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PETITIONER: BHAGWAN DASS

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT24/03/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KRISHNAIYER, V.R. UNTWALIA, N.L.

CITATION:  1976 AIR 1393            1976 SCR  (3) 869  1976 SCC  (3) 784  CITATOR INFO :  R          1978 SC1587  (4)  R          1979 SC1669  (14)

ACT:      Mines and Minerals (Regulation and Development) Act 67, 1957 S.  3(e) r/w  Rule 2(7)  of  the  Uttar  Pradesh  Mines Minerals (Concession) Rules, 1963 and Rule 6(a) (i) and 6(a) (ii) of  the U.P. Zamindari Abolition and Land Reforms Act I of 1951-Scope  of-Riparian owners  do not  have any title or right over  the  "sand,  gravel,  bajris  etc"  carried  and deposited on  their land  due to  the fluvial  action of the river, superior  to that  of the State, the rightful owners- Minerals need  not be subterranean. Practice-Art. 136 of the Constitution-Arguments not  advanced in  courts below,  will not be acceded to in this Court.

HEADNOTE:      The Mining  and Minerals  Departments of  the State  of U.P. have  been selling  by auction  from  1965  onwards  as "minor minerals"  the deposits  left on  the surface  of the appellant’s lands,  of the  sand, gravel, bajris etc. due to the fluvial  action of  the receding  floods of  the  Jamuna river. In  1970, the  appellants objected  to  the  proposed auction laying  claim to the deposits, contending that since he is a riparian owner of the lands or is otherwise entitled to an  unrestricted user  of the lands, he would be entitled to appropriate  the deposits,  to the  exclusion of  others. Since  his   objection  was   not  accepted,  the  appellant challenged the order by a writ petition under Article 226 in the Allahabad  High Court  which was dismissed following its earlier decision in "Sultan and Anr. v. State of U.P. (Civil Misc. Writ No. 8268/71 dated 28-9-73) to the effect that the sand, gravel,  boulders,  bajris  etc.  deposited  on  lands abutting on rivers. as a result of fluvial action of a river vest in  the State  Government". The  appeal to the Division Bench was also dismissed.      Dismissing the appeal by certificate, the Court ^      HELD :  (i) The contention that some of the lands being still zamindari lands, the right to mines and minerals which the zamindars  originally had  did not cease and, therefore,

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the Government  had no  right to  the mines  and minerals on such lands,  cannot be  acceded to,  since no  such argument whatsoever was  made in  the High  Court either  before  the single judge  or before the Division Bench, though there was an averment  to  that  effect  in  the  writ  petition.  The contention in  regard to  a part  of the  property raises at best a  dispute between  the Zamindari  and  the  Government which the  appealing has  no right  to raise.  It is for the zamindars, if  so advised, to take an appropriate proceeding for recognition  of their  claims as against the Government. The appellant  cannot be  heard to  say in  a Writ  Petition filed for  the assertion  of his  own individual rights that the action  of the  Government is  calculated  to  prejudice somebody else’s  rights and  should therefore be struck down [871 G.H, 872 A-C]      (2) The  deposits in  the nature of ordinary sand other than sand  used for  prescribed purposes,  gravel,  building stores and  bajri squarely  fall within  the provision of s. 3(e) of  the Mines and Minerals (Regulation and Development) Act 67  of 1957  and the rules 2(5), 2(7) and 3 of the Uttar Pradesh Minor  Mineral (Concession)  Rules,  1963  and  are, therefore, ’minor  minerals’. In  equity, prior to the point of time  when the flood waters of the river carried the sand and gravel to private lands, the title thereto was vested in the State  Government. The  rivers, the  river beds  and the sand, bajris  and building  stones lying  in the river water are of  state ownership.  Nature carries  these deposits  to lands abutting  on rivers and what the Act and Rules provide for is  to enable  the Government  to reclaim  what is  lost without any  fault of  its own. The sand and gravel deposits left by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State. The fluvial  action of  the river  carries them  to riparian lands but  such shifting  cannot  erase  the  title  of  the rightful owner. [872 H, 873 A, C to G] 870      Sultan and  Anr. v. The State of U.P. (Civil Misc. Writ Petition  No.   8268/71  decided   on  28-9-73)  [approved]; Halsbury’s Laws  of England 3rd Edn. Vol. 39 p. 559 para 775 [quoted with approval].      (3) In the instant case, the minor minerals while under the the  river water  belonged to  the State and the Statute answers the  question whether  the  natural  action  of  the flooding river  destroys the  title of,  the state. The 1951 Act has vested the zamindaris right to mines and minerals in the State  Government rendering  it of  secondary  relevance whether prior to flood caused migration the ownership of the minerals was vested in the State. [874 C-D]      Norman S.  Wear v.  State of  Kansas 62  Law Edn. 214 @ 219; Halsbury’s  Laws of  England 3rd  Edn. Vol. 39 para 801 (page 568);  Blewett v.  Trigonning (1835)  3  Adolphus  and Ellis’ Reports 554 (distinguished).      (4) It  is wrong to assume that mines and minerals must always be  sub soil and that there can be no minerals on the surface of  the earth.  The definition  of mining operations and minor  minerals in  section 3(d)  and (e)  of the Act of 1957 and Rule 2(5) and (7) of the Rules of 1963, states that minerals need not be subterranean and that mining operations cover  every   operation  undertaken   for  the  purpose  of "winning" any  minor minerals.  Winning  does  not  imply  a hazardous  or  perilous  activity.  The  words  simply  mean ’extracting a mineral’ and is used generally to indicate any activity by  which minerals  is secured.  Extracting in turn means drawing out or obtaining. [874 E-F]      [In view  of the  specific concessions  in the  counter

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affidavit by  the Government  the Court  expressed its  full confidence that  in cases  where it becomes necessary to fix the compensation  under rule  67 the State would have regard to  all   relevant  factors   particularly  the   length  of deprivation entailed  by the  conduct of  mining operation.] [875 A-C]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1044 of 1975.      From the  Judgment and  Order dated  20-9-1974  of  the Allahabad High Court in Special Appeal No. 145 of 1974.      J. P. Goyal and Shree Pal Singh for the appellant.      G. N. Dikshit and O. P. Rana for the respondents.      The Judgment of the Court was delivered by      CHANDRACHUD, J.-Certain  lands situated in Usmanpur and Dariyabad in the district of Allahabad are in the possession of the  appellant, some as a Bhumidhar, some as a Sirdar and some as  a hereditary  tenant. The  lands abut on the Jamuna river and are submerged by the river water when the river is in flood.  When the  flood recedes large quantities of sand, gravel, boulders  and bajris are deposited on the surface of the lands.  The appellant  lays claim  to the  deposits left behind by  the fluvial  action of  the river contending that since he  is the owner of the lands or is otherwise entitled to an  unrestricted user  of the lands, he would be entitled to appropriate the deposits to the exclusion of all others.      The Mines  and Minerals Department, Government of Uttar Pradesh, took  steps in  about 1970  to sell  by auction the right to remove the sand, gravel and bajris deposited on the appellant’s lands. On October 13, 1970 the appellant made an application to  the  Officer  in-charge,  Mines,  Allahabad, objecting to  the proposed  auction on  the ground  that the Government had  no right  to deal  with his  property  in  a manner detrimental  to his  title. On  February 18, 1971 the Department of  Mines passed  an order directing the disposal of the deposits by an auction-sale.      In October,  1971 the  appellant filed  a writ petition under article  226 of the Constitution in the Allahabad High Court  asking   that  the   aforesaid  order  of  the  State Government be quashed and that the State 871 Government be  restrained from bringing the fluvial deposits to  sale   by  auction   or  otherwise.  On  behalf  of  the respondents, the  Naib Tehsildar  (Mines) Allahabad, filed a counter-affidavit stating that the appellant had no right of any kind to utilise the deposits left by the flood waters on his land, that the State Government had sold the deposits by auction from  1965 to 1969 to which the appellant had raised no objection, that the deposits of sand, gravel, bajris etc. were ’minor minerals’ to which the title vested in the State Government and  that the  only right of the appellant was to receive damages  which the  State Government  always awarded under  rule   67  of   the  Uttar   Pradesh  Minor  Minerals (Concession) Rules, 1963.      The writ  petition came up for hearing before a learned Single Judge who dismissed it by his judgment dated April 2, 1974, following  a previous  decision of  the Allahabad High Court in  Sultan and Anr. v. State of U.P. (Civil Misc. Writ No. 8268  of 1971  decided on  28th  September,  1973).  The appellant filed  an appeal  before a  Division Bench  of the High Court  which was  dismissed on  September 20, 1974. The Division Bench merely followed the decision in Sultan’s case

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which had taken the view that sand, gravel, boulders, bajris etc. deposited  on lands  abutting on rivers, as a result of fluvial action  of a river vest in the State Government. The High Court has, however, granted a certificate of fitness to the appellant to appeal to this Court.      Under section  4 of  the U.P.  Zamindari Abolition  and Land Reforms  Act, 1  of 1951,  all estates situated in U.P. vested in  the State  Government free from all encumbrances, with effect  from the  date specified by the Government in a notification issued  for that  purpose. Section 6 of the Act of 1951  deals with  the consequences  of such  vesting  and provides that  on the  publication of  a notification  under section 4,  all  rights,  title  and  interest  of  all  the intermediaries shall  cease and  be vested  in the  State of U.P., free  from all  encumbrances. Clause  (a) of section 6 which brings  about this result consists of two sub-clauses: (i) and  (ii). Under section 6(a)(i), "all rights, title and interest of  all the  intermediaries in every estate" ceased and became  vested in the State of U.P., while under section 6(a)  (ii),   "all  rights,   title  and   interest  of  all intermediaries in  all sub-soil  in such  estates  including rights, if  any, in  mines and  minerals" ceased  and became vested in the State of U.P. 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.      The appellant’s writ petition contains an averment that two out  of the  four plots  of land which were the subject- matter of  the writ  petition were  in his  possession under Zamindars whose  Zamindari rights were not yet abolished, as the 1951  Act was  not extended  to the areas in which those lands were  situated. Mr.  Goel appearing  on behalf  of the appellant repeated  the same  contention and  argued that in respect of  those lands  to which  the Act  of 1951  did not apply, the  Zamindar’s right  to mines and minerals remained unaffected, and therefore the Government had no right to the deposits left  on those  lands by the waters of the receding river, even  on the assumption that the deposits were ’minor minerals’. We cannot accede to this contention for the 872 simple reason  that though  the writ  petition contained  an averment in  terms of  the contention no argument whatsoever was made  in the  High Court, either before the single Judge or before  the Division  Bench, that some of the lands being still Zamindari  lands the right to mines and minerals which the Zamindars originally had did not cease and therefore the Government had  no right  to the  mines and minerals on such lands. Apart  from this  the contention urged by Mr. Goel in regard to  a part  of the  property  involved  in  the  writ petition, raises  at best a dispute between the Zamindar and the Government which the appellant has no right to raise. If the title  to the  mines and minerals in respect of lands to which the Act of 1951 is not extended vests in the Zamindars and not in the Government, the Zamindars may, if so advised, take an  appropriate proceeding  for  recognition  of  their claims as  against the  Government. The  appellant cannot be heard to  say in  a writ petition filed for the assertion of his own  individual rights that the action of the Government is calculated to prejudice somebody else’s rights and should therefore be  struck down.  The  appeal  must  therefore  be disposed of  on the  basis that  the rights of the erstwhile Zamindars over the lands in dispute stood extinguished under the Act  of 1951  and that  those rights  are vested  in the State Government under section 6 of that Act.

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    We are concerned in this appeal with the interpretation of  the  relevant  provisions  of  the  Mines  and  Minerals (Regulation and  Development) Act,  67 of 1957 and the Uttar Pradesh Minor  Minerals (Concession)  Rules, 1963.  We  will refer to  them respectively as the Act of 1957 and the Rules of 1963.  Section 3(e)  of the  Act of  1957 defines  (minor mineral" to  mean "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". Section  15 confers  power on the State Government to make  rules for regulating the grant of quarry leases, or other mineral  concessions in  respect of minor minerals and for purposes connected therewith.      The Government of Uttar Pradesh framed Rules of 1963 in exercise of the power conferred upon it by section 15 of the Act of  1957.  Rule  2(5)  defines  "Mining  operations"  as meaning any operations undertaken for the purpose of winning any  minor  mineral.  Rule  2(7)  defines  "minor  minerals" substantially in  the same  terms as section 3(e) of the Act of 1957. By Rule 3, no person can within the State undertake any mining  operation of  any minor mineral except under and in accordance  with the  terms and  conditions of  a  mining lease or mining permit granted under the Rules.      These provisions  of the  Act of  1957 and the Rules of 1963 are  clear and  explicit,  admitting  of  no  doubt  or difficulty. If  the deposits  left by the receding waters of the river  are of the description, mentioned in section 3(e) of the  Act or Rule 2(7) of the Rules, Rule 3 must come into full play  with the  result  that  no  mining  operation  in respect of  the deposits  can be undertaken except under and in accordance  with the  terms and  conditions of a lease or permit granted by the Government under the Rules of 1963. We are concerned  in this appeal with deposits in the nature of ordinary sand other than sand used for pres- 873 cribed purposes,  gravel, building  stones and bajris. These fall squarely  within the above-quoted provisions of the Act of 1957  and the  Rules of  1963  and  are  therefore  minor minerals. Accordingly,  the appellant  cannot undertake  any mining operation, even on the lands now belonging to him for the purpose  of winning  these minor minerals except under a lease or  permit granted  by the State Government. 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  proprietary right to the lands was  vested in  the Zamindar  he was entitled to mines and minerals.  With the  abolition of  Zamindari by the 1951 Act, that  right has  passed on  not to the appellant but to the State Government. The appellant’s writ petition filed to restrain the  State Government  from auctioning the right to undertake mining operations must therefore fail.      Evidently,  the   appellant  finds   it  difficult   to reconcile himself  with position  that what  nature and good fortune  have  bounteously  left  on  his  lands  should  be permitted to be taken away by the Government which has not a vestige of title to the lands. The answer to this difficulty is  two-fold.   In  the  first  place  the  deposits,  by  a definition contained  in a competent legislation, are ’minor minerals’ and it is of no relevance that the Act of 1957 and the Rules  of 1963  bring within  their compass  even  those deposits which  are left  behind by  the fluvial  action  of rivers. If  that is the policy and the intendment of law, it is unprofitable  to explore  whether the  statute could  not have been more generous or less grudging to riparian owners.

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Secondly, and  that bears  on equity,  prior to the point of time when the flood waters of the river carried the sand and gravel to private lands, the title thereto was vested in the State Government.  The rivers,  the river beds and the sand, bajris and  building stones  lying in the river water are of State ownership.  Nature carries  those  deposits  to  lands abutting on  rivers and  what the  Act and the Rules provide for is  to enable  the Government  to reclaim  what it  lost without and  fault of  its own.  Halsbury’s Laws  of England (3rd Ed.,  Vol. 39,  p. 559,  paragraph 775)  says that "The soil of  the seashore,  and of the bed of estuaries and arms of the  sea and of tidal rivers, so far as the tide ebbs and flows, is  prima facie  vested of common right in the Crown, unless it  has passed  to a  subject by  grant or possessory title." Paragraph  768 (p.  556) says that the Crown is also "entitled to  the mines  and minerals  under the soil of the seas" within  certain limits.  The sand  gravel deposited by the receding  waters of  the river  are truly  a part of the soil of the river bed and therefore belong to the State. The fluvial action  of the  river carries them to ripanian lands but such  shifting cannot  erase the  title of  the rightful owner.      The judgment  of Justice  Holmes in  Norman S.  Wear v. State of  Kansas(1), turned  on another  point and  involved different considerations  altogether but  the basis  of that decision is  instructive: The fact that sand in the bed of a river is  migratory and liable to be shifted does not change its character so as to entitle the public to remove the sand as against the State, which owns the bed of the stream. 874      In the High Court, reliance appears to have been placed by the appellant on a passage in Halsbury’s Laws of England, 3rd Ed.,  Vol. 39, paragraph 801 (p. 568) where it is stated that gravel,  stones and  sand, even  when washed  up by the seas on the foreshore are part of the freehold and belong to the owner  of the  foreshore who  may deal  with them  as he pleases. This  passage is based upon the decision in Blewett v. Tregonning  (1835) 3  Adolphus and  Ellis’  Reports  554, where the  defendant was  a rank  trespasser who  pleaded  a custom entitling  him to  take the sand blown by the wind on to a land situated on the foreshore. The Court negatived the plea  of   custom  both  on  the  ground  that  it  was  not established and  on the  ground that  if the  custom were to receive a legal recognition it would place the whole soil at the mercy of any person claiming under the so-called custom. Besides, there is no parallel between that case and our case because here,  the ’minor  minerals’ while  under the  river water belonged  to the  State and  the statute  answers  the question whether  the natural  action of  the flooding river destroys the  title of the State. Secondly, the 1951 Act has vested the  Zamindar’s right  to mines  and minerals  in the State Government rendering it of secondary relevance whether prior to  flood  caused  migration,  the  ownership  of  the minerals was vested in the State.      Only one  more argument made on behalf of the appellant requires to  be noticed.  It was  urged that  the  sand  and gravel are  deposited on  the surface  of the  land and  not under the  surface of  the soil and therefore they cannot be called minerals  and equally so, any operation by which they are collected or gathered cannot properly be called a mining operation. It  is in  the first  place wrong  to assume that mines and  minerals must  always be  sub-soil and that there can be  no minerals  on the  surface of  the earth.  Such an assumption is  contrary to informed experience. In any case, the definition  of mining  operations and  minor minerals in

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section 3(d)  and (e)  of the  Act of 1957 and Rule 2(5) and (7) of  the Rules  of 1963  shows that  minerals need not be sub-terranean  and   that  mining   operations  cover  every operation undertaken  for the purpose of "winning" any minor mineral. "Winning"  does not  imply a  hazardous or perilous activity. The  word simply  means "extracting a mineral" and is used  generally to  indicate  any  activity  by  which  a mineral is secured. "Extracting", in turn, means drawing out or obtaining.  A tooth  is ’extracted’  as much  as it fruit juice and as much as a mineral. Only, that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral.      We  would   like  before  closing  to  invite  especial attention to  Rule 67  of the  Rules of  1963 under  which a "person having  a right  in any capacity in the land covered by a  mining lease  or mining permit ..... shall be entitled to get  compensation" from  the holder  of a mining lease or mining permit of such land for the use of the surface, which may be  agreed upon  between the  parties. In  case  of  any dispute, the  amount of compensation has to be determined by the District  Officer  whose  order  assumes  finality.  The counter-affidavit filed  by the State Government in the High Court concedes  expressly, as it ought, that considering the fact that the person entitled to the use of a land may 875 be prevented  from using  it by  reason of a mining lease or permit, Rule  67 provides for the payment of compensation to him for such deprivation. When the right to conduct a mining operation is  auctioned by  the Government the person who is otherwise  entitled  to  the  user  of  the  land,  say  for agricultural purposes,  is deprived  of  its  user  and  the object of Rule 67 is to ensure that he should be compensated adequately for  the deprivation  of such  user. We  have  no doubt that  in cases  where it  becomes  necessary  for  the District Officer  to fix  the compensation under Rule 67, he would  be   having  due  regard  to  all  relevant  factors, particularly the  length  of  deprivation  entailed  by  the conduct of mining operations.      For these  reasons, we confirm the judgment of the High Court and dismiss the appeal with costs. S.R.                                       Appeal dismissed. 876