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1993 DIGILAW 390 (KER)

Shibu v. Tahsildar

1993-08-17

K.SREEDHARAN, M.JAGANNADHA RAO

body1993
Judgment :- Jagannadha Rao, C.J. This Writ Appeal raises the question of the right to minerals, namely, extraction and removal of granite blocks and rubble from patta lands in the State of Kerala. The question also arises incidentally as to the-validity of the Proclamation issued by His Highness, the Maharaja of Travancore dated 14-6-1881 vesting mineral rights in all lands in the State consequent upon the enactment of the Mines and Minerals (Regulation and Development) Act, 1957. The learned Single Judge held that the mineral rights vest in the State. He also upheld the validity of the Proclamation issued by the Maharaja of Travancore dated 14-6-1881 and refused to quash Exts.P5 and P6 orders. 2. The facts of the case are as follows: The appellant obtained three quarrying permits on 22-10-1991,22-11-1991 and 6-3-1992 (Exts. P1, P1(a) and P1(b) issued by the Tahsildar, Attingal in Form E under the'Kerala Minor Mineral Concession Rules, 1967' for extracting and removing 50 tonnes each of rubble from the lands of pattadars of 1.23 acres taken on lease by the appellant. He found stones were of export quality and so, instead of extracting rubble for use as ballast for railways, the appellant extracted bigger blocks useful for export. The rate of royalty payable for rubble, for which alone the appellant had permits, was Rs.0.90 per cubic metre, as per item 3 of Schedule I, as against Rs.50.00 per cubic metre for the granite stones, which fell under item 5 of Schedule I. The granite stones were extracted by the appellant and sold to Plakattu Granite Industries Pvt. Ltd. The appellant extracted a total quantity of 60 cubic metres of granite stones out of which 50 cubic metres were of export quality. 3. Realising the illegality in extracting granite stones rather than rubble, the appellant applied under Ext.P2 dated 10-12-1991 before the Director of Mining and Geology to direct the department to accept additional royalty for whatever blocks had been extracted already and to issue transport permits for the same. He wrote Ext.P3 letter dated 31-12-1991 to the Geologist, Trivandrum admitting that the latter had inspected and warned the appellant that he should not continue extraction of these 'dimension' stones. In Ext.P3 appellant sought permission to extract these 'dimension' stones. He wrote Ext.P3 letter dated 31-12-1991 to the Geologist, Trivandrum admitting that the latter had inspected and warned the appellant that he should not continue extraction of these 'dimension' stones. In Ext.P3 appellant sought permission to extract these 'dimension' stones. In Ext.P4 dated 31-1-1992 by the appellant to the Geologist, he even admitted the 'offence' and sought permission of withdrawal of 10 blocks of 'dimension' stones of 50 cubic metres, to Tuticorin for export abroad. 4. As the permission was not granted, he filed O.P.No.3682 of 1992 on 18-3-1992 and the O.P. was allowed by a learned Single Judge of this Court on 27-3-1992 directing the respondents not to interfere with the removal of stones or the blocks subject to appellant paying royalty at Rs.50/- per cubic metre. The said judgment was set aside in W.A.No.451 of 1992 on 28-5-1992 by one of us (Jagannadha Rao, CJ.) and Krishnamoorlhy, J. After referring to the significant admissions by the appellant in Exts.P2, P3 and P4 about his illegal extraction of stones and commission of offences, the Bench directed the authorities to dispose of Exts.P2 to P4 in accordance with law. 5. Thereafter, the Director of Mining and Geology passed Ext.P5 order dated 2-1-1993 rejecting the appellant's request. The Geologist in his turn passed Ext.P6 order dated 2-1-1993 slating that the appellant indulged in illicit quarrying in extracting granite blocks, that this was in violation of the Act and Rules, and so the appellant cannot be allowed to remove the granite stones so illegally extracted, even if he was prepared n pay the rent, royalty, tax or fine. These orders, Exts.P5 and P6, have been questioned n O.P.No.2221 of 1993 and the O.P. has been dismissed on 13-4-1993 by the learned Single Judge. It is against the said judgment that this W.A. is preferred by the writ petitioner. 6. It is argued by the learned counsel for the appellant that the mineral rights at this place in Trivandrum District vested in the pattadar from whom the appellant had obtained a lease. It is against the said judgment that this W.A. is preferred by the writ petitioner. 6. It is argued by the learned counsel for the appellant that the mineral rights at this place in Trivandrum District vested in the pattadar from whom the appellant had obtained a lease. That while it is true that His Highness the Maharaja of Travancore had issued a Proclamation on 14-6-1881 vesting the mines and minerals in the Stale, the said Proclamation has become invalid as it is repugnant to the provisions of the Mines and Minerals (Regulation & Development) Act, 1957 wherein by S.2, Parliament has chosen to pass a law to occupy the entire field of legislation regarding mines and minerals. It is also argued that, otherwise, there will be discrimination between Travancore (and Cochin area), while in Malabar area, the mineral rights vest in pattadars. So argues counsel. Reference is made to certain decisions of the Supreme Court and one decision of the Karnataka High Court. 7. The points that arise for consideration are: (1) Whether mineral rights in patta lands vest in the pattadar, and not in the State, and whether the mineral rights in Malabar area vest in the pattadar and there is likelihood of discrimination between Malabar area and other parts of Kerala? (2) Whether the Proclamation of His Highness the Maharaja of Travancore issued on 14-6-1881 vesting mineral rights in the State becomes invalid on the ground of repugnancy in view of S.2 of the Mines & Minerals (Regulation and Development) Act, 1957? (3) Whether, even otherwise, pattadars can conduct mining operations without reference to the Central Act of 1957 and the Rules made thereunder including the Minor Mineral Concession Rules? 8. Point No.l: -In Karimbil Kunhikannan v. State of Kerala, AIR 1962 SC 723, a case arising from the Hosdrug and Kasaragod areas which were formerly in the Madras State, a Constitution Bench of the Supreme Court laid down, while dealing with the rights of land-holders under the ryotwari system, that: "The holders otryotwari pattas used to hold on lease from Government. The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years....The ryot is generally called a tenant of Government but he is not a tenant from year to year and cannot be ousted as long as he pays the land revenue assessed....Though, therefore the ryotwari pattadar is virtually like a proprietor and has many advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under the patta. though he had many of the advantages of a proprietor." (emphasis supplied) In Secretary of State for India v. Srinivasachar, (1921) ILR (44) Mad. 421 (PC), the iPrivy Council held that, in the absence of an express covenant creating such an interest in the land, the Government's right to sole ownership of the minerals is not affected. Sir r Lawrens Jenkuas observed: "A grant of this description may be no more than an assignment of revenue, and even where it is or includes a grant of land, what interest in the land passed must depend on the language of the instrument and the circumstances of each case." In State of A.P. v. Balarami Reddy, AIR 1963 SC 264, another Constitution Bench of the Supreme Court relied upon Srinivasacliar's case, decided by the Privy Council for reiterating that the mere fact that a person is the holder of an inam would not by itself be enough to establish that the inam grant included the grant of sub-soil rights in addition to the surface rights. It was held that the grant of sub-soil rights would depend upon the language used in the grant and that if there are no words in the grant from which the grant of the sub-soil rights could be properly inferred, the inam grant would only convey the surface rights to the grantee. 9. The Law Commission in its 10th Report had, while dealing with the rights of the Governments to minerals in Zamindars, Jagirs, major inam and the like, expressed the view that 'in the Ryotwari areas, the problem does not arise and could not arise as the right of the Government to the underground rights was never disputed'. 10. 9. The Law Commission in its 10th Report had, while dealing with the rights of the Governments to minerals in Zamindars, Jagirs, major inam and the like, expressed the view that 'in the Ryotwari areas, the problem does not arise and could not arise as the right of the Government to the underground rights was never disputed'. 10. The law relating to the minerals in the Madras Presidency before 1-11-1956, and in Andhra Pradesh, was reviewed by a Division Bench consisting of Jaganmohan Reddi, CJ. (as he then was), and E. Venkatesan, J. in Subbarami Reddi v. Union of India, ILR 1969 A.P. 736, where the above decisions of the Privy Council and Supreme Court were referred to and followed. 11. The same view has been taken by the Karnataka High Court in Nanjanayaka v. State of Karnataka, AIR 1990 Kar. 97 that the pattadars in erstwhile Mysore State and Kollegal Taluk which became part of the Mysore District, have no right to quarry minor minerals in the palta land. 12. A Division Bench of the Madras High Court in T. Swaminalhan v. State of Madras, AIR 1971 Mad. 483, has also held that the ryotwari pattadar has no ownership in the minerals below the surface of the land. The learned judges also referred to the decision of the Privy Council in Sashi Bhusai Misra v. Jyoti Prasad Singh, (1916) AIR 1916 P.C.191 = 44 Ind. App. 46, that even if the tenure was permanent, heritable and transferable, it did not carry a right to the minerals unless there was express evidence that such rights were included. 13. Coming to the decision of the Supreme Court in Raja Anand Brahma Shah v. State of U.P., AIR 1967 SC 1081, State of Punjab v. M/s.Vishwakarmas & Co., JT 1993 (1) SC 448, we are of the view that the said decisions were based upon the special grants in those cases or the special tenure, and that those decisions cannot help the appellant. 14. We, therefore, hold that the appellant's lessor and therefore the appellant cannot claim any right to the minerals on the ground that the lessor was a pattadar. Point is found accordingly against the appellant. 15. 14. We, therefore, hold that the appellant's lessor and therefore the appellant cannot claim any right to the minerals on the ground that the lessor was a pattadar. Point is found accordingly against the appellant. 15. Point No.2: It is contended that the Proclamation of His Highness the Maharaja of Travancore dated 14-6-1881 vesting the rights in metals and minerals has become invalid because of S.2 of the Mines and Minerals (Regulation and Development) Act, 1957. In our view, the Proclamation deals with acquisition by the State of the right to the mines and minerals and it is not repugnant to the provisions of S.2 of the Act of 1957. It is true that Entry 54 of List I deals with: "regulation of mines and minerals development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in public interest" and Parliament has evinced an intention to occupy the said field by S.2 of the Miners & Minerals (Regulation and Development) Act, 1957. But there is no conflict between acquisition of title to mines and minerals and the regulation and development of rights in relation to them. This point directly arose before the Supreme Court In Bhagwandas v. State of U.P., AIR 1976 SC 1393, and State of Hatyana v. ChamanLal, AIR 1976 SC 1654. In the first case, the mineral rights vested in the State by virtue of a State Act of 1951 (i.e. before the 1957 Act of Parliament), while in the other, the mineral rights vested in the State by a State Act of 1973. In either case, the vesting of mineral rights in the State was held to be independent and unaffected by the Central Act of 1957 which deals only with regulation and development. Therefore, Proclamation of the Maharaja of Travancore dated 14-6-1881 vesting the mineral rights in the State is wholly unaffected by the Central Act of 1957. Point 2 is held against the appellant. 16. Therefore, Proclamation of the Maharaja of Travancore dated 14-6-1881 vesting the mineral rights in the State is wholly unaffected by the Central Act of 1957. Point 2 is held against the appellant. 16. Point No.3: In any event, even assuming that the ownership of the pattadar extends to the mines and minerals in the patta land, the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules made thereunder, including the Kerala Minor Mineral Concession Rules, 1967, issued by virtue of S.15 of the Act operate even in respect of the mines and minerals in the patta lands and therefore the appellant cannot claim any rights to exploit the mines and minerals in patta lands outside the provisions of the Act and Rules. For the aforesaid reasons, the refusal by the Director and the Geologist to pass orders either for mining or for transport in favour of the appellant, who has admitted illegal mining and commission of offences, is valid. The Writ Appeal is dismissed.