JUDGMENT By the Court.—Heard Sri Ashok Kumar Pandey, learned Additional Advocate General assisted by Sri R.C. Yadav, Sri Alok Kumar Singh, Dr. Y.K. Srivastava, Sri Lokendra Kumar, learned Standing counsels. None appeared on behalf of the respondent though, the appeal has been called twice. In these circumstances, we have proceeded to hear and decide this appeal, ex parte. 2. This is a defendant’s appeal under Section 96 of the Code of Civil Procedure, arisen from the judgment and decree dated 2.7.1979 passed by Sri Ghanshyam Pandey, Civil Judge/Judge Small Causes at Allahabad in Original Suit No. 107 of 1969, whereby he had decreed the suit with cost in the following manner : “Defendants are restrained from interfering in any manner whatsoever with the enjoyment and possession of the plaintiff over the land and mines held by her in pursuance of lease dated and as granted by the lease-deeds dated 16.4.47 and 27.4.59 and also of all the minerals extracted from mines from the areas covered by said leases. Defendants are further restrained from inviting or accepting applications and considering or granting any mining lease for any mineral covered under the mining lease held by plaintiff for the area or any part or portion thereof which is mentioned in aforesaid plaintiff’s lease-deeds dated 16.4.47 and 27.4.59 so long as the subsisting lease in favour of plaintiff is in force and is not otherwise terminated or cancelled by any Court of law of competent jurisdiction or in accordance with law. Defendants also cannot demand or realise the sum of rupees nine lacs forty thousand two hundred thirty five and paise five (940235.5 p.)as royalty for the period from 1.1.52 to 26.6.68, from plaintiff as claimed by them other than royalty stipulated in plaintiff’s lease-deed dated 16.4.47 and 27.4.59 till these leases are subsisting and are not cancelled or amended in accordance with law. It is also declared that the impugned order dated 31.5.68 and all subsequent orders etc. flowing there from in any manner directing that a clearance certificate from D.M./Collector is necessary before booking and transfer of silica sand situated within the district of Allahabad is void illegal and without jurisdiction. Plaintiff’s suit for damages and also pendentelite and future damages is dismissed with cost. flowing there from in any manner directing that a clearance certificate from D.M./Collector is necessary before booking and transfer of silica sand situated within the district of Allahabad is void illegal and without jurisdiction. Plaintiff’s suit for damages and also pendentelite and future damages is dismissed with cost. It is also made clear that defendants and all their servants, agent and subordinates will not hold out threat of criminal prosecution against plaintiff for alleged illegal mining of silica sand till her lease-deeds are subsisting and are not terminated, modified or cancelled by any law or competent Court and plaintiff does not act centrary to any relevant law and also against the terms of lease.” 3. Original Suit No. 107 of 1969 was filed by Smt. Rani Rajendri Kumari Ba, w/o- Maharao Raja Kamlakar Singh, R/o- Sankargarh, Tehsil Karchhana, District Allahabad, impleading State of U.P. through Secretary, Industries and Union of India, New Delhi (hereinafter referred to as the plaintiff-respondent) as defendants. Plaintiff initially impleaded only State of U.P. as sole defendant but subsequently made amendment by impleading Union of India as defendant No. 2 vide Court’s order dated 24.9.1969. The plaintiff - respondent claimed following reliefs : “(a) by prohibiting the defendants and all their servants, agents and subordinates by a permanent prohibiting injunction directing the defendants by themselves and through their officers and agents not to hold out threats of criminal prosecution against the plaintiff alleging that the plaintiff will be prosecuted and proceeded criminally for the alleged illegal mining silica sand from the area under lease of the plaintiff. (Valued at Rs. 2,000/-). (b) by restraining the Government of U.P. and the Union of India by issue of a permanent prohibitory injunction prohibiting them from interfering in any manner whatsoever with the enjoyment and possession of the plaintiff over the land and mines held by the plaintiff in pursuance of the lease-deed and as granted by the lease-deed dated 16th April, 1947 and 27 April 1959 and also of all the minerals extracted from the mines from the areas covered by the said lease. (valued at Rs. (valued at Rs. 10,000/-) (c) to issue a permanent prohibitory injunction restraining the Government of U.P. from inviting or granting any mining lease for any mineral covered under the mining lease held by the plaintiff for the area or any part or portion thereof which is mentioned in the aforesaid lease-deed dated 16th April, 1947 and 27th April, 1959 so long as the subsisting lease in favour of the plaintiff is in force and is not otherwise terminated or cancelled by any Court of law of competent jurisdiction. (valued at Rs. 2,000/-) (d) to issue a permanent prohibitory injunction restraining the Government of U.P. and the Union of India from demanding or releasing the sum of Rs. 9,40,225/25 claimed by the defendants as royalty for the period from 1.1.1952 to 26.6.68 for the alleged mining of the so called silica sand or any royalty other than the royalty stipulated in the lease-deed dated 16th April 1947 and 27th April 1959 from the plaintiff for extracting minerals including sand (silica sand) from the area held under lease-deed is subsisting and is not otherwise cancelled amended or altered by the any competent Court having jurisdiction in the matter. (valued at Rs. 10,000/-)” 4. At the bottom of the plaint a list of 46 villages, subject-matter of suit which fell within Pargana Bara, Tehsil Karchhana, District Allahabad was also given and reads as under : 1. Shankargarh 17. Lakhanpur 33. Lohgara 2. Talapar 18. Kaitha 34. Gadhamar 3. Kapari 19. Sheorajpur 35. Chandra 4. Barui 20. Osa 36. Lalai 5. Khansemra 21. Atari Kapson 37. Baisa 6. Beonra 22. Charihari 38. Laund Khurd 7. Raipatna 23. Gobra Sangram 39. Baghla 8. Matarwar 24. Pagwar 40. Pandua 9. Gorkha 25. Majhiari Bahelia 41. Parvezabad alia Burhi 10. Gheodora 26. Gobra Hewar 42. Basahra Tarahar 11. Chak Arazi Garhwa 27. Barhaiya 43. Lalapur 12. Gara 28. Bhonri 44. Manduri 13. Benipur 29. Ghoghar 45. Partappur 14. Ledar 30. Bokuliha 46. Surwal 15. Biharia 31. Mabaiya Raksel 16. Abhaipur 32. Mehaiya Pahalwan 5. The plaint case set up is that Maharo Raja Kamlakar Singh (hereinafter referred to as Kamlakar Singh) was proprietor of Bara Estate. 46 Villages mentioned in Schedule-A of the plaint and others comprised Bara Estate and Kamlakar Singh was the owner and proprietor of villages. In his capacity of owner and proprietor of these villages. Abhaipur 32. Mehaiya Pahalwan 5. The plaint case set up is that Maharo Raja Kamlakar Singh (hereinafter referred to as Kamlakar Singh) was proprietor of Bara Estate. 46 Villages mentioned in Schedule-A of the plaint and others comprised Bara Estate and Kamlakar Singh was the owner and proprietor of villages. In his capacity of owner and proprietor of these villages. He had absolute right to excavate and quarry Stones, Ballast, Kankar, Moram etc., found in those villages. 6. On 16th April, 1947, Kamlakar Singh transferred quarries of stones, Ballast, Kankar, Moram etc. by a registered lease-deed executed in favour of plaintiff-respondent. The stipulations of lease-deed, relevant for the purpose of the suit, and reproduced in para-5 of plaint, are reproduced as under: “(a) That the lessee shall have liberty and power to enter upon the land mentioned in the Schedule ‘A’ hereto and to search for and dig and obtain by excavation and quarrying both open to the day light and by underground working, the demise stone, ballast, kankar, moram and sand and to carry away and dispose of the same for her own benefit. (b) That the lessee shall have liberty and power to enter upon and to use and occupy to such an extent as may be deemed necessary by the lessee, the lessor’s other land adjoining other pits (hereinafter called the said land) for depositing and heaping thereon the produce of the said quarries and all earth, soil and other substance dug up and brought to the surface in or about the working of the same and for otherwise carrying on the work of the said quarries. (c) The lessee shall have the liberty and power to take lead and carry away from the said land the stone, ballast, kankar, morrum and sand to be obtained as aforesaid and disposed of the same at her will and pleasure. (d) During the term of this demise, the lessee shall pay a royalty at the rate of Rs. 4000/- (four thousand only) annually payable in two equal instalments, the first instalment to be due on the 1st of June and the second instalment on the 1st of December every year whether the lessee quarries or carries on any operations or not. (e) that lessee may export stone, ballast, kankar, morrum and sand from the quarries, hereby demised all the year round. (e) that lessee may export stone, ballast, kankar, morrum and sand from the quarries, hereby demised all the year round. (f) The lessee shall be entitled to sublet the premises hereby demised or any part hereof or any right or privileges under the lease to any person without the consent in writing of the lessor. But it will not be open to the lessee to assign her interest in the said lease in any manner whatsoever without the written consent of the lessor. (g) At the end of every fifty years from the date of the execution hereof it will be open to the lessor to increase the amount of annual royalty payable by the lessee in accordance with the terms hereof by 10% in which case the royalty so fixed at the time of revision thereof by the lessor shall be payable by the lessee and all the terms with regard to the payment thereof shall apply to the amount so fixed.” (Emphasis added) 7. The estate held by Kamlakar Singh known as Bara Raj is an ancient estate. Succession to the said estate was governed by primogeniture. It was an impartable estate. The family of Kamlakar Singh was directly connected with the ruling family of erstwhile Rewa Estate. Emperor Shah Alam in Hijri 1188 had granted a Sanad of full ownership of whole property of “Bara Raj” to the then Raja Rao Vikramaditya Singh. By virtue of said Sanad and by virtue of Wajibul Arz applicable to Bara Raj, the ancestors of Kamlakar Singh had been enjoying, all through, full absolute and unrestricted rights over the area comprised in “Bara Raj”, and worked, excavated, carried out and appropriated all minerals found within the area of Bara Raj, without any restriction and without paying any royalty to any superior authority. From time to time proprietors of Bara Raj had been granting mining leases to different parties for extracting ballast, sand, bolders, moram and other minerals found within the area comprising Bara Raj. Mining of minerals by lessees, all through being done without any interruption and without paying royalty to the Government or any superior authority. The plaintiff-respondent after having lease of 46 villages, mentioned in Schedule-A to the plaint, sublet portions of demised land and right to excavate quarry stones, ballast, Kankar, Moram etc. to various other parties. 8. Mining of minerals by lessees, all through being done without any interruption and without paying royalty to the Government or any superior authority. The plaintiff-respondent after having lease of 46 villages, mentioned in Schedule-A to the plaint, sublet portions of demised land and right to excavate quarry stones, ballast, Kankar, Moram etc. to various other parties. 8. With effect from 1st July, 1952, with the enactment and enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1951 (U.P. Act No. 1 of 1951) (hereinafter referred to as “U.P. Act, 1951”), rights of Kamlakar Singh in the land in dispute extinguished by virtue of Section 4 of the said Act. However under Section 108 of 1951, the plaintiff became lessee of Government of U.P. on 1.7.1952, on the same terms and conditions of the then subsisting lease. 9. The plaintiff-respondent continued to excavate and quarry sand (silica sand) under the lease of 1947 till it was acknowledged by State of U.P. in accordance with Section 108 of U.P. Act, 1951. On 27.4.1959, the Governor of U.P. and plaintiff-respondent entered into a lease of mines, situated in the aforesaid villages, on the same terms and conditions as leased out by Kamlakar Singh in 1947. Under lease-deed dated 27.4.1959, plaintiff was given liberty and power to enter upon the land mentioned in the schedule, attached to the deed of lease, and to search for and dig and obtain by excavation and quarrying, both open to day light and by under ground working Stone, Ballast, Kankar, Moram and Sand etc. and to carry away and dispose of the same for her own benefit. The plaintiff was also conferred right to sublet the premises demised under the aforesaid lease or any part thereof or any right or privilege to any person without written consent of the lessor. The plaintiff thus was enjoying all the aforesaid rights throughout. 10. After State Government executed lease-deed in 1959 in the area leased out to plaintiff, sand which was available and used to be extracted, quarried, mined etc. is the sand commonly called as “silica sand” used for manufacture of glass silicate and foundry etc. It is this sand which the plaintiff had been quarrying, excavating etc. throughout and none else. 11. Under lease-deed of 1959, the plaintiff was to pay royalty at the rate of Rs. is the sand commonly called as “silica sand” used for manufacture of glass silicate and foundry etc. It is this sand which the plaintiff had been quarrying, excavating etc. throughout and none else. 11. Under lease-deed of 1959, the plaintiff was to pay royalty at the rate of Rs. 4000/- per annum in two equal installments on 1st of June and 1st of December in the year, irrespective of whether plaintiff’’s quarries are carried in mining operation or not during the year. This royalty had been paid and is being paid by plaintiff throughout. The plaintiff was excavating and digging Stones, Ballast, Kankar, Moram and sand etc. under the lease-deed dated 16.4.1947 and continued to do so under the lease-deed dated 27.4.1959 executed by State of U.P. 12. At no point of time, State of U.P. took objection regarding digging or excavation of sand i.e. “silica sand”. On 17th February, 1966, the plaintiff received a letter from Secretary of Government of U.P., dated 14.2.1966, stating that plaintiff had been quarrying large quantity of silica sand from villages mentioned in lease-deed in contravention of terms thereof and also in flagrant violation of the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “MMDR Act, 1957”) and Rules framed thereunder. The plaintiff was called upon to stop entire quarrying of “silica sand” forthwith and cancel all sub-leases granted by her, authorizing quarrying of silica sand to others. The plaintiff was also directed to render full account of silica sand quarried by her and her sub-lessees within 15 days of the receipt of letter and deposit royalty for silica sand quarried by her or her sub lessees at the rate of Rs. 0.75 per tone within a month of receipt of the letter. It was also written in the notice that in case of default, the lease-deed dated 27.4.1959 may be cancelled and action for recovery of royalty money as well as prosecution for unauthorised mining may be initiated. 13. The case of plaintiff is that she has every right to quarry sand found at the leased out premises. State Government had no right to prohibit plaintiff from doing so and direction to stop quarrying or demand of royalty money was illegal. The lease was granted by virtue of Section 108 of U.P. Act No. 1 of 1951 and Mineral Concession Rules have no application to the same. State Government had no right to prohibit plaintiff from doing so and direction to stop quarrying or demand of royalty money was illegal. The lease was granted by virtue of Section 108 of U.P. Act No. 1 of 1951 and Mineral Concession Rules have no application to the same. District Magistrate/Collector, Allahabad also issued an order dated 31.5.1968 to Divisional Superintendent, Railway Administration operating within the district of Allahabad that illegal quarried silica sand is being transported by railways at the instance of persons, who have no licence for such quarrying and this is causing huge loss to the revenue and they were directed to stop such transportation immediately. 14. On account of the aforesaid illegal activity of State of U.P. and its authorities, plaintiff sent a notice under Section 80 CPC calling upon them to desist from : (a) Holding out threats and attempting to interfere in any manner whatsoever with the exercise of rights secured to the plaintiff by aforesaid lease for mining morrum, ballast, stone, sand (wrongfully described as silica sand), kankar etc. (b) Holding out threat of inviting applications and considering and granting mining leases of areas already under lease of the plaintiff, for mining of aforesaid or any of the aforesaid minerals. (c) Holding out threat for prosecuting the plaintiff in criminal Court for extraction of ‘silica sand’ from the area held under lease by the plaintiff. (d) Interfering with the working of mines and extraction of aforesaid minerals by plaintiff and her sub lessees in the area under lease of plaintiff. (e) Putting any restriction by any order direction or request either by themselves or through any other official of the State Government preventing the booking and transport of sand or silica sand by rail from any railway station situated within the district of Allahabad to any other place within the Union of India. (f) Threatening to put physical obstructions to the movement and sale of sand extracted from the mines held under lease by the plaintiff. (g) Compelling the plaintiff and her sub lessees to take a clearance certificate from the District Magistrate and/or Collector or from any other authority or authorities for the purposes of booking of sand (silica sand). (h) Holding threats to realise royalty at the rate of Rs. (g) Compelling the plaintiff and her sub lessees to take a clearance certificate from the District Magistrate and/or Collector or from any other authority or authorities for the purposes of booking of sand (silica sand). (h) Holding threats to realise royalty at the rate of Rs. 0.75 P. per tonne of the sand (silica sand) extracted by the plaintiff or her sub lessees from the mines situated within the area under lease of the plaintiff. (i) Putting restrictions on the freedom of trade as stated above held and enjoyed by the plaintiff. (j) Doing any act directly or indirectly interfering with or curtailing the rights, privileges and properties held owned and enjoyed by the plaintiff as the lease holder. 15. The State Government demanded a sum of Rs. 940225.25 from plaintiff towards royalty for the period from 1.1.1952 to 26.6.1968 which demand was wholly illegal. It is in these circumstances, suit was filed seeking relief as already noticed above. 16. The State of U.P. contested the suit by filing a detailed written statement dated 8th October, 1969. It is said that neither there was any estate named as “Bara Estate” known to the defendants nor Kamlakar Singh was proprietor thereof. He, in fact was an “Intermediary” in the district of Allahabad. He was “Zamindar” and “Intermediary” in some of the villages of the district. In this area, settlement of land was made in 1874 AD. Lumberdar Sri Vanaspati Singh of the family of Kamlakar Singh executed an agreement dated 10th March, 1874 and agreed to pay rent with effect from 1282 Fasli onwards until the next settlement in respect of each village or part of village in which he was an intermediary. His claim that he was owner and proprietor of the villages and had absolute right of excavation, quarrying etc. was incorrect. “Zamindar” or “intermediary” had no rights over mineral, hence, Kamlakar Singh also had no right to grant mining lease for quarrying to anyone. In fact, no valid lease for quarrying stones, ballasts, kankar, moram, sand, etc. was granted to plaintiff as required by law. The lease-deed dated 16th April, 1947 did not result in any legal consequences since the lessor himself had no legal right to grant a mining lease to plaintiff. In fact, no valid lease for quarrying stones, ballasts, kankar, moram, sand, etc. was granted to plaintiff as required by law. The lease-deed dated 16th April, 1947 did not result in any legal consequences since the lessor himself had no legal right to grant a mining lease to plaintiff. There is no record about the alleged succession to the estate, or that the succession was governed by primogeniture and that the aforesaid Bara Raj was an impartible estate. The allegation that the then Emperor Shah Alam in Hijri 1188 had granted a sanad of full ownership of the property of Bara Raj is incorrect and not admitted by defendant No. 1. After enforcement of U.P. Act, 1951, all the rights of Kamlakar Singh vested in the State of U.P., since he was only an “Intermediary”. There is no mineral known as “silica sand”. The term “glass sand” finds mention in MMDR Act, 1957. Colloquially “glass sand” is known as “silica sand” as well. It is a major mineral, the lease whereof is governed by the statute enacted by Central Government. The State Government has no power to grant a lease against provisions of Central Act and the Rules framed thereunder. 17. The State Government never granted a lease in favour of plaintiff for quarrying “glass sand” or “silica sand” as it is commonly known. The lease-deed dated 27.4.1959 executed by State Government was for quarrying of minor minerals and not for glass sand, which is a major mineral under central statute i.e. MMDR Act, 1957. Kamlakar Singh was also not a “Zamindar” or “Intermediary” in respect of entire area in 46 villages, mentioned in the lease-deed since there were other intermediaries also. There was a stipulation in deed dated 27.4.1959 that plaintiff shall pay royalty at the rate of Rs. 4000/- per annum, to the State Government for quarrying minor minerals only. 18. Most of the paragraphs of plaint were basically denied whereunder the plaintiff had endeavored to set up a case of valid lease rights for quarry of “silica sand”/“glass sand.” In additional pleas, defendant No. 1 pleaded that cause of action arose on or after 24th May, 1969 and the suit was filed in Court on 28th May, 1969, hence no notice under Section 80 C.P.C. on cause of action in question was served upon defendants. No notice under Section 80 C.P.C. was ever received by defendants. No notice under Section 80 C.P.C. was ever received by defendants. The plaintiff had quarried a huge quantity of silica sand worth lacs of rupees and suit is undervalued. Union of India was a necessary party but not impleaded, hence suit is bad for non joinder of necessary party. The plaintiff had never quarried stones, ballasts, kankar, moram or sand etc., hence has no right to file the suit in question. Kamlakar Singh was a Zamindar and Intermediary in the District of Allahabad which was not a permanently settled district and as such had no right or power to make collections of rent etc. from the tenants and pay revenue fixed upon him to the Government according to revenue records. Kamlakar Singh was never owner or proprietor of any village or land as stated in the plaint. Paramount proprietary right and ownership of land within the zamindari of Kamlakar Singh vested in State of U.P. Defendant was never divested of any of the rights and powers vested in it. Lease-deed dated 16.4.1947 was illegal and inoperative, for various grounds mentioned in para 65 of written statement which we shall discuss at the appropriate stage. Section 108 of U.P. Act, 1951 has no application to the land in question. There was no valid lease subsisting in favour of plaintiff, hence she had no right to claim a statutory lease under Section 108 of U.P. Act, 1951. No mining operation could have been allowed in violation of MMDR Act, 1957 and Rules framed thereunder. 19. Trial Court formulated 20 issues as under : 1. “Whether the plaintiff was holding a mining lease dated 16th April, 1947 and was carrying on mining operations prior to 1.7.1952 ? 2. If so, is the above mining lease dated 16.4.47 invalid and illegal alleged by defendant No. 1 in para 65 of its written statement.? 3. Whether the lease-deed dated 27.4.59 executed in favour of the plaintiff is valid and legal as alleged by the plaintiff? If so, its effect? 4. Whether no notice under Section 80 C.P.C. was served on the defendant in respect of the cause of action dated 24th May, 1969? 5. Whether a valid notice under Section 80 C.P.C. was served on the defendant? 6. Whether the suit is barred by estoppel and acquiscence? 7. Whether the suit is under valued? 8. If so, the Court fee paid insufficient? 9. 5. Whether a valid notice under Section 80 C.P.C. was served on the defendant? 6. Whether the suit is barred by estoppel and acquiscence? 7. Whether the suit is under valued? 8. If so, the Court fee paid insufficient? 9. Whether the plaintiff has a right to quarry sand which is now being described by the Government as silica sand under the lease-deed executed on 27.4.59 and she had also full right to grant sub-leases for quarrying such sand? 10. Whether the District Magistrate is authorised to impose conditions regarding the transport of silica sand Rail and can insist upon the plaintiff to take a clearance certificate for such transport from him? 11. Whether the lease-deed dated 27.4.59 executed in favour of the plaintiff is liable to be modified in view of the provisions contained in the Mines and Minerals Concession Rules? 12. Is defendant No. 1 entitled to realise royalty at the rates provided under the Mines and Mineral (Development and Regulation) Act for the sand (now called silica sand) mined by the plaintiff? If so, from what date? 13. Whether the lease-deed dated 27.4.59 could not have been executed for a term exceeding 20 years and as such the aforesaid lease-deed is determinable and therefore the plaintiff is not entitled to the relief of injunction? 14. Is the plaintiff entitled to any damage on account of the alleged threats for criminal prosecution/If so, what is the amount? 15. Is the lease-deed dated 27.4.59 for minor minerals only? Is to its effect? 16. Whether Maharao Raja Kamlakar Singh was the Zamindar of all the 46 villages mentioned in Schedule ‘A’ annexed with the plaint. 17. Whether the Government is not entitled to consider and execute a mining lease under the mines and mineral development and regulation Act for excavating sand stone moram etc., in favour of other persons for the areas and villages covered under the lease dated 27.4.59 held by the plaintiff as long as it had not been terminated? 18. That relief if any is the plaintiff entitled? 19. Is defendant No. 1 not entitled to claim Rupees 9 lacs (Rs. 9,00,0225 and paise 05 as royalty for the period 1.1.52 to 26.6.68. 20. Whether this Court has no jurisdiction to try suit?” 20. Issues 7 and 8 relating to valuation and sufficiency of Court fees were separately considered and decided vide order dated 26.7.1972. 19. Is defendant No. 1 not entitled to claim Rupees 9 lacs (Rs. 9,00,0225 and paise 05 as royalty for the period 1.1.52 to 26.6.68. 20. Whether this Court has no jurisdiction to try suit?” 20. Issues 7 and 8 relating to valuation and sufficiency of Court fees were separately considered and decided vide order dated 26.7.1972. Since dispute relating to recovery of Rs. 9 lacs and odd towards royalty came to be inserted in the plaint by an amendment requisite Court fees was also paid by plaintiff. Both these issues 7 and 8 thus were answered in negative i.e in favour of plaintiff. 21. Issues 1, 2, 3, 9, 11, 13, 15, 16 and 17 were all taken together and while answering the same, Trial Court held : (a) Kamlakar Singh was Zamindar of all 46 villages described in the plaint. (b) From surface ownership, a presumption would arise that mines quarries and minerals in situ are part and parcel of the land. The owner of surface land is entitled prima facie to everything beneath or within it, down to the centre of earth and this principle applies even where title of surface has been acquired by prescription, unless by some conveyance etc., it is shown that the mines etc. are being enjoyed by persons other than owner of the surface. Defendant failed to make out any circumstance otherwise to dislodge the rights of Kamlakar Singh. (c) In Wajibul Arz (paper No. 176-C) filed by the plaintiff in respect of village Shankergarh, there was entry that Zamindar had the right in respect of minerals. In view of above entry and definition of ‘Intermediary’ under Section 3(2), ‘Estate’ under Section 3(8) and ‘Proprietor’ under Section 3(21) of U.P. Act, 1951 and also the fact that under Section 27, compensation was determined by taking into consideration royalty received by Kamlakar Singh, he was the owner of underground minerals of his estate covering 46 villages. (d) Another Wajibul Arz (paper No. C-362/7) in respect of village Shivrajpur filed by defendant, having no such entry in favour of Kamlakar Singh, was not believed by Trial Court on the ground that for the purpose of compensation, royalty in respect of 46 villages has been considered. (e) Kamlakar Singh, the owner or proprietor of minerals lying in his estate, was legally entitled to execute sub-lease. (e) Kamlakar Singh, the owner or proprietor of minerals lying in his estate, was legally entitled to execute sub-lease. (f) The lease-deed of 1947 executed by Kamlakar Singh was neither a sham transaction nor benami. The defendants also could not prove that transaction was for no consideration or inadequate consideration. Defendants also could not prove that the lease was executed on a plain unstamped paper. (g) The plaintiff became a statutory lessee within the meaning of Section 108 of U.P. Act, 1951. MMDR Act, 1957 applies to those leases which have been granted by the Government and not to statutory leases, hence had no application to lease granted to plaintiff in 1947 and in respect whereto plaintiff’ became statutory lessee under Section 108 of U.P. Act, 1951. (h) Lease of plaintiff was also not affected by Section 8(1) (b) of MMDR Act, 1957 for the reason that it was a statutory lease and remained unaffected by the provisions of MMDR Act, 1957. The defendant’s contention that lease-deed dated 27.4.1959 was liable to be modified in view of Section 16 of MMDR Act, 1957, is also without any force. The plaintiff’s lease cannot be read so as to confine it to minor minerals or to exclude silica sand from its ambit. (i) Mining Concession (Central) Rules, 1939 were made by Governor General in respect of British Baluchistan and by Governor General in Council in respect of other Chief Commissioner’s Provinces for regulating grants of prospective licences and mining leases in Chief Commissioner’s Provinces. The aforesaid Rules were not applicable in the State of U.P. or United Provinces of Agra and Awadh since it was not a Chief Commissioner’s Province. (j) United Provinces Mining Concessions and Mineral Development Rules, 1940 do not indicate the statute under which the same were framed. It also does not clarify that the same were delegated legislation. Moreover, these Rules relate to mines and minerals which were properties of Crown but here, mines and minerals were properties of Kamlakar Singh and not of Crown, hence the aforesaid Rules of 1940 also had no bearing with the suit land. (k) The State Government is bound by principle of estoppel, having executed lease in favour of plaintiff in 1959 with effect from 1.7.1952 and cannot turn around otherwise. (k) The State Government is bound by principle of estoppel, having executed lease in favour of plaintiff in 1959 with effect from 1.7.1952 and cannot turn around otherwise. (l) The State Government will have to honour the terms of lease executed by it with plaintiff in the year 1959, being bound by the principle of Promissory Estoppel. (m) Plaintiff’ was holding a mining lease dated 16.4.1947 and carrying on mining operations prior to 1.7.1952 was neither invalid nor illegal. (n) The lease-deed dated 27.4.1959 executed by State Government in favour of plaintiff is valid and legal. (o) Plaintiff has right to quarry silica sand under lease-deed dated 27.4.1959. The lease-deed dated 27.4.1959 is for major minerals and Government is not entitled to consider and execute a mining lease under MMDR Act, 1947 for area in villages covered under lease-deed dated 27.4.1959 and held by plaintiff, to any third person so long as it had not been terminated in accordance with law. 22. Issues 4 and 5 having not been pressed, were decided against defendants. Issue 6 was also answered against defendants on the ground that the defendants could not show how suit was barred by principle of acquiescence and estoppel. Issue 10 was answered against defendants holding that District Magistrate cannot impose conditions regarding transport of silica sand by rail etc. 23. While answering issues 12 and 19, the Court below held that royalty is payable during continuance of lease. Any amount not payable under lease would not be called ‘royalty’. Demand of royalty under MMDR Act, 1947 is not permissible. Issue 19 was answered against State of U.P. Issue 20 was also answered against defendants. However, issue 14 was answered against the plaintiff. 24. Ultimately Issue 18 was answered in favour of plaintiff holding that she is entitled to all reliefs excluding damages pendente lite and future. 25. Learned Additional Advocate General urged that Kamlakar Singh was not the owner and proprietor of disputed land, hence execution of lease-deed by him in 1947 and grant of mining rights to lessee were all illegal and conferred no valid authority upon the lessee to continue quarry of silica sand etc. in the villages in dispute. He further contended that in any case with enactment of U.P.Act, 1951 the entire disputed area vested in State Government. It is also admitted by plaintiff. in the villages in dispute. He further contended that in any case with enactment of U.P.Act, 1951 the entire disputed area vested in State Government. It is also admitted by plaintiff. In the circumstances, whatever rights Kamlakar Singh had as owner and proprietor of villages in dispute, if he had any, the same ceased after enactment of U.P.Act, 1951 and thereafter, status of Kamlakar Singh became as that of a tenant and mining rights, if any, so far as permitted under U.P. Act, 1951 could have continued only to that extent. In respect of mining operations of minerals governed by MMDR Act, 1957, when it came into force, the rights, if any, of Kamlakar Singh as also the plaintiff’ lessee ceased and after enactment of MMDR Act, 1957, neither the plaintiff’ nor Kamlakar Singh nor anybody else could have continued with mining operations of minerals governed by MMDR Act, 1957, unless licence/permission is granted in accordance with the procedure thereunder. The Court below in holding that MMDR Act, 1957 has no application to the villages in question, has completely erred in law, therefore, the impugned judgment and decree is ex facie illegal and liable to be set aside. 26. He further submitted, assuming that on 16.4.1947, Kamlakar Singh had propriety and ownership right over area within disputed villages and may have corresponding rights of mining and quarrying but the ownership and proprietary rights ceased and stood vested in State of U.P. with effect from 1st July, 1952 on enforcement of U.P.Act, 1951. Thereafter, corresponding rights etc. regarding minerals etc. which were available to Kamlakar Singh, if any, being proprietor and owner of disputed villages, also vested in State of U.P. and he (Kamlakar Singh) ceased to have such rights. That being so, plaintiff lessee also ceased to have such rights unless permitted by State of U.P. or by U.P. Act, 1951. If the plaintiff is held to be entitled to continue with lease rights under Section 108 of U.P. Act, 1951, the same ceased on enactment and enforcement of MMDR Act, 1957 in respect of minerals governed by such enactment and thereafter minerals and mining rights would be governed by MMDR Act, 1957. If the plaintiff is held to be entitled to continue with lease rights under Section 108 of U.P. Act, 1951, the same ceased on enactment and enforcement of MMDR Act, 1957 in respect of minerals governed by such enactment and thereafter minerals and mining rights would be governed by MMDR Act, 1957. Since in the present case, admittedly no mining rights had been conferred upon the plaintiff lessee under MMDR Act, 1957, after following procedure prescribed therein by the competent authority, she has no right to continue with mining operations in respect of minerals governed by MMDR Act, 1957 and Court below in holding otherwise has acted wholly illegally, hence the impugned judgment is liable to be set aside. 27. Having heard learned Additional Advocate General appearing for defendant-appellant, we find that following issues have arisen for determination which need adjudication for deciding this appeal: (i) Whether Kamlakar Singh was proprietor and owner of the disputed villages when he executed lease-deed dated 16.4.1947 and entitled to execute a lease-deed in respect of minerals found in those villages ? (ii) Whether Kamlakar Singh continued to have ownership rights over minerals found in disputed villages after vesting of land in the State of U.P. with effect from 1.7.1952 under U.P.Act, 1951 ? (iii) Whether plaintiff could have continued lease rights of mining in respect of minerals, minor or major, as the case may be governed by MMDR Act, 1957 after its enactment ? (iv) Whether lease-deed dated 16.4.1947 and 27.4.1959 could have validly been operated and followed in respect of minerals governed by MMDR Act, 1957? (v) Whether plaintiff’-respondent or its agents etc. were not liable to pay royalty in respect of minerals governed by MMDR Act, 1957? (vi) Whether Trial Court is justified in holding that plaintiff-respondent is entitled to continue with mining operations, has right to sublet the area in disputed villages, for mining operations and quarry of minerals without any interruption by defendants, including defendant-appellant even after enactment of MMDR Act, 1957 and without having any permission or licence from the competent authority under the said Act, after following the procedure laid down therein? 28. The first question up for consideration for deciding this appeal is the status of Kamlakar Singh before enactment of Act, 1951, in respect of disputed land. The plaintiff claimed status of Kamlakar Singh as owner and proprietor of disputed property in 1947. 28. The first question up for consideration for deciding this appeal is the status of Kamlakar Singh before enactment of Act, 1951, in respect of disputed land. The plaintiff claimed status of Kamlakar Singh as owner and proprietor of disputed property in 1947. Judgment of Court below shows that there was no documentary evidence adduced by plaintiff to show that Kamlakar Singh or his predecessors were owner and proprietor of disputed land. In this regard, Kamlakar Singh himself appeared in witness box and deposed his statement. His statement on oath is paper No. 337-A. He claimed to be ‘Zamindar’ of Bara Estate. Smt. Rajendra Kumari Ba is his second wife. In cross-examination, he said that he was resident of Tehsil Karchhna, which had two Parganas, Bara and Arail. His Zamindari extended to both the parganas, i.e. Bara and Arail. He, however, admitted that in Pargana ‘Bara’, besides him, there were some other petty/smaller Zamindars. Pargana Bara consisted of 250 villages and he had share in 10-12 villages. In 50-60 villages of pargana Bara; Gitti, Moram, Balu, Patthar etc., used to be quarried. He, however, could not tell names of those villages. He further said that area for which lease was granted, mostly were in his Zamindari, while in some he was a share holder but could not give details thereof. His statement, in this regard is as under: ^^38 ^^tks ekSts yht esa fn;s x;s Fks muesa ls vf/kdka'k dk eSa eqlYye tehankj Fkk vkSj dqN esa ‘ks;j gksYMj FkkA ijUrq izR;sd ,sls xkaWo dk fooj.k eSa ugha ns ldrkA** “38. Of most of the villages mentioned in lease, I was full fledged Zamindar and in some, I was a share holder. But I cannot give details of each of such villages.” (English translation by the Court) 29. He further said that he is not aware of permanent settlement at Allahabad. His statement reads as under: ^^39- - - - -eSa ugha tkurk fd vykgkckn es iwjk fglkc gqvk Fkk fd ughA** “ 39....... I do not known whether there had been any permanent settlement in Allahabad or not.” (English translation by the Court) 30. Besides, plaintiff also deposed in support of her case. In her own deposition also, she did not say regarding statement of Kamlakar Singh except that he was Zamindar in the area and disputed land was leased out to her by Kamlakar Singh. 31. Besides, plaintiff also deposed in support of her case. In her own deposition also, she did not say regarding statement of Kamlakar Singh except that he was Zamindar in the area and disputed land was leased out to her by Kamlakar Singh. 31. Trial Court while answering Issue 16 whether Kamlakar Singh was Zamindar of disputed villages, has referred to the pleadings contained in paragraphs 1 and 2 of plaint and its reply contained in paragraph 2 of written statements and therefrom has held that Kamlakar Singh was Zamindar of all 46 villages. Paragraphs 1 and 2 of plaint read as under: “1. That Maharao Raja Kamlakar Singh (herein after referred to as the Raja Saheb of Shankergarh) Tehsil Karchana in the District of Allahabad was the proprietor of the Bara Estate. 2. That a number of villages including 46 villages mentioned in the Schedule “A” of the plaint were situated in the Bara Estate and Raja Saheb of Shankergarh was the owner and proprietor of these villages.” 32. The defendant State of U.P. has replied the aforesaid paragraphs No. 1 and 2 of the plaint in paragraphs No. 1 and 2 of the written statement as under: “1. That the facts stated in Paragraph 1 of the plaint are not admitted. In fact, there was no BARA ESTATE known to the defendant or its officers and Maharaja Kamlakar Singh (hereinafter called the Raja) was not the proprietor thereof. Of Course the Raja was an intermediary in the district of Allahabad. 2. That the facts stated in paragraph 2 of the plaint are denied. In fact, the Raja was not the owner or proprietor of any of the villages in the district of Allahabad. Of course as, stated above, the Raja was zamindar and intermediary in some of the villages of the district. In this area the Settlement of land was last made in 1874 A.D. The Lambardar Sri Banspati Singh of the family of the Raja, executed an agreement dated March 10, 1874 and agreed to pay rent w.e.f. from 1282 Fasli onwards until the next settlement in respect of each village or part of the village in which he was an intermediary.” (emphasis added) 33. This Court does not find any ambiguity in reply of State denying assertions made in paragraphs No. 1 and 2 of plaint. This Court does not find any ambiguity in reply of State denying assertions made in paragraphs No. 1 and 2 of plaint. The plaintiff claimed that Kamlakar Singh was proprietor of above Estate, which has been denied specifically in paragraph 1 of the written statement. Similar assertion in paragraph 2 of plaint has been denied specifically in paragraph 2 of written statement. Defendant appellant has clarified that Kamlakar Singh was not “owner” or “proprietor” of disputed land but a “Zamindar” and “Intermediary” in some of the villages of the district. It referred to settlement of 1874 A.D. and said that Sri Banaspati Singh of the family of Kamlakar Singh, executed an agreement dated 10.3.1874, agreeing to pay rent w.e.f. 1242 Fasli onwards until the next settlement in respect of each village or part of village in which he was an “Intermediary.” 34. Copy of the agreement, which is a document in Urdu was filed by defendant-appellant alongwith list of documents dated 25.8.1972. A certified copy obtained from Revenue Department was filed and marked as Paper No. 170-C/2. Hindi transliteration is also on record as Paper No. 170-C/3 and reads as under : ^^uEcjnkjku ekStk 'kadjx< ijxuk ckjk ftyk bykgkckn ds gSa eu eqdjku budkj djrs gSa fd c'krZ eutwjh xouZesUV bOrnk; 1282 Q yxk;r 1311 Qlyh ;kuh rhl lky rd tek ljdkj cdnj vkSj ckn vtkWa rk u gksus bdkjkjukek tnhn cUnkscLr ds lky vk[khj ds 'kjg ls vnk djrs jgsaxsA** “Numberdars are residents of village Shankargarh, Pargana Bara, District Allahabad. We the parties agree that subject to the sanction by the Government from 1282 Fasli till 1311 Fasli i.e. for 30 years, we shall be depositing the requisite fee with the Government in accordance with the agreement and thereafter at the rate paid in the last year of this agreement till the new settlement/agreement is not entered into.” (English translation by the Court) 35. The defendants- appellants also filed copy of Wajibul Arz, Mouza Shivrajpur, Pargana and Tahseel Bara, District Allahabad, which is also a document in Urdu and certified copy thereof obtained from record room of Revenue Section of Collector’s office has been filed as Paper No. 170-C/4 to 170-C/6. Its Hindi transliteration has been filed as Paper No. 170-C/7. The aforesaid document clearly mentions status of predecessor of plaintiff as that of Zamindar. Its Hindi transliteration has been filed as Paper No. 170-C/7. The aforesaid document clearly mentions status of predecessor of plaintiff as that of Zamindar. Section 1 of aforesaid document clearly mentions as under: <font face="Kruti Dev 011"> nQk &1 </font> <font face="Kruti Dev 011"> ft+dz uob;r egky </font> <font face="Kruti Dev 011"> Cklwjr tehUnkjh gS </font> Section 1 Description of the nature of possession Is in the form of Zaminidari 36. Trial Court has observed by referring to Apex Court’s decision in Avadh Kishore Das v. Ram Gopal and others, AIR 1979 SC 861 , that Wazibul Arz is village administration paper prepared with due care and after due enquiry by public servant in discharge of his official duty. It is a part of settlement record and statutory presumption of correctness is attached to it. Therefore, unless shown otherwise, a “Wazibul Arz” is a creditworthy document. In view thereof it has relied on the “Wazibul Arz” (paper No. 176) filed by plaintiff-respondent for Village- Sankargarh, which contains a statement that ‘Zamindar’ had a right in respect of minerals, to hold that Raja Kamlakar Singh was owner over minerals in village Sankargarh. It says that Kamlakar Singh being Zamindar of 46 villages was also an ‘Intermediary’ within Section 3 (21) of U.P. Act, 1951. It, then relied on Sections 27, 34, 49 and 50 of the said Act to hold that Compensation Officer in determining gross assets of Kamlakar Singh took into consideration royalties he received in respect of quarry which shows that Kamlakar Singh was owner and proprietor of minerals. To our mind, all these considerations by Trial Court were not necessary for the reason that status of Kamlakar Singh as “Zamindar” and “Intermediary” was admitted by defendant-appellant clearly in para-2 of the written statement. 37. The aforesaid documents also make it clear that Kamlakar Singh claimed status of his predecessor and himself as ‘Zamindar’ in respect of disputed villages. 38. On behalf of State an attempt was made to claim that being “Zamindar”, predecessor and Kamlakar Singh were not owner and proprietor of disputed villages but it was in the nature of “Intermediary.” Record makes it very clear that predecessors of Kamlakar Singh were given the status of “Zamindar” which continued by succession to be devolved upon Kamlakar Singh also. 39. Here it takes us to examine meaning of the term “Zamindar” at the relevant time. 39. Here it takes us to examine meaning of the term “Zamindar” at the relevant time. The “Wajibul Arz” (Paper No. 170C)/4-6 was executed on 15th June/10th July, 1875 A.D. We have got some part of this document translated in english and it shows that the same was executed by Sri Syeed Jahir Hussain Khan, the then Deputy Collector. It had various stipulations in four chapters which read as under : “CHAPTER-1, Nature of Possession Section-1: Description of the Nature of Possession In form of Zamindari Section-2: Description of the method of realization of rent of payment of Malguzari Sole owner CHAPTER-2, Right of owner Section-2: Description of the appointment of Numberdars According to customs, the eldest son of Zamindars would be owner of the property and he would be appointed Numberdar. Section-3: Description of the Right of Pre-emption At the time of death, the ownership may be transferred to anyone without the consideration of family. Section-4: Description of the Sir and Khudkasht NIL Section-5: Description of the expenses of village Responsibility of Zamindar Section-6: Description of Management of Realization of Rent within the sharers of MOHAL NIL Section-7: Description of the Management of Land, fit for Agriculture. Management of the cultivable land will be through servant (Karinda) (Sic). Rs. 52/- annual income is realized as under: 1. Income from Mahua trees in the possession of Zamindar : Rs. 30/- 2. Income from Bazar: Rs. 20/- 3. (Sic) : Rs. 2/- Section-8: Description of realization and distribution of amount. NIL Section-9: Description of customs of irrigation between co-sharers. NIL Section-10: Description of land which are exempted from rent for any reason. NIL Section-11: Description of flooded and non-flooded lands. NIL Section-12: Description of titles and co-sharers. NIL Section-13: Description of any specific thing or custom which does not fall in the above sections. NIL CHAPTER-3 Section-1: Description of Maafi, permanent OR till life NIL Section-2: Description of Maafi by forfeiture NIL Section-3 : Description of the land in possession of others (Non-Zamindar) 2 Bigha, 7 Biswan, 10 Dhur Section-4: Description of the land of other specific nature NIL Section-5: Description of the land in the possession of any privileged. NIL CHAPTER-4, Right of Cultivators Section-1: Description of the time of realization of revenue/rent of land. Rent from the non-occupant tenant is realized 36 Youm and 21 Youm from the other tenants, before the time fixed. NIL CHAPTER-4, Right of Cultivators Section-1: Description of the time of realization of revenue/rent of land. Rent from the non-occupant tenant is realized 36 Youm and 21 Youm from the other tenants, before the time fixed. Section-2: Description of ponds and wells. No tenant can dig pond or well without the permission of Zamindar. Section-3 : Description of the construction of houses No tenant can dig pond or well without the permission of Zamindar. Section-4: Description of unplanted and miscellaneous trees Farmers can cut trees for the purpose of making instrument of agriculture from the infertile land with the permission of Zamindar. Section-5: Description of gardens, farms and lands of unknown owners Owner of the gardens will have right to sale/rent. Nobody can (sic) a new garden without the permission of Zamindar. Section-6: Description of the methods of irrigation by ponds and lakes. Fields are irrigated from ponds and rivers. Right of irrigation is not fixed. TITIMMA The garden land will be exempted from (sic) but when the land will be vacant from the trees and fresh trees are not planted on it, the Government will have power to decide. Sd/-j Illegible Sd/-j Illegible Sd/-j Illegible Written on 10th July, 1875, A.D., the present Wajibul-Arz between the landlords and farmers, in presence of the Deputy Collector, Sahab Bahadur Syed Zahid Husain Khan.” Order filed in the “Settlement File” dated : 15th June, 1875.” 40. The aforesaid document is in respect of Mauja Shivrajpur, Pargana Bara, Tehsil Karchhana, District Allahabad. The document makes it very clear that form of Zamindari, declared status of ‘Zamindar’ as “sole owner” and expenses of villages are responsibility of ‘Zamindar’. He shall manage cultivable land through servants etc. Any other tenant or farmer needs permission of Zamindar to do anything in the land governed by aforesaid document. Erstwhile concept of ‘Zamindar’ was also that he was a man of the land or landlord. They were sort of a micro king who ruled their on a small territory by collecting taxes and running a Court to resolve dispute maintaining security- personnel and building palaces. In most cases, they had to share a big chunk of their taxes with the Lord above them like in the present case. 41. We find that the kind of Zamindari system inherrited by British India was created by Mughals who replaced earlier tax collection system and appointed their own Collectors. In most cases, they had to share a big chunk of their taxes with the Lord above them like in the present case. 41. We find that the kind of Zamindari system inherrited by British India was created by Mughals who replaced earlier tax collection system and appointed their own Collectors. They were responsible for local law and order. We find that in British Rule, Zamindari system was introduced by Lord Cornwallis in 1793 through Permanent Settlement Act. It was introduced in Provinces of Bihar, West Bengal, Orissa and Varanasi. In every reference, we find in the history books, “Zamindars” were recognized as owners of land. They were given right to collect rent from peasants. There were two other parallel systems introduced in British system, one is ‘Rayyatwari’ system, sometime in 1820 by Thomos Munro, but it prevailed mostly in South India and some areas of erstwhile Bombay, part of Assam and Kurk Provinces of British India. A third system similar to ‘Zamindar’ was ‘Mahalwari system’ introduced sometime in 1833 during the period of William Bentick in Central Provinces and North-West Frontier i.e. Provinces in Agra, Punjab and Gangetic Valley. 42. The artificial distinction, sought to be drawn by defendant-appellant, that Kamlakar Singh or his predecessors were ‘Zamindar’ and ‘Intermediary’ but not owner or proprietor of concerned villages has no basis or justification and none could be pointed out before us by learned Additional Advocate General. The settlement of 1875, relied on by defendant-appellants on their own, we have no doubt that status of ‘Zamindar’ conferred upon predecessors of Kamlakar Singh therein was nothing but a conferment of ownership rights or proprietors right. 43. Therefore, status of ‘ownership’ was conferred upon predecessors of Kamlakar Singh and it stood devolved upon him also. In 1947 when he executed-deed dated 16.4.1947, he was a ‘Zamindar’ (owner and proprietor) of villages in dispute. 44. Whether aforesaid ownership would include minerals found in the villages concerned, on this aspect, learned Additional Advocate General could place nothing before us to show that rights of ‘Zamindar’ were confined only to cultivation or collection of rent taxes etc. and he had no rights over minerals found in the concerned villages. Ownership right as conferred by Wazibul Arz dated 10.7.1985 did not restrict rights of ‘Zamindar’ in respect of minerals etc. and he had no rights over minerals found in the concerned villages. Ownership right as conferred by Wazibul Arz dated 10.7.1985 did not restrict rights of ‘Zamindar’ in respect of minerals etc. Learned counsel appearing for appellant could not place any contractual or statutory provision or otherwise to persuade us to hold that Kamlakar Singh or his predecessor despite being ‘Zamindar’ of disputed area, did not possess any ownership or proprietorship right on minerals found in disputed area. We, therefore, concur with the findings of Court below that Kamlakar Singh, when executed lease-deed dated 16.4.1947, possessed full rights to deal with the disposal of minerals found in disputed area after quarry, excavation etc. 45. Question 1, therefore, is answered accordingly in favour of plaintiff - respondent. 46. Now we come to question 2. It is an admitted case of plaintiff - respondent that on enforcement of U.P.Act, 1951, area of the land of disputed villages vested in State of U.P. In para-11 of the plaint, plaintiff-respondent himself has stated as under : “11. That in 1951 the U.P.Legislature enacted the U.P. Zamindari Abolition and Land Reforms Act (U.P. Act No. 1 of 1951) and with effect from 1st July, 1952 the rights of Raja Saheb of Shankargarh in the land demised under the lease were extinguished under Section 4 of the Act.” 47. Section 4(1) of U.P.Act, 1951 reads as under : “4. Vesting of estates in the State—(1) As soon as may be after the commencement of this Act, the State Government may, by notification, declare that, as from a date to be specified, all estates situate in Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.” (Emphasis added) 48. Section 34 talks of vesting all ‘Estates’ situated in the State of U.P. in the State. The term ‘Estate’ has been defined in Section 3(8) of U.P.Act, 1951. Initially Section 3(8) read differently and was substituted by U.P. Act No. XIV of 1958. A proviso was also added in U.P. Act, 1951. The provision as it was initially legislated and stands after substitution are quoted as under : Initial Provision Substituted Provision “(8). The term ‘Estate’ has been defined in Section 3(8) of U.P.Act, 1951. Initially Section 3(8) read differently and was substituted by U.P. Act No. XIV of 1958. A proviso was also added in U.P. Act, 1951. The provision as it was initially legislated and stands after substitution are quoted as under : Initial Provision Substituted Provision “(8). “estate” means the area included under an entry in any of the registers prepared and maintained under clause (a), (b), (c) or (d) of Section 32 of the United Provinces Land Revenue Act, 1901 or in the registers maintained under clause (e) of the said section in so far as it relates to the permanent tenure-holder and includes share in or of an estate.” “(8). “Estate” means and shall be deemed to have always meant the area included under one entry in any of the registers described in Clause (a), (b), (c) or (d) and, in so far as it relates to a permanent tenure holder, in any register described in Clause (e) of Section 32 of the U.P. Land Revenue Act, 1901, as it stood immediately prior to the coming into force of this Act, or, subject to the restriction mentioned with respect to the register described in Clause (e), in any of the registers maintained under Section 33 of the said Act or in a similar register described in or prepared or maintained under any other Act, Rule, Regulation or Order relating to the preparation or maintenance of record-of-rights in force at any time and includes share in, or of an “estate”. Provided that in Mirzapur District each of the areas bounded as given in Schedule VII shall, notwithstanding anything contained in the foregoing definition, be deemed to be an estate. Explanation —The Act, Rule, Regulation or Order referred to in this clause shall include, Act, Rule, Regulation, or Order made or promulgated by the erstwhile Indian States whose territories were merged or absorbed in the State of Uttar Pradesh prior to the date of vesting notified under Section 4 of this Act.” 49. Consequences of vesting of ‘Estate’ are provided in Section 6. The relevant part of Section 6 is reproduced as under: “6. Consequences of vesting of ‘Estate’ are provided in Section 6. The relevant part of Section 6 is reproduced as under: “6. Consequences of the vesting of an estate in the State—When the notification under Section 4 has been published in the Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely : (a) all rights, title and interest of all the intermediaries- (i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas (otherthan hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 and (ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not; shall cease and be vested in the State of Uttar Pradesh free from all encumbrances; (b) all grants and confirmations of title of or to land in any estate so acquired, or of or to any right or privilege in respect of such land or its land revenue shall, whether liable to resumption or not, determine; (c) (i) all rents, cesses, local rates and sayar in respect of any estate or holding therein for any period after the date of vesting and which, but for the acquisition would be payable to an intermediary, shall vest in and be payable to the State Government and not to the intermediary and any payment made in contravention of this clause shall not be valid discharge of the person liable to pay the same. (ii) where under an agreement or contract made before the date of vesting any rent, cess, local rate or sayar for any period after the said date has been paid of or compounded or released by an intermediary the same shall, notwithstanding the agreement or the contract, be recoverable by the State Government from the intermediary and may without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III.” (Emphasis added) 50. The above makes it very clear that all rights, title and interest of all Intermediaries in every estate including land and of sub-soil in such estate including the right, if any, in mines and minerals shall cease and be vested in State of U.P. free from all encumbrances, unless provided otherwise in U.P. Act, 1951. The term ‘Intermediary’ has been defined in Section 3(12) and reads as under: “Intermediary” with reference to any estate means a proprietor, under- proprietor, sub-proprietor, thekedar, permanent lessee in Avadh and permanent tenure-holder of such estate or part thereof.” 51. Kamlakar Singh, therefore, was covered by term ‘Intermediary’ and his estate vested in State of U.P. including all rights etc. in respect of mines and minerals in sub-soil in such estate. A three Judge Bench of Apex Court had an occasion to consider Section 4 and 6 of U.P.Act, 1951 in Bhagwan Das v. State of U.P., 1976 (3) SCC 784 . After referring to Section 4 and Section 6(a) (i and ii), the Court said: “these provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile Zamindars possessed, stood extinguished and became vested in the State Government.” 52. The above view was followed in King Pal Singh v. State of U.P. and others, 1996 (11) SCC 571 , wherein para 16, Court quoted an exerpt from its earlier judgment in Bhagwan Das v. State of U.P. (supra) as under: “16. In this connection, we need only to refer to the judgment of this Court rendered under the very same provisions with which we are concerned. In Bagwan Das v. State of U.P. and others ( AIR 1976 SC 1393 ). In this connection, we need only to refer to the judgment of this Court rendered under the very same provisions with which we are concerned. In Bagwan Das v. State of U.P. and others ( AIR 1976 SC 1393 ). this Court observed as follows : “The right of the former Zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. So long as the proprietory right to the land was vested in the Zamindar, he was entitled to mines and minerals. With the abolition of Zamidari by the 1951 Act that right has passed on not to the appellant but to the State Government. The appellants’ writ petition filed to restrain the State Government from auctioning the right to undertake mining operations must, therefore, fail”. (Emphasis added) 53. With respect to continuance of mining operations, attention of Court has been drawn to Section 7 and Chapter VI comprising Sections 7 and 106 to 112 of U.P.Act, 1951. Sections 7, 106, 107 and 108 of U.P.Act, 1951 relevant for our purpose read as under : 7. “Saving in respect of certain rights—Nothing contained in this chapter shall in any way affect the right of any person— (a) to continue to work any mines comprised in any estate herein above acquired which shall be governed by the law for the time being in force; (aa) being a bhumidhar, sirdar, adhivasi or asami of any land, to continue to enjoy any easement or any similar right for the more beneficial enjoyment of the land, as he was enjoying on the date immediately preceding the date of vesting; (b) to recover any arrears of rent, cesses, sayar or other dues which accrued before the date of vesting and the same shall, notwithstanding anything contained in this Act, be recoverable as hereto before by the person entitled thereto. Provided that no decree for an arrear of rent or order for ejectment in default of an arrear of rent shall be executed by ejectment of the judgment debtor from his holding: Provided further that rent, cesses, local rates, sayar or other dues as aforesaid which are payable by an intermediary, whose interest in the state in respect of which the arrear is due has been acquired under the provisions of this Act, may in addition to any other remedy open to the person entitled, be realized from or paid out of the compensation money payable to such intermediary.” “106. Working of mines to be governed by this chapter—Notwithstanding anything contained in this Act, the right to operate or work mines and to extract minerals therefrom shall, from the date of vesting, be governed by the provisions of this chapter. 107. Mines worked by the intermediary—(1) With effect from the date of vesting, all mines comprised in the estate or estates acquired under this Act, as were in operation on the date immediately preceding the said date and were being worked directly by the intermediary shall, if so desired by him, be deemed to have been leased by the State Government to the intermediary and such intermediary shall be entitled to retain possession of those mines as a lessee thereof. (2) The terms and conditions of the said lease by the State Government shall be such as may be agreed upon between the State Government and the itnermediary, or, in default of agreement, as may be settled by a Mines Tribunal appointed under Section 110. Provided that all such terms and conditions shall be in accordance with the provisions of any Central Act for the time being in force regulating the grant of new mining leases. 108. Subsisting leases of mines and minerals—(1) Where immediately before the date of vesting of the estate or estates, there is a subsisting lease of mines or minerals comprised in the estate or estates or any part thereof the whole or the part of the estate or estates comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease and such holder shall be entitled to retain possession of the held property. (2) The terms and conditions of the said lease by the State Government shall, mutatis mutandis, be the same as the terms and conditions of the subsisting lease referred to in sub-section (1), but with the additional condition that, if, in the opinion of the State Government, the holder of the lease had not, before the date of the commencement of this Act, done any prospecting or development work, the State Government shall be entitled at any time before the expiry of one year from the said date to terminate the lease by giving three months’ notice in writing: Provided that nothing in this sub-section shall be deemed to prevent any modifications being made in the terms and conditions of the said lease in accordance with the provisions of any Central Act for the time being in force regulating the modification of existing mining leases. (3) The holder of any such lease of mines and minerals as is referred to in sub-section (1) shall not be entitled to claim any damages from the outgoing intermediary on the ground that the terms of the lease executed by such intermediary in respect of the said mines and minerals have become incapable of fulfillment by the operation of this Act.” (Emphasis added) 54. The lease-deed executed by Kamlakar Singh on 16.4.1947 in his capacity as proprietor/owner/Zamindar of the land in dispute, including mines and minerals found on the land or in sub-soil was valid at that time, but thereafter, when the entire disputed land vested in State of U.P. with effect from 1st July, 1952 under Sections 4 and 6 of U.P.Act, 1951, Kamlakar Singh ceased to have any rights, whatsoever, in respect of the said land as well as mines and minerals etc. and even right to excavate minerals etc. or transfer of such rights on rent to others extinguished. The entire estate including mines minerals etc. from the date of vesting, vested in State of U.P. leaving status of Kamlakar Singh from then onwards as that of a ‘tenant’ as is provided under U.P.Act, 1951. 55. Section 7 of U.P.Act, 1951 protected a right to continue to work any mines comprised in any ‘Estate’ vested in State of U.P. If there was any arrears of rent, cesses, sayar or other dues, the same could have been recovered by such person. The ownership, therefore, in respect of minerals etc. 55. Section 7 of U.P.Act, 1951 protected a right to continue to work any mines comprised in any ‘Estate’ vested in State of U.P. If there was any arrears of rent, cesses, sayar or other dues, the same could have been recovered by such person. The ownership, therefore, in respect of minerals etc. ceased to be vested in Kamlakar Singh and acquired by State of U.P. Thereafter, manner in which mining operations etc. may continue, as we have already said, would be governed by the provisions contained in Chapter-VI of U.P. Act, 1951. Section 106 very clearly says that notwithstanding anything contained in the Act, i.e. U.P. Act, 1951, right to operate or work mines and to extract minerals therefrom, on and after the date of vesting, would be governed by provisions of Chapter -VI. Section 107 deals with a case where an “Intermediary” was directly operating a mines himself on the date of vesting. It provides that such “Intermediary” shall be entitled to retain possession of those mines and continue with the operation with condition that he shall be deemed to have been leased such mine by the State Government. We find that plaintiff has nowhere pleaded or given these facts, either in the plaint or otherwise, before the Court below, that area of 46 villages leased out to it by Kamlakar Singh, any part thereof had continued under mining operation with Kamlakar Singh, who was “Intermediary” on the date of vesting. On the contrary, the case set up by plaintiff is that entire mining operations etc. in 46 villages were leased out to plaintiff by Kamlakar Singh. The plaintiff, therefore, was in the capacity of lessee while the lessor-Intermediary i.e. Kamlakar Singh lost his ownership rights over mines and minerals, being part ‘Estate’ to the State of U.P. by virtue of Sections 4 and 6 of U.P. Act, 1951. Therefore, Kamlakar Singh could not get any deemed lease from State of U.P. under Section 107(1). Thus apparently, Section 107 has no application in respect of the area of 46 villages with which we are concerned. 56. Case of plaintiff in fact is founded on Section 108 which deals with interest of subsisting lessees in respect of mines and minerals, who were operating on the date of vesting. Thus apparently, Section 107 has no application in respect of the area of 46 villages with which we are concerned. 56. Case of plaintiff in fact is founded on Section 108 which deals with interest of subsisting lessees in respect of mines and minerals, who were operating on the date of vesting. Here also, Section 108(1) makes it very clear that from the date of vesting susbsisting lease may continue but instead of initial lessor, the ‘Estate’ thereof would be that of State of U.P. Section 108(1) also says that from the date of vesting, subsisting lease shall be deemed to have been leased out by State Government to the holder for remaining term of that lease and such holder shall be entitled to hold possession of the held property. Regarding terms and conditions, Section 108(2) provides that it would be the same as were in subsisting lease but State Government, in certain conditions, would have a right to terminate the same. The Proviso thereof however, makes it clear that nothing in Section 108(2) would prevent any modification in terms and conditions of subsisting lease to make it consistent with the provisions of any Central Act. 57. The resultant effect of above discussion is that subsisting lease(s) could have continued to operate by plaintiff-respondent by virtue of Section 108(1) and (2) respectively but the plaintiff could not have raised any objection if any modification is made to bring the terms of subsisting lease in accordance with any Central Act, for the time being in force, in respect of existing mining leases. 58. The Court below has observed that this modification came in the form of MMDR Act, 1957 but since by virtue of Section 108 of U.P.Act, 1951, subsisting lease of plaintiff was liable to be treated as a statutory lease, therefore, MMDR Act, 1957 was inapplicable and State of U.P. would be governed by conditions of lease-deed dated 27.4.1959. 58. The Court below has observed that this modification came in the form of MMDR Act, 1957 but since by virtue of Section 108 of U.P.Act, 1951, subsisting lease of plaintiff was liable to be treated as a statutory lease, therefore, MMDR Act, 1957 was inapplicable and State of U.P. would be governed by conditions of lease-deed dated 27.4.1959. To our mind, this assumption or view taken by Court below is patently erroneous inasmuch as Section 108 does not declare subsisting lessee to be a statutory lessee but only recognises its right to continue to operate mining under subsisting lease, if any, from the date of vesting in such terms and conditions as are contained in the lease document already executed with the only difference that position or status of lessor would be taken by State of U.P. Rest contractual relations would continue subject to statutory right given to State of U.P. to modify terms or terminating the lease in certain circumstances/or to make subsisting lease consistent with any existing Central Law dealing on the subject. The view taken by Court below that plaintiff-respondent became a statutory lessee has no basis or foundation. Such assumption on the part of Court below is clearly illegal, erroneous and cannot be sustained. 59. Plaintiff-respondent, therefore, is not much off the point in contending that despite vesting of estate in State of U.P., subsisting lease of plaintiff-respondent, continued subject to change of the terms and conditions by State of U.P. till enactment of MMDR Act, 1957. It is nobody’s case that State of U.P. proceeded to make any change in terms and conditions of lease-deed dated 16.4.1947. Therefore, plaintiff-respondent validly continued with mining operations even after vesting of ‘Estate’ of Kamlakar Singh in State of U.P. 60. The right to continue mining operations is one thing but it cannot be said that Kamlakar Singh or plaintiff-respondent continued to possess ownership rights over minerals found in disputed villages despite vesting of same in State of U.P., who became owner. Subject to payment of rent, royalty etc., as the case may be, subsisting lessees, plaintiff-respondent only continued with the right to operate mines with subsisting lease. In other words, under the provisions of U.P.Act, 1951, plaintiff’-respondent continued to have lease rights of mining etc. under lease-deed dated 16.4.1947 with the only modification that in place of Kamlakar Singh, owner of land. In other words, under the provisions of U.P.Act, 1951, plaintiff’-respondent continued to have lease rights of mining etc. under lease-deed dated 16.4.1947 with the only modification that in place of Kamlakar Singh, owner of land. became State of U.P. and all dues towards rent etc. became payable to State of U.P. 61. The view, we have taken above is further fortified from Section 6 of U.P. Act, 1951, which makes it clear that contracts or leases etc., already executed by “Intermediary,” notwithstanding thereof, the rent etc. shall be payable/recoverable by State Government from “Intermediary” as well as “lessees”, as the case may be, and nothing would be payable to the “Intermediary”. The land etc. would stand transferred without any encumbrance, meaning thereby the State of U.P. would enter into the shoes of erstwhile owner and will enjoy the same status after vesting. That being so, lease/contract, as the case may be, executed by “Intermediary” before date of vesting, if are allowed to continue by any provision of the Act with respect to right to operate or work mines etc., that would mean that agreement/contract would be read as if after vesting, it has continued as was executed by State Government. Any other view would violate the specific effect of Section 4 and 6 of U.P. Act, 1951. Further Section 108(1) clearly says, where there is a subsisting lease of mines or minerals in respect of the ‘Estate’ which is vested in State of U.P. and was executed before date of vesting, with effect from the date of vesting, it shall be deemed to have have been leased by State Government to the holder of said subsisting lease and such holder shall be entitled to retain possession of the lease held property. Thus the view we have taken above is duly founded on clear provisions of statute. 62. The terms and conditions of subsisting lease would continue to be same but State Government is conferred with right to alter the same before expiry of one year from the said date or to terminate lease by giving three months’ notice in writing. The provision is very clear. It provides that subsisting lease, which would continue under Section 107 and 108, as the case may be, by operation of law the State Government would be deemed to have granted such lease. The provision is very clear. It provides that subsisting lease, which would continue under Section 107 and 108, as the case may be, by operation of law the State Government would be deemed to have granted such lease. The Court below has completely misdirected and misread specific provisions contained in U.P. Act, 1951. 63. Question II, therefore, is answered holding that after vesting of ‘Estate’ constituting disputed villages in State of U.P. with effect from 1st July, 1952 under U.P. Act, 1951 including sub-soil, mines and minerals, Kamlakar Singh ceased to have any ownership right over mining minerals found in the said land. The findings recorded by Court below, otherwise, are not correct. 64. Now we shall deal question No. III, IV, V and VI together. MMDR Act, 1957 is referable to entry 23 and 24, List-1, VIIth Schedule of the Constitution of India. Therefore, the said Act, if applicable to minerals found in 46 villages with which we are concerned, provisions of MMDR Act, 1957 shall prevail and anything contrary thereto would be patently illegal and void. Trial Court has already held that “Silica Sand” which is being mined by plaintiff in the disputed area is a “major mineral” as is evident from the following findings: “That being so plaintiff’s lease-deeds dated 16.4.1947 and 27.4.1959 are for Silica sand which is a major mineral.” (Emphasis added) 65. The term “minerals, mineral oils and minor minerals” are defined in Section 3(a),(b) and (e) of MMDR Act, 1957 and read as under : “Definitions—In this Act, unless the context otherwise requires- (a) “minerals” includes all minerals except mineral oils; (b) “mineral oils” includes natural gas and petroleum; (e) “minor minerals” means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral.” 66. Admittedly, we have no concern with “mineral oil” in the case in hand. All “minerals” other than “minor minerals” can be termed as “major minerals”. Section 2 of MMDR Act, 1957 says that Union of India should take under its control regulation of mines and development of minerals to the extent hereinafter provided. Admittedly, we have no concern with “mineral oil” in the case in hand. All “minerals” other than “minor minerals” can be termed as “major minerals”. Section 2 of MMDR Act, 1957 says that Union of India should take under its control regulation of mines and development of minerals to the extent hereinafter provided. The Court in Sandur Manganese & Iron Ores Ltd. v. State of Karnataka and others, JT 2010 (10)SC 157, has held that by virtue of Section 2, State Legislature is denuded of its legislative power to make any law in respect of regulations of mines and mineral development to the extent provided in the Act i.e. MMDR Act, 1957. 67. The only reason assigned by Court below to exclude operation of MMDR Act, 1957 is that by virtue of Section 108 of U.P.Act, 1951, subsisting lease of plaintiff became a statutory lease and, therefore, MMDR Act, 1957 is not applicable. However, the view we have already taken above holding that this reason assigned by Court below is not correct, results in collapse of the entire edifice to hold MMDR Act, 1957 inapplicable. The very basis of holding that MMDR Act, 1957 will apply only in such cases where leases are granted by Government to another person being bad and erroneous falls to ground. 68. After vesting of ‘Estate’ in State of U.P. and in view of specific provisions, as discussed above, contained in U.P.Act, 1951, continuance of lease dated 16.4.1947 was, as if, granted by State of U.P. After enactment of MMDR Act, 1957, matters which came within the ambit of aforesaid Act, could have continued to operate duly in accordance with provisions of MMDR Act, 1957 and not otherwise. 69. It takes us to examine correctness of lease-deed dated 27.4.1959. As already said, we have no manner of doubt that mining of “Silica sand” is governed by MMDR Act, 1957. The rates of royalty payable thereon chargeable by the State are contained in second Schedule of said Act. The rates have been revised from time to time and presently it is governed by Item-37, Schedule-II which provides as under : Silica sand, moulding sand and Quartizite Eight per cent of sale price on ad valorem basis 70. The royalty is payable under Section 9, which reads as under: “9. The rates have been revised from time to time and presently it is governed by Item-37, Schedule-II which provides as under : Silica sand, moulding sand and Quartizite Eight per cent of sale price on ad valorem basis 70. The royalty is payable under Section 9, which reads as under: “9. Royalties in respect of mining leases : (1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. (2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. (2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one-third of a tonne per month. (3) The Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years.” (Emphasis added) 71. It governs both the cases, where mining lease has been granted before MMDR Act, 1957 or after its enforcement. The holder of mining lease is liable to pay royalty as per rates specified in Second Schedule of MMDR Act, 1957 in respect of that mineral. Besides, various restrictions on the conditions of leases are contained in Sections 5, 6, 7, 8 etc. The holder of mining lease is liable to pay royalty as per rates specified in Second Schedule of MMDR Act, 1957 in respect of that mineral. Besides, various restrictions on the conditions of leases are contained in Sections 5, 6, 7, 8 etc. of MMDR Act, 1957 It talks of maximum area for which lease can be granted or renewed etc. Section 9-A makes the lessee liable to pay dead rent irrespective of anything contained in mining lease or in any other law for the the time being in force. Dead rent has to be paid in accordance with Third Schedule of MMDR Act, 1957. 72. The lease-deed dated 27.4.1959 does not refer, at all, to MMDR Act, 1957 for any purposes whatsoever. It only refers to State Government’s order dated 15.12.1956 so as to recognise terms of lease dated 25.4.1947 for the purpose of Section 108(1) of U.P.Act, 1951 and maintain royalty of Rs. 4000/- per annum with effect from 19.1.1957. Other conditions contained in the deed dated 27.4.1959 are as under: “This lease made on 27th day of April, 1959 between the Governor of U.P. (hereinafter called the lessor) on the one part and Shrimati Rani Rajendra Kumari Ba Saheba, wife of Maharao Raja Kamlakar Singh, caste Kshtriya Baghel, resident of Shankargarh, Pargana Bara, Tahsil karchana in the district of Allahabad (hereinafter called the lessee which includes her heirs, legatees or executors) on the other part. Whereas the ex-land lord Pushpraj Kripapatra Maharao Raja Kamlakar Singh Ji, Bara Estate had leased out to the lessee by a registered deed dated 25.4.1947, the quarries of stone, ballasts, Kankar, morrum and sand described in Schedule ‘A’ annexed hereto, and whereas the Government of Uttar Pradesh under G.O. No. 2766 EP/XVIII B-M-53/53 dated December 15, 1956, have ordered for the recognition the said lease in terms of Sec. 108(1) of the U.P. Zamindari Abolition and Land Reforms Act to the lessee. And whereas the lessee has paid to the lessor the royalty of Rs. 4000/- per annum accruing due to the lessor till the Ist day of June, 1957. Now this Deed witnesses and the parties hereto agree as follows : i) the lessee shall hold the premises hereby demised to her from the 18th day of July 1952 in accordance with Section 108(i) of the Zamindari Abolition and Land Reforms Act, 1950 in perpetuity. Now this Deed witnesses and the parties hereto agree as follows : i) the lessee shall hold the premises hereby demised to her from the 18th day of July 1952 in accordance with Section 108(i) of the Zamindari Abolition and Land Reforms Act, 1950 in perpetuity. ii) that the lessee shall have liberty and power to enter upon the land mentioned in schedule ‘A’ hereto and to search for and dig and obtain by excavation and quarrying both open today light and by underground working, the demised stone, ballast, kankar, morun and sand and to carry away and dispose of the same for her own benefit. iii) the lessee shall have the liberty and power to take lead and carry away from the said land the stone, ballast, kankar, morrum and sand to be obtained as aforesaid and dispose of the same at her will and pleasure. iv) the lessee shall have power and liberty to erect buildings necessary for the purpose of carrying out the business of the quarries. v) the lessee shall, at all times, upon finding in the demised premises any mineral or products other than stone, ballast, Kankar, Morrum and sand immediately report such find to the District Magistrate, Allahabad with full particulars of the nature and position of each find. vi) during the term of this demise, the lessee shall pay a royalty at the rate of Rs. 4000/- (rupees four thousand only), annually payable in two equal instalments, on Ist. June and on Ist. December every year irrespective of the fact whether the lessee quarries or carries on any operations or not during the year. vii) the lessee may export stone, ballast, kankar, morrum and sand from the quarries hereby demised all the year round. viii) the lessee shall be entitled to sublet the premises hereby demised or any part thereof or any right or privileges under this lease to any person without the consent in writing of the lessor but she shall not assign her rights under this deed without such consent first had and obtained. ix) the lessee shall not remove any stone, ballast, kankar, morrum and sand etc. ix) the lessee shall not remove any stone, ballast, kankar, morrum and sand etc. from the limits of the demised premises during such time as any money payable by her as royalty under clause (vi) shall be in arrears or any fine or liability incurred by her under the provisions of the lease may be unpaid or unsatisfied and the lessor may stop further export in such cases. x) At the end of every fifty years from the date of the execution hereof it will be open to the lessor to increase the amount of annual royalty payable by the lessee in accordance with the terms of the lease by 10% in which case the royalty so fixed at the time of revision thereof by the lessor shall be payable by the lessee and all the terms with regard to payment-therefor shall apply to the amount so fixed. 1. Shankargarh 17. Lakhanpur 33. Lohgara 2. Talapar 18. Kaitha 34. Gadhamar 3. Kapari 19. Sheorajpur 35. Chandra 4. Barui 20. Osa 36. Lalai 5. Khansemra 21. Atari Kapson 37. Baisa 6. Beonra 22. Charihari 38. Laund Khurd 7. Raipatna 23. Gobra Sangram 39. Baghla 8. Matarwar 24. Pagwar 40. Pandua 9. Gorkha 25. Majhiari Bahelia 41. Parvezabad alia Burhi 10. Gheodora 26. Gobra Hewar 42. Basahra Tarahar 11. Chak Arazi Garhwa 27. Barhaiya 43. Lalapur 12. Gara 28. Bhonri 44. Manduri 13. Benipur 29. Ghoghar 45. Partappur 14. Ledar 30. Bokuliha 46. Surwal 15. Biharia 31. Mabaiya Raksel Lohgara 16. Abhaipur 32. Mehaiya Pahalwan Gadhamar (All the villages situated in Pargana Bara, Tahsil Karchana, District Allahabad.) In witness whereof Sri S.S.L. Kakkar for and on behalf of the Governor and the lessee have signed this deed on the day and year first above written.” (Emphasis added) 73. The aforesaid terms show that lease is in perpetuity and not for a fixed tenure. The amount of royalty mentioned therein does not concur to the provisions of MMDR Act, 1957. It permits lessee to excavate and quarry Stone, Ballast, Kankar, Morrum and Sand. A lessee can work out mining operation throughout the year. He is also entitled to sublet the premises to any person but without consent of lessor it shall not assign. Further right is given to lessee for renewal with limited enhancement of royalty at the end of every 50 years. A lessee can work out mining operation throughout the year. He is also entitled to sublet the premises to any person but without consent of lessor it shall not assign. Further right is given to lessee for renewal with limited enhancement of royalty at the end of every 50 years. The MMDR Act, 1957 admittedly came into force on 1.6.1958 i.e. before execution of lease-deed dated 27.4.1959. After enforcement of said Act to the extent it is applicable, denudation of power of State is total and not partial, as held in P. Kannadasan v. State of Tamilnadu, (1996) 5 SCC 70 : AIR 1996 SC 2560 . 74. All the items for which mining lease was granted vide lease-deed dated 27.4.1959 did satisfy the definition of “minerals” under Section 3(a) and (e) of MMDR Act, 1957. “Minerals” means an organic substance found either on or in the earth which may be garnered and exploited for profits as observed in V.P. Pithupitchal and another v. Special Secretary to the Government of Tamilnadu, AIR 2003 SC 2455 . Neither under provisions of MMDR Act, 1957, mining lease in perpetuity could have been granted nor for more than the area, prescribed as maximum area under Section 6 could have been provided, nor there could have been any occasion to agree for payment of royalty, which is not consistent with Section 9 of MMDR Act, 1957. 75. We are also of the view that validity and correctness of subsisting lease dated 16.4.1947 and one executed by State of U.P. on 27.4.1959 can also be examined in the light of provisions made in Mineral Concession Rules, 1960 (hereinafter referred to as Rules, 1960), which were framed vide G.S.R. 1398 dated 11.11.1960 and provides that no lease could have been granted without following procedure laid down therein. 76. Having gone through the terms of both the leases and even otherwise, we are satisfied that neither the terms of these leases satisfy provisions of MMDR Act, 1957 and Rules 1960 nor the aforesaid leases could have been granted or continued after enactment of MMDR Act, 1957, with terms and conditions, contrary to provisions of the said Act. Right to levy royalty on ‘minerals’ under Section 9 of MMDR Act, 1957 could not have been agreed upon by State of U.P. which is not consistent with the said Act. 77. Right to levy royalty on ‘minerals’ under Section 9 of MMDR Act, 1957 could not have been agreed upon by State of U.P. which is not consistent with the said Act. 77. So far as question of estoppel or waiver is concerned, we find that there cannot be any estoppel or waiver against the statute. In the circumstances, we are clearly of the view that after enactment of MMDR Act, 1957, plaintiff-respondent could not have operated a lease, enjoying terms and conditions which were not in accordance with MMDR Act, 1957 and Rules framed thereunder. Unless it is granted lease in accordance with provisions of the said Act, mining operations carried by her, were and are patiently illegal. We are also of the view that State of U.P. was well within its right to claim for payment of royalty in respect of “minerals” explored, quarried, dug out and exported/sold by plaintiff-respondent or any of the person authorised by him as a sub-lessee or otherwise, different from plaintiff-respondent himself, as per rates provided under MMDR Act, 1957 and Rules framed thereunder. 78. Question 3, 4, 5 and 6, therefore, are answered accordingly in favour of defendant- appellant and against the plaintiff-respondent. 79. In the result, we have no hesitation in holding that no relief as prayed for by plaintiff-respondent could have been granted by Court below. It has completely erred in law and proceeded illegally in passing the impugned judgment and decree which is unsustainable and liable to be set aside. 80. The appeal is accordingly allowed with costs throughout. The impugned judgment and decree dated 2.7.1979 passed in Original Suit No. 107 of 1969 is hereby set aside. The Original Suit No. 107 of 1969 is hereby dismissed. 81. The defendant-appellant shall henceforth proceed to recover entire amount of royalty, due for the period, from the date of filing of suit till date and even before filing of the suit, which is found due from plaintiff-respondent, alongwith interest, if provided in the statute, as per the rates prescribed therein and if not provided in the statutes at the rate of 9% per annum. 82. The appellant shall also forthwith proceed for grant of lease of aforesaid 46 villages in respect of minerals found therein, in accordance with the provisions of MMDR Act, 1957, and the Rules framed thereunder. ———————