JUDGMENT K.Sampath, J.: "This analogous cluster" to borrow the expression used by the Constitution Bench of the Supreme Court in Krishna Kumar v. Union of India, (1990)4 S.C.C. 207 of several writ appeals and one writ petition involves common questions. As was done by the learn at single Judge, it is enough if facts in one writ appeal are noticed. Though the substance of the reliefs in the various writ petitions is the same, the prayers vary from certiorari, to declaration of certiorarified mandamus. 2. The appellant in W.A.No.685 of 1991 was the petitioner in W.P.No.7783 of 1982, a ryotwari pattadar of a large extent of lands in and around Dalmiapuram, Tiruchirapalli District. For the purpose of manufacture of cement, the petitioners obtained license for quarrying limestone, gypsum etc. On the date of disposal of the writ petitions, the relevant licence/lease was in force in most of writ petitions. As enjoyed by Sec.9(1) of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as ‘the Act’), the petitioners have been paying half royalty for the minerals quarried by them in their patta lands. 3. It would appear that on 10.5.1982 the Government of Tamil Nadu through the Joint Secretary to Government addressed letters to all the Collectors. In that letter it is stated that in 1977 the senior deputy accountant general in his audit report had pointed out the incorrect levy of royalty at half the rates for mining in patta lands since no proportion had been prescribed in the Minor Concession Rules, 1960 in regard to the shares in the minerals between the pattadar and the Government, that the omission of levy royalty in the State at the mandatory rate for mining patta lands where minerals fully vested in the Government resulted in the Government foregoing revenue amounting to Rs.40.26 lakhs on 39.12 lakhs tonnes of minerals in respect of 29 leases during 1974 to 1976 alone, that the Government, after taking into account the above facts and in order to of avoid further loss of revenue to the Government in future, had decided to levy full rates of royalty and dead rent prescribed in the second and the third schedules to the Act in respect of mining leases over patta lands as in the case of Government lands. The letter requested the Collectors to stop sharing 50% of the loyalty and dead rent with the patta land holders in respect of mining leases and to collect the whole amount due as royalty and dead rent prescribed in the second and the third schedules to the Act as in the case of land in which the minerals vested in the Government with effect from the date of issue of the order. 4. This was followed by a communication dated 22.5.1982 by the Collector of Tiruchirapalli in RC.Y1.68834 of 1982 wherein the petitioners were informed as follows: "The Government in their letter cited have instructed to levy and collect the royalty and dead rent in respect of the patta lands leased out for mining purposes at the full rate of royalty and dead rent prescribed in the second and the third schedules to the Mines and Minerals (Regulation and Development) Act, 1957 with effect from 10.5.1982. Please therefore remit the royalty and dead rent at the rates prescribed in the second and the third schedules to the Mines Act and apply for transport permits to the Special Tahsildar, Mines, Tiruchirapalli. The amount of royalty and dead rent should be remitted at the full rate as per the statute provision under the Act and Rules thereunder with effect from 10.5.1982." This order was followed by a demand made on the petitioners by the Special Tahsildar, Mines, Tiruchirapalli, calling upon them to pay the amount mentioned against their respective rates for the quarters ended 31.3.1982 and 30.2.1982. 5. This provoked the various writ petitions. The prayer as already noted is either for the issue of a certiorari, to quash the memo Dated 22.5.1982 or for a declaration that no royalty or dead rent in excess of 50% is due or leviable or recoverable in respect of patta lands for which mining leases were granted or for certiorarified mandamus to call for the records relating to letter Ms.No.628, Industries Department, dated 10.5.1982 passed by the first respondent herein not to collect more than 50% of the royalty prescribed for the Government mines and to refund the amount illegally collected from the petitioner pursuant to the impugned order (W.P.No.9697 of 1985 and W.P.No.11193 of 1985). 6. 6. The learned Judge set out the contentions raised before him on behalf of the petitioners as follows: (1) In patta lands, the sub-soil minerals vest in the pattadar or in any event, he is entitled to a share therein equally with the Government: (2) It is recognition of the above right of the pattadar took a share in the mineral wealth, only 50% of the royalty was collected in respect of patta lands while 100% royalty was collected for Government lands; (3) The above practice, which has been in vogue for decades, had also received the recognition in Board Board Standing Orders (BSO) 28(7) and in Rule 53 in Chapter VI of the Mineral Concession Rules (hereinafter referred to as the Rules); (4) The unilateral decision of the Government in issuing the memo dated 10.5.1982 demanding payment of 100% royalty as against 50% royalty hitherto collected, is not only against the statutory provisions, but is also contrary to the terms of the lease/ licence granted to the petitioners: (5) Since the memo dated 10.5.1982 visits the petitioners with civil consequences and puts them to prejudice, the least that the petitioners can expect is an opportunity to state their case before orders prejudicial to them were made by the Government; and (6) In issuing the memo dated 10.5.1982 the Government had, without application of mind, blindly accepted the dictate of third party, namely, the Accountant General. 7. The learned Judge, after referring to the various decisions relied on by the learned counsel, choose to follow the Bench decision of this Court in Swaminathan v. State of Madras, (1971)2 M.L.J. 146 , wherein the Division Bench held that, "A ryotwari pattadar has every right to the use of the surface of the soil, but his proprietary right, if any, does not extend to minerals of the soil. It is well established proposition that all minerals underground belonged to the Crown, and now to the State, except in so far as the state has parted with the same wholly or partly in favour of an individual or body." and further held that even though a ryotwari pattadar may be the proprietor of the land held by him, he has rights only to the surface of the soil, subject to payment of such tax as may be due and he has no right to the whole or to a share in the sub-soil mineral which belongs to the sovereign, namely, the Government and therefore the claims of the petitioners that the mineral wealth belonged to the ryotwari pattadar or at least they had a share therein, could not be accepted. The learned Judge further held that under Sec.9 of the Act, the holder of a mining lease granted before the commencement of the said Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, should pay royalty in respect of any minerals at the rate specified in the second schedule and the second schedule prescribed the statutory rate of royalty and it made no mention of a patta land nor did it contemplate offering of any special concession for patta lands and therefore it was obvious that the rate of royalty was payable as per the second schedule, even in respect of patta lands. The further contention that the convention was only of collecting 50% of the royalty for patta lands had received statutory recognition in Board Standing Order 28(7) and also under the proviso to Rule 53 of the Rules had been rejected by the Division Bench as also another Division Bench in a batch of writ petitions in W.P.No.8542 of 1989 etc. batch dated 12.10.1990 (V.Gangarathinam v. State of Tamil Nadu - 1990 T.L.N.J. 374). 8. The learned Judge further found that the demand for payment of 100% royalty during the currency of the lease was contrary to the terms of the lease. batch dated 12.10.1990 (V.Gangarathinam v. State of Tamil Nadu - 1990 T.L.N.J. 374). 8. The learned Judge further found that the demand for payment of 100% royalty during the currency of the lease was contrary to the terms of the lease. The learned Judge reasoned that it could not be said that the Government was not aware of the rate of royalty prescribed in the second schedule of the Act, that notwithstanding that the Government had voluntarily and as a matter of convenience or contract between the parties, decided to levy and collect only 50% of the royalty for patta lands during the currency of the lease granted by them and after having lulled the petitioners into the belief that royalty payable by them would be only 50% in respect of patta lands and after the petitioners had acted on that for decades they could not be made to suffer by a decision taken unilaterally by the Government to revoke that privilege. Indeed, there might be objections from audit but that was a matter which the Government had to sort out with the Accountant General breach of its undertaking contained in the lease deed. The learned Judge held that during the currency of the lease deed the Government could not be permitted to demand payment of 100% royalty. The learned Judge also held that the rules of audi alteram partem had not been complied with when the Government issued the memo dated 10.5.1982. 9. As regards the contention that the Government had blindly accepted the dictate of the Accountant General, the learned Judge held that the Accountant General had only discharged his duties and obligations and one of his obligations or duties was to scrutinise the action of the Government and bring to the notice of the Government any leakage in the revenue collection and that the Government had taken its own decision on merits. 10. Thus holding, the learned Judge allowed the writ petitions in part to the extent that during the currency of the leases which were in force as on the date restrained from demanding and collecting anything in excess of 50% in so far as patta lands were concerned. 11. Even at this stage, it has to be noticed that the position was conceded before the learned single Judge that the petitioners were liable to pay 50% of the royalty. 11. Even at this stage, it has to be noticed that the position was conceded before the learned single Judge that the petitioners were liable to pay 50% of the royalty. Even in W.P.No.11193 of 1985 argued by Mr.Vedantham Srinivasan, the prayer is only for refund of amount in excess of 50%. The reason for referring to the prayer in this writ petition is that for the first time it is contended before us that limestone being a major mineral, only the Central Government would have suzerainty and control over the same and the State Government should quit the scene. This point had not been raised in the writ petition and the reason for not putting it forward than and doing it only now is that the decision of the supreme Court in India Cements Limited v. State of Tamil Nadu, A.I.R. 1990 S.C. 85 same subsequent to the filing of the present petitions. 12. Learned senior counsel Mr.S.Gopalaratnam and learned counsel Mr.Vedantham Srinivasan advances arguments, particularly contemplation that the minerals are far as ryotwari patta lands are concerned, vested only in the proprietors of the soil. The learned senior counsel made us to travel back in history by nearly two centuries starting from Regulation 25 of 1802. The senior counsel’s arguments were educative and should interest and inspire many an aspiring legal historian. The counsel had their own comments on the various decisions of the Supreme Court and this Court regarding their understanding of the concepts of vesting and ownership. They were at pains to point out that ownership of minerals in patta lands vested with the proprietors of the soil and the Courts had thoroughly misunderstood the legal principles and held that ownership of minerals in patta lands vested with the Government. They also argued that the decisions are per in curiam, obiter and sub silentio and cannot be held to be binding precedents. They also argued that the decisions are per in curiam, obiter and sub silentio and cannot be held to be binding precedents. 13.Per contra, the learned Advocate General argued for the position that mineral even in respect of patta lands belonged to the state had been settled by the judgments in three Division Bench cases of this Court, that under the provisions of the Act whether or not the licensees/ lessesses were owners of the land, they had to pay royalty, that it has been so held by the Supreme Court in Quarry Owners Association v. State of Bihar, (2000)8 S.C.C. 655 , that minerals are the property of the State and that royalty and dead rent which the lessee or licensee paid are the integral parts of a lease and that it did not constitute usual tax as commonly understood, but included return for the consideration for parting with its property. 14. The learned Advocate General also referred to the various Provisions of the Act and the Rules and submitted that the decision of the learned single judge was unexceptionable. 15. We are not setting out the submissions of each counsel individually as their submissions have been more often overlapping. They are therefore dealt with together. 16. We will be quoting extensively from the compendium on ‘Land Tenures in the Madras Presidency by Sundraja Iyengar. 17. Time was when men were, nomads living on ‘the wild fruits and the products of the chase’, “though each family cultivated a patch of land just sufficient for its wants and when it was exhausted, cultivated another patch and son on”. (S.Sundararaja Iyengr - Land Tenures in the Madras Presidency, 1916). This indiscriminate cultivation was arrested with the community cultivation was arrested with the community coming into contact with another community doing an identical thing and the numbers in the communities also growing. It was then that settled agriculture as the calling started taking roots and the individual communities stuck to the land which they originally cultivated and the concept of ownership of land surfaced. 18. According to Manu sages pronounced “cultivated land to be the property of him who cut away the wood or who cleared and tilled it; and the antelope of the hunter, who mortally wounded it”. Thus the ownership in the first occupant was a notion well established in ancient times. 19. 18. According to Manu sages pronounced “cultivated land to be the property of him who cut away the wood or who cleared and tilled it; and the antelope of the hunter, who mortally wounded it”. Thus the ownership in the first occupant was a notion well established in ancient times. 19. Later writers, like Gautama, expressly lay down occupation as one of the modes of acquisition of title. 20. In The Secretary of State v. Vira Rayan, I.L.R. 9 Mad. 175, Sir Charles Turner C.J., and Muthuswamy Ayyar,J. observed: “According to what may be termed the Hindu common law, a right to the possession of land is acquired by the first person who makes a beneficial use of the soil”. It further developed that the interest of the person thus taking possession was not a limited but an absolute one (Gunga Gobind Mudul v. The Collector of the Twenty Four Pergunnahs, 11 M.I.A. 345). 21. According to Justinian, “Wild beasts, birds, fish, that is, all animals, which live either in these, the air, on the earth, as soon as they are taken by any one, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner.” 22. The same view was expressed by Mahomed in respect of waste lands. According to him “whoever cultivates waste lands thereby acquire the property of them” (Hamilton’s Hedaya). 23. Possession of land being thus acquired by the first occupant, what is then the right of the Sovereign in it? “Manu Yajnavalkya, Apastamba, Guatama, Baudhayana, Narada and Vishu have all, uniformly, laid down mist distinctly that he is entitled to a share of the produce of the land taken, it is said, for protecting the life, liberty and property of the people under this charge, though the actual share may vary.” 24. “Then we have to see in what capacity the King is entitled to take this share of the produce. Does he take it as the proprietor of the soil, or merely as the price for the protection he is affording to the life, liberty and property of his subjects, the property in the soil being in the subject? In other words, is the payment made by the subject rent or tax?” 25. “Eminent authorities are divided on the question of the Sovereign’s proprietorship of the soil. In other words, is the payment made by the subject rent or tax?” 25. “Eminent authorities are divided on the question of the Sovereign’s proprietorship of the soil. This difference of opinion only relates to the Mohamedan and English periods, and so far as the Hindu period is concerned, all are agreed that the ancient Hindu Sovereigns never claimed any right to the proprietorship of the soil. (Elphinstone’s History of India; Wilks’ History of Mysore; Field’s Land-holding; Srinivasa Raghava Iyengar’s Progress; Wilson History of India; Baden Powell, Land systems of British India I; Maine, Village Community)” 26. “In the Institutes of Manu, there are passages which, as remarked by Sir Charles Turner, can only be explained on the footing of the existence of private property in the subject. IN the case of disputes between two villages, or landholders concerning a boundary, the King is to ascertain its limits; the testimony of the neighbours on every side is considered the best means of decision in deciding the boundary of arable lands, wells, pools, gardens or houses; and the owner of the field is asked to enclose it with a hedge and stop every gap in it. Again the owner of the soil is to have the produce of the seeds sown by another having no property in it. Unless there is an agreement between them, he is entitled to the products of the seed conveyed to his land by wind or water, and punishment is laid down for trespass through intimidation or ignorance.” 27. The Nasik caves contained definite record to show that privately owned filed was bequeathed for the benefit of ascetics. We get a definite reference on this point in Purvamimansa which states that a King cannot dispose of the land of private individuals, when he is called upon to gift away all his possessions in charity at the end of certain sacrifices. Similarly, Narada points out that it would be highly inquisitious if the King proceeded to interfere with the ownership and possession of houses and lands, for it would result in utter chaos. Arthasastra also makes a clear distinction between the crown lands and the private lands. One of the Jataka stories records that a King told his mistress that he cannot give her his kingdom because he is not its owner. 28. Arthasastra also makes a clear distinction between the crown lands and the private lands. One of the Jataka stories records that a King told his mistress that he cannot give her his kingdom because he is not its owner. 28. During Rig Vedic period we get references to show that the arable and homestead land belonged either to an individual or to a family. We also get references about individual or family ownership as well as communal and royal ownership of the land. 29. The effectiveness of the right of ownership of land depends on the right to gift, sell and mortgage the land. The ancient legal literature not only contains reference about the right of an individual to alienate the land but there are quite a number of inscriptions which record the gifting of the land by the coron, community and private individuals. There are also many instances to show that full ownership rights of the land were transferred to the donee. Thus Dhruvasena I of Valabhi gave 360 padavartas of land to a temple in his kingdom. This land was not contiguous and was intercepted by land owned by private individuals. This implies that while certain lands were owned by private individuals or the community, certain other pieces of land were owned by the State. The land owned by the state was described as rajyavastu, and its ownership accrued to the state either through failure of heirs or through the non-payment of the land tax. When the lands were actually transferred to the donee (instead of the revenue) it is not know how they were cultivated. Most probably they were either let out to sub-tenants or cultivated through hired labourers. Whether these lands were granted on perpetual basis or otherwise, is also not quite clear. Most probably these grants were made on perpetual basis, but the donee had no right of alienation or a perpetual endowment of rent-free land. 30. According to Dr.A.S. Altekar, we “possess conclusive evidence to show that in the post-Budhist period at any rate the ownership in cultivable lands was vested in private individuals; the state could not interfere with it except for the non-payment of the land-tax. What is claimed from the average cultivator was thus not a land rent but a land tax”. 31. According to Dr.A.S. Altekar, we “possess conclusive evidence to show that in the post-Budhist period at any rate the ownership in cultivable lands was vested in private individuals; the state could not interfere with it except for the non-payment of the land-tax. What is claimed from the average cultivator was thus not a land rent but a land tax”. 31. The Indian idea of property was defined by Mount Staurt Elphinstone in his History of India to consist in “the exclusive use and absolute disposal of the powers of the soil in perpetuity; together with the right to alter or destroy the soil itself, where such an operation is possible. These privileges, combined, from the obstruct idea of property; which does no represent any substance distinct from these elements. Where they are found untied, there is property and nowhere else. This definition was accepted by the late Sir Charles Turner, a former chief Justice of Madras in his Minute on the Draft Bill relating to Malabar Land Tenures. 32. In that, Sir Charles Turner remarked that,” the Hindu Law not only recognised the sale of land, the gift of land, and the inheritance of land, all in complete ownership; subject, except where held by Brahmas, to the payment of the King’s due; but it also recognised a multiplicity of forma of mortgage, some extending to the usufruct of the land, others to the actual ownership, and after discussing the various forms of conveyance prevalent in Malabar, he observed that, “they point to an ownership of the soil as complete as was enjoyed by a freeholder in England”. 33. “The Roman idea of ownership is denoted by the term dominum or proprieties which consists of jus utendi (the right of using the thing), jus fruendi (the right of enjoying its products), jus abutendi (the right of consuming it, if it is capable of consumption; this right including the right of disposition by sale, exchange, gift, mortgage, lease, etc.); just prohibendi the right of exclusive possession and enjoyment and jus transmittendi, the right of transmitting it to his heirs.” (S.Sundararaja Iyengar Land Tenures in the Madras Presidency). 34. The conception of property according to Mahomedan Law is thus stated by Mr.Justice Abdur Rahim in his book on Mahomedan Jurisprudence, “It is the very conception of property that its owner may use and enjoy it as he chooses. 34. The conception of property according to Mahomedan Law is thus stated by Mr.Justice Abdur Rahim in his book on Mahomedan Jurisprudence, “It is the very conception of property that its owner may use and enjoy it as he chooses. His rights in this respect, generally speaking, are only limited by similar rights of others and subject to such burdens as may be imposed by the State. Limitations upon an owner’s right of user and enjoyment are mostly imposed with reference to land, because the mode in which man uses his land often affects his neighbours. The general principle is that the owner of land is entitled to use it and enjoy it in the manner that suits him best even if it causes inconvenience or injury to this neighbours, provided he does not destroy the neighbour’s property or makes it useless to him”. 35. It was observed in Venkatachala Naidu v. Dandamudi Kotayya, 7 M.L.J. 251: I.L.R. 20 Mad. 299, that Sovereigns, ancient or modern did not in India set up any more then a right to a share of the produce raised by the ryots in lands cultivated by them, however much that share varied at different times. The Sovereign’s right being thus limited to one-sixth or one-fourth part of the produce, the necessary inference therefore is, as pointed out by Mountstuart Elphinstone in his Book - History of India, that there must be another proprietor for the remaining five-sixths or three-fourths, who must obviously have had the grater interest of the two in the whole property. The Sovereign therefore has a title to the revenue or Jumma, and by whatever name it is called, the right and title is to the rent substantially; and it does not include a right to the possession of the lands, though such a right might arise by forfeiture, or extinction of the ownership. (Gunga Gobind Mundal v. The Collector of the Twenty four Pergunnahs, 11 M.I.A. 345). 36. "The right of this proprietor cannot be affected by ny dealing by the Government with a third person. Therefore a grant by the Government with a third person. Therefore, a grant by the Sovereign conveyed to the grantee only his interest in the land, namely, the land revenue, and did not interfere with the existing rights in the soil, even though no such reservation was made in the grant. Therefore a grant by the Government with a third person. Therefore, a grant by the Sovereign conveyed to the grantee only his interest in the land, namely, the land revenue, and did not interfere with the existing rights in the soil, even though no such reservation was made in the grant. Whenever it was intended to give the grantee the occupant’s interest also, it was either purchased and made over to the grantee, or provision was made in the deed of grant providing for such purchase, or the state itself was in possession of it, as in the case of waste land or land relinquished by ryots. Private property is not inconsistent with the payment of land tax to the king, nor with the existence on the soil of persons who have subordinate rights, or of village officers who receive for the services they render a customary dole at the time of the harvest, or a rent free-holding." 37. In Lakkamani v. Puchaya Naikar, 6 H.C.R. 208, the principle enunciated by the earlier European writers that the King possessed the proprietary right in the soil, and that there was no such thing as private landed property in India, was not accepted. All authorities are agreed that the ancient Hindu King never claimed any proprietorship of the soil. 38. "The Mahomedan Law of property as applied in India, differed in no way from the Hindu law, and the only effect of the Mahomedan conquest was to raise the land tax so high as to leave the cultivator barely subsistence wages." 39. In Vaikunta Bapuji v. The Government of Bombay, 12 Bom H.C.R. App. 13, a Division Bench of the Bombay High Court held, after an elaborate consideration of the ancient authorities, that the proprietary right of the Sovereign to the soil derived no warrant from the ancient laws or institutes of the Hindus, and was not recognized by modern lawyers as exclusive of, or incompatible with individual ownership. The same principles with individual in Venkatachala Naidu v. Dandamudi Kotayya, 7 M.L.J. 251: I.L.R. 20 Mad. 299, by a Division Bench of this Court. But in Venkata Sastrulu v. Sitaramudi, 26 M.L.J. 585: I.L.R. 38 Mad. The same principles with individual in Venkatachala Naidu v. Dandamudi Kotayya, 7 M.L.J. 251: I.L.R. 20 Mad. 299, by a Division Bench of this Court. But in Venkata Sastrulu v. Sitaramudi, 26 M.L.J. 585: I.L.R. 38 Mad. 891, there is a dictum of Seshagiri Ayyar, J. to the effect that the ownership of the soil vests in the Sovereign, and that it is based on the theory that the ancient Sovereigns of the country and similar right. But the learned Judge was dealing not with cultivated, but with waste lands." 40. Originally, in the Tamil districts, the right to property was known as ‘Kaniatchi’, in Tamil and ‘Swastium’ in Sanskrit and its holder as ‘Kaniatachidar’ had ‘Swastiumdar’. The word ‘kaniatacyhi’ is derived from ‘kani’ meaning ‘property or possession’, and ‘atchi’ meaning ‘power or domunion’ and the compound means "that which is held in free and hereditary property". After the Mahomedan conquest of India, this right to property was denoted by the Arabic word mirasi and the holder mirasider. ‘Mirasi’ means primarily inheritance and secondarily right by inheritance or inherited property or right, and ‘mirasider’ the holder of hereditary lands, or hereditary proprietor or landholder. .....The word mirasi was latterly applied to other hereditary privilege of a different nature though more or less connected with land, such as village offices and sometimes to all kinds of hereditary rights, whether attached to the land or not. 41. The introduction of the Arabic word ‘mirasi’ after the Mahomedan cannot to devote the hereditary rights in land led the Madras Government in 1786 to believe that they came into existence only then; and therefore to define mirasi to mean, not a right but a preference to the cultivation of the soil, The proprietary right to which was exclusively vested in the Sirkar. But the Board of Revenue at once pointed out that the rights claimed under the term could be traced far beyond the Mahomedan conquest to unascertainable antiquity in the Hindu term ‘Kaniatchi’ and that they were always considered hereditary rights, subject only to the obligation of cultivating lands and paying the Government share of the produce. But the Board of Revenue at once pointed out that the rights claimed under the term could be traced far beyond the Mahomedan conquest to unascertainable antiquity in the Hindu term ‘Kaniatchi’ and that they were always considered hereditary rights, subject only to the obligation of cultivating lands and paying the Government share of the produce. Mr.Place also in his report in 1799 demurred to the definition of the term given by the Government and pointed out that the mirasidars had an undoubted hereditary property in the soil and defined Mirasi to mean a freehold estate of inheritance and a mirasidar a tenant in fee simple; and the author of the Chingleput District Manual remarks that the definition adopted by the Government is opposed to everything in truth and justice and that the only excuse for it was the ignorance under which it was made though it is rather curious that it was never withdrawn. 42. The mirasidar’s power of disposal over cultivated lands was absolute, though at first, the other mirasidars of the village had the right to pre-emption or had to assent to such disposal. He could sell, mortgage, lease or dispose of his property in nay way he liked, and as pointed out by Col.Blackburne, "his land possessed all the qualities of property" (Col.Blackburne’s Report’s Mirasi Papers, 111). No permission of the Sovereign was considered necessary to validate an alienation of land and no permission was in fact obtained. 43. In South Canara the proprietors of land were known as wargadars, mulavargadars, or mulgars. According to Col. (afterwards Sir Thomas Munro) the lands there constituted a sort of private property more ancient and probably more perfect than that of England. In Vaikunta Bapuji v. The Government of Bombay, 12 Bom H.C.R. App. 13 already referred to, the learned Judges observed that the muli, the mirasi, the Kaniatchi, the swastium and the Janmakari tenures were merely so many various names for the ancient hereditary proprietary right of the ryot in the soil, recognised by Mr.Ellis of Madras, Mountstuart Elphinstone, Lord William Bentick, Professor H.H.Wilson, the Madras Board of Revenue, and other eminent authorities, and that this proprietary right was subject to the payment to the Sovereign of a share of the produce as assessment. 44. 44. The study relating to ‘mirasi tenure’ is a very interesting one,but for the purpose on hand, it is not necessary to go into all those things. 45. A patta is not evidence of title, but is only evidence of possession. 46. A registered pattadar may, so far as he is concerned, alienate, sublet, mortgage, sell, give, bequeath or otherwise dispose of the whole or any portion of his holding. 47. On the conquest of India by the English, they proceeded on the footing that the proprietorship of the soil belonged to the Crown. Having been brought up amidst the feudal ideas prevalent in England, under which the King is considered the owner of all lands within the realm, and the subject can have no absolute property in witnessed the condition prevalent in disturbed times when they came to India, they concluded that the proprietorship of the soil belonged to the Crown. In the year 1796 the Government of Madras declared that, "it is the first feature in all the Governments of India, that the Sovereign, whether he be a Mussulman or a Hindoo is lord of the soil; and hence it is that no alienation of lands form the property of the circa, or rather no possession of land whatever is valid without a written instrument from the superior lord; and this distinction has invariably followed the conquests of all nations who have established themselves in India..... the Board of Revenue at once pointed out that there were hereditary cultivators on lands with the right of making any disposition of them by sale, mortgage or otherwise as long as they paid the Government revenue, and that they only could not make any alienation of them to the exclusion of the royal share of the revenue. 48. Acting on the view that they were the proprietors of the soil, the Government purported to confer proprietary rights in the soil on the zemindars at the time of the permanent settlement. 49. Regulation XXV of 1802 came to be passed for the purpose of carrying out the permanent settlement. 48. Acting on the view that they were the proprietors of the soil, the Government purported to confer proprietary rights in the soil on the zemindars at the time of the permanent settlement. 49. Regulation XXV of 1802 came to be passed for the purpose of carrying out the permanent settlement. It is recited in the preamble that, "it has been usual for the Government to deprive the Zemindars, and to appoint persons on it sown behalf to the management of the zemindaries, thereby reserving to the ruling power the implied right and the actual exercise of the proprietary possession of all lands whatever ," and Sec.2 vested the proprietary rights of the soil in the zemindars or other proprietors. Subsequently, it was found out that the Regulation had the effect of interfering with the established rights of ryots, and therefore Regulation IV of 1822 had to be passed which declared that the provisions of Regulation XXV of 1802 were not intend to define, limit, infringe or destroy the actual rights of any description of tenants. The effect of these Regulations was considered by the Privy Council in the case of The Collector of Tirchinopally v. Lekkamani, L.R. 1 I.A. 282, relating to an unsettled palayam. The Government contended in this case that there was no proprietary right in lands and permanently settled. The Privy Council overruled this plea and observed, "Laying out of consideration for the present the words of the preamble, which form no part of the enactment of the Regulation, it is clear that the affirmative words of the 2nd section ‘that, in consequence of the assessment the proprietary right of not either give to, or take away from, the former owners of lands not permanently assessed any rights which they then had. It merely vested in all zemindars an hereditary right at a fixed revenue upon the conclusion of the permanent assessment with them. It is a maxim that affirmative words in a statute without any negative, expressed or implied, do not take away an existing right. There are n words declaring that no proprietary right then existed, or should thereafter be deemed to exist, except in Government in any lands not permanently settled; and in their Lordships’ opinion it was not the intention of the Legislature to pass such an enactment. 50. There are n words declaring that no proprietary right then existed, or should thereafter be deemed to exist, except in Government in any lands not permanently settled; and in their Lordships’ opinion it was not the intention of the Legislature to pass such an enactment. 50. "The words ‘proprietor of land’, as used both in the Bengal Code of 1793 and in the Madras Code of 1802 have a technical signification. They refer to zemindars, independent talukdars, and others who pay the revenue assessed upon their estates immediately to Government, and the words ‘proprietary possession’ as used in the recital of Regulation XXV of 1802, must also be read in a similar sense as meaning the possession and rights of a proprietor in the technical sense in which that words is used, viz., the person who pays the revenue immediately to Government." 51. Inasmuch as the rights of the ryot are derived independently of the Government, the grant of the proprietary right of the soil conveys only such right as the government had in the lands. If the Government owned both the warms, as in the case of waste lands, lands relinquished or abandoned by tenants, the grant will be of both warams, but in other cases, only the grant of melwaram. Prima facie, the Government being entitled to the royal share or melwaram, its assignee, the zemindar, is entitled only to melwaram. Under the permanent settlement, the entire waste in the zemindary is conveyed to the zemindar. 52. Sec.8 of the Regulation gives power to the zemindars to alienate by gift or sale, or otherwise dispose of their proprietary rights in the zemindary in whole, or in part without the previous consent of the Government, and enacts that, unless such transfer is recorded in the office of the Collector, it is of no legal force or effect, nor does it exempt the alienated part from being proceeded against for the entire revenue. 53. 53. Where the title of a zemindar to a village is established as part of his zemindary, he is presumed to be the owner of the underground rights in the absence of evidence that he has parted with them, and this right is recognised in the Standing Orders of the Board of Revenue, wherein it is declared that no claim to minerals should be made on behalf of the State in estates held on sands of permanent settlement (Standing Order No.25 I(a)). Where the zemindar executed a permanent lease of an agricultural character, and there was no evidence to show either that he parted with mineral rights, or that such rights were acquired by prescription, the lessee has no right to work the minerals; so also the grantee of a mogoli brahmottar granted either before or after the permanent settlement, who is a permanent tenure holder, is not entitled to them, when there is no evidence to show the intention of the parties at the time of the grant. In Durga Prasad Singh v. Braja Nath Bose, I.L.R. 39 Cal. 696 (P.C.), certain villages situated within the limits of the plaintiffs’ zemindary were granted on Digwari tenure, which was hereditary and inalienable, and whose holders were appointed and dismissed by Government, but where was no separate settlement with them at the time of the permanent settlement and the rent reserved was made payable to the zemindar. The Privy Council held reversing the decision of the High Court (Braja Nath Bose v. Durga Prasad Singh, I.L.R. 24 Cal. 753), that the minerals remained with the zemindar, in the absence of evidence that he ever parted with them. 54. The holder of an unenfranchised inam is entitled to work the minerals thereunder without payment of any royalty, if the grant conveys expressly or by necessary implication a right there t0 (S.O.25, Sec.(1), 1(c)). “...Where an absolute grant of land is made ot the grantee in lieu of maintenance, any provision in the grant of a right of reversion on failure of male issue of the grantee is invalid (Venkata Kumar Mahipati Surya Rao v. Chellayammi Garu, I.L.R. 17 Mad. 150). The declaration in the grant that the granite is to provide maintenance for is dependants and servants out of the lands granted, does not render them inalienable (Raja Nursing Deb v. Roy Koylasnatyh 9 M.I.A. 55). 150). The declaration in the grant that the granite is to provide maintenance for is dependants and servants out of the lands granted, does not render them inalienable (Raja Nursing Deb v. Roy Koylasnatyh 9 M.I.A. 55). The presumption in the case of maintenance grants is that only the income, that is, the rents and profits, was granted Bhavanamma v. Ramaswami, I.L.R. 4 Mad. 193, and not the corpus, and therefore, in the absence of words to that effect, the grantee has no right to open minerals or remove them as they are portions of the soil, but can work open mines. 55. A permanent lease including all rights of various kinds with the exception only of the homestead includes the minerals Charan Nandy v. Abhiram Goswami, I.L.R. 33 Cal. 511. Where the whole of a village except a specified portion is granted on a mokurari lease, and the rights of the grantor in the village are expressly demised to the grantee and his sons and grandsons, on payment of a rent fixed in perpetuity, though there was a clause forgetting the lease for non-payment of rent, it was held to convey to the lessee title to the underground minerals even if neither party had any idea at the time of the execution of the lease of the existence of coal underneath or contemplated the working of the minerals (Megh Lal Pandey v. Raj Kumar Thakur, I.L.R. 34 Cal. 358). 56. In the Economic History of India, by Romesh Dutt, Vol.I, page 105, extracting from Turner’s Minute, recorded on 31st December, 1824 it is stated as under: ”In order to make the land saleable, to encourage the Ryots to improve it, and to regard it as a permanent property, the assessment must be fixed and more moderate in general than it is now; and above all, so clearly defined as not to be liable to increase from ignorance or caprice.... "The Ryot is the real proprietor, for whatever land does not being to the Sovereign belongs to him. "The Ryot is the real proprietor, for whatever land does not being to the Sovereign belongs to him. The demand for public revenue, according as it is high or low in different places and at different times, affects his share; but whether it leaves him with only the bare profit of his stock, or a small surplus beyond it as landlord’s rent, he is still the true proprietor, and possesses all that is not claimed by the Sovereign as revenue...." It is further stated in page 100- Sir Thomas Munro had laboured all his life to obtain for the cultivator of Madras a fixity of rental, so that all improvements made by him might lead to his own profit. And though such a fixity of rental was not declared by any Act or Proclamation, it was accepted as a fact by the Madras Government forty years after the time of Thomas Munro. The Madras Ryot, said the Administration Report of 1855-56, "cannot be ejected by Government so long as he prays the fixed assessment..... The Ryot under the system is virtually a proprietor on a simple and perfect title, and has al the benefits of a perpetual lease." "A Madras Ryot," said the Board of Revenue in 1857, "is able to retain his land perpetually without any increase of assessment." There can be o question," said the Government of Madras in 1862 to the Government of India, "that one fundamental of India, "that once fundamental principle for the Ryotwari system is that the Government demand on the land is fixed for ever." What is the Land Tax? The Court of Directors declared in 1856 that the right of the Government is not a rent which consists of all the surplus produce after paying the cost of cultivation and the profits of agricultural stocks, by a land revenue only. Two years after this, the East India Company was abolished, and the first Secretary of State for India under the Crown, Sir Charles Wood, afterwards Lord Halifax, declared that he desired to take only a share, generally a half share, of the rent as Land Tax. 57. Two years after this, the East India Company was abolished, and the first Secretary of State for India under the Crown, Sir Charles Wood, afterwards Lord Halifax, declared that he desired to take only a share, generally a half share, of the rent as Land Tax. 57. In Vol.2, in the Victorian Age 1837-1900, of the same Book, writing about Land Settlements In Madras, expressing the views of the Directors, it is stated as follows: "The officers engaged in the duty of fixing the assessment should always bear in mind that as you have expressed it - ‘the right of the Government is not a rent which consists of all the surplus produce after paying the costs of cultivation and the profits of the agricultural stocks, but a land revenue only, which ought, if possible to be so lights assessed as to have a surplus of rent to the occupier, whether he, in fact, let the land to others or retain in his own hands." "We are therefore of opinion that the assessment should be proportioned to the net, and not to the gross produce." Sir Charles Wood, Secretary of State for India, also expressed- "I am accordingly prepared to give my full support to the proposition of Sir William Denision, that the net, and not the gross produce, should be adopted as the under of which the Government is to take a fraction." in the letter from the Madras Government to the Indian Government No.241, dated February 8, 1862. 58. In the Madras Administration Report of 1855-56, Ryotwari is thus explained: ‘Under the Ryotwari’ system every registered holder of land is recognised as its proprietor, and pays direct to Government. He is at liberty to sub-let his property or to transfer it by gift, sale, or mortgage. He cannot be ejected by Government so long as he pays the fixed assessment and has the option annually of increasing or diminishing his holding, or of entirely abandoning it." 59. He is at liberty to sub-let his property or to transfer it by gift, sale, or mortgage. He cannot be ejected by Government so long as he pays the fixed assessment and has the option annually of increasing or diminishing his holding, or of entirely abandoning it." 59. In 1857, the Government, in a review of the Hon. Mr.Rickett’s report, expressed themselves thus strongly: ‘The proprietary right of a Ryot is perfect, and as long as he pays the fixed assessment on his land he can be ousted by one one; there is no principle of Ryotwari management more fixed or better known than this, and the Government deny that any right can be more strong." At page 283, referring to Sir Louis Mallett’s Minute, it is stated as follows: "In a return to the House of Commons in 1857 on Indian Land tenures, signed by Mr.Hohn S.Mill, I find the following general statement: ‘Land throughout India is generally private property subject to the payment of revenue, the mode and system of assessment differing materially in various parts." "On the occasion to which I have already referred, viz., the correspondence with Madras in 1856, the Court of Directors emphatically repudiated the doctrine of State Proprietorship, and affirmed the principle that the assessment was revenue and not rent; the revenue being levied upon rent, as the most convenient and customary way of raising the necessary taxation, which in a self-contained country, possessed of vast undeveloped agricultural resources, is perhaps the soundest, simplest, and justest of all fiscal systems." 60. The G.O. dt.21st September, 1882, No.1008, Revenue experesses its view that it has no proprietary right in the soil. The G.O. dt.21st September, 1882, No.1008, Revenue experesses its view that it has no proprietary right in the soil. The conclusions drawn by it after full inquiry are (1) that the State cannot, without violating the rules and practice dating from time immemorial, assert in his Presidency an exclusive right to minerals in unoccupied lands, but that it is fully entitled to a share in such products as in any other produce of the land; (2) that subject to the payment of a stated proportion of the produce to meet the necessities of the administrtion, the proprietary right of the ryot in the soil of his holding is absolute and complete; (3) that he is able to mortgage, sell, devise or otherwise alienate the land; (4) that, on these principles, property has been changing hands from time immemorial, and for the Government to put forward a claim now, which has never been asserted and which does not rest in law, practice or precedent, would undoubtedly raise a feeling of distrust and discontent which would take long to allay; (5) that it would be straining the State’s privileges to attach the condition of recognition of any exclusive right to minerals on the terms on which lands may be newly occupied, although in the interests of the general public, it may in particular instances be justifiable to do so, in view to the development of ascertained mineral resources; and (6) that as regards the vast bulk of the land occupied or likely to be occupied for cultivation, such reservation would be absolutely objectless and would only have the effect of creating widespread distrust in the minds of the people. 61. There is no analogy between the Indian ryot and the English tenant and therefore the relation of landlord and tenant which implies that the latter derives his title from the former does not exist between the Indian ryot and the Government. On the other hand, the farmer is the landlord or at any rate unites in his own person the characters of labourer, farmer and landlord. He divides with Government all the rights of the land. Whatever is not reserved by Government belongs to him. He is not a tenant at will or for a term of years and is not removable because another offers more. 62. He divides with Government all the rights of the land. Whatever is not reserved by Government belongs to him. He is not a tenant at will or for a term of years and is not removable because another offers more. 62. In the Madras Mining Manual, published in the year 1929, the Rules, regarding mining and quarrying are round in Chapter V, Lands were classified as: Group A, Group B and Group C. Group A being the lands in which the State claims no right to minerals; Group B being the lands in which the State claims a share in minerals; and Group C being the lands in which the State claims full rights in minerals. 63. We are concerned with Group B, and the Rules say, as follows: Claims should be made to the State’s share (as determined by the rules below) in all mineral produce in the following classes of land: (a) In lands occupied, or hereafter assigned for agricultural purposes subject to the conditions of ryotwari grants. (b) .... (c) ....“ 64. In the copy of G.O.Ms.No.5303, Development, dated 28.12.1950, relating to Mines-Minerals Concessions Mining in ryotwari lands and in certain classes of lands over which the Government have claim only to a share of minerals Grant of Concessions, referring to the letter of the Government of India, No.MII/152(69), dated 4.12.1950, it is stated as follows: ”According to Rule 3 in Sec.1 in Chapter V of the Madras Mining Manual, the Government had a claim only for a share of the minerals in ryotwari lands and certain other classes of land specified therein. The Mineral Concession Rules, 1949, issued by the Government of India with effect from 25.10.1949, had superseded the rules in the Madras Mining Manual in so far as they related to grant of concessions in respect of major minerals. Chapters III and IV of the Mineral Concession Rules dealt with grant of mining concessions in respect of lands in which the Government had a right to the minerals while Chapter V of the Rules related to grant of mining concessions by private persons and did not apply to ryotwari lands and other classes of lands, for the minerals in which the Government had only a share. Thus, the Mineral Concession Rules left out of the scope of cases of intermediary tenures such as ryotwari lands where the Government could claim only a share of the minerals. The procedure that should be followed in the case of these classes of land under intermediary tenure was under the consideration of the Government. Orders in that respect would be issued separately as soon as a decision was reached on the procedure to be adopted in consultation with the Government of India. The District Collectors were directed to take action, subject to ratification by the Government later. This was done with a view to avoid interruption in mining operations as an interim measure and the applicants be allowed to commence mining operations in these lands upon a written agreement that they would agree to such terms and conditions as the Government might subsequently be decided to impose. The following conditions were required to be incorporated: (1) The registered holder agreed to stop all mining operations if and when the Government required him to do so, without any claim for liability from the Government. (2) He agreed to abide by such terms and conditions as the Government might thereafter prescribe and that with retrospective effect from the date of this agreement. (3) He agreed to pay rents and royalties at such rates and at such times as might be prescribed by the Government. (4) He agreed to abide by the conditions that might be specified or any orders and instructions issued by the Collector from time to time for the proper working of the mine, maintenance of proper accounts and regarding public safety and the inspection of mines. (5) The registered holder or his lessee should not assign lease or part with possession of the land or any part thereof without previous intimation to the Collector. (6) He agreed not to claim any remission of land assessment in respect of the land for the reason of its having been rendered unfit for cultivation. The registered holder should initially pay a security deposit of Rs.500 as an assurance for abiding by the above conditions before executing the agreement. The agreement should also state the extent of the land in which mining operations was to be carried on, with particulars of its survey numbers and also give the boundary description of the land. The registered holder should initially pay a security deposit of Rs.500 as an assurance for abiding by the above conditions before executing the agreement. The agreement should also state the extent of the land in which mining operations was to be carried on, with particulars of its survey numbers and also give the boundary description of the land. In case where the registered holder of the land did not himself carry on mining operations but had leased out the right to another, both the registered holder and his lessee should enter into agreement with the Government binding themselves jointly and severally to the conditions stipulated. In case the registered holder of the land himself intended to carry on mining operations or the lessee, in cases where the right to minerals had been leased to him by the registered holder, should possess a valid Certificate of Approval, before he was allowed to commence mining operations. In G.O.Ms.No.648, Public (Reforms), dated 1.4.1937, the Collectors of Districts had been authorised to execute on behalf of the Government exploring the prospecting licences and all mining and other leases, whether as lessor or lessee. But the above authorisation did not cover cases of agreement referred in that order. In exercise of the powers by Art.299(1) of the Constitution of India, His Excellency the Governor of Madras, authorised the Collectors of Districts to execute on behalf of the Government agreements and deeds allowing applicants for prospecting or for mining minerals in ryotwari lands, private Janman lands in Malabar and the Nilgiris and lands held on inam tenure excepting those where apart from the title-deed issued by the Inam Commissioner the original grant either expressly or by necessary implication made a conveyance the State’s right to minerals and excepting those granted on service tenure with enfranchised or un-enfranchised". 65. On 28th April, 1961, G.O.Ms. No.3433 (Ind) came to be issued and it was ordered that as the Mineral Concession Rules, 1960 contained necessary provisions for the grant of mineral concessions in Ryotwari and other intermediary tenure lands in which the Government had got claim to a share in the minerals, the Government directed that the procedure prescribed in G.O.Ms. No.5303, Development, dated 28.12.1950, be discontinued forthwith. No.5303, Development, dated 28.12.1950, be discontinued forthwith. The Collectors were requested to submit the applications for the grant of mineral concessions in Ryotwari and other intermediary tenure lands also with their remarks to the Government through the Director of Industries and Commerce as in the case of Government lands. It further directed that the registered holders who were carrying on mining operations under agreements executed in accordance with the orders issued in G.O.Ms.No.5303, Development, dated 28.12.1950, would have to follow the entire procedure as contemplated under the Mineral Concession Rules, 1960, for the grant of prospecting Licence or Mining Lease as the case may be. The Collectors were directed to issue necessary instructions to the Registered holders, who were permitted to commence mining operations in accordance with the said Government Order, to apply afresh for the area held by them after complying with the provisions of the Mineral Concession Rules, 1960, within three months from the date of receipt of the communication. In case, they failed to do that, the permission granted to them would be withdrawn and all further mining operations in the areas would be stopped according to the condition included in the agreement executed by them after the expiry of the said period. The Collectors were requested to forward the applications received by them immediately with their remarks to the Director of Industries and Commerce endorsing a copy to the Government. They should also review the position after the end of the specified period of 3 months and submit a report to the Government on the action taken in the matter. 66. Board Standing Orders 14, 10 and 15, provided under Part II for disposal of land. (i) Before making an assignment the Officer, who is competent to order the assignment, should consider whether the land is likely to be required for public purpose in the near future or whether a permanent grant may be made. In the former case, or when any special reasons exist which make it inadvisable for Government to commit themselves to a permanent grant, the assignment should be on a temporary basis and power should be reserved to Government to resume the land at their pleasure at any time, unless and until the assignment has been declared absolute by them. In the former case, or when any special reasons exist which make it inadvisable for Government to commit themselves to a permanent grant, the assignment should be on a temporary basis and power should be reserved to Government to resume the land at their pleasure at any time, unless and until the assignment has been declared absolute by them. When such a power of resumption is reserved to Government, the order of assignment should indicate clearly what compensation, if any, would be payable in the event of resumption. When no such power has been reserved, the land would, if required for a public purpose, have to be acquired under the Land Acquisition Act and compensation paid to the grantee in accordance with the provisions of that Act. (ii) Unless the assignment is definitely temporary, or unless it is subject to conditions intended to limit permanently the assignee’s property rights over the surface soil, the grant should, for purposes of acquisition, be termed as an outright assignment and the land acquired under the Land Acquisition Act, if it is required for any public purpose. Where the assignment is definitely temporary, or where it is subject to conditions permanently limiting the assignee’s property rights over the surface soil, suitable provisions should be inserted in the order of assignment for resumption of the land and the payment of equitable compensation in the event of the land being required for public purposes. Cases in which special conditions have been imposed, not for the purpose of limiting the grantee’s property rights over the surface soil but, solely, for the purpose of safeguarding his ownership of the land, must be treated in the same manner as outright assignment in which there are no conditions restricting the grantee’s powers of disposal over the land. 67. Standing Order No.27(2) provides that as a rule, fresh pattas need only be issued when desired by the ryots concerned. When the holding of a ryot has undergone no change, it is obviously unnecessary to issue a fresh patta. Each ryot should have one original patta containing a detailed list of the fields comprising his holding as it stood when the patta was drawn up. When the holding of a ryot has undergone no change, it is obviously unnecessary to issue a fresh patta. Each ryot should have one original patta containing a detailed list of the fields comprising his holding as it stood when the patta was drawn up. If changes have taken place in the holding, the modification will be carried out or the production of the patta or a fresh patta will be issued in the event of numerous changes having been taken place in the original patta. 68. As regards the conditions on which the registered holder may alternate, it is stated, in 28(2) of the Board Standing Order, as follows: "A registered holder of ryotwari land may, so far as Government are concerned, alienate, sublet, mortgage, give, bequeath, or otherwise dispose of the whole or any portion of his holding provided always - (1) that unless and until such transfer or disposal is registered in the Land Register of the district, the registered holder remains liable for the assignment and all other legal charges due on the land, just as if no such transfer or disposal had occurred; and (2) that, when the transfer is registered, the transferee taken the land subject to payment of any arrears of assessment or other legal charges due on it, and to the same obligations and conditions, special or general, as the transferor held it on. Notes: (1) Alienation is restricted, however, in the case of lands assigned under Standing Order No.15-10. (2) In the case of lands conditionally assigned, the power of alienation is subject to the restrictions governing the grants. 69. In The Mayor of the City of Lyons v. The East India Company, 1 M.I.A. 173: 1 Moo P.C. 173, it has been observed as follows: "Mines of precious metals, treasure-trove, royal fish, are all vested in the Crown, for the purpose of maintaining its power, and enabling it to defend the State. They are not enjoyed by the sovereign in all or even in most countries, and no one has said that they extend to the East Indian possessions of the British Crown." 70. They are not enjoyed by the sovereign in all or even in most countries, and no one has said that they extend to the East Indian possessions of the British Crown." 70. In Poniah Nadan v. Deivanai Ammal, 36 M.L.J. 463, the history of the ryotwari settlement in the Madras Presidency and in the Tinnevelly District, was discussed by one of the learned Judges constituting the Bench, namely, Seshagiri Aiyar, J. We may recall that the same learned Judge in one of his earlier decisions Venkata Sastrulu v. Sitaramudi, 26 M.L.J. 585: I.L.R. 38 Mad. 891, held that the minerals belonged to the Government, however, the learned Judge was talking about the minerals available below the waste lands. 71. The learned Judge quoted, from Baden Powell in his Land Systems of British India, Settlement Manual from Madras, and Sir Thomas Munro on Ryotwari System, that, "The ryot under this system is virtually a proprietor on a simple and perfect title, and has all the benefits of a perfect lease without its responsibilities." 72. In Kodoth Ambu Nair v. Secretary of State, 47 M.L.J. 35: A.I.R. 1924 P.C. 150, it has been held as follows: "Whatever may have been the custom in ancient India, or under Mohammedan rule, what they have to see is how these lands were treated since the British acquired this part of the country." The Privy Council was dealing with a case of Kumri lands in South Canara and it held that there was absolutely no relation or analogy between the nature of Kumri lands and ryotwari holdings. It was held that the waste lands in South Canara belonged to Government. There was a practice among ryots and farmers to go upon the forest lands, clear a part of the jungle and raise a temporary crop on it and after the crop was reaped, the patch was abandoned and some other part was taken up, and for this privilege they had been paying a small fee to the Government these patches were called "kumris" and the land so desultorily cultivated were designated in the proceedings relating to the subject as "kumri lands". 73. 73. In Secretary, Contonment Committee, Barrackpore v. Sastish Chandra Sen, 60 M.L.J. 142: L.R. 57 I.A. 339: A.I.R. 1931 P.C. 1, when the Government was acquiring immovable property for a public purpose under Act I of 1894, it was held that a person claiming compensation had to establish his title to the property affirmatively. 74. In Jynvgan Kajsgnanna v. Tangirala Venkateswaralu, (1949)2 M.L.J. 500 , it has been held that in a suit by holder of a minor inam to eject the tenants from the holding, the burden was on the plaintiff to make out a right to evict by proving that the grant included both the melwaram and the kudiwaram interests or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease and where the evidence was not conclusive the suit must fail as the burden on the plaintiff was not discharged. In page 511, an observation is made to the following effect: "In this connection it may be stated that it is not correct to say, as was boldly argued, that a ryotwari pattadar has no proprietorship in the land he holds under the Government. In his Land Systems of British India, Baden-Powell gives the following definition of the ryotwari system: "A system of land revenue administration in which there is no middleman or landlord over the individual ryots, who are severally liable for the land revenue assessment on the holding." 75. The learned senior counsel was at pains to point out that it was not for nothing that such an observation was made in the judgment, that the judgment was delivered by Sir Madhavan Nair, J., who before adorning the Bench of this Court and then, the Privy Council, served as Government Pleader, and he was in the know of things and therefore a lot had to be said about this observation by the Privy Council. 76. In Shreemati Kashi Bai v. Sudha Rani Ghose, (1958)2 M.L.J. 117 (S.C.), it has been held by the Supreme Court that even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operations continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. The dispute was between private parties. 77. The dispute was between private parties. 77. In C.V.Rajagopalachari v. State of Madras, (1959)2 M.L.J. 344 , Ramachandra Iyer, J., (as the learned Judge then was) has observed as follows: "It is now well settled that under the scheme of the ryotwari settlement of land tenure in this part of the country the full ownership of the land is vested in the ryotwari proprietor and land revenue is a tax imposed by virtue of the prerogative right of the State and the liability to pay land revenue does not rest on any contract. This prerogative of the State has been followed by legislation, viz., Madras Revenue Recovery Act, 1864. The actual levy of the tax was delegated to the Board of Revenue. A settlement once made would ordinarily hold good for a period of 30 years and the assessment could not be arbitrarily enhanced by an executive act of the Government during the period covered by the settlement as a settlement once arrived at is in the nature of an engagement between the Government and the ryotwari pattadar." At page 347, the learned Judge has further observed as follows: "The incidence of a ryotwari tenure has been considered in a number of decisions. That was a system conceived for the purpose of collection of land revenue without the aid of a middleman, the ryots being treated as proprietors of their holdings liable to pay assessment directly to the Government. The features of a ryotwari settlement has been considered in Gopalan v. State of Madras, (1958)2 M.L.J. 117 . Under that system the Government does not purport to grant any title deed to the proprietor. What is given is only a patta, which has been held to be not a title deed, but only a bill or an evidence of the fiscal arrangement between the ryot proprietor and owner. Although no title deed as such is granted to the pattadar, there is no doubt that the interest of the pattadar is a proprietary right over the soil. The Madras Land Encroachment Act, III of 1905 which was passed to counteract the decision in Madathapu Ramayya v. The Secretary of State for India, 14 M.L.J. 37: I.L.R. 27 Mad. 386, incidentally declared what is Government property. The Madras Land Encroachment Act, III of 1905 which was passed to counteract the decision in Madathapu Ramayya v. The Secretary of State for India, 14 M.L.J. 37: I.L.R. 27 Mad. 386, incidentally declared what is Government property. Sec.2 referred to the property of the Government and among the properties which are excepted from the ownership of the Government are lands held under a ryotwari tenure. That would indicate the recognition by the Legislature that the pattadar is the owner of the property. The provisions of the Madras Revenue Recovery Act II of 1864 is consistent only with the pattadar being such owner. The term "landholder" had been defined to comprise a holder of land under ryotwari settlement. Sec.2 enacts that the land was security for public revenue. One can conceive of the property being a security for a liability only if the property belongs to the person liable and not to the person to whom the debt is due. Sec.26 refers to the land as the defaulter’s land. Sec.42 provides that in a case where the land was sold for arrears of revenue any balance remaining after the discharge of the arrears should be paid over to the defaulter. These provisions indicate that the full ownership of the land is vested in the ryotwari proprietor. Therefore, the levy of an assessment on such property could not be held to be in the nature of a rent though in origin the assessment was based on a share of the produce. To call such a levy as rent would imply that the Government had an interest in the property, I have already indicated that the Government have no interest as owner of the property, but their interest is only by way of security for the amount of assessment payable. In such a case the assessment cannot be held to be a rent which was the subject matter of a contract between the parties but only a tax. In Secretary of State for India v. Venkatapati Raju, 23 M.L.J. 746, it was held that the land revenue is a tax imposed by virtue of the prerogative of the State and that the liability to pay land revenue did not rest on a contract or any relation resembling the contract. In Secretary of State for India v. Venkatapati Raju, 23 M.L.J. 746, it was held that the land revenue is a tax imposed by virtue of the prerogative of the State and that the liability to pay land revenue did not rest on a contract or any relation resembling the contract. Under that system soil itself is taken and the assessment is fixed on the land and does not depend on the nature of the crops grown. The origin of the right to levy such a tax was the prerogative of the Crown, that prerogative right has been followed by legislation, viz., the Madras Revenue Recovery Act II of 1864. The lines on which the ryotwari assessment was made were accepted by that enactment and a machinery was provided for its levy and collection, the actual levy was the subject matter of delegation to the Board of Revenue. But such delegation was within permissible limits. The delegated authority, viz., the Board of Revenue fixes the assessment on the basis of the income from lands, half the net income being taken as the guiding principle in the matter of assessment. A settlement once made would ordinarily be good for a period of 30 years. That is to say, that by an executive act for by virtue of any prerogative that it may possess it would not be open to the Government to increase the assessment during the period covered by the settlement. But that could not, however, prevent the Legislature from increasing the assessment by an enactment.“ 78. In M/s.Burrakur Coal Company v. Union of India, A.I.R. 1961 S.C. 954, the Constitution Bench of the Supreme Court in para 25 at page 963 after referring to the various provisions of Coal Bearing Areas (Acquisition and Development) Act, 1957, and Arts.19(1)(g), 31-A(1)(e) and 31(2) of the Constitution of India, observed as follows: ”It will be clear from these provisions that the Act specifies the principles on which and the manner in which the compensation should be determined and given. This is all that is required of a law relating to the acquisition of property by Art.31(2) of the Constitution. Where provisions of this kind exist in a law that Article lays down that such law cannot be called in question in any Court on the ground that the compensation provided by that law is not adequate. This is all that is required of a law relating to the acquisition of property by Art.31(2) of the Constitution. Where provisions of this kind exist in a law that Article lays down that such law cannot be called in question in any Court on the ground that the compensation provided by that law is not adequate. Here compensation is specifically provided for the land which is to be acquired under the Act. The land includes all that lies beneath the surface or, as Mr.Das put it, all that is “locked up” in the land.“ 79. In Valliammai Achi v. Vellachami, (1965)1 M.L.J. 196 , the Bench laid down the test for construction of grant under Sec.7 of the Madras Estates (Supplementary) Act (XXX of 1956). The original deed of grant which was available and had been marked as Ex.B-5, showed that in the year 1802 the Raja of Ramnad made a gift of the village, comprising an area of about Acs.43, 77 cents, after deducting Porambokes, to one Sivarama Vadhiyar. The grant was in Tamil and the subject matter of the grant run as follows: ”The four boundaries of Kothakudi Uzhalankulam, situate in the village residential area of Mangala Nadu, are as follows: Lying to the east of Mudikkarai limits punja, purvau, and the tank channel of the village, west of the village tank eastern bund water belt and inner sluice and the northern channel, south of the drain channel of the field of Pudukulam and the border stone of the water belt area of Kothakudi and the pathway of the village of Kalli and the north of the inner sluice in the water belt area of the southern bund of the village tank and the Tethamaram and the Melakal Kadakombu; comprised within these four boundaries, the Kothakudi Uzhalankulam and Chinna Kothakudi and the inner Oorani, attached to it and Sithayadi orani, together with the nanja and punja lands, the fruit-bearing and timber trees, high level and low level lands, Natham, Chei, Thalai and Fishery rights in the tanks, the trees and the wells etc., and all the rights over the kudi, Padai, Pallu, Parai and all Samudhayam rights with the eight kinds of enjoyment and ten kinds ofpossession such as treasures, treasure troves, water, trees, stones, etc. with powers of alienation by way of gift, exchange, sale, etc. with powers of alienation by way of gift, exchange, sale, etc. shall be held and enjoyed permanently.....“ The extent of the grant is described as conveying to the grantee” Ashtabogham “ and” Dasaswamyams“. In Wilson’s Glossary, the terms” Ashtabogham “ has been defined thus: ”Enjoyment of the whole, or the eight products of an estate; or the land cultivated, siddhi; the produce of such land, sadhya; uncultivable or rocky land and its products, as minerals etc., pashma; property deposited on the land, nikshepa; treasure-trove, midhi; waters and their produce, jalamirtam; actual privileges, akshini; prospective rights and privileges, agami.“ 80. The word” Dasaswamyams “ refers to the ten kinds of rights to property with water, mineral, trees, etc. These words generally indicate that full ownership in the soil of the land itself had been conferred on the grantee. 81. In Chanan Lal v. The State of Haryana, A.I.R. 1975 P. & H. 102, the State of Haryana passsed an Act by name Haryana Minerals (Vesting of Rights) Act (14 of 1973). The Act was challenged principally on the ground that the Haryana State Legislature lacked the legislative competence to enact the law. The preamble of the Act shows that it has been enacted to vest the mineral rights in the State Government and to provide for payment of amounts to the owners of minerals and for other matters connected therewith. 82. This decision is very strongly relied upon by the learned counsel for the parties for showing that minerals in any land belonged to the owner and the Government does not have any right. As otherwise, it would not have been necessary for the State to pass such an Act. 83. In Anant Mills v. State of Gujarat, (1975)3 S.C.R. 220 : A.I.R. 1975 S.C. 1234, the Constitution Bench of the Supreme Court after referring to Entry 49, List 2, Sch.VII of the Constitution of India” Lands and Buildings “ and giving the meaning of the” Land “ observed that, ‘it includes not only the face of the earth but everything under it and over it’. 84. It was argued on behalf of thepetitioner before the Supreme Court that the word ‘land’ denoted the surface of the land and not the underground strata. 84. It was argued on behalf of thepetitioner before the Supreme Court that the word ‘land’ denoted the surface of the land and not the underground strata. The Supreme Court referred to Broom’s Legal Maxims, 10th Edition, page 259, and reproduced it: ”...not only has land in its legal signification an indefinite extent upwards, but in law it extends also downwards, so that whatever is in a direct line between the surface and the centre of the earth by the common law belongs to the owner of the surface (not merely the surface, but all the land down to the centre of the earth and up to the heavens) and hence the word “land” which is nomen generalissium, includes, not only the face of the earth, but everything under it or over it.“ 85. In Shri Shri Tarakeshwar Sio Thakur Jiu v. B.D. Dey and Company, A.I.R. 1979 S.C. 1669, it has been held that the right to enjoy immoveable property would include the right to carry on mining operations. In paras. 29, 34 and 35 it is stated as follows: ”It is important to bear in mind that the term “lease” occurring in the definition of “mining lease” given in Sec.3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Sec.105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of the Calcutta High Court in Pala Krishna Pal v. Jagannath Marwari, A.I.R. 1932 Cal. 775: I.L.R. 39 Cal. 1314, a settlement of the character of a mining lease is everywhere in India regarded as ‘lease’. A mining lease, therefore, may not meticulously and strictly satisfy in all cases, all the characteristics of a‘lease’ as defined in the Transfer of Property Act. Nevertheless, in the legally accepted sense, it has always been regarded as a lease in this country. The definition of ‘immoveable property’ given in Sec.3, para.1 of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Sec.3(26) of the General Clauses Act (X of 1897), will apply to the expression used in this Act, except as modified by the definition in the first clasue of Sec.3. The definition of ‘immoveable property’ given in Sec.3, para.1 of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Sec.3(26) of the General Clauses Act (X of 1897), will apply to the expression used in this Act, except as modified by the definition in the first clasue of Sec.3. According to the definition given in Sec.3(26) of the General Clauses Act ‘immoveable property’ shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth“. In short, the expression ‘immoveable property’ comprehends all that would be real property according to English Law and possibly more. (See: (1873)1 Ind. App. 34 (P.C.)). Thus, every interest in immoveable property or a benefit arising out of land, will be ‘immoveable property’ for the purpose of Sec.105, Transfer of Property Act. A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a ‘right to enjoy immoveable property’ within the meaning of Sec.105; more so, when as in the instant case - it is coupled with a right to be in its exclusive khas possession folr a specified period. The ‘right to enjoy immoveable property’ spoken of in Sec.105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Sec.108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immoveable property.” 86. In State of Tamil Nadu v. M/s.Hind Stone, A.I.R. 1981 S.C. 711, in para 15, it is observed as follows: “There are, however, a few appeals in which the applications were not for the grant or renewal of leases to quarry black granite in Government lands, but were for permission to quarry black granite in Patta lands in which the right to minerals belonged to the applicants- private owners themselves.” 87. Our attention has been drawn in Halsbury’s Laws of England, 4th Edition, Vol.8, on Royal Mines. Our attention has been drawn in Halsbury’s Laws of England, 4th Edition, Vol.8, on Royal Mines. IN page 1439, it is stated as follows: “By prerogative right the Crown is entitled to all mines of gold and silver within the realm, whether the mines are situate in its own land or in the land of a subject.” In Vol.39, Property in mines, it is stated as follows: “Presumption arising from surface ownership; Mines, quarries and minerals in their original position are part and parcel of the land. Consequently, the owner of surface land is entitled prima facie to everything beneath or within it, down to the centre of the earth. This principle applies even where title to the surface has been acquired by prescription, but it is subject to exceptions; thus, at common law, mines of gold and silver belong to the Crown, and by statute coal (together with certain associated minerals) is vested in the National Coal Board, and so are any minerals removed from land under a compulsory rights order for open cast working of coal. The property in petroleum existing in its natural condition in strata is also vested by statute in the Crown. 88. In Black’s Law Dictionary ‘Land’ has been described as follows: ”Land: In the most general sense, comprehends any ground, soil, or earth whatsoever; including fields, meadows, pastures, woods, moors, waters, marshes and rock. Reymand v. City of Caldwell, 55 Idano 342: 42 p 2d. 292, Holnes v. U.S.C.C.A.Okl, 53 F. 2d. 960. In its more limited sense, “land” denotes the quantity and character of the interest or estate which a person may own in land. Holnes v. U.S.C.C.A.Okl, 53 F. 2d. 960, “Land” may include any estate or interest in lands, either legal or equitable, as well as easements and incorporeal hereditaments. Reymand v. City of Caldwell, 55 Idano 342: 42 p 2d. 292, Jones v. Magruder, D.C.Md. 42 F.Supp. 193, 198; Lynch v. Cunnigham, 131 Cal. App. 164: 21 p 2d. 154; Petition of Burnquist, 220 Minn. 48, 19 N.W. 2d 394, 401; Cuff v. Koslosky, 165 Okl. 135, 25 P 2d. 290. The land is one thing, and the estate in land is another thing, for an estate in land is a time in land or land for a time. App. 164: 21 p 2d. 154; Petition of Burnquist, 220 Minn. 48, 19 N.W. 2d 394, 401; Cuff v. Koslosky, 165 Okl. 135, 25 P 2d. 290. The land is one thing, and the estate in land is another thing, for an estate in land is a time in land or land for a time. Technically land signifies everything which may be holden; and the term is defined as comprehending all things of a permanent and substantial nature, and even of an unsubstantial, provided they be permanent, Reymand v. City of Caldwell, 55 Idano 342: 42 p 2d. 292, 296. Ordinarily, the term is used as descriptive of the subject of ownership and not the ownership. Southern Pac Company v. Riverside Country, 33 Cal.App. 2 d. 280: 95 P. 2d. 688, 692. Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law. Calif Civil Code, 659, See Air rights. 89. In Mac Lean’s History of Settlements, on Revenue Settlement, it is stated as follows: “A ryotwary settlement is thus peculiarly a settlement with the peasantry, as tenants of the State enjoying a tenant right whcih can be inherited, sold, or burdened for debt in precisely the same manner as a proprietary right, subject always to payment of the revenue, that is to say, the rent due to the State.” 90. In Ramamoorthy v. State of Madras, I.L.R. 1970 Mad. 788, while dealing with a Madras Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948), it was held that in effect both possession and title of person who is entitled toa ryotwari patta are saved from the effect of the notification under Sec.3(b) of the Act. The interest of the ryot in land in the estate is separate and distinct, he being a co-owner or as occasionally stated a co-partner with the landlord. He is not given any compensation, as his ownership of the kudiwaram is not affected by taking over the estate. On the abolition of the estate, his rights of occupancy in the land are not extinguished and transferred to the Government, but continued in him. He is not given any compensation, as his ownership of the kudiwaram is not affected by taking over the estate. On the abolition of the estate, his rights of occupancy in the land are not extinguished and transferred to the Government, but continued in him. Under the Act he is entitled to be granted ryotwari patta for his former ryoti holding as the Act makes him a ryotwari proprietor of the holding. The obtaining of ryotwari patta by the persons entitled to such patta under the Act can, if at all, be only in recognition of pre-existing rights of ownership. It is clear from the provisions of the Act that what really vests in the Government in respect of ryoti or private land is merely title and there is no vesting of possession which is protected under the proviso to Sec.3(d) of the Act. The word title can connote and relate to any of the several facts of full ownership, and the right to possession or title to possession is vested in the Government. ..... Under the ryotwari system, the Government does not purport to grant any title deed to the proprietor or holder of the land. Wht is granted is only a patta which is not a title deed but only a bill or documentary evidence of the fiscal arrangement between the ryotwari proprietor and the Government.... The ryotwari settlement made on the abolition of estates completely changes the position of a ryot in relation to his holding. Under Sec.11 of the Act, every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of his ryoti land. As a result of the Abolition Act, a cultivator having only occupancy right in law is raised to the stature of proprietor of the land, subject to the prerogative of the State to impose assessmenton the land varying from time to time. Under the ryotwari system, the Government does not purport to grant any title deed to the proprietor or holder of the land. But what is granted is only a patta which, as has been repeatedly pointed out in decisions, is not a title deed but only a bill or documentary evidence of the fiscal arrangement between the ryotwari proprietor and the Government. But what is granted is only a patta which, as has been repeatedly pointed out in decisions, is not a title deed but only a bill or documentary evidence of the fiscal arrangement between the ryotwari proprietor and the Government. The pattadar, that is, the person registered as the owner of a ryotwari holding, is, as regards the Government, the responsible proprietor of the ryotwari land registered in his name in the Land Register of the District. ... To use the convenient expression, they become the ryots freehold property. ... Sec.2 of the Madras Land Encroachment Act (III of 1905), referring to the properties of the Government, exempts, among other properties, lands held under ryotwari tenure from the ownership of the Government. Under the tenure the full ownership is vested in the ryotwari proprietor. The levy by the Government on the land under ryotwari settlement, though in origin calculated as a share of the produce, has been held to be not rent but a tax imposed by virtue of a prerogative of the State. 91. In Raja Anand Brahma Shah v. The State of U.P., A.I.R. 1967 S.C. 1081: (1967)2 S.C.J. 830: (1967)1 S.C.R. 373 , it has been held that the minerals necessarily pass with the rights to the surface unless there is express or implied reservation in grant. 92. The learned senior counsel took us through the provisions in the Mines and Minerals (Regulation and Development) Act, 1957, and the Mineral Concession Rules, 1960 and submitted that the stand by the Government that the owner of the soil is ntot the owner of the minerals underneath cannot be sustained. Counsel in particular referred to Secs.2, 10, 13, Chapter V-Heading, Rule 41 Chapter VI-Heading. The relevant portions of the said sections are as under: Sec.2 runs as follows: Declaration as to the expediency of Union control: It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided. Sec.10 runs as follows: Application for prospecting licences or mining leases: (1) An application for a reconnaissance permit, prospecting licence or mining lease in respect of any land in which the minerals vest in the Government shall be made to the State Government concerned in the prescribed form and shall be accompanied by the prescribed fee. Sec.10 runs as follows: Application for prospecting licences or mining leases: (1) An application for a reconnaissance permit, prospecting licence or mining lease in respect of any land in which the minerals vest in the Government shall be made to the State Government concerned in the prescribed form and shall be accompanied by the prescribed fee. Sub-secs.(2) and (3) omitted. Sec.13 runs as follows: Power of Central Government to make rules in respect of minerals: (1) The Central Government may by notification in the Official Gazette, make rules for regulating the grant of (reconnaissance permits, prospecting licences and mining leases) in respect of minerals and for purposes connected therewith. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely, (a) the person by whom, and the manner in which, applications for reconnaissance permits, prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor; (Emphasis supplied) Sub-secs.(b), (c) and (d) omitted. (e) the authority by which reconnaissance permits, prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be granted. [emphasis supplied) (f) the procedure for obtaining a reconnaissance permit, a prospecting licence or a mining lease in respect of any land in which the minerals vest in a person other than the Government and the terms on which, and the conditions subject to which, such a permit, licence or lease may be granted or renewed; (emphasis supplied) Sub-secs.(g) to (r) omitted. 93. The learned senior counsel pointed out that while Sec.13(2)(a) relates to the power of Central Government to make rules providing for the person by whom, and the manner in which, applications for reconnaissance permits, prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor, Sec.13(2)(f) provides for the procedure for obtaining a reconnaissance permit, a prospecting licence or a mining lease in respect of any land in which the minerals vest in a person other than the Government and the terms on which, and the conditions subject to which, such a permit, licence or lease may be granted or renewed. According to counsel, it is practically conceded that ownership of mineals could vest with individuals. Chapter V of the Rules has for its head Procedure for obtaining a prospecting licence or mining lease. In respect of land in which the minerals vest in a person other than the Government. (emphasis supplied) Rule 41 provides as follows: “The provisions of this Chapter shall apply only to the grant of prospecting licences and mining leases in respect of land in which the minerals vest exclusively in a person other than the Government.” (emphasis supplied) Chapter VI has for its heading Grant of prospecting licences and mining leases in respect of land in which the minerals vest partly in the Government and partly in private persons. (emphasis supplied) Thus, there are two different concepts found in the Act and the Rules themselves to the Government as well as private persons can be owners of minerals. 94. As against the above, we have the following. 95. In Karimbil Kunhikoman v. State of Kerala, (1962)1 M.L.J. (S.C.) 213: (1962)1 An. W.R. (S.C.) 213: (1962)1 S.C.J. 510: A.I.R. 1962 S.C. 723, a Constitution Bench observed as follows: “We have already said that the Madras Estates Land Act of 1908 dealt with land tenures of Madras and was an existing law relating to land-tenures. The other class of land tenures consisted of ryotwari pattadars which were governed by the Board’s Standing Orders, there being no Act of the legislature with respect to them. The holders of ryotwari pattas used to hold lands on lease from Government. The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years, which is usually thirty and each occupant of such land holds it subject to his paying the land-revenue fixed on that land. But, it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment. (See: Land Systems of British India by Baden-Powell, Vol.III, Chap.IV, S.II, p.128). But, it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment. (See: Land Systems of British India by Baden-Powell, Vol.III, Chap.IV, S.II, p.128). Though theoretically, according to some authorities, the occupant of ryotwari land held it under an annual lease (see Maclewane, Vol.I, Revenue Settlement, p.104), it appears that in fact the Collector had no power to terminate the tenant’s holding for any cause whatever except failure to pay the revenue or the ryot’s own relinquishment or abandonment. The ryot is generally called a tenant of Government but he is not a tenant from year to year and cannot be ousted as long as he pays the land revenue assessed. He has also the right to sell or mortgage or gift the land or lease it and the transferee becomes liable in his place for the revenue. Further, the lessee of a ryotwari pattadar has no rights except those conferred under the lease and is generally a sub-tenant at will liable to ejectment at the end of each year. In the Manual of Administration, as quoted by Baden-Powell, in Vol.III of Land Systems of British India at p.129, the ryotwari tenure is summarised as that” of a tenant of the State enjoying a tenant-right which can be inherited, sold, or burdened for debt in precisely the same manner as a proprietary right, subject always to payment of the revenue due to the State“. Though therefore, the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor. Considering, however, that the Act of 1908 was in force all over the State of Madras, but did not apply to lands held on ryotwari settlement and contained a definition of the word” estate “ which was also applicable throughout the State of Madras except the areas indicated above, it is clear that in the existing law relating to land-tenures the word” estate “ did not include the lands of ryotwari pattadars, however valuable might be their rights in lands as they eventually came to be recognised.” 96. Taking the cue from this Constitution Bench decision, a Division Bench of this Court in Swaminathan v. State of Madras, (1971)2 M.L.J. 146 , discountenancing the contention on behalf of the appellant before the Bench that a ryotwari pattadar was a proprietor of the soil, including the minerals and that the State as a co-owner of the minerals could only insist upon additional assessment in respect of the minerals owned by the pattadar, but, had no right to refuse renewal of the lease to work the quarries, observed as follows: “The ryotwari tenure was introduced for purposes of land revenue, and convenient collection thereof. The essence of the system consists in the classification of the soil according to tharams, ascertaining the net produce, fixing and collecting a fraction of the net produce as land revenue eliminating middle-man and bringing the pattadar in direct relationship with the State, and the right of the pattadar to relinquish at his will, and in case of default in payment of revenue, the liability of the holding being brought to sale. The system is essentially a revenue arrangement under which so long as the pattadar paid the assessment, he would not be disturbed from his holding. In theory, the ryotwari pattadar is a kind of a tenant with a right to hold his tenure so long as he pays the assessment. But in practice, he is the full owner, who is entitled to sell, mortgage, lease or otherwise deal with his holding - vide: C.V.Rajagopalachari v. State of Madras, (1959)2 M.L.J. 344 and Karimbil Kunhikoman v. State of Kerala, (1962)1 M.L.J. (S.C.) 213: (1962)1 An. W.R. (S.C.) 213: (1962)1 S.C.J. 510: A.I.R. 1962 S.C. 723. But in practice, he is the full owner, who is entitled to sell, mortgage, lease or otherwise deal with his holding - vide: C.V.Rajagopalachari v. State of Madras, (1959)2 M.L.J. 344 and Karimbil Kunhikoman v. State of Kerala, (1962)1 M.L.J. (S.C.) 213: (1962)1 An. W.R. (S.C.) 213: (1962)1 S.C.J. 510: A.I.R. 1962 S.C. 723. In the second case, the Supreme Court observed that though the ryotwari pattadar was virtually like a proprietor, and had many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government, and that it was because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor. It is in this sense that the Land Encroachment Act by Sec.2(1) does not declare the property of any person held under a ryotwari tenure to be the property of the Government. So, as a ryotwari pattadar, he has every right to the use of the surface of the soil, but his proprietory right, if any in our view does not extend to the minerals of the soil. It was a well-established proposition that all minerals under ground belonged to the Crown, and not to the subject, except in so far as the State has parted with the same wholly or partly in favour of an individual or body.” 97. This decision of the Bench was followed subsequently by another Division Bench in V.Gangarathinam v. State of Tamil Nadu, 1990 T.L.N.J. 374. 98. All the decisions and commentaries relied on by the counsel in this case were also brought to the notice of the second Division Bench. The Bench ultimately concluded that "from the above discussion and looked at from any angle, we entertain no doubt that it is the State which is the owner of the minerals underneath the surface soil". 99. In General Manager, Tamil Nadu Cements Corporation Limited v. Shanmughavel, Appeal Suit Nos.146 and 195 to 199 of 1995, a Division Bench of this Court following the other two Bench decisions, by Order dated 23.1.2001, has held that in the absence of any specific plea, the owners were not entitled for payment of compensation for the minerals. 100. 99. In General Manager, Tamil Nadu Cements Corporation Limited v. Shanmughavel, Appeal Suit Nos.146 and 195 to 199 of 1995, a Division Bench of this Court following the other two Bench decisions, by Order dated 23.1.2001, has held that in the absence of any specific plea, the owners were not entitled for payment of compensation for the minerals. 100. In State of Tamil Nadu v. M/s.Hind Stone, A.I.R. 1981 S.C. 711, the Supreme Court held that rivers, forest, minerals and such other resources constitute a nation’s natural wealth. It was held in that case that the petitioners were not entitled to claim compensation for the minerals underneath their lands. 101. In Quarry Owners Association v. State of Bihar, (2000)8 S.C.C. 655 , the Supreme Court in paras 33 and 34, at page 683 has observed as follows: "One of the submissions for the appellants is, since royalty is a tax, delegation for its enhancement cannot be left unbridled on the delegatee and if two interpretations are possible, the one which favours an assessee shoudl be accepted. It is true that this Court has held royalties on the minerals to be a tax in India Cements Limited v. State of Tamil Nadu, (1990)1 S.C.C. 123: A.I.R. 1990 S.C. 85, Orissa Cement Limited v. State of Orissa, (1991)1 S.C.C. (Supp.) 430, State of M.P. v. Mahalaxmi Fabric Mills Limited, (1996)5 S.C.C. 670 . In considering this submission we have to keep in mind, tax on this royalty is distinct from other forms of taxes. This is not a like a tax on income, wealth, sale or production of goods (excise) etc. This royalty includes the price for the consideration of parting with the right and privilege of the owner, namely, the State Government who owns the mineral. In other words, the royalty/ dead rent, whcih a lessee or licensee pays, includes the price of the minerals which are the property of the State. Both royalty and dead rent are integral parts of a lease. Thus, it does not constitute usual tax as commonly understood but includes return for the consideration for parting with its property. In view of this special nature of the subject under consideration, namely, the minerals, it would be too harsh to insist for a strict interpretation with reference to minerals while considering the guidelines to a delegatee who is also the owner of its mineral. In view of this special nature of the subject under consideration, namely, the minerals, it would be too harsh to insist for a strict interpretation with reference to minerals while considering the guidelines to a delegatee who is also the owner of its mineral. In the present case, we are not considering any liability of tax on the assessee but whether delegation to the State by Parliament with reference to minor minerals is unbridled. 102. Counsel contended that the decisions holding that the minerals belonged to the State had ignored the scheme of the fasciculus of the relevant rules and the many judgments taking a contrary view had not been consciously decided and they have to be held per in curiam having no binding force. In this connection, they relied on the following judgments: (1) O.P.Singla v. Union of India, (1984)4 S.C.C. 450 ; (2) A.R.Antulay v. R.S.Nayak, A.I.R. 1988 S.C. 1531; (3) Municipal Corporation of Delhi v. Gurnam Kaur, (1989)1 S.C.C. 101 ; (4) Arnit Das v. State of Bihar, (2000)5 S.C.C. 488 and (5) Lily Thomas v. Union of India, (2000)6 S.C.C. 244. 103. In O.P.Singla v. Union of India, (1984)4 S.C.C. 450 , it has been held that a provision should be read in the context of the scheme of other relevant provisions in the Act or the Rules. When a rule or a section is part of an integral scheme, it should not be consdiered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other interrelated provision becoming otiose or devoid of meaning. 104. In A.R.Antulay v. R.S.Nayak, A.I.R. 1988 S.C. 1531, it has been held that no man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure or irregularities. Rules of procedures are the hand-maids of justice and not the mistress of the justice. Ex debito justitiate, the Court must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remembered. No man should suffer a wrong by technical procedure or irregularities. Rules of procedures are the hand-maids of justice and not the mistress of the justice. Ex debito justitiate, the Court must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remembered. The Supreme Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. 105. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989)1 S.C.C. 101 , it has been held by a three Judges Bench of the Supreme Court that under Art.141, decisions of the Supreme Court, which are obiter dicta, per incurriam and sub silentio, have no binding force. Equally, orders made with consent of parties and with the reservations that the same should not be treated as precedent, held are not binding. A decision should be treated as given per incurriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. 106. In Arnit Das v. State of Bihar, (2000)5 S.C.C. 488 , it has been held that a decision not expressed, not accompanied by reasons adn not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined. The Supreme Court relied on State of U.P. v. Synthetics and Chemicals Limited, (1991)4 S.C.C. 139 . 107. In Lily Thomas v. Union of India, (2000)6 S.C.C. 244, it has been held that where the Supreme Court is satisfied that an earlier judgment has resulted in depriving the petitioner of fundamental or other rights, it may take a different view from that expressed in the earlier judgment. 108. Even otherwise the learned counsel contended relying on India Cements Limited v. State of Tamil Nadu, (1990)1 S.C.C. 123: A.I.R. 1990 S.C. 85, that the levy of cess on royalty is beyond the competence of the State legislature. 109. 108. Even otherwise the learned counsel contended relying on India Cements Limited v. State of Tamil Nadu, (1990)1 S.C.C. 123: A.I.R. 1990 S.C. 85, that the levy of cess on royalty is beyond the competence of the State legislature. 109. In India Cements Limited v. State of Tamil Nadu, (1990)1 S.C.C. 123: A.I.R. 1990 S.C. 85, it has been held that royalty on mineral rights is a tax, and as sucha cess on royalty being a tax on royalty, is beyodn the competence of the State Legislature because Sec.9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of list Ii of Sch.7 of Constitution. In any event, cess on royalty cannot be sustained under entry 49 of list II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land. However, the levy of the said cess was declared to be ultra vires power of State Legislature only prospectively keeping in view the fact that the amounts were collected by the State on the basis of the Supreme Court in H.R.S. Murthy v. Collector of Chittoor, (1964)2 M.L.J. (S.C.) 125: (1964)2 An. W.R. (S.C.) 125: (1964)2 S.C.J. 557: A.I.R. 1965 S.C. 177. 110. Mr.N.R.Chandran, learned Advocate General reply to this position, contended that the petitioners/ appellants are trying to mix up apples and oranges by saying that only the Central Government can levy royalty. In this connection, he relied on Secs.9, 10(9) and 22 of the Act and submitted that the very application is made to the State Government and the legislative competency cannot be therefore questioned. The learned Advocate General also relied on the judgment of the Supreme Court in Quarry Owners Association v. State of Bihar, (2000)8 S.C.C. 655 , and submitted that there is no distinction made between the major and minor minerals. Under Sec.15, the State Government is granted power to make rules in respect of minor minerals and to regular the grant of quarry leases, mining leases or other mineral concessions. Under Sec.15, the State Government is granted power to make rules in respect of minor minerals and to regular the grant of quarry leases, mining leases or other mineral concessions. In the submission of the learned Advocate General, India Cements case, (1990)1 S.C.C. 123: A.I.R. 1990 S.C. 85, has no application to the facts of the case and in particular referred to para 34 of the State Legislature cannot legislate, but the State Government is exercising powers under the Main Act and it is entitled to collect. According to the Advocate General, what we are concerned is only as to who is the owner of the mineral. 111. We have given our anxious consideration to the submissions by counsel on either side. We are able to see that there is some substance inthe stand taken by the petitioners/ appellants. However, so far as this Court is concerned it is bound by Karimbil Kunhikoman v. State of Kerala, (1962)1 M.L.J. (S.C.) 213: (1962)1 An. W.R. (S.C.) 213: (1962)1 S.C.J. 510: A.I.R. 1962 S.C. 723, Swaminathan v. State of Madras, (1971)2 M.L.J. 146 , V.Gangarathinam v. State of Tamil Nadu, 1990 T.L.N.J. 374 decision in General Manager, Tamil Nadu Cements Corporation Limited v. Shanmughavel, Appeal Suit Nos.146 and 195 to 199 of 1995, State of Tamil Nadu v. M/s.Hind Stone, A.I.R. 1981 S.C. 711 and Quarry Owners Association v. State of Bihar, (2000)8 S.C.C. 655 . In view of the decision in Col.P.R. Chaudhary v. Municipal Corporation of Delhi, (2000)4 S.C.C. 577 : J.T. (2000)5 S.C. 266, where it has been held by the Supreme Court that interpretation of law by it under Art.141 cannot be brushed aside on the mere observation that it is not in conformity with the statutory provisions. 112. We dismiss the writ appeals and connected writ petition and C.M.Ps. There will be no order as to costs.