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PETITIONER: THE LODNA COLLIERY CO. LTD.

       Vs.

RESPONDENT: BHOLA NATH ROY

DATE OF JUDGMENT: 19/01/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.

CITATION:  1964 AIR  918            1962 SCR  Supl. (2) 636  CITATOR INFO :  RF         1973 SC 408  (4)

ACT:      Lakhraj land-Permanently settle-Owners’ right to sub-soil minerals.

HEADNOTE:      The question arising for decision was whether a person  with whom  a  resumed,  invalid  Lakhraj (revenue free)  land was  permanently settled  had rights in the sub-soil minerals or not. ^      Held, that  the  right  of  property  of  the persons with whom resumed invalid Lakhraj land had been settled,  being the same as of the Zamindars, extended to the sub-soil minerals of the land held by them.      Ranjit Singh  v. Kali Dasi Debi (1917) L.R.44 I.A. 117, referred to.      Hari Narain  Singh  v.  Sri  Ram  Chakrabarti (1910) L.  R. 37  I.A. 136,  Durga Prasad Singh v. Braja Nath  Bose (1912)  L.R. 39  I.A. 133.  Sashi Bhusan  Misra   v.   Jyoti   Prasad   Singh   Deo, (1916)L.R.44 I.A.46  and Raghunath  Roy Marwari v. Raja of  Jheria, (1919) L.R. 46 I.A. 158, held not applicable.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 405 of 1956. 687      Appeal from  the judgment  and  decree  dated September 11,  1952, of the Calcutta High Court in Appeal from original Decree No. 162 of 1949.      M.C. Setalvad, Attorney General for India, B. Sen, S.  N. Mukherji  and B.  N.  Ghosh,  for  the appellant.      N. C.  Chatterjee, J.  C. Ghose, S. P. Ghose, and P.K. Chatterjee, for the respondents.

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    1962. January  19 The  judgment of  the Court was delivered by      RAGHUBAR   DAYAL    J.-This   appeal   on   a certificate granted by the High Court at Calcutta, raises the question whether the person with whom a resumed invalid  Lakhraj (revenue  free) land  was permanently settled  has rights  in  the  sub-soil minerals or  not. The  necessary facts are briefly these:-      The plaintiffs  are the  proprietors  of  the land in  suit in  C. S.  Khatian No.  611 and Sub- Khatians Nos.  612 and  613 of  village Sripur  in Touzi No. 2597 of the Burdwan Collectorate.      The Maharaja  of Burdwan is the proprietor of the lands  in village Sripur appertaining to Touzi No. 12  of Burdwan  Collectorate. He let out those lands to  the Pals and Goswamis of Sripur in Putni right. The  Putnidars also  took coal mining lease of those  lands from the Maharaja and, thereafter, both the  Maharaja and  the Putnidars  granted the coal mining  lease of  those lands  to one  P.  K. Chatterji of  Ikrah who,  in his  turn, granted  a sublease of the same to Messrs. Lodna Colliery Co. Ltd., the predecessor-in-interest of the defendant company, the Lodna Colliery Co. (1920) Ltd.      A portion  of the  lands in suit subsided and on enquiry the plaintiffs found that the defendant company had cut away a large quantity of the 688 underground coal from the lands, in suit. It is on account  of   such  unjustified   conduct  of  the defendant company  that  the  plaintiffs,  on  the basis of  their proprietary  right, used  for  the recovery of damages for coal wrongfully taken away by the  defendant from  the land  in suit  and for other wrongs.  The defendant company contested the suit and  denied the  plaintiffs alleged rights on the ground, inter alia, that the plaintiffs had no title to  the sub-soil  of the  land in  suit  and consequently to the coal. The contention really is that the land in suit had been permanently settled with the  plaintiffs after  it had been resumed as invalid Lakhraj  land  and  that  such  settlement conferred  no   better  rights   than  what   they originally possessed  on account  of the  land  in suit  being   granted  to  their  predecessors-in- interest under Brahmottar and Debutter grants, the grantees under which had no rights in the sub-soil of the land granted.      The Trial Court held that the invalid Lakhraj tenure in  the land  in  suit  in  favour  of  the predecessors-in-interest  of  the  plaintiffs  was resumed by  the Government under the provisions of Regulation  II   of  1819   and,  thereafter,  was permanently settled with them at the fixed revenue and that therefore the plaintiffs had right to the minerals under  the soil  of the land settled with them. It  accordingly decreed the suit in part and the decree was confirmed by the High Court.      It is  contended for  the appellant  that the person with  whom resumed invalid Lakhraj land had been settled  has no  rights in  the sub-soil. The respondents  rely   on  the   provisions  of   the Regulation  enacted  by  the  Governor-General  in Council in  support of their claim to the sub-soil

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in such land held by them.      The  Governor-General  in  Council  passed  a number of  Regulation on  May 1,  1793.  We  shall first consider Regulation XIX of 1793. 689      Regulation  XIX   of  1793   was   made   for reenacting with  modifications the Rules passed by the Governor-General  in Council  on  December  1, 1790, for  trying the  validity of  the titles  of persons holding,  or claiming  a  right  to  hold, lands exempted  from the  payment  of  revenue  to Government, under  grants and  for determining the amount of  the annual  assessment to be imposed on lands so  held which  might be  adjudged or become liable to  the  payment  of  public  revenue.  The preamble makes  it clear  that the  Regulation was creating an  agency for  determining the  title of the proprietors  of land  who claimed  to hold  it free from  the liability to pay revenue on account of certain  grants, that  from time  to  time  the British Government  has declared  all  grants  for holding land  exempt from  the payment  of revenue without their  sanction  since  the  date  of  the accession of  the East India Company to the Diwani on August,  12, 1765, illegal and void and that no such exempted  land was  to be made subject to the payment  of   revenue  until  the  titles  of  the proprietors had  been adjudged  invalid by a final judicial decree.  It is  to be  noticed  that  the persons who  laid claims  to hold  the land exempt from the  payment of  revenue were  referred to as proprietors.      Section II,  Clause  First,  deals  with  the grants of alienated land made previous to the 12th August 1765, the date of the accession of the East India Company  to the  Diwani, and  lays down that such grants  would be  deemed valid  provided  the grantee actually  and bonafide obtained possession of the  land or  granted and the land had not been subsequently rendered  subject to  the payment  of revenue.      Section III,  Clause First,  declares invalid all  grants  for  holding  land  exempt  from  the payment of  revenue made  between the 12th August, 1765 and 1st December, 1790 by any authority other than that of Government and which had not been 690 confirmed  by   Government  or   by  any   officer empowered to confirm them.      Section IV is significant for our purpose and reads:           "This  Regulation,  as  far  as  regards      lands alienated  previous to the 1st December      1790, respects only the question whether they      are liable  to  the  payment  of  revenue  or      otherwise. Every  dispute or  claim regarding      the  proprietary  right  in  lands  alienated      previous  to   that  date,   and  which,   in      conformity to  this  Regulation,  may  become      subject to  the payment  of revenue, is to be      considered as a matter of a private nature to      be determined  by the Courts of Diwani Adalat      in the  event of any dispute or claim arising      respecting it  between the  grantee  and  the      grantor  or   their   respective   heirs   or

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    successors.  The  grantees,  or  the  present      possessors, until dispossessed by a decree of      the Diwani  Adalat, are  to be  considered as      the proprietors  of the  lands with, the same      right of  property therein  as is declared to      be  vested   in  proprietors  of  estates  or      dependent taluks,  (according as the land may      exceed or  be less  than one  hundred bighas,      specified in  sections 6,  7 and 21,) subject      to the  payment of  revenue, and  they are to      execute engagements  for  the  revenue,  with      which their lands may be declared chargeable,      either to  Government or to the proprietor or      farmer of  the estate  in which the lands may      be situated, or to the officer of Government,      (according as  the revenue  of the  estate in      which  the  lands  may  be  situated  may  be      payable by  the proprietor  or a  farmer,  or      collected  khas)  under  the  rules  for  the      decennial settlement.  If by  the decision of      the Diwani  Adalat the  proprietary right  in      the land  shall be  transferred,  the  person      succeeding thereto is in 691      like manner to be responsible for the payment      of  the   revenue  assessed   or   chargeable      thereon." It is  clear from this section that the Regulation simply dealt with the question about the liability of certain  lands to  the payment  of revenue  and provided that  any dispute about proprietary right between the  grantees and  the grantors would be a matter of  a private  nature to  be decided by the Courts of  Diwani Adalat.  It, however, definitely provides that  the grantees or the then possessors of land,  until dispossessed  by a  decree of  the Diwani  Adalat,   are  to  be  considered  as  the proprietors of  the lands  with the  same right of property therein  as is  declared to  be vested in proprietors  of   estates  or   dependent   taluks according as  the land  may exceed or be less than one hundred  bighas  subject  to  the  payment  of revenue. Such  proprietors of land were to execute engagement for  revenue with which their lands may be declared  chargeable, either  to the Government or to the proprietor or farmer of estates in which the lands be situated.      The  grantees   of  invalid   Lakhraj   lands therefore had  the same  right of property in that land subject  to the  payment of  revenue, as  had been declared  to be  vested is the proprietors of estates. If  the  zamindars,  the  proprietors  of estates, have  rights not only over the surface of the land  but in  the subsoil as well, the persons whose grants  had been  held to be invalid and who were held  to be  liable to  pay land revenue also possessed  right  in  the  sub-soil  of  the  land settled with them.      Now, Regulation  VIII of 1793, also passed on May 1,  1793, re-enacted  with  modifications  and amendents the  Rules for  the Decennial Settlement of the  public revenue  payable from  the lands of the zemindars,  independent talukdars,  and  other actual proprietors of land in Bengal, Bihar and 692

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Orissa, passed for those Provinces respectively on September 18, 1789, November 25, 1789 and February 10,  1790,   and  subsequent   dates.  Section  IV provided  that   the  settlement,   under  certain restrictions  and   exceptions  specified  in  the Regulation, shall  be concluded  with  the  actual proprietors of the soil, of whatever denomination, whether  zemindars,  talukdars  or  chaudhris.  It follows that  the zemindars  with whom  settlement took  place,   were  recognized   as  the   actual proprietors of the soil. The settlement of revenue so made  was made permanent by s. IV of Regulation I of 1793.      Regulation  I   of  1793   enacted   into   a Regulation  certain  Articles  of  a  Proclamation dated March 22, 1793. Section I of this Regulation states  that   the   various   articles   of   the Proolamation were  enacted into  a Regulation  and that those  articles related  to the limitation of public demand  upon the  lands, addressed  by  the Governor-General  in  Council  to  the  zemindars, independent talukdars and other actual proprietors of  land  paying  revenue  to  Government  in  the Provinces of Bengal, Bihar and Orissa.      By  Section   IV  it   was  declared  to  the zemindars, independent, talukdars and other actual propietors of  land, with  or on  behalf of whom a settlement   had    been   concluded   under   the Regulations  mentioned   earlier,  that   at   the expiration of the term of settlement no alteration would be  made in  the assessment  which they  had respectively engaged  to pay,  but that  they  and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.      The preamble  to Regulation II of 1793, which abolished the  Courts of  Mal  Adalat  or  Revenue Courts  and   transferred  the   trial  of   suits cognizable in those Courts to the Courts of Diwani Adalat, stated,  in connection  with the  proposed improvments in agriculture: 693      "As  being   the  two   fundamental  measures      essential  to   the  attainment  of  it,  the      property in  the soil has been declared to be      vested in  the landholders,  and the  revenue      payable to  Government from  each estate  has      been fixed  for ever..... The property in the      soil was never before formally declared to be      vested in  the  landholders,  nor  were  they      allowed to  transfer such  righs as  they did      possess, or  raise money  upon the  credit of      their tenures,  without the previous sanction      of Government."      It is  thus clear from the above declarations that the  zemindars, the  proprietors of  estates, were recognized to be the proprietors of the soil. Such a  view was  expressed by  the Privy  Council also in Ranjit Singh v. Kali Dasi Debi (1). It was said at page 122:      "Passing  to   the  settlement  of  1793,  it      appears  to  their  Lordships  to  be  beyond      controversy   that    whatever   doubts    be      entertained as  to whether before the British      occupation the  zamindars had any proprietary      interest in  the lands comprised within their

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    respective districts,  the settlement  itself      recognizes and  proceeds on  the footing that      they are  the actual  proprietors of the land      for  which   they  undertake   to   pay   the      Government   revenue.   The   settlement   is      expressly   made    with   the    ’zemindars,      independent  talukdars   and   other   actual      proprietors of  the soil’:  see Regulation I,      s.3, and  Regulation VIII.,  s.4. It is clear      that since  the settlement the zamindars have      had at least a prima facie title to all lands      for which  they pay revenue, such lands being      commonly referred to as malguzari lands."      The right  of the  zemindars to  the sub-soil minerals under their land follows from their being 694 proprietors of the soil and has been recognized in a  number  of  cases  between  the  zemindars  and persons holding  land under a tenure from them. It has been  held in those cases that, in the absence of the  right to sub-soil minerals being conferred on the tenure holder under the terms of the tenure held by him, he does not get any right to them.      The first  such case is Hari Narayan Singh v. Sriram Chakravarti(1). The same view was expressed in Durga Prasad Singh v. Braja Nath Bose (2).      In Sashi Bhushan Misra v. Jyoti Prashad Singh Deo (3)  Lord Buckmaster  said at  page  53,  with regard to the above two cases:           "These decisions,  therefore, have  laid      down  a   principle  which   applies  to  and      concludes the present dispute. They establish      that when  a grant is made by a zamindar of a      tenure at  a fixed  rent, although the tenure      may be permanent, heritable and transferable,      minerals will not be held to have formed part      of  the  grant  in  the  absence  of  express      evidence to that effect."      The fact that the tenure was rent free, makes no  difference  to  this  principle,  as  held  in Raghunath Roy Marwari v. Raja of Jheria (4).      We are therefore of opinion that the right of property of  the person  with whom resumed invalid Lakhraj land  had been  settled, being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.      Further, the plaintiffs traee their rights to the documents  Exhibits 10,  2  and  6(a).  Before dealing with  them, we  may  refer  to  two  other Regulations not so far mentioned.      Regulation  II  of  1819  modified  the  then existing Regulations  regarding the  resumption of reve- 695 nue of lands held free of assessment under illegal or invalid  tenures. Its Section III declared that lands specified  therein were liable to assessment in the  same manner  as other unsettled mahals and that the  revenue assessed on all such lands would belong to  Government. It  laid down the procedure for enquiry  claim of  Government to  assess  such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.

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    Exhibit 10  is the  Robakari  of  the  Deputy Collector of  Burdwan, dated  April 15, 1841, with respect to  Touzi No.  2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy  and Sitaram  Roy, predecessors-in- interest of  the plaintiffs  with respect  to  the land in  suit. It  appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and  others   as  defendants,  the  claim  of  the Government, in  accordance with  the provisions of Regulation II  of 1819 and Regulation III of 1828, in  respect  of  the  invalid  revenue  free  land consisting of Brahmottar land measuring 156 bighas 10 cattahs  and the  Debutter  land  measuring  18 bighas 20  cattahs, in all 175 bighas, situated in village  Pariharpur   and  other  villages  within Pergana Shergarh,  was decreed in April 1837, with the result that that land was resumed and assessed to land  revenue. Madhusudhan  Roy and Sitaram Roy and  other   defendants  claimed   right  to   get settlement because  it was  the  Lakhraj  property obtained by  their ancestors.  The settlement  was however made  with Manik  Chandra Roy on April 19, 1838, as  the other  defendants did  not turn  up. Subsequently,   Madhusudan    Roy   applied    for settlement jointly  with  Manik  Chandra  Roy  and others. As a result of the enquiry made, permanent settlement was  separately made with Manik Chandra Roy and  others with  respect to  certain area and with Madhusudhan Roy and Sitaram Roy 696 with respect  to the  rest.  On  April  15,  1841, Amalnama, Exhibit  2, was  issued  by  the  Deputy Collector, Burdwan,  to  Mukhyas  and  others.  It directed them to pay their respective rents to the persons with whom settlement was made.      Exhibit 6(a)  is certified copy of settlement khatian No.  611 in  respect  of  village  Sripur, relating to  Touzi No.  2597, R.S.  No.  2416.  It describes the  interest in  the land in suit to be Bajeapti (resumed) Lakheraj Pariharpur and others. It mentions  five persons  including  the  son  of Madhusudhan Roy  and the  sons of Sitanath Roy, to be the proprietors in possession of that interest. It  also  shows  the  King  Emperor  of  India  as possessing the  entire superior  interest.  It  is thus clear  that the  possessors of  the  Bajeapti (resumed)  Lakheraj   land  in  suit  held  it  as proprietors under  the King Emperor of India. They must consequently have the same rights which other proprietors like zamindars had.      It is  however urged  for the appellants that the records  prior to  the resumption  proceedings showed the  lands in suit to be the Brahmottar and Debutter  lands   of  the   predecessors  of   the plaintiffs and  that therefore,  in  view  of  the principle of law laid down by the Privy Council in Hari  Narayan   Singh’s  Case(1)   and  the  later decisions, they  cannot be  held to possess rights in  the   sub-soil  in  the  absence  of  definite evidence that  such  rights  were  conveyed  under those  grants.   We  do   not  agree   with   this contention. The  predecessors-in-interest  of  the plaintiffs held  the land  from the Government and

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not on a subordinate tenure from the zamindars and therefore the  principle of  law as stated in Hari Narayan Singh’s  Case (1)  and later  confirmed in several decisions  by the  Privy Council, does not apply to the present case.      We  are   therefore  of   opinion  that   the plaintiffs  had  rightly  been  held  to  own  and possess the rights 697 the minerals  under the  land in suit and that the decree in  their favour  is correct.  We therefore dismiss the appeal with costs.                                  Appeal dismissed.