out by Section 5(a). In my view, a lease of a quarry is a lease of mine for the purposes of the Act and is not an encumbrance. I am also unable to agree that the lease was a contract for gathering produce of land or for a sairati interest and was as such wiped out by clause (k) of Section 5. I think that the High Court was in error in upholding the order of the Board on the ground that the lease defeated clause (a) of Section 5. The result is that I am not prepared to uphold the order of cancellation of the lease on the grounds given either by the Collector, the Board or the High Court nor the High Court's view that the appellant had no subsisting right in the lease for the reasons mentioned by it. 29. Notwithstanding all this, however, it seems to me that the appeal must be dismissed. It arises from an application by the appellant under Article 226 of the Constitution for a writ quashing the order of cancellation of the lease. It is well established that no writ will be issued to cancel an order however illegal it may be, unless the applicant can show that the order affected his rights. This has been held by this Court in a number of cases but it will be enough to refer to one of the latest of them, which is Kalyan Singh v. State of Uttar Pradesh, AI (1962) SC 1183. There it was said (p. 1188) that a petition for a writ under Article 226 of the Constitution postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is interested and that in the absence of such a personal right, the petition would not be maintainable. The view is clearly understandable, for it will be idle to issue a writ to decide an academic question particularly when it is a matter of discretion for the court to issue the writ or not to issue it. The view is clearly understandable, for it will be idle to issue a writ to decide an academic question particularly when it is a matter of discretion for the court to issue the writ or not to issue it. That is the difficulty in the appellant's way. To get the writ, she must establish that she needs it to protect her right. The only right for the protection of which she asks for the writ is her right under the lease. If the lease is void, as I think it is, she has no right in respect of it. She cannot then ask for a writ. 30. Has she then any right under the lease? I think not. Now the lease which I have earlier set out, was in respect of "all the lands, quarries, beds of stone and other minerals of every description (hereinafter called the said minerals) and pits in or upon the plots of land (hereinafter called the premises and more fully described in the Schedules given hereinbelow) ... Together With all rights of searching for, getting working, digging all the said minerals in or upon or under the surface ." As I have earlier said, the Collector held that the lease was partly in respect of stone quarries and partly in respect of major minerals and that with regard to the latter the lease was void under the Act of 1948. He then treated the lease as a lease of stone quarries only ignoring the void part dealing with major minerals. He obviously treated the two parts of the lease as severable though he did not discuss the question of severability. The Board took the same view. I will show later that the two parts of the lease were not severable. Before the High Court it had been contended that the lease was in part a mining lease, void under the Act of 1948 and partly a lease of quarries not so void and the two parts not being severable the whole lease was void. Apparently this contention had been advanced in support of the argument that the lease being out of the way, the appellant had no right to move the High Court for a writ though the latter argument was not noticed in the High Court's judgment. Apparently this contention had been advanced in support of the argument that the lease being out of the way, the appellant had no right to move the High Court for a writ though the latter argument was not noticed in the High Court's judgment. The High Court held that the whole lease was of stone quarries and, therefore, no question of severability or of any part being void, arose, I am unable to agree with this interpretation of the lease. 31. The High Court held the lease to be only of quarries because the word "quarries" appeared in the lease several times, indicating thereby, according to it, that the minerals referred to in the lease were only stones. It also said that the land leased was only for the purpose of carrying on the stones quarry operations. The lease no doubt stated that the lessee would have the right of building sheds and other structures for the use and habitation of workmen employed in the quarries. But it also stated that the lessee would have the right of erecting engine house and doing all such other acts and things as may be necessary for effectively dealing with the "said minerals". This would show that the rights conferred by the lease were not restricted to the working of the quarries but the lessee could do anything necessary for effectively dealing with the "said minerals", that is, "minerals of every description". It is also true that the lease said that the lessee would have power to work existing quarries, remove and dispose of stones and minerals collected, open new quarries and grant licences to others for working the existing quarries, opening up new quarries and collecting stones and minerals. Here also though quarries are mentioned, minerals are also mentioned along with it indicating that the rights conferred related to stones as also other minerals and this would include minerals of every description. There is nothing, therefore, to show in these parts of the indenture on which the High Court relied, that the lease was of stone quarries only. It is important to note that the lease expressly mentioned that the lessee would have rights in respect of other minerals, that is to say, minerals other than stones, "of every description". There is nothing, therefore, to show in these parts of the indenture on which the High Court relied, that the lease was of stone quarries only. It is important to note that the lease expressly mentioned that the lessee would have rights in respect of other minerals, that is to say, minerals other than stones, "of every description". I find no warrant for restricting the wide powers conferred by these words and reading the lease as one of stone quarries only in spite of them. I may point out that there is nothing to show that all kinds of minerals cannot be worked by a quarry. It seems to me that the stone quarries were mentioned specifically because that was the only kind of quarries that were being worked at the date of the lease. I am, therefore, of the view that it was a lease in respect of stones and every other kind of minerals. 32. If the lease was in respect of minerals of every description and of stone quarries also, it is not in dispute that insofar as it concerned a lease of major minerals, it was void. I may now refer to the provisions producing that result. Section 3 of the Mines and Minerals (Regulation and Development) Act, 1948, defines a mining lease as meaning "a lease granted for the purpose of searching for, winning ... minerals .. ". The word "minerals" is not defined in this Act. Section 4 of this Act provides, "(1) No mining lease shall be granted after the commencement of this Act otherwise than in accordance with the Rules made under this Act. (2) Any mining lease granted contrary to the provisions of sub-section (1) shall be void and of no effect." Section 5 provides that "the Central Government may by notification ... make rules for regulating the grant of mining leases ...". As I have earlier stated, the Mineral Concession Rules, 1949 were made under this Act. They defined mining lease in substantially the same way as the Act did. Rule 3(ii) defines "minor minerals" as including among other things, building stone and road metal. By the word "major minerals" I had been referring to minerals other than those which were "minor minerals" under Rule 3(ii). Rule 4 says that the Rules shall not apply to minor minerals. Rule 3(ii) defines "minor minerals" as including among other things, building stone and road metal. By the word "major minerals" I had been referring to minerals other than those which were "minor minerals" under Rule 3(ii). Rule 4 says that the Rules shall not apply to minor minerals. Rule 45 states that no mining lease shall be granted except to a person holding a certificate of approval from the Government. Chapter II of these Rules deals with provisions relating to the grant of certificate. The result of these provisions is that a lease of minerals other than minor minerals will be void unless the lessee holds the required certificate. Now it is not in dispute that the appellant did not hold such a certificate. That is why it is not disputed that her lease insofar as it concerned major minerals, was void. 33. The question then is, was the whole lease void? That would depend on whether the void part of the lease was severable from the good part. I do not think it was so severable. The whole lease was by one grant and it reserved a single rent. To hold the two parts of the lease as severable, we would have to apportion the rent. That seems to me to be impossible to do. To do so would really be making a new contract for the parties. I do not know whether the lessee would have taken the lease if the part relating to major minerals could not be granted to her. Nor do I know what rent she would have been prepared to pay for the lease of the minor minerals. On principle it is impossible to hold that the two parts of the lease were severable. There is furthermore clear authority in support of that view. Thus in Griffiths v. Lloyd, 3 ESP 78 (170 ER 541), we find a person was possessed under an Act of Parliament of two parcels of lands one of which he was empowered by the Act to let out but not the other. He granted a lease of both reserving a single rent. It was held that the entire demise for a single rent was void and the lessor could recover possession of the whole. 34. He granted a lease of both reserving a single rent. It was held that the entire demise for a single rent was void and the lessor could recover possession of the whole. 34. Mr Pathak appearing for the appellant has referred to various authorities but none of them is of any assistance to prove that the bad part of the lease was severable from the good part. Bhagat v. Anandarao, AIR 1925 Nagpur 302 and Dharamchand v. Jhamsa, AIR (1931) Nag 6 which he cited were cases of transfer of properties some of which could not be transferred but the considerations in respect of the properties transferred having been separately mentioned the transfer was held to be good so far as the transferable properties were concerned. Dip Narain Singh v. Nageshar Prasad, (1930) ILR 52 All 338 was concerned with a suit on a mortgage of property which was not transferable under the law and it was held that the suit for mortgage money lay. All that was held there was that the personal covenant to pay remained unaffected. Re Burdett. Ex parte Byrne, (1888) LR 20 QBD 310, was a case where the mortgage of some of the mortgaged properties was held and because the form prescribed by law for the mortgage had not been adopted and the Court held that the mortgage was a security on all the properties mortgaged and each of them and, therefore, it was valid insofar as mortgaged property had been legally conveyed under the mortgage. Ashbury Railway Co. v. Riche, (1875) 7 HL 653, held that a contract ultra vires the directors of a company is not a prohibited contract. Column v. Coltman, (1881) LR Ch. D 64, held that a loan by a friendly society to a person not a member was not authorised by the Friendly Societies Act but was not an illegal loan and was hence recoverable. None of these cases was concerned with any question of severability. The last case cited by learned counsel to which I wish to refer is Queen v. inhabitants of Hockworthy, 7 AD, and E 492 (112 ER 555). That was a case in which the question was whether a pauper, a widow, was settled in a certain parish within the meaning of a certain Act of Parliament. The last case cited by learned counsel to which I wish to refer is Queen v. inhabitants of Hockworthy, 7 AD, and E 492 (112 ER 555). That was a case in which the question was whether a pauper, a widow, was settled in a certain parish within the meaning of a certain Act of Parliament. It appears that the pauper's husband, whose settlement in the parish was to decide the question, had taken a lease of a certain land along with certain incorporeal hereditaments but the incorporeal hereditaments had not been duly conveyed to the pauper's husband for there was no deed. It was contended that the lease was bad as a whole. Lord Denman, C.J. observed that it was not necessary to consider the validity of the lease as between the parties to it and that it could not be said that the demise of the land was void whatever might be the position as to the right to recover the rent. The Court held that there was enough settlement by the lease within the meaning of the Act as the only question was whether the husband had occupied the house hired by him at a certain rent. This is no authority for the proposition that if a part of a lease granted for a single rent was void, the rest of it may be separated and held good. The case turned only on the terms of the Act of Parliament relating to settlement of a pauper. Furthermore, in this case the lease was not prohibited nor made void by statute even if duly granted but it was a case where the lease failed to have effect in its entirety as the legal form of conveyance had not been followed. We are not concerned with such a case. 35. Learned counsel for the appellant contended that it could not be said that the lease was for an unlawful object within the meaning of Section 23 of the Contract Act. We are unable to accept that contention. Object of an agreement is unlawful under that section if it is opposed to public policy. The Mines and Minerals (Regulation, Development) Act, 1948 was expressly made to provide for regulation of mines in public interest. That is also obvious. We are unable to accept that contention. Object of an agreement is unlawful under that section if it is opposed to public policy. The Mines and Minerals (Regulation, Development) Act, 1948 was expressly made to provide for regulation of mines in public interest. That is also obvious. It is this Act and the Mineral Concession Rules made thereunder taken together, that made the appellant's lease so far as it concerned major minerals, void. The object of the lease, therefore, was opposed to public policy. But I should like to point out that it was not necessary to make the entire lease void that part of it should be against public policy. In Griffith case4 no part of the lease had been against a prohibition based on public policy. It is enough to make the entire lease void that one of the properties leased was not transferable and so had not in fact been transferred. 36. I, therefore, think that the two parts of the lease were not severable and it was hence void as a whole. If the whole lease was void, then the appellant had no right in respect of it and could not maintain her application for a writ quashing the order cancelling it. The order did not affect her at all. On this ground I would dismiss the appeal. I think it right to add that learned counsel for the parties asked us to decide this aspect of the case so that all questions between the parties concerning the lease might be settled and further litigation avoided. 37. I would, therefore, dismiss the appeal. As regards costs, however, in my view, the entire proceedings had originated from a misconceived order made by the respondent State and so it would be right to direct that each party pays its own costs throughout. Mudholkar, J. The question for consideration in this appeal is whether a lease of nearly 3000 acres of land comprised in the former zamindari known as the Darpan Estate by the then zamindar, Shri Shyam-sunder Nath Suthoo, Respondent 2 in this appeal, in favour of his wife the appellant before us, on December 12, 1949 for a period of 99 years at an annual rent of Rs. 1000 was rightly set aside by the Collector of Cuttack under Section 5(1) of the Orissa Estate Abolition Act, 1951 (Orissa Act 1 of 1952). 1000 was rightly set aside by the Collector of Cuttack under Section 5(1) of the Orissa Estate Abolition Act, 1951 (Orissa Act 1 of 1952). It is common ground that the lease purports to be of "the lands, quarries, beds of stone and other minerals of every description ... and pits in or upon the plots of land ." situate in the Darpan Estate which vested in the State by virtue of a notification made under Section 3 of the Act. The consequences of vesting are set out in Section 5 of the Act, the relevant portion of which is as follows: "(a) subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not inclusive of rights in respect of any lease of mines and minerals), quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazars, and buildings or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of this Act: Explanation. Encumbrance' means a mortgage of or a charge on any estate or part thereof and includes any rights in land or other immovable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat or an under-raiyat." 2. Encumbrance' means a mortgage of or a charge on any estate or part thereof and includes any rights in land or other immovable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat or an under-raiyat." 2. Clause (i) of Section 5 under which the lease was set aside by the Collector whose decision was affirmed by the Board of Revenue in appeal reads as follows: "where the Collector is satisfied in respect of the settlement or lease of any land or mines or minerals comprised in such estate or the transfer of any kind of interests in any building used primarily as office or cutchery for the collection of rent of such estate or as rest houses for estate servants on duty or as golas for storing rent in kind or part thereof, made or created at any time after the 1st day of January, 1946, that such settlement, lease or transfer was made with the object of defeating any provisions of this Act or obtaining higher compensation thereunder he shall have power to make enquiries in respect of such settlement, lease or transfer and may, after giving reasonable notice to the parties concerned to appear and be heard, set aside any such settlement, lease or transfer, dispossess the person claiming under it and take possession of such property in the manner provided in clause (h) on such terms as may-appear to him to be fair and equitable". (Then follow two provisos but it is not necessary to set them out for the purpose of deciding the appeal). It will be seen that under clause (i), amongst other things, a lease of any land or mines or minerals comprised in an estate which has vested in the State, made after January 1, 1946 is liable to be set aside if the lease was made the object of (1) defeating any provisions of the Act, or (2) obtaining higher compensation thereunder. Though the Collector set aside the lease under the aforesaid clause he did so upon the finding that the grant of mining lease in question was illegal inasmuch as the lessee, that is, the appellant did not hold a certificate of approval as required by Rule 45 of the Mineral Concession Rules, 1949. Though the Collector set aside the lease under the aforesaid clause he did so upon the finding that the grant of mining lease in question was illegal inasmuch as the lessee, that is, the appellant did not hold a certificate of approval as required by Rule 45 of the Mineral Concession Rules, 1949. In appeal the Board of Revenue held that the ground given by the Collector does not fall within the term "object of defeating any provisions of the Act". The Board also held that the transaction was bona fide, that it was entered into with a view to transfer effectively a lease-hold right to the wife and that as the Act did not prohibit the creation of intermediaries the transaction cannot be regarded to be an attempt to defeat the object of any specific provision of the Act. Nor again, according to the Board, can the lease be said to have been granted with the object of increasing the compensation payable under the Act. The Board, however, held that the lease was not only for quarrying but was "a lease of land ... with the right to hold such land with all rights, easements and appurtenances belonging or appertaining to the said premises". It was, according to the Board, not only a lease of quarries but a lease of land along with other rights therein and can, therefore, he said to have been granted with the specific object of defeating the provisions of clause (a) of Section 5. Upon this ground the Board upheld the order annulling the lease under clause (i) of Section 5. Upon this ground the Board upheld the order annulling the lease under clause (i) of Section 5. Against the order of the Board the appellant had moved a petition under Articles 226 and 227 of the Constitution and in dismissing it the High Court held as follows: "The reasonable view therefore is that the proprietor's object was to prevent the quarries in his estate from vesting in the State of Orissa and thereby to secure an income for his wife." Disagreeing with the view taken by the Board of Revenue the High Court held that the lease cannot be said to be a "lease of land as ordinarily understood", that the land that was conveyed was ancillary to the carrying out of quarrying operations and that there was no question of any portion of the land as such being leased out to the appellant for either carrying on agricultural or non-agricultural operations which were not directly connected with the quarrying operations. According to the High Court under clause (a) Section 5 all quarries within the estate vest absolutely in the State Government, free from all encumbrances. It pointed out that the word "encumbrance" is given a wide meaning in the Explanation to the aforesaid clause so as to include any rights in land or immovable property. A quarrying lease would be an encumbrance so defined and would, therefore, be completely wiped out from the date of vesting by virtue of clause (a) of Section 5. The High Court, therefore, held that the appellant had no subsisting right enforceable under Articles 226 or 227 and that though the lease could not be annulled under clause (i) of Section 5, the clause being inapplicable the appellant was entitled to no relief. The final conclusion of the High Court is set out thus in para 32 and 33 of its judgment: "32. We are not sitting here as an appellate court over the decision of the Member, Board of Revenue. We have only to satisfy ourselves that the findings arrived at by him were based on some materials available on the record. The final conclusion of the High Court is set out thus in para 32 and 33 of its judgment: "32. We are not sitting here as an appellate court over the decision of the Member, Board of Revenue. We have only to satisfy ourselves that the findings arrived at by him were based on some materials available on the record. Considering the fact that the quarries in the estate were giving a very handsome income to the proprietor, that a very large area of quarries was leased out to his wife (petitioner) within a few days prior to the publication of the Estate Abolition Bill, and the other circumstances mentioned above, it is open to a final court of fact to hold that the impugned lease was executed with the two objects mentioned above. It may be that another court might have taken a different view on the same materials, but that will be no ground for this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, to disturb the finding arrived at by the learned Member, Board of Revenue. 33. Hence, even if the extreme view put forward by Mr. P.R. Das, to the effect that the expression mines' in the Act includes quarries, be accepted, there are not sufficient grounds for quashing the order of the Revenue Authorities annulling the impugned lease under clause (i) of Section 5 of the Act." 3. I may point out at the outset that it was not open to the High Court, while exercising its jurisdiction under Articles 226 and 227 of the Constitution, to interfere with a finding of fact of the Board of Revenue. The same limitation will apply to this Court while dealing with an appeal from the decision of the High Court in a writ matter. The finding of the Board that the transaction was bona fide, that it was entered into by the zamindar for conferring certain rights upon his wife and that there being no prohibition in the Act against the creation of such a right the transaction cannot be regarded to be an attempt to defeat the object of any specific provision of the Act, is essentially one of fact. Neither the High Court could disturb it nor can we examine its correctness. Neither the High Court could disturb it nor can we examine its correctness. Similarly the other finding of the Board that the object of the zamindar in granting the lease was not to increase the amount of compensation payable under the Act is one of fact and was not open to question before the High Court. In the appeal before us from the decision of the High Court the position must remain the same. I, therefore, proceed on the footing that the impugned transaction was not benami. That being so it must follow that the lease in favour of the appellant cannot be set aside under clause (i) of Section 5. The real object of granting the lease, as pointed out by the Board, was making a provision for the maintenance of the appellant. This became necessary after the birth of a son to the appellant and the zamindar in the year 1946. The estate being impartible, on the death of the zamindar it would have passed on to his own. That is why the zamindar was apparently anxious to provide the appellant with a permanent source of income during her lifetime which was not liable to pass by inheritance to his son. Considering all the circumstances the Board came to the conclusion that the settlement made by the zamindar was not unreasonable. The Collector had no doubt come to a different conclusion as to the nature of the transaction. I agree with what the Board has said while rejecting the Collector's conclusion. What the Board said in this connection is as follows: "The learned Collector has argued that in 1943-44 there was an income in the quarries of the estate of as much as Rs. 11,650 and in settling 17 quarries for Rs. 1000 only there was a definite loss to the main estate and that shows that the proprietor was trying to get the income through the backdoor. It is seen from the records that in 1953-54 the income of the quarries was only Rs. 1401. Further it is well known that there is a great deal of difference between taking a royalty in a quarry and working the quarry oneself. There is always an element of profit to the person who works a quarry or a mine. Giving up this benefit by itself cannot raise a presumption that the transaction is benami. 1401. Further it is well known that there is a great deal of difference between taking a royalty in a quarry and working the quarry oneself. There is always an element of profit to the person who works a quarry or a mine. Giving up this benefit by itself cannot raise a presumption that the transaction is benami. The avowed objective of the lease being to provide a source of income to his wife, it cannot be said that the transfer was of such magnitude or out of proportion to the zamindar's income that it should be considered a benami transaction. I have, therefore, to hold that as far as the transaction is concerned, it was a bona fide transaction with a view to transferring a right to the wife validly." 4. The only ground given by the Board in para 8 of its judgment for upholding the order of the Collector setting aside the lease under clause (i) of Section 5 is that the lease as it stands is not merely of a quarry but is also a lease of the land "comprised in the schedule to the lease with the right to hold such land with all rights, easements and appurtenances belonging to or appertaining to the said premises". In the view of the Board the lease could, therefore, be said to have been granted with the specific object of defeating the provisions of clause (a) of Section 5 which gives "full right to all quarries to the State free of all encumbrances". It was for this reason that the lease was, according to the Board, liable to be set aside under clause (i) of Section 5. 5. Let us consider whether the Board was right in the conclusion that the lease was made with the object of defeating the provisions of Section 5(a). In the first place the finding of the Board that the lease was granted by the zamindar with a view to make suitable provision for his wife would be sufficient to preclude an inference to be drawn that its object was to defeat the provision of Section 5(a). It may be that in consequence of the grant of lease the provision of Section 5(a) may be defeated. That, however, would be merely the result of what was done by the zamindar but was not his object. It may be that in consequence of the grant of lease the provision of Section 5(a) may be defeated. That, however, would be merely the result of what was done by the zamindar but was not his object. It is true that under clause (a) of Section 5 one of the numerous consequences of vesting of the estate in the State is that mines and minerals would also vest absolutely in the State Government free from all encumbrances. Clause (a) further contemplates cases where leases of mines and minerals had already been granted by the Zamindar. It provides that in such cases "rights in respect of" any such lease would vest in the State Government. After the grant of the lease the rights left to the zamindar would be the rights of the lessor and what could vest in the State Government would be those rights, that is, the lessor's interest in the demised premises. Now the Board says that a lease is an encumbrance and since quarries and mines vest in the State free of all encumbrances the lease of a mine or of minerals would, because of this clause, cease to exist so far as the State is concerned. "Encumbrance" is defined thus in relation to clause (a) which is inserted by the Orissa Estate Abolition (Amendment) Act, 1956: "Encumbrance' means a mortgage of or a charge on any estate or part thereof and includes any rights in land or other immovable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat' or an under-raiyat." A lease is neither a mortgage nor a charge on the estate or a part thereof. The question is whether it will fall in the last part of the Explanation. A lease undoubtedly confers some kind of right in the land. Therefore, it could be said that the lease of land alone would fall within the expression "encumbrance". Here, however, what we have is not a lease of land but a lease of "mines and minerals". According to the Board there was also a lease of the land but in my view the Board was not correct in coming to this conclusion. Here, however, what we have is not a lease of land but a lease of "mines and minerals". According to the Board there was also a lease of the land but in my view the Board was not correct in coming to this conclusion. The High Court, on the other hand, has held that the lease cannot be said to be a lease of land as ordinarily understood and that the land that was conveyed was ancillary to the carrying out of the quarrying operation. I agree with the interpretation placed upon the document by the High Court and hold that the lease is primarily that of mines and minerals and not of the land as such. Clause (a) of Section 5 has apparently drawn a distinction between a lease of mine and minerals on the one hand and a lease of land simplicitor on the other. It is only with respect to the former that the lessors' rights would vest in the State. This clearly implies that the lessee's rights would not be affected in any way by that clause read by itself, that is, without the aid of the Explanation. Insofar as the lease of lands is concerned there was no question of the lessor's rights vesting in the State because such lease being an encumbrance would not be binding upon the State. Upon the construction which I place on the relevant provisions it is clear that the lease in question is unaffected by the provisions of clause (a) of Section 5 and cannot be set aside under clause (i) of Section 5 as the requirements thereof are not satisfied. It would be relevant to bear in mind that the notice issued to the appellant by the Collector was only to show cause why the lease should not be set aside under that clause and for no other purpose. Now this assumes that the lease was good until it was set aside under this clause. Even if this lease were an "encumbrance" as defined in the Explanation, there was no question of setting it aside inasmuch as by the very force of the Explanation every "encumbrance" would be extinguished. In this view, whatever else may be the position the Collector could make no order under clause (i) of Section 5 as a result of which the appellant's possession over the demised premises would be liable to be disturbed. In this view, whatever else may be the position the Collector could make no order under clause (i) of Section 5 as a result of which the appellant's possession over the demised premises would be liable to be disturbed. 6. I am in entire agreement with the High Court that so far as the subsisting leases of mines and minerals are concerned the right of the lessee to work them was not affected by the Act. As already pointed out under clause (a) of Section 5 mines and minerals whether being worked or not would vest absolutely in the State Government but if they were leased out by the zamindar or his intermediary only the lessor's interest in those mines and minerals would vest in the State Government. Section 11(1) of the Act makes the position of the lessees of mines and minerals abundantly clear. That provision reads thus: "11. (1) Notwithstanding anything contained in this Act, where immediately before the the date of vesting of the estate there is a subsisting lease of mines or minerals comprised in the estate or any part thereof, the whole or that part of the estate comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease and such holder shall be entitled to retain possession of the leasehold property." No doubt, while dealing with this aspect of the case the High Court has observed as follows: "If there was a lease of mines or minerals executed prior to the 1st day of January, 1946 and if that lease was actually subsisting on the date of vesting it would get the protection of Section 11; whereas if the lease was executed after that date (1st January, 1946) it will be, first, subject to an enquiry by the Collector under clause (i) of Section 5 and, if in consequence of that enquiry, it is annulled by the Collector it will not be a subsisting' lease so as to get the protection of Section 11. If, on the other hand, after such an enquiry the lease is confirmed by the Board of Revenue on the recommendation of the Collector, as authorised in the provision to clause (i) of Section 5, it will be subsisting lease'. If, on the other hand, after such an enquiry the lease is confirmed by the Board of Revenue on the recommendation of the Collector, as authorised in the provision to clause (i) of Section 5, it will be subsisting lease'. This interpretation of these two provisions seems to effect harmony between the two. By such interpretation full effect is given to the non-obstance clause Notwithstanding anything contained in this Act," in Section 11(1) by saying that section overrides clause (a) of Section 5 by which even mines, minerals and quarries would absolutely vest in the State free from all encumbrances. But as clause (a) of Section 5 is itself made subject to the succeeding provisions of that Chapter Section 11 would override the same, in any case." Without expressing any opinion as to the correctness of the view of the High Court it is sufficient to point out that though the lease in the appellant's favour was executed after January 1, 1946 it was not, for the reasons already given, liable to be set aside under clause (i) of Section 5. 7. According to the High Court, however, the expression "mine" is used in the Act in a narrow sense, that is, excluding quarries, that leases of quarries are encumbrances and as such would be completely wiped out from the date of vesting by virtue of clause (a) of Section 5 or, alternatively, after the coming into force of the Orissa Estate Abolition (Amendment) Act, 1956 the appellant's rights under the impugned leases were extinguished by clause (k) which was added to Section 5 of the Act. I am unable to agree with this view of the High Court. 8. The subject of demise under the lease consisted of (a) quarries, (b) beds of stones, and (c) other minerals of every description. The land in which quarries had been dug and beneath which were beds of stones and other minerals was not, as already stated, leased out independently of the quarries etc. It is common ground that at the time of granting the lease 17 quarries were actually being worked for obtaining building stones. The land in which quarries had been dug and beneath which were beds of stones and other minerals was not, as already stated, leased out independently of the quarries etc. It is common ground that at the time of granting the lease 17 quarries were actually being worked for obtaining building stones. The word "mine" has been defined thus in Section 2(1) of the Orissa Estates Abolition Act, 1951: "Mine' means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, but does not include any works, machinery, tramways or siding appertaining to a mine; a mine shall be deemed to be in operation' if a notice of the commencement of its operation has been given under Section 14 of the Indian Mines Act, 1923 to the District Magistrate of the district in which such mine is situated and the discontinuance of the operation thereof has not been notified to the competent authority;" Now, a quarry being an excavation will fall within the definition of "mine". On the other hand, it has been pointed out in Lord Provost and Magistrates of Glasgow v. Farie, 1888 AC 657 and some other cases that there is a distinction between a mine and a quarry. According to the Oxford Dictionary a quarry is "an open air excavation from which stone for building or other purposes is obtained by cutting, blosting or the like"; while a "mine" is an excavation made in the earth for the purpose of digging out metals or certain other minerals such as salt or precious stones. According to the High Court the fundamental distinction between a quarry and a mine is that while a quarry is an open air excavation a mine is essentially an underground one. In the decision just cited Lord Kindersley observed: "I cannot entertain the smallest doubt that mine and quarry are not the same. It would require perhaps some labour to define precisely what each is, but we know this that, a mine, properly speaking, is that mode of working for minerals by diving under the earth and then working horizontally or laterally; whereas a quarry is when the working is sub dio. It would require perhaps some labour to define precisely what each is, but we know this that, a mine, properly speaking, is that mode of working for minerals by diving under the earth and then working horizontally or laterally; whereas a quarry is when the working is sub dio. There is not the slightest doubt in my mind as to the difference between them." Lord Watson on the other hand has, however, said that "Mines and minerals are not definite terms. They are susceptible of limitation or expansion according to the intention with which they are used." There is, however, no ambiguity so far as quarry is concerned. It must be an open air excavation. That is the law in England. The High Court has pointed but that in the Mines Act, 1923 the legislature, in view of the report of the the Joint Committee on the basis of which the Act was passed, deliberately adopted a wide definition of "mine" so as to include quarries. Bearing in mind the fact that in the definition of "mine" in clause (1) of Section 2 of the Orissa Estates Abolition Act there is a reference to the Mines Act of 1923, I must proceed on the basis that a quarry is also a mine. 9. It would follow from this that it was not the intention of the legislature to give a narrow meaning to the expression "mine" as held by the High Court. Again, the High Court has held that a mine, the lease of which was left untouched by the Act, must be a mine in operation. It seems to me, however, that the High Court has not borne in mind the fact that in clause (1) of Section 2 the legislature defined two things. The first part defines "mine" and the second "a mine in operation". The two parts are really independent of each other and, therefore, it would not be correct to say that the legislature intended to say that for the purposes of the Act a mine was one which was in operation and not a mine which was not in operation. Indeed, if the object of the legislature was to include within the definition only a mine in operation the legislature would not have said in the first part of clause (1) "where any operation ... Indeed, if the object of the legislature was to include within the definition only a mine in operation the legislature would not have said in the first part of clause (1) "where any operation ... has been or is being carried on" and would only have said "where any operation ... is being carried on". 10. Further it may be pointed out that clause (a) of Section 5 when it speaks of "mine" it specifically includes mines whether discovered or undiscovered or whether being worked or not. It would, therefore, follow that Sections 5 and 11 of the Act afford protection to a mine even though it is not "a mine in operation" because no notice as completed by Section 15 of the Indian Mines Act, 1923 to the District Magistrate of the District in which such mine is situate is given. 11. It was contended by Mr. Chatterjee that Section 5(a) makes a separate mention of quarries and, therefore, a lease of a quarry would be on no higher footing than a contra and would, therefore, be extinguished with effect from the date of vesting as provided by clause (a) of Section 5. That clause has already been quoted by me above. 12. Mr. Chatterjee thus reiterated the argument which was put forward by the Advocate General for Orissa before the High Court. What he had urged in the High Court was that the interest of the zamindar in the quarries was always recognised as a sairat interest and that by virtue of clause (k) all contracts entered into between the zamindar and any person in respect of such interest would also be void. This argument was accepted the by High Court as would appear from the following passage in their judgment: "There can be no doubt that the revenue term sairati' when applied to zamindaries includes income from sources other than rents from tenants. At p. 86 of Dalziel's Report of the Revisional Settlement of Orissa in which the various classes of sairat income of a zamindari have been described (such as income from fishery, fruits, markets, jungle etc.), income from quarry' is also mentioned. Apart from sairat interest' the words produce from land' occurring in this clause would also include minerals extracted from quarries. Produce is not restricted to agricultural produce only and would also include minerals which are referred to as out crops from land'. Apart from sairat interest' the words produce from land' occurring in this clause would also include minerals extracted from quarries. Produce is not restricted to agricultural produce only and would also include minerals which are referred to as out crops from land'. The language of clause (k) was deliberately made wide so as to embrace all the interests of the intermediary in the land except of course the right to collect rent from agricultural tenants which is dealt with separately. Hence, when the legislature inserted the aforesaid amendment of clause (k) in Section 5 of the Act in 1956, they intended to render void all contracts in respect of quarries within an estate." In the first place specific mention of the word "quarries" in Section 5(a) does not by itself justify the conclusion that the legislature intended to make any definite provision with respect to them and take them out of the category of "mines". It is apparently by way of abundant caution that the legislature mentioned "quarries" in addition to "mines and minerals". The definition of "mine" as already pointed out by me, is sufficiently wide to include quarries. Moreover, I cannot accept the contention that a lease of a quarry is a contract for gathering of a "produce". Nor can I accept the contention that the income of the landlord by way of lease money can be regarded as "sairati" interest as held by the High Court. Lease of a quarry is a conveyance of an interest in immovable property and not merely a contract. Clause (k) cannot, therefore, be construed as applying to a contract of this kind. Further it is doubtful whether minerals excavated from a quarry can be regarded as produce of land as ordinarily understood. Produce as ordinarily understood means something which comes out of land from time to time and can be gathered periodically. Minerals on the other hand once collected from the quarry are not replaced in the quarry in the sense of their being found available for being excavated and collected later. That apart, clause (k) clearly deals with contracts concerning "sairati" interest. Minerals on the other hand once collected from the quarry are not replaced in the quarry in the sense of their being found available for being excavated and collected later. That apart, clause (k) clearly deals with contracts concerning "sairati" interest. The meaning of the expression "sairati" according to Wilson's Glossary is as follows: "In its original purport the word signifies moving, walking, or the whole or the remainder, from the latter it came to denote the remaining or all other sources of revenue accruing to the Government, in addition to the land tax, from a variety of imposts, as customs, transit duties, licences fees, house tax, market tax etc. in which sense the term is current throughout India; the several imposts under this name were abolished by the British Government, with the exception of Government customs, duties on spirituous liquors, and other minor specified items; the privilege of imposing local taxes included in the Siyar, was also taken away from private individuals, but it still applies to various items of the income from landed property not comprised in the produce of cultivation, as rent from fisheries, from timber and fruit trees, bees' wax etc. it also designates certain admitted manorial rights or prescriptive fees and cesses levied from the residents in a village, or from the cultivators by the proprietors, which have been long established (sic) and are upon record; the former of these additions are usually taken into account, the latter not in fixing the rate of assessment." One thing is clear from all this that lease money in respect of quarries is not regarded as "sairati" and, therefore, the lessor's interests in a quarry which he has leased out cannot be regarded as "sairati" interest. In view of what I have said above, the writ petition of the appellant ought to have been allowed by the High Court. 13. The High Court, however, held that the appellant had no locus standi in the proceeding because according to them the lease being one of mines and minerals was rendered void by Rule 45 of the Mineral Concession Rules because the appellant did not hold a certificate of approval. 13. The High Court, however, held that the appellant had no locus standi in the proceeding because according to them the lease being one of mines and minerals was rendered void by Rule 45 of the Mineral Concession Rules because the appellant did not hold a certificate of approval. While I wish to express no opinion as to the correctness of the High Court's view that the lease was void as being in contravention of that Rule I fail to see how it could be said that the appellant had no locus standi to maintain the writ petition. The proceedings under Section 5(i) were commenced and dealt with by the Collector on the footing that the lease until it was set aside was valid and the appellant was thereunder entitled to maintain her possession of the quarries. It was entirely outside the purview of the proceedings initiated by the Collector to determine whether the lease in the appellant's favour was void. What the appellant sought to challenge before the High Court was the order of the Collector as affirmed by the Board of Revenue in consequence of which her possession over the leased property was sought to be taken away. Since the appellant was a party to the proceeding before the Collector and the order of the Collector affected her right to remain in possession she was entitled to prefer an appeal before the Board of Revenue. When the Board of Revenue dismissed her appeal she was entitled to prefer a writ petition before the High Court under Articles 226 and 227 of the Constitution for quashing the order of the Collector as upheld by the Board of Revenue on the ground that she having been held disentitled to continue to remain in possession and work the quarries and mines, was an aggrieved person. In the result I allow the appeal; set aside the judgment of the High Court and quash the order of the Collector as upheld by the Board of Revenue. Costs of the proceeding in this Court well as the High Court will be borne by the respondent. In the result I allow the appeal; set aside the judgment of the High Court and quash the order of the Collector as upheld by the Board of Revenue. Costs of the proceeding in this Court well as the High Court will be borne by the respondent. Bachawat, J. - By the instrument dated December 12, 1949, the appellant's husband gave the appellant a lease of all the lands, beds of stone quarries, and other minerals of every description and pits in or upon the plots of land mentioned in the document, on a yearly rent of Rs. 1000. By reason of Sections 4 and 5 of the Mines and Minerals (Regulation and Development) Act, 1948 read with Rules 4 and 45 of the Mineral Concession Rules, 1948, the lease, insofar as it is a lease of minerals other than minor minerals as defined in Rule 3(ii) of the Mineral Concession Rules 1948, is void, as the appellant did not hold a certificate of approval as required by Rule 45. I have no doubt in my mind that the document dated December 12, 1949 granted a lease not only of minor minerals of but also of minerals other than minor minerals. The document granted a lease of minerals of every description including both major and minor minerals at a single rent. It is impossible to read in the document a separate lease of minor minerals The document does not mention a separate rent in respect of minor minerals only. The lease in respect of minor minerals is so inextricably mixed up with the lease in respect of other minerals that they cannot be separated from each other. The Court cannot make a new bargain for the parties, and fix a separate rent in respect of minor minerals only. As the lease, insofar as it relates to major minerals is void, it must follow that the lease, as a whole, is void. The lease cannot take effect in respect of the minor minerals also. 14. It follows that the appellant acquired no right under the lease dated December 12, 1949. If so, it is conceded by Mr. As the lease, insofar as it relates to major minerals is void, it must follow that the lease, as a whole, is void. The lease cannot take effect in respect of the minor minerals also. 14. It follows that the appellant acquired no right under the lease dated December 12, 1949. If so, it is conceded by Mr. Pathak that the appellant's right of property is not affected by the orders of the Collector of Cuttack and the Board of Revenue, and the appellant is not entitled to ask for the issue of a writ under Article 226 of the Constitution for quashing those orders. 15. On this short ground, I am of the opinion that the appeal should be dismissed. In this view of the matter, it is not necessary to discuss the question whether the lease was rightly cancelled under the Orissa Abolition Act, 1951, nor is it necessary to express any opinion on the interpretation of any of the sections of that Act. I decline to express any opinion on these questions. 16. In the result the appeal is dismissed. The parties will pay and bear their own costs throughout. ORDER 17. In view of the opinion of the majority, the appeal is dismissed. Each party will pay its own costs throughout.