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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: DUVVURU BALARAMI REDDY

DATE OF JUDGMENT: 02/04/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  264            1963 SCR  (1) 173  CITATOR INFO :  RF         1971 SC1569  (13)  RF         1973 SC2246  (10)

ACT: Subsoil Right-Shrotriem inam-When includes sub-soil rights.

HEADNOTE: The,  respondents has obtained leases for mining  mica  from the owners of a certain shrotriem village for one year  with a  stipulation  that  the lessors were bound  to  renew  the leases  for such periods as may be desired by  the  lessees. Shortly,  there.  after, the village  waseanoified  and  the estate  of the owners    was resumed by the  appellant.  The respondent contended that 174 the appellant was bound to renew the leases.  The  appellant contended  that  the  shrotriemdars  had  no  right  in  the minerals,  that they could not have granted any  leases  for mining the minerals and that as such no question of renewing the leases arose. Held, that shrotriemadras had no rights in the minerals  and the  leases granted by them to the respondent had  no  legal effect,  The  mere fact that a person was the holder  of  an inam  grant was not by itself enough to establish  that  the inam grant included the grant of sub-soil rights in addition to  surface rights.  The grant of sub-soil  rights  depended upon the language used in the grant ; if there were no words in  the grant from which grant of sub-soil rights  could  be properly inferred it would only convey surface rights to the grantee.   The  original grant in the present case  was  not available  and the inam fair register did not show that  the grant  included the grant of sub-soil rights.  No  inference could he drawn of the grant of sub-soil rights from the fact that  the inam grant included poramboke (unculturable  land) also.   The difficulty that may arise in the working of  the mines  on account of the mines vesting in the state and  the surface  rights vesting in the shrotriemdars could not  make the shrotriemdars co-sharers in the sub-soil rights so as to entitle them to grant leases of the subsoil rights.

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Secretary  of  State  for  India  in  Council  v.  Srinivasa Chariar, (1920) L. R. 48 1. A. 56, applied. Secretary of State v. Krishna Rao, (1945) L. R. 72 1. A.  21 1, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 252 and  253 of 1958. Appeals  by Certificate and special leave from the  judgment and  order dated August 5, 1955, of the former  Andhra  High Court in Writ Appeal No. 13 of 1955.                             AND                          VICE VERSA D.   Narsaraju,  Advocate  General for the State  of  Andhra Pradesh,  D. Parsanna Kumari, P. V. R. Tatachari and  P.  D. Menon.,  for  the, appellant (In C. A. No. 252  of  58)  and Respondent No, 1 (In C. A. NQ 253 of 58). 175 P. Ram Reddy, for the the appellants (In C. A. No. 253 of 58) and Respondent No. 1 to 3 (In C. A. No. 252   of 58). A.  V.  Vishwanatha  Sastri  and K.  R.  Choudhri,  for  the respondent No. 2 (In C. A. No. 253 of 58). 1962.  April 2. The Judgment of the Court was delivered by. WANCHOO,  J.-These are two connected appeals arising out  of the  same judgment of the, Andhra Pradesh High  Court.   The main appeal No. 252 is by the State of Andhra Pradesh  while the  other appeal No. 253 is by Duvvura Balarami  Reddy  and others.   We shall dispose of them by this  common  judgment and will hereinafter refer to the State of Andhra Pradesh as the  appellant and Duvvuru Balarami Reddy and others at  the respondents.   The  brief facts necessary  for  present  are these.   The respondents had filed a writ petition  for  the issue  of a writ in the nature of mandamus or any other  ap- propriate writ directing the appellant to give permission to the respondents to carry on mica mining operations in survey No.49/1  in the village of Ananthamadugu in Rapur  Taluk  of Nellore  district  subject to the respondents  executing  as agreement  in the manner provided under the Mineral  Conces- sion Rules, 1949 (hereinafter referred to as the Rules)  and conforming to the conditions mentioned therein.  The case of the  respondents was that they had obtained leases for  mica mining  purposes  from various co-owners  in  the  shrotriem village  of Ananthamadugu on March 24, 1952.  Thereafter  on May  27,  1953, this village was notified under  the  Madras Estates  (Abolition and Conversion into Ryotwari)  Act,  No. XXVI  of 1948, (hereinafter referred to as the Act) and  the interest  of  the  shrotriem owners was taken  over  by  the appellant.  The leases granted to the respondents were for a period  of one year and one of the terms provided  that  the lessors were bound to extend and renew the period 176 of  lease for such period as may be desired by  the  lessess subject  to the Rules.  After the estate was     taken over, the  question arose whether the leases     were  enforceable against  the  Government  under  s.20 "1  of  the  Act.   In November  1953, the Manager of Estates, appointed on  behalf of  the  Government, held that the leases  were  enforceable against  the  Government.  This order was confirmed  by  the Collector  of  Nellore.   Thereupon  there  was  a  revision petition  by one of the co-owners of the shrotriem  who  was not a party to the leases before the Board of Revenue.   The respondents also applied to the Government for permission to work  the mines.  The Government however did not grant  such

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permission.   The respondents contended that the  Government had  no  right  to withheld permission to  work  the  mines. Therefore, the writ petition was filed asking for the  issue of a writ in the nature of mandamus or any other appropriate writ  directing  the  appellant to give  permission  to  the respondents  to carry on mica mining in accordance with  the leases. The petition was opposed on behalf of the appellant and  the main  contention  on  its behalf was  that  the  village  in question  being  a  shrotriem  inam  village  there  was  no presumption  that the inam grant included the grant of  sub- soil  rights  also  to the  shrotriemdars.   Therefore,  the respondents could not claim any rights higher than these  of their lessors.  In effect, the appellant had contended  that the lessors had no rights to the minerals and therefore  the leases  even if not void within the meaning of s.20  of  the Act would not confer any rights on the respondents to  claim as  a  matter of right the grant of permission to  work  the mines from the appellant and that it was entirely within the discretion  of the State whether to grant a mining lease  or not  in  accordance with the Rules.  It was also  stated  in that the revision filed before the Board of Revenue had been stayed as the Points                             177 raised  before  the  Board were  covered  by  the  questions involved in the writ petition. On these pleadings the main question that arose for decision was whether the shrotriemdars had any rights in the minerals at  all  and were entitled to grant leases  thereof  If  the shrotriemdars  had  no right in the minerals  the  grant  of lease by them would be of no value and would not entitle the respondents to claim a mining lease under the Rules from the appellant as a matter of right. The learned Single Judge who heard the writ petition came to the conclusion that there was nothing to show that the  inam grant in the present case covered the right to minerals.  In consequence,  it was held that the respondents did  not  get any  rights  under  the said leases to  the  minerals.   The learned Judge then considered the other points raised in the petition  with  which  we  are  however  not  concerned  and eventually dismissed it. The  respondents went in appeal to a Division Bench  of  the High  Court,  and the appeal court seems to have held  on  a review  of  the  various,standing orders  of  the  Board  of Revenue of the composite State of Madras that the State  was only  entitled to impose a royalty on minerals taken out  by the shrotriem inamdar.  It was pointed out that this  seemed to  be  in accordance with common sense as the  "grantee  is entitled  to the surface rights and the grantor to the  sub- soil  rights and as the latter rights can only be  exercised by  entering upon the surface. it is only natural  and  just that they should share what is produced by working the mine, since one cannot enter upon the land, as he has no right  to do so and the other cannot work the mine, as he has no right to  the land".  This would seem to suggest that  the  appeal court held that the sub-soil right,,; belonged to the  State and not to the inamdars; but because of the difficulty  that arose on account of 178 the surface rights being in the inamdar and sub-soil  rights being in the State, it apparently head that the inamdar  and the Government should share what is produced by working  the mine.   Finally,  however, the appeal  court  dismissed  the appeal  on the ground that the period of one year for  which the  leases had been granted had expired and the  period  of

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renewal which the respondents could get under the Rules also had  expired  before the decision of the appeal  court.   It relied  in this connection on the decision of this Court  in K.  N.  Guruswamy v. The State of Mysore (1) :  but  as  the respondents had failed on account of the expiry of time they were allowed their costs. This  was  followed  by an application by the  State  for  a certificate  which was granted, and that is how the  State’s appeal has come up before us.  As for the appeal by  special leave  by  the respondents, they contend that  the  decision being  in their favour on the merits, the High Court  should have ordered the State to grant them a lease even though the period  fixed  in  the original leases  and  the  period  of renewal permissible under the Rules had expired. The main question therefore that fails for decision in these appeals is whether shrotriemdars can be said to have  rights in  the  minerals.   This matter has  been  the  subject  of consideration  by  the  Madras High Court  on  a  number  of occasions and eventually the controversy was set at rest  by the decision of the Judicial Committee in Secretary of State for India in Council v. Srinivasa Chariar (2) That case came on appeal to the Judicial Committee from the decision of the Madras  High  Court in the Secretary of State for  India  in Council v.,. Sreenivasa Chariar (3).  The controversy before the  Madras High Court was with respect to a shrotriem  inam which was granted by the Nawab of Carnatic (1) [1955] 1 S.C.R. 305  (2) (1920) L.R. 48 I. A. 56.                (3) (1917) I.L.R. 40 Mad. 268. 179 in 1750 and had been enfranchised by the, British Government in  1862.  The inamdar started quarrying stones in the  land granted  to him and’. the Government claimed that it  had  a right to levy royalty or seigniorage fee on stones  quarried by  the  inamdar.  The inamdar contended on the  other  hand that an enfranchised inam was exactly. in the same  position as  a  zamindari estate under the permanent  settlement  and that  he was entitled to the entire sub-soil rights and  the Government  was not entitled to levy royalty or  seigniorage fee  on  stones quarried by him. The High  Court  held  that under the terms of the grant, the grantor conveyed all  that the  grantor had in the. soil including sub-soil rights  and therefore  it  was not open to the Government  to  levy  any royalty  or  seigniorage  fee  on  stones  quarried  by  the inamdar.   In  effect,  the  decision  of  the  High   Court negatived  the claim of the Government to sub--soil  rights, for  the Government could only levy royalty  or  seigniorage fee  if it bad sub-soil rights and the inamdar had  no  such rights.  This decision was taken in appeal to the Judicial Committee as already indicated above, and the controversy between  the parties, was that the inamdar claimed a decree  establishing his  full rights to the said village to the rocks and  hills within  its boundaries.  The State on the other  hand  while admitting  that there had been an inam grant of the  village to the inamdar contended that there was no conveyance of the rights  to minerals in the village.  The Judicial  Committee held  that the grant of a village in inam might be  no  more than  an  assignment of revenue, and even  where  there  was included  a grant of land, what interest in the  land  pawed must  depend  on  the language of  the  instrument  and  the circumstances  of each case.  The Judicial  ’Committee  also considered  the standing orders of the Board of  Revenue  of 1890  and  1907 ,which have been referred to by  the  appeal court in 180

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the  judgment under appeal.  This decision thus  establishes that the mere fact that a’ person is the holde’r of an  inam grant  would not by itself be enough to establish  that  the inam grant included the grant of sub-soil rights in addition to the surface rights and that the grant of sub-soil  rights would depend upon the language used in the grant.  If  there are  no words in the grant from which the grant  of  subsoil rights  can be properly inferred the inam grant, would  only convey the surface rights to the grantee, and the inam grant could  not by itself be equated to a complete  transfer  for value  of all that was in the grantor.  In  particular,  the Judicial  Committee  stressed  the use  of  the  words  "the produce of the seasons each year" used in the grant to  show that, only the surface rights were granted in that case. It  is  not  disputed that eversince  the  decision  of  the Judicial  Committee in Srinivasa Chariar’s case(1) that  has been the law with respect to sub-soil rights of inamdars  as distinct  from  zamindars under. the  permanent  settlement. The  Boards  standing orders of 1890 and 1907 to  which  the appeal  court  has  referred  in  its  judgment  were   also considered by the Judicial Committee and it is now too  late in  the day to use them to find out the rights of the  inam- dars and the Government in the minerals under the soil.   As the decision of’ the Judicial Committee, shows, the standing orders of the Board of Revenue themselves show how the views of  the  Government  changed  from  time  to  time  on  this question.,  The older view seems to have been that the  sub- soil  rights were in the inamdars but from 1907 at any  rate the Government has taken the view that.. sub-soil rights are in the Government unless there: is anything in the grant  to the contrary.  It is this later view which was upheld by the Judicial, Committee in Srinivasa Chariar’s case(1).and  this view  has  ever  since prevailed as to  the  rights  of  the Government in the minerals under the soil in the case of (1)  (1920) L.R.48 I.A. 56. 181 inams.   We  are unable to see bow this decision as  to  the rights of the Government to the minerals under the soil  can be distinguished on the ground that the decision dealt  only with  the  question  of royalty.  It  is  obvious  that  the Government could charge royalty only if it had the right  to the  minerals  under the soil and not  the  inamdars.   What therefore  we  have to see is whether on the  terms  of  the grant  in  this case the shrotriemdars can be said  to  have been granted the sub-soil rights also. So far as, this matter is concerned, \there does not seem to have  been  a serious controversy in the High Court  and  it does  not appear that the respondents contended  that  under the term$ of the grant to the shrotriemdars the latter  were entitled  to sub-soil rights.  We have already  referred  to that part of the judgment of the appeal court which suggests that’ even the appeal court was of the view that the subsoil rights  were in the Government in this case and the  surface rights were in the shrotriemdars.  The orioinal grant is not available and all that we have is the inam fair register  of 1861  and  all that is stated in that register is  that  the grant  is for the personal ad-vantage of the holder.   There is nothing therefore in the inam fair register to show  that the grant included the grant of sub-soil rights. It  is however urged on behalf of the respondents  that  the grant  included Poramboke, and from the fact that  Poramboke was  also included it should be inferred that  mere  surface rights  were not the subject-matter of the grant.   Reliance in  this connection has been placed on the decision  of  the Judicial  Committee  in Secretary of State v.  Krishna  Rao.

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(1).  The dispute in that case related to levy of water cess under the Madras Irrigation Cess Act, .(No. 7 of 1865).  The Judicial Committee pointed out that the inam grant in  that case  included not only dry, wet. and garden land  but  also poramboke (1)  (1945) L.R. 721.A. 211 182 i.e. unculturable land.  This was held to indicate that full proprietary rights were granted and therefore the Government could  not  charge  any water cess.  It  is  urged  for  the respondents  that  this case shows that where  poramboke  is also granted, the grantee gets all the rights including  the sub-soil  rights in full proprietorship.  It should  however be  remembered. that the dispute in that case  was  whether the  inamdar  was  entitled to free  irrigation  from  water sources lying in the shrotiem village by virtue of the grant or  whether the grantor could levy a cess under  the  Madras Irrigation  Cess Act.  There was no dispute as to  the  sub- soil  rights  ’in that case, the dispute being  confined  to surface rights relating to water.  The Government  contended in that case that the grant to .the inamdar was only of  the melvaram  or the right of the revenue from the lands.  while the respondent’s contention was that the grant I carried not only  the meraram but also the proprietary interest  in  the land  itself  and therefore the Government had no  right  to levy  the irrigation cess.  It was in that  connection  that the  Judicial Committee held that the grant of poramboke  i. e. unculturable land, was one of the factors that  indicated that  it  was  not  a  mere  grant  of  melvaram  but   full proprietary right.  It is remarkable however that though the Judicial Committee came to the. conclusion in that case that full proprietary right had been granted, it referred to  the earlier  decision  in Srinivasa Chariar’s  case  during  the course  of the .judgment.  This later decision therefore  in our opinion cannot be read in such a way as to lay down that wherever  poramboke is included in the grant, a  presumption must  be drawn that the inam grant included sub-soil  rights also  all that may be possible to infer by the inclusion  of poramboke  on  the basis of this decision is  that  all  the surface rights were granted and not merely the melvaram as                             183 was contended in that case.  The fact therefore that in  the inam fair register in this case the grant includes poramboke would  not  by itself’ establish that sub-soil  rights  were also  included in the grant.  So far as sub-soil rights  are concerned,  they  can only pass to the grantee if  they  are conferred as such by the grant or if it can be inferred from the  grant that sub-soil rights were also included  therein. We  have  already remarked that the original grant  in  this case  is  not  available  and we have  only  the  inam  fair register to go’ by.  There can be no doubt therefore on  the facts  of this case that the learned Single Judge was  right in   holding   that  the  grant  of   sub-soil   rights   to shrotriemdars  is  not established.  The appeal  court  also does  not  appear to differ from this view  of  the  learned Single Judge. Once the conclusion is reached that sub-soil rights were not granted  to  the  shrotriemdars  it seems  to  us  that  the inference   is   plain’  that  it  was  not  open   to   the shrotriemdars to grant any lease of minerals lying under the soil  to  any  one.  Therefore, the leases  granted  by  the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the  minerals under the soil.  In the circumstances the respondents cannot put  forward  the leases in their favour to claim  a  mining

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leases under the Rules.  With respect, we have not been able to  understand  how  the  difficulty  which  may  arise   in practice,  on  account of the sub-soil rights being  in  the Government   and   the   surface   rights   being   in   the shrotriemdars,  in the working of the mines would  make  the shrotriemdars  shares in the sub-soil rights  and  therefore entitled to grant a lease of the sub-soil rights.   Whatever may  have  been the practice in the past and  howsoever  the Government   may  have  been  getting  over  the   practical difficulty  in  the past would not confer any right  to  the minerals upon the shrotriemdar so as to enable 184 him  to  grant  a  mining lease to;  any  one.   It  follows therefore that the mining,, leases granted in this case were granted  by  persons who had no right to  the  minerals  and therefore  confer no rights on the respondents to  claim-at; of  right from the Government that they should be granted  a mining lease under the Rules. In view of the above decision appeal No. 252 must be allowed and appeal No. 253 must fail. We  therefore  allow appeal No. 252 and  setting  aside  the order  of  the appeal court dismiss the writ  petition  with costs  to  the State throughout.  Appeal No. 253  is  hereby dismissed  but in the circumstances parties will bear  their own costs.                    C.    A. No. 252 of 1958 allowed.                    C. A  No. 253 if 1958 dismissed.