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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: SWAMY SATYANAND SARASWATI, RELIGIOUSPREACHER, RAICHUR

DATE OF JUDGMENT31/03/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HEGDE, K.S. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1569            1971 SCR  284

ACT: Grant by Jagirdar-If includes right to minerals in favour of grantee Burden of proof.

HEADNOTE: The  Nizam  of  Hyderabad  granted  a  jagir  to  his  prime minister.   The successor of the jagirdar granted an  island in one of the villages, comprising a hillock of granite,  to the  predecessor-in-interest  of the respondent.   The  area covered  by the grant was acquired by the  State  Government for purposes of an irrigation project. On the question whether the respondent was entitled to  sub- soil  rights,  and  as a  consequence,  became  entitled  to compensation for the granite and quarries as minerals, HELD:It  was for the respondent to establish his  claim to minerals or quarry rights by putting forward proof of the grant  thereof  by  the Nizam to the  jagirdar  and  by  the jagirdar  to his predecessor.  But assuming that  the  Nizam conferred  the right on the jagirdar, the patta  granted  by the  jagirdar and the connected documents showed  that  what was in contemplation of the jagirdar and his grantee at  the time of the grant, was either the cultivation of the land or the  grazing of cattle on it.  Nobody at that time  had  any thought  or idea of the land being put to any other  use  or any  mining  or quarrying rights  being  exercised  therein. When  the  grantor  was careful to exclude  even  the  fruit bearing  trees, it would be wrong to hold that he must  have parted   with   the  sub-soil  rights   by      implication. Therefore,the right to minerals was not granted to  the respondent’s predecessor.[287B-C; 289B; 292D-E] What has to beconsidered  in each case is the  purpose  for which the lands are leased oran  interest  created  therein with  all the clauses which throw any light on the  question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no express  mention of it.  If the grant shows that the purpose of the grant was to  allow the user of the surface only it would be wrong  to presume  that  subsoil  rights were  also  covered  thereby. [292C-D] The  test of what is a mineral is, what at the date  of  the instrument,  the word meant in the vernacular of the  mining world,  the commercial world, and among landowners;  and  in

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case  of conflict that meaning must prevail over the  purely scientific meaning.  Since granite is a mineral according to this  test  the respondent had no right to  the  granite  or quarries. [293B-C] State of Andhra Pradesh v. Duvvuru Balarami Reddy, [1963]  1 S.C.R. 173, followed. Hari Narayan Singh v. Sriram Chakravarti, 37 I.A. 136, Durga Prasad Singh v. Braja Nath Bose, 39 I.A. 133, Girdhari Singh v. Megh Lal Pandey 44 I.A. 246, Sashi Bhusan Misra v.  Jyoti Prasad Singh Deo, 44 I.A. 46, Govinda Narayan Singh v.  Sham Lal  Singh,  58 I.A. 125, Bejoy Singh Dudhoria  v.  Surendra Narayan Singh, I.L.R. 61 Cal.  I (P.C.) and Attorney General v. Welsh Granite Co.  The Law Times Reports 549, applied. 285

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 496 of 1966. Appeal  by special leave from the judgment and  order  dated August  10, 1964 of the Mysore High Court in Regular  Appeal (H) No. 75 of 1956. S.   T. Desai, B. D. Sharma, Shyamala Pappu and S. P. Nayar, for the appellant. M.   Natesan,  B.  Parthasarathy, J. B.  Dadachanji,  O.  C. Mathur and Ravinder Narain, for respondent Nos.  1 and 3. The Judgment of the Court was delivered by Mitter,  J.-The  main question involved in  this  appeal  is whether  the respondent was entitled to sub-soil  rights  by virtue   of   the   pattas  granted   in   favour   of   his predecessor-in-interest by Nawab Salar Jung III of Hyderabad and as a consequence thereof became entitled to compensation claimed  by  him for acquisition of a large  block  of  land containing  a hillock of granite which was required for  the Tungabhadra  Project and was notified for acquisition  under the Hyderabad Land Acquisition Act on February 3, 1946. The  relevant  facts are as follows.  In 1820 the  Nizam  of Hyderabad  granted a jagir, the terms whereof do not  appear from  the record before us, to his Prime Minister  known  as Nawab Salar Jung T. This jagir consisted of many villages in the  district of Raichur one of them being Madlapur  on  the bank  of  the  river  Tungabhadra.  In  the  year  1930  the successor of the original grantee of the jagir, Nawab  Salar Jung  III  made  a  grant  of  an  island  in  that  village comprising S. Nos. 154, 312 and 313 with a hillock rising to a  height of 250 ft. and measuring Ac. 290-00 in  favour  of one  Swami  Nijananda, the  predecessor-in-interest  of  the respondent.  In February 1946 the entire area covered by the grant to Swami Nijananda was proposed to be acquired for  an irrigation   and   hydroelectric  project   known   as   the Tungabhadra  Project  which had been embarked  upon  by  the Governments of Hyderabad and Madras States.  The purpose  of acquisition  was  the  gathering of granite  stone  for  the construction  of  a dam across the river  Tungabhadra.   The acquisition  proceedings were completed pursuant to a  final notification  made on June 16, 1947 followed by an award  by the  Land Acquisition Officer on July 24, 1950.  Before  the Land Acquisition Officer two claims were put forward, one on behalf  of the respondent Swami Satyananda and the other  by Nawab  Salar Jung III.  But as all jagirs including that  of Nawab  Salar Jung were abolished during the pendency of  the acquisition proceedings, the claim for compensation by Nawab 286 Salar  Jung  III  also  disappeared.   The  claim  of  Swami Satyananda  was  for Rs. 29,91,600.   The  Land  Acquisition

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Officer  awarded  Rs. 31,260-8-0 as the  total  compensation disallowing  the claim in respect of the granite hillock  on the  ground  that it was not covered by the grant  to  Swami Nijananda.   The District Judge to whom reference  was  made under the Land Acquisition Act enhanced the compensation  to Rs.  48,892 exclusive of statutory allowance  and  interest. Two  of the issues framed by the District Judge  related  to the respondent’s claim to a right in the quarry and also  to the situs thereof i.e. as to whether it was within the patta land belonging to the claimant.  He found that the rock  was situated  within  the patta land of the  claimant  but  with regard to the quarry rights he took the view on the basis of two  Farmans  of the Nizam Exs.  A-21 and A-22  and  Section 2(d)  of the Mines Act and Section 3 of the  Hyderabad  Land Revenue  Act that the claimant had no right to the  minerals and  quarries.  He did not record any finding as to  whether the  jagir granted by the Nizam included the  mining  rights and whether the patta granted by the jagirdar conferred  the same rights on the claimant in view of his conclusion on the points of law urged that mining rights were in the exclusive ownership of the Nizam. The  High  Court took the view that the District  Judge  had proceeded on the assumption that there was a grant to  Nawab Salar  Jung I with all the mineral products in the  land  by the  jagir  of 1820.  It however held, differing  from  the District Judge, that the Farmans Exs.  A-21 and A-22 did  no more  than explain the provisions of Section 63 of the  Land Revenue Act and did not affect any subsisting rights in  the minerals if they belonged to the jagirdar.  According to the High  Court  the question as to whether the grant  to  Nawab Salar Jung did or did not include the granite in the hillock was  never raised at any stage and it was assumed  by  every one that the grant to Nawab Salar Jung included the right to granite and that right was a subsisting right even while the Hyderabad Land Revenue Act 1907 was enacted.  The High Court was  not willing to entertain the contention raised  by  the Advocate-General  for the first time that the grant did  not include the right to granite in the hillock.  The High Court apparently fortified its conclusion placing reliance,on  the fact  that  copies of all the grants of jagirs  should  have been  available  with  the  State  authorities  and  as  the original grant to Nawab Salar Jung or an authenticated  copy thereof  was not produced, the necessary inference would  be that  the  same  would not support  the  contention  of  the Advocate-General. The  High  Court further took the view that the  granite  in respect  of which compensation was claimed in the  case  was not  a mineral and that being so neither Section 63  of  the Hyderabad 287 Land  Revenue Act nor the Farmans referred to in Exs.   A-21 and  A-22 were relevant to the issue before it and it  would not  be  possible  to hold that  the  minerals  and  mineral products  in  the  hillock vested in  the  Government  under Section 63 of the Hyderabad Land Revenue Act. In  our view it is not necessary to consider the  effect  of the  Farmans or of Section 63 of the Hyderabad Land  Revenue Act.   It was for the respondent to establish his  claim  to minerals  or quarry rights by putting forward proof  of  the grant  thereof by the Nizam to Salar Jung  and to show  that his  rights in the land held by him were  co-extensive  with those  of Nawab Salar Jung 111.  There is no scope  for  any presumption  that  the  Nizam had parted  with  the  mineral rights  to the jagirdar or that the jagirdar had done so  in his turn.  Even assuming that the Nizam conferred the  right

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of minerals in the land or to quarry for granite therein  to Nawab  Salar Jung 1, the question still remains, what  right did  the  patta  of  the Salar Jung  estate  confer  on  the predecessor-in-interest  of the claimant.  The patta for  S. Nos.  312  and 313 was marked as Ex. 49 in  this  case.   It contains  various  columns including those for the  name  of "Khatedar", ’any increase or decrease in the land on account of  cultivation  or  left uncultivated’,  ’remarks  of  the, village  officers’,  "opinion  of the  Tahsildar"  and  "the approval  of the ’Nizam’ of settlement".  Under  the  column headed  "opinion  of  the  Tahsildar" is  to  be  found  the following :-                "The land bearing S. No. 254 Paramboke  known               as   Bolurguddi’  is  situated   in   Madlapur               village,  the area of which is Ac. 290-00  and               it  has not been surveyed.  Narasimha  Bharati               Swamy has filed an application wherein he  has               approved/accepted land the extent of Ac. 89-00               area  in  Tahsil office.  As the  village  was               under  survey the Tahsil office sent the  file               to  the Settlement Department... According  to               the  profit accruing to the State  as  pointed               out  by  the  applicant, the  survey  No.  312               measuring  109 acres and 13 guntas, having  an               assessment  of  Rs.  27  and  Survey  No.  313               measuring   13  acres  13  guntas  having   an               assessment  of  Rs.  19 in all  183  acres  33               guntas  and with a total assessment of Rs.  46               were   given  into  the  possession   of   the               applicant  and  the  remaining  109  acres               20 guntas have been included in the  Paramboke               the  survey  number  of  which  is  154,   the               Government  has got the right over  the  trees               bearing fruit.  The patta bearing S. Nos. 312-               313  may be made in the name of the  applicant               Narsimha  Bharati Swamy from 1331 Fasli.   The               letter received from the Settlement is  worthy               of  perusal.   According  to  the  remarks  of               Settlement  Department, the entry of  unculti-               vated land has been made since 1330 F. because               it was               288               approved in 1330 F. The file of the Thasil has               also  been submitted.  The acceptor has  filed               an application in the District office  stating               that  the  entry of the patta be made  in  the               year 1330 Fasli and that he is willing to  pay               the amount." Ex. 50 is a copy of the proforma No. 8 (Takavi) statement of village Madlapur and is for Paramboke (patta) granted on 7th Mehar 1336 F. The remarks of the Tahsil office in this  case read :               "An assessment of Rs. 28-4-9 of the unsurveyed               Paramboke  No.  154  measuring  106  acres  20               guntas at the Bolguddi is approved as per  the               District  Office  Order.   Nijanand  Narasimha               Bharati  Swamy  of Dolurguddi is  granted  the               excess of ’Lawani’ in accordance with Rs. 0-4-               0 agreement from ’Dhara’ to ’Rev-Sharan’." Reference  may  also  be made to the letter  issued  by  the Superintendent,  Settlement  Department, Salar  Jung  Estate where the petition for grant of patta of land of Bolur Gedda by Narasimha Bharati Swamy mentioned as one for the  purpose of grazing cattle.  According to this letter :               "The   land  once  bearing  survey   No.   244

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             measuring  209 acres and known as Bolur  Gedda               has  been lying as a waste since a long  time.               The land in the said survey number is not  fit               for  cultivation.  On all the occasions  water               of  the stream will be surrounded on  all  the               four  sides.   It  would be  useful  only  for               grazing  the  cattle.   Near  about  the  said               survey  land there are two tamarind  trees.               But  the  product of the trees  has  not  been               auctioned at any time.               Now   regarding  the  rent  received  by   the               Government  of the State as indicated  by  the               petitioner in regard to the aforesaid land  of               the  land  measuring 109 acres 13  guntas  and               assessed  at  Rs. 27 and survey land  No.  313               measuring  74 acres and 20 guntas assessed  at               Rs.  19,  thus  a total of 183  acres  and  33               guntas  assessed at Rs. 46 has been  given  in               possession  of the petitioner and the rest  of               the  land  106 acres and 20  guntas  has  been               included  in this ’purpose’ land only and  its               survey number is 154.               The tamarind trees standing on the said survey               land would belong to the Government only.   In               case  a  petition is presented in  future  the               lands  may  be included in the  patta  as  per               rules.  The patta of the survey lands  bearing               S.  Nos. 312, 313 may be made in the  name  of               the peti-               289               tioner  Sri Nijanand Narasimha  Bharati  Swamy               from the year 1331 F." It  is amply clear from the above that what was  in  contem- plation of the grantor and grantee at the time of the  grant was  either  the cultivation of the land or the  grazing  of cattle  on it.  Nobody at that time had any thought or  idea of  the  land being put to any other use or  any  mining  or quarrying  rights being exercised therein.  The grantor  was careful  to exclude even the fruit-bearing trees.  It  would be  wholly unrealistic to construe the grant  as  conferring mining rights by implication simply because of the fact that there was no mention of it. A long line of decisions of the Judicial Committee of  Privy Council relating mainly to the grants of land and leases  by the  Zamindars in Bengal makes it amply clear that  sub-soil rights  are  not to be treated as having  been  conveyed  by implication  in grants of surface rights  to  tenure-holders pattidars (lessees) etc.  In this connection it may be noted that by the Permanent Settlement of 1793 the zamindars  with whom  the lands were settled were held to be owners  of  all mines  and minerals in their zamindaries.  The decisions  of the  Privy Council relate principally to grants of  land  in coal-bearing areas before the discovery of any coal therein. One of the early cases of this type was that of Hari Narayan Singh  v.. Sriram Chakravarti(1).  There the dispute was  as to the right to minerals lying under a village called Petena situate  within the zamindari of the first  appellant.   The appellant’s  predecessor had conveyed some sort of  interest in the village to a set of persons called Goswamis who  were shebaits or priests of an idol.  The Goswamis had  purported to  grant to the respondents two leases by virtue  of  which the latter claimed to have exercised rights with respect  to minerals.  There was no evidence whatever that the  zamindar Raja had ever granted mineral rights to the Goswamis or  any other person.  The courts in India concurrently found  that,

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no prescriptive rights had been proved by the respondents to any underground rights in the village.  The High Court  took the  view  that the Goswamis being tenure-holders  had  per- manent heritable and transferable rights, from which it  was inferred that the underground rights also belonged to  them. The   Subordinate  Judge  had  however  inferred  from   the smallness  of the jumma (rent) that only the surface  rights and  not the underground rights were intended to be let  out to the Goswamis.  The Board held that (p. 146) :               ". . . . the title of the zamindar raja to the               village Pctena as part of his zamindari before               the arrival of the Goswamis on the scene being               established as it has been,               (1) 371. A. 136.               19-1 S.C. India/71               290               he  must  be presumed to be the owner  of  the               underground rights thereto appertaining in the               absence  of evidence that he ever parted  with               them, and no such evidence has been produced." Durga  Prasad Singh v. Braja Nath Bose (1) was a case  where the zamindar of a permanently settled estate who asked for a declaration  of  his right to minerals as against  a  lessee from  a  digwar  tenure  holder.   The  digwar  tenure   was originally  granted in consideration of the  performance  of military service to which police duties were attached.   The tenure  was  hereditary and inalienable,  the  digwar  being appointed by Government and being liable to be dismissed  by Government for misconduct.  On such dismissal the next  male heir  if fit to be appointed had the right to be  appointed. The  digwar of Tasra granted a perpetual lease of  the  coal mines underlying two villages to Tasra Coal Company in 1892. On  the question as to whether the digwar had a  proprietary right  in the underground minerals the Board took  the  view that  the permanent settlement having been made between  the Government and the zamindar of Jharia and no attempt  having been  made to prove that the mineral rights were  vested  in the digwar before or at the time of the permanent settlement and  there being no evidence to show that the  zamindar  had ever  parted with mineral rights to the digwar,  the  latter could  not  be  held to have any proprietary  right  in  the minerals. In Girdhari Singh v. Megh Lai Pandey (2) the question before the  Board  was whether a mokarari lease of  land  with  all rights  carried  a  right to the  subjecent  minerals  in  a permanently  settled  estate.  According to the  Board  (see page 248)               "It  is  unavailing  to urge  that  the  right               granted by the mokrari pottah to the lessee is               of  a permanent, heritable,  and  transferable               character, as, even although this be the case,               it  does not advance the question whether  the               lease  itself  embraced within its  scope  the               mineral  rights.   On  the  contrary,   unless               there. be by the terms of the lease an express               or plainly implied grant of those rights, they               remain reserved to the zamindar as part of the               zamindari." Their Lordships referred to the decisions mentioned above as also to that of Sashi Bhushan Misra v. Jyoti Prasahad  Singh Deo(3) and adopted the principle (p. 249) :               "....... 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

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             (1)  391. A. 133.                (2)  441.  A.               246.               (3)44 I. A. 46.               291               held  to have formed part of the grant in  the               absence of express evidence to that effect."               According to the Board               "On  the assumption that the  expression  (mai               hak hakuk) means ’with all rights’. or may  be               properly  amplified as ’with all right,  title               and  interest’, such expressions ...  did  not               increase  the  actual corpus  of  the  subject               affected  by  the  pottah.   They  only   give               expressly  what might otherwise quite well  be               implied,  namely, that that corpus being  once               ascertained, there will be carried with it all               rights appurtenant thereto, including not only               possession  of the subject itself, but it  may               be  of  rights of passage, water or  the  like               which  enure to the subject of the  potta  and               may even be derivable from outside properties.               It  must  be  borne  in  mind  also  that  the               essential  characteristics of a lease is  that               the  subject  is  one which  is  occupied  and               enjoyed  and the corpus of which does  not  in               the nature of things and by reason of the user               disappear.   In  order  to  cause  the  latter               specially to arise, minerals must be expressly               denominated, so as thus to permit of the  idea               of partial consumption of the subject leased." Accordingly  it was held that the words founded on  did  not add to the true scope of the grant nor cause mineral  rights to be included within it. It  should be noted here that there was a reference  to  the trees on the land in the pottas it being expressly  provided that  the lessee would be entitled to take the price of  the trees by cutting and selling them and the zamindar would not have  any  right  thereto.  This was held by  the  Board  to negative   the   idea   that  mokarari   pottab   could   be comprehensively viewed to include mineral rights.  According to the Board :               "Such a  lease is a lessee  of  the  surface               only.   This is the general case to  which  in               the  present case there is alone superadded  a               right  to  the trees.  The  minerals  are  not               included." Most of the above cases were referred to again by the, Board in  Govinda Narayan Singh v. Sham Lai Singh (1) where  after noting  the earlier cases the Board concluded that’  in  the case  of any claim against the zamindar to the  lands  which were  included  at the permanent settlement  the  burden  of proof is upon the (1)  58 I. A. 125. 292 claimant.   Reference  may  also be  made  to  Bejoy Singh Dudhoria v. Surendra Narayan Singh (1) where the Board  held that  the  grant  of  a patni lease by  a  zamindar  of  his zamindari lands "including all interest therein, and jalkar, banker, falkar, beels and jhils at an annual jama containing a  stipulation  that  the grantee should not  cut  trees  or excavate a tank was only consistent with the theory that the lessee  and  those claiming under him were not  entitled  to excavate the soil for the purpose of making bricks and  that there was no transfer of the property in the soil". In our view the principle which is to be deduced from  these

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cases  is  not one which is to be confined to  the  case  of zamindars  in permanently settled estates.  What has  to  be considered  in each case is the purpose for which the  lands are  leased  or  an interest created therein  with  all  the clauses which throw any light on the question as to  whether the  grantor purported to include his rights to the  subsoil in the grant when there was no express mention of it. If the lease  shows that the purpose of the grant was to allow  the user  of the surface only it would be wrong to presume  that sub-soil rights were also covered thereby.  The patta Ex. 49 in   this   case  amply  demonstrates  that  what   was   in contemplation  of  the  parties at the  time  of  the  grant in  .1930  was  the cultivation thereof  or  grazing  cattle thereon.  The grantor was even careful to reserve the  right to  fruit-baring trees.  It would be a strange  construction to  hold that although the grantor expressly  excluded  such trees  from his grant he must be taken to have  parted  with his sub-soil rights by implication. We may also note that in State of Andhra Pradesh v.  Duvvuru Balarami Reddy (2) where the respondents had obtained mining leases  for mining mica from the owners of a  certain  shor- triem  village it was held that shortriemdars had no  rights in  the  minerals  and the leases granted  by  them  to  the respondent had no legal effect.  It is true that this  Court was  there  dealing  with rights of  a  different  class  of persons and it was claimed on behalf of the respondent  that inasmuch  as the grant included poramboke if  followed  that mere  surface  rights  were not the subject  matter  of  the grant.   Rejecting  this contention the Court  observed  (p. 183) :               "So far as the 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  subsoil  rights               were also included therein.’               (1) I. L.R. 61 Calcutta 1   (2) [1963] 1 S. C.               R. 173               293               It  is  not  in  our  view  possible  to  hold               otherwise  than  that granite  is  a  mineral.               According to Halsbury’s Laws of England :               "There  is no generad definition of  the  word               ’mineral’.    The  word  is   susceptible   of               expansion  or limitation in meaning  according               to the intention with which it is used...               It  is  a  question  of  fact  whether  in   a               particular  case a substance is a  mineral  or               not. . .               The test of what is a mineral is what, at  the               date  of the instrument in question, the  word               meant  in the vernacular of the mining  world,               the  commercial world, and  among  landowners,               and  in  case of conflict  this  meaning  must               prevail  over the purely scientific  meaning".               (See Vol. 26, 3rd edition, Art. 674 page 320). In Article 675 at page 322 the learned authors summarise the case law on the subject as to whether particular  substances are minerals or not.  Reference is there made to the case of Attorney  General v. Welsh Granite Co.(1) where granite  was held  to be included under the reservation of "minerals"  in the Enclosure Act which reserved all mines, minerals,  ores, coal, limestone, and slate to the Crown.  According to  Lord Coleridge,  the word "minerals" was large enough to  include granite. In  the view we have taken, it is not necessary to  consider

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the  effect  of the Farmans or Section 63 of  the  Hyderabad Land  Revenue Act.  In our view the pattas  only  indicating that the grant was for the purpose of cultivation or grazing of  cattle with the express reservation of the trees on  the land  to  the  grantor, the question of  grant  of  sub-soil rights  by implication does not arise.  It is therefore  not necessary  to consider the effect of the Farmans Exs.   A-21 and A-22 or of Section 63 of the Hyderabad Land Revenue Act. The  claim  to  compensation on the basis  of  the  sub-soil rights  to the hillock must therefore be negatived  and  the appeal allowed. In  the  result the decree of the High Court  regarding  the minerals in the land or quarry rights will be set aside  and the judgement and order of the District Judge on that  point restored.   The respondent will be entitled to the costs  of the appeal in pursuance of the, order of this Court made  as a condition for setting aside the abatement of the appeal. V.P.S.                                Appeal allowed. (1) 1 The Law Times Reports 549. 294