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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4540-4548 OF 2000

Threesiamma Jacob & Ors. …

Appellants

Versus

Geologist, Dptt. of Mining &  Geology & Ors.        …Respondents

WITH

CIVIL APPEAL NO. 4549 OF 2000

J U D G M E N T

Chelameswar, J.

1. These appeals are placed before us pursuant to the  

Order dated 8th December, 2004 of a Division Bench of this  

Court which opined that the points involved in these and  

certain  other  appeals  “need  to  be  decided  by  a  three  

Judge Bench.”

2. These  appeals  arise  out  of  a  common  judgment  

rendered in a number of writ petitions by a full Bench of

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the Kerala High Court dated 2nd August, 1999 by which all  

the writ petitions were dismissed.

3. The  said  full  Bench  of  the  Kerala  High  Court  was  

called upon to examine the question (on a reference by  

another Division Bench) - whether the owners of jenmom  

lands in the Malabar area1 are the proprietors of the soil  

and the minerals underneath the soil - and answered the  

said question in the negative:

“Hence,  we  are  of  the  view  that  so  far  as  the  lands  in  question  are  concerned,  the  minerals  belong to the Government…”   (para 31)

4. To illustrate the background in which such question  

arises, we may quote the facts of one of the writ petitions  

considered by the full Bench as narrated by the full Bench.

“2.  According to the petitioner in this case, her  husband obtained jenmon assignment of 2 Acres  of  granite  rocks  situated  in  Dhoni  Akathethara  Amsom  and  Village,  palakkad  Taluk,  Malabar.  The  petitioner’s  husband  obtained  the  property  from  the  previous  jenmy,  C.P.  Thampurankutty  Menon.    Thereafter,  the  petitioner’s  husband  executed a registered  gift  deed.    According  to  the petitioner,  the property was enjoyed by the  earlier  jenmy  and  thereafter  by  the  petitioner  without  any  interference  from the  Government.  Due  to  ignorance  of  the  legal  position,  the  petitioner  entered  into  a  lease  agreement  with  the Department of Mining and Geology to conduct  quarrying operations in her property.    Later on  

1 Parts of Kerala popularly known as Malabar area which earlier formed part of   the erstwhile Madras province in the British India

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she realised that it was not necessary to pay any  royalty  to  the  Government  with  regard  to  the  property  belonging  to  her.    In  the  above  circumstances,  she  made a  fresh  application  to  the Department for licence.  But the respondents  failed  to  provide  necessary  permits  to  the  petitioner.   When she received a notice from the  Kerala  Minerals  Squad directing her  to stop the  quarrying  activities,  she  gave  a  reply  to  reconsider  her  contention.    Thereafter,  by Ext.  P6,  she  was  informed  by  the  Department  to  renew the lease.”

5. It  can be seen from the above that  the appellants  

asserted  that  they  are  holders  of  jenmom rights  in  the  

lands in question and the State has no legal authority to  

demand payment of royalties on the minerals excavated  

by the holder of jenmom right.

6. Such a claim of the appellants is based on the belief  

and assertion of the appellants (1) that the holder of the  

jenmom  rights  is  not  only  the  proprietor  of  the  soil  for  

which he has  jenmom  rights,  but  also the owner of the  

mineral  wealth  lying  beneath  the  soil.    (2)  that  the  

understanding of the appellants that a claim of royalty can  

be made only by the owner of the mineral against a person  

who is  excavating  the  mineral with  the  consent  of  the  

owner.

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7. We must straightway record that the second of the  

above-mentioned propositions regarding the character and  

legal  nature  of  royalty,  (though  was  considered  by  this  

Court  on more  than  one occasion)  stands referred  to a  

larger Bench by an Order of reference dated 30th March,  

2011 of a three-Judge Bench in Mineral Area Development  

Authority & Ors. Vs. Steel Authority of India & Ors.¸(2011)  

4 SCC 450, therefore, we are not required to examine and  

decide the question.   We are only required to examine the  

amplitude of the rights of the jenmom land holders called  

jenmis in the Malabar area of the Kerala State and decide  

whether  a  jenmi is  entitled  to  the  rights  of  subsoil/the  

minerals lying beneath the surface of the land.

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8. The appellants’ case is that a ‘jenmi’2 holds jenmom3  

lands as absolute owner and has proprietary rights over  

both the soil and subsoil.  The  ryotwari settlement made  

by  the  British  Government  in  the  Malabar  area  of  the  

erstwhile Madras Province only obligated the jenmis to pay  

revenue to the State but did not in any way affect their  

proprietary  rights  in  the  lands.   Nor  did  the  ryotwari  

settlement have the effect of transferring and vesting the  

ownership either of the land or the subsoil (minerals) to  

the State.  In support of this submission, the appellants  

heavily relied on a judgment of this Court in  Balmadies  

Plantations Ltd. and Anr. v. The State of Tamil Nadu  AIR  

1972 SC 2240 and also a standing order of the Board of  

Revenue  of  the  erstwhile  Madras  Province  dated  19th  2 The expression  jenmi  etymologically means the holder of  jenmom  rights in a  piece  of  land.   Though  the  expression  is  defined  in  some of  the  enactments  pertaining to the present State of Kerala, such definitions are enactment specific  but not comprehensive to describe the full legal contours of the jenmom rights. 3 In  Malabar  the  exclusive  right  to,  and  hereditary  possession  of,  the  soil  is  denoted by the term jenmam which means birthright and the holder thereof is  known as jenmi, jenmakaran or mutalalan.   Until the conquest of Malabar by the  Mahomedan princes of Mysore, the jenmis appear to have held their lands free  from  any  liability  to  make  any  payment,  either  in  money  or  in  produce,  to  government  and  therefore  until  that  period,  such  an  absolute  property  was  vested in them as was not found in any other part of the Presidency.  The late Sir  Charles  Turner  after  noticing  the  various  forms  of  transactions  prevalent  in  Malabar remarked that they pointed to an ownership of the soil as complete as  was enjoyed by a freeholder in England.

These  jenmis  have  been  from time immemorial  exercising  the  right  of  selling,  mortgaging,  or  otherwise  dealing  with  the  property.   They  had  full  absolute  property  in  the  soil.   (Ref.  “Land  Tenures  in  the  Madras  Presidency”, S. Sundararaja Iyengar, Second Edition, Page 49-50).

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March 1888 and argued that earlier full Bench decision of  

the Kerala High Court in S. Sabhayogam v. State of Kerala,  

AIR 1963 Kerala 101 required a reconsideration.  

9. On the other hand, the State of Kerala took the stand  

that  subsequent  to  the  extension of  the  ryotwari  

settlement  to the Malabar  area of the erstwhile Madras  

Province, the jenmis ceased to be the absolute owners and  

proprietors  of  the  lands  held  by  them.  The  ryotwari  

settlement had the effect of transferring the ownership of  

subsoil  (minerals)  to  the  Government.   The  ryotwari  

pattadars rights are only confined to the surface.   

10. The  High  Court  rejected  the  contentions  of  the  

petitioners.  The High Court attempted to distinguish the  

decision of this Court in Balmadies Plantations (supra):

“Even  though  there  is  some  force  in  the  contention  of  the  petitioners,  the  above  observations  of  the  Supreme  Court  are  not  inconformity  with  the  observations  made  by  the Full Bench (which followed the decision of  the  Supreme  Court  in  Kunhikoman’s  case),  that does not mean that the view taken by the  Full  Bench  is  not  correct,  because  it  can  be  seen  from  paragraph  14  of  the  above  judgment  itself  that  the  Supreme  Court  has  observed  that  in  the  Kerala  case  documents  were  produced  and  on  the  basis  of  the  documents,  the Court  took the view that  the

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nature  of  rights  has  changed  after  the  Ryotwari settlements.”  

11. We  must  confess  that  we  have  some  difficulty  to  

understand the exact purport of the above extract.   Be  

that as it may.  The High Court recorded two conclusions  

(1) that the earlier full Bench decision of the Kerala High  

Court in the case of  S.  Sabhayogam case (supra) did not  

require  any  reconsideration  as  contended  by  the  

petitioners;  and  (2)  the  lands  in  question  cannot  be  

classified any more as jenmom lands but are lands held on  

a ryotwari patta.

“The  State  has  produced  certain  documents to show that the lands are Ryotwari  lands. Ext.R1(a) produced will show that there  are only two categories of lands, Ryotwari and  Inam.   Thus,  on  a  consideration  of  the  documents  produced  by  the  State  and  on  a  consideration  of  the  decisions  cited,  we  are  satisfied  that  the  decision  reported  in  S.  Sabhayogam  v.  State  of  Kerala  –  AIR  1963  Kerala 101 – does not require reconsideration  in  the  light  of  the  decision  of  the  Supreme  Court  in  Balmadies  Plantations  v.  State  of  Tamil  Nadu – AIR 1972 SC 2240.  Hence, we  hold that the lands in question are not jenmom  lands and they are Ryotwari patta lands.”

12. In view of such a conclusion the High Court rejected  

the  submission  that  the  petitioners  are  entitled  to  the  

rights over the subsoil relying upon certain passages from

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Secretary of State v. Sri Srinivasachariar, AIR 1921 PC 1, T.  

Swaminathan (Dead) and Another v. State Of Madras and  

others,  AIR 1971 Mad 483,  Sashi Bhushan Misra v. Jyoti   

Prasad  Singh  Deo,  AIR  1916  PC  191,  Kaliki  Subbarami  

Reddy  v.  Union  of  India,  ILR  1969  AP  736  and  

Gangarathinam v.  State  of Tamil  Nadu,  1990 TNLJ 374;  

and  certain  recitals  (in  Malayalam)  made  in  the  patta  

issued  to  one  of  the  petitioners  before  it  which  is  

translated by the High Court as follows:

“The assessment shown in the pattayam is the  share  due  to  the  Government  for  the  agricultural  produce  on  the  surface  of  the  property. If minerals are found in the property  and the minerals are worked by the pattadar  with regard to those properties a separate tax  is to be paid in addition to the tax shown in the  pattayam.”

13. The High Court though referred to the standing order  

of the Madras Revenue Board dated 19th March 1888, it did  

not record any conclusive finding on the effect of the said  

order.

14. Before us the same submissions which were made  

before the High Court were repeated by both the parties,

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therefore, we are not elaborating the submissions made  

before us.

15. Before we examine the correctness of the judgment  

under appeal, we deem it necessary to take note of the  

legal position regarding the rights over minerals as they  

obtain in England.  Halsbury’s Laws of England4 state the  

legal position:  

“19.   Meaning  of  ‘land’  and  cognate  terms.   Prima facie ‘land’ or ‘lands’ includes everything on   or under the surface, although this meaning has in   some cases been held  to  have been  restricted  by   the context.  ‘Soil’ is apt to denote the surface and   everything  above  and  below  it,  but  similarly  its   meaning may be restricted by the context so as to   exclude  the  mines.  ‘Subsoil’  includes  everything   from the surface to the centre of the earth…….

20……Mines, quarries and minerals in their original   position  are  part  and  parcel  of  the  land.   Consequently  the owner of  surface land is entitled   prima facie to everything beneath or within it, down   to  the  centre  of  the  earth.   This  principle  applies   even where title to the surface has been acquired by   prescription, but it is subject to exceptions.   Thus,   at common law, mines of gold and silvery belong to   the Crown, and by statute unworked coal which was,   at the restructuring date, vested in the British Coal   Corporation  is  vested  in  the  Coal  Authority.   Any   minerals  removed  from  land  under  a  compulsory   rights order or opencast working of coal become the   property  of  the  person  entitled  to  the  rights   conferred by the order.  The property  in petroleum   existing in its natural condition in strata is vested by   statute in the Crown.”  

4 [Vol.31, 4th Ed. pp.28-29]

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16. We are required to examine whether the law of this  

country and more particularly with reference to Malabar  

area regarding the rights over the mines and minerals is  

the same as it obtains in England or different.

17. By the time South India came under control of the  

British  Government,  there  were  in  vogue  innumerable  

varieties of land tenures in  various parts  of South India  

which eventually came to be called the Madras Presidency.  

The  history  of  these  tenures  and  how they  were  dealt  

under  the  various  laws  made  either  by  the  East  India  

Company  government  or  the  British  government  

(hereinafter in this judgment both the above are referred  

to as ‘British’ for the sake of convenience) was examined  

in detail in two seminal works titled - the Land Systems of  

British India by Bedan Henry Powell first published in 1892  

and  Land  Tenures  in  the  Madras  Presidency  by  S.  

Sundararaja Iyengar,  published in 1916.

18. Both  the  above-mentioned  works  examined  the  

nature and legal contours of various kinds of land tenures  

in vogue. While Powell’s book dealt  with the pan Indian

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situation, Iyengar’s book is confined to Madras presidency  

alone.   Both the books took note of the existence of a land  

tenure known as jenmom in the present State of Kerala.

19. The history of the land tenures  in  South India  and  

salient features of  jenmon  rights or the rights of a  jenmi  

fell for the consideration of this Court on more than one  

occasion.   Two  Constitution  Benches  of  this  Court  had  

occasion  to  examine  the  above  questions  in  Karimbil  

Kunhikoman v.  State  of  Kerala  [AIR  1962  SC  723],  and  

Balmadies Plantations Ltd. and Anr. v. The State of Tamil   

Nadu  [AIR  1972  SC  2240],  wherein  their  Lordships  

examined in  some detail  the  nature  of  land tenures  as  

they existed  in  the  erstwhile  Madras  province generally  

and the Malabar area specifically.

20. In  the case of  Kunhikoman  (supra),  this  Court  held  

that there were two varieties of tenures in existence in the  

erstwhile province of Madras.  Those tenures were known  

as  landlord tenures and ryotwari  tenures.   It was held  

by this Court that the landlord tenures were governed by  

the various enactments in force from time to time whereas

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the ryotwari tenures were governed by the standing orders  

of the Board of Revenue - in other words the orders issued  

by the Executive Government of the Madras province5.   

21. Eventually,  the  landlord  tenures in  the  erstwhile  

province  of  Madras  came  to  be  governed  by  the  

enactment  known as Madras Estates Land Act,  No. 1 of  

1908 which admittedly did not apply to Malabar area.6

22. The  Madras  Estates  Land  Act,  1908,  which  

extensively  dealt  with  the  rights  and  obligations  of  the  

landlords/landholders owning an estate (popularly known  

as  Zamindars)  expressly  recognises  the  right  of  the  

landholder to reserve mining rights while admitting a ryot  

to  the  possession  of  the  ryoti land.7 By  necessary  

implication  it  follows  that  the  landholder  had  the  legal  

right  and  title  to  the  minerals/subsoil  over  the  lands  

5 Kunhikoman case – Para 12.  …..The usual feature of land-tenure in Madras was the ryotwari form   but in some districts, a landlord class had grown up both in the northern  and southern parts of the   Presidency of Madras as it was before the Constitution.  The permanent settlement was introduced in   a part of the Madras Presidency in 1802.  There were also various tenures arising out of revenue free   grants all over the Province (see Chap. IV, Vol. III of Land Systems of British India by Baden Powell)   and  sometimes in  some districts  both kinds of tenures,  namely, landlord tenures  and  the ryotwari   tenures were prevalent.   There were various Acts, in force in the Presidency of Madras with respect to   landlord  tenures  while  ryotwari  tenures  were  governed  by the  Standing  Orders  of  the  Board  of  Revenue. 6 Para 12 of Kunhikoman (supra) - …..Eventually, in 1908, the Madras legislature passed the Madras  Estates Land Act, No. 1 of 1908 ………………… This Act applied to the entire Presidency of Madras  except the Presidency town of Madras, the district of Malabar and ……. 7 Section  7  –  Reservation  of  mining  rights -   Nothing  in  this  Act  shall  affect  any  right  of a  landholder to make a reservation of mining rights on admitting any person to possession of ryoti land.

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comprising his estate and he is legally entitled either to  

grant the mining rights to the  ryot or withhold the same.  

This implication which we drew gets fortified by Section 3  

of Estates Abolition Act which expressly declares that with  

effect from the ‘notified date’ - a defined expression under  

Section  1(10),  the  estate  with  all  the  assets  including  

mines and minerals shall stand transferred to and vest in  

the  State.  If  the  minerals/subsoil  did  not  belong to  the  

estate  holder,  there  was  no  need  to  make  an  express  

declaration such as the one made in Section 3(b).8

23. Similarly, it  can also be noticed that  under various  

enactments abolishing the various lands tenures in South  

India such as  inams etc., express provisions were made  

that  the  mines  and  minerals  existing  in  such  abolished  

tenures  shall  stand  transferred  to  the  Government  and  

vest in the Government.  See, for example, Section 2-A9 of  

The Andhra Pradesh (Andhra Area)  Inams (Abolition and  8 Section 3(b) -   the entire estate including minor imams (Post-settlement or pre-settlement) included   in the assets of the zamindari  estate at the permanent settlement of that  estate; all communal lands   and porambokes; other non-ryoti lands; waste lands; pasture lands; Lanka lands; forests; mines and  minerals; quarries; rivers and streams; tanks and irrigation works; fisheries; and ferries, shall stand  transferred to the Government and vest in them, free of all encumbrances; and the Andhra Pradesh   (Andhra Area) Revenue Recovery Act, 1864 the Andhra Pradesh (Andhra Area) Irrigation Cess Act,   1865 and all other enactments applicable to ryotwari areas shall apply to the estate; 9  2-A. Transfer to, and vesting in the Government of all communal lands, porambokes etc. in  inam lands -   Notwithstanding anything contained in this Act all communal lands and porambokes,  grazing lands, waste lands, forest lands,  mines and querries, tanks,  tank-beds and irrigation works,   streams and rivers, fisheries and ferries in the inam lands shall stand transferred to the Government   and vest in them free of all encumbrances.

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Conversion into Ryotwari) Act, 1956.  We must remember  

that Andhra area of the present State of Andhra Pradesh  

was part of the old Madras Province.

24. State of Andhra Pradesh v. Duvvuru Balarami Reddy  

& Ors.10 was a  case  where the  respondents  before this  

Court secured a lease of a piece of land in an inam village  

(shrotriem) and sought to carry on mica mining operation  

and  applied  for  permission  from  the  State  of  Andhra  

Pradesh under the Mineral Concession Rules, 1949 made  

under  the  Mines  &  Minerals  Regulation  &  Development  

Act,  1948.   The  question  was  whether  the  lessor  

(shrotriemdar)  had  rights  over  the  subsoil/minerals  and  

whether  he  could  pass  rights  therein  by  a  lease.11  A  

Constitution Bench of this Court examined the rights of the  

Inamdar under the legal regime that existed in the Madras  

province and came to the  conclusion on the  basis  of  a  

decision  of  the  Privy  Council12 that  every  Inamdar  10

AIR 1963 SC 264   

11  The main question therefore that falls for decision in these appeals is whether shrotriemdars can be   said to have rights in the minerals. (para 7) 12 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  Secy. Of State for India v. Srinivasachariar,  48 Ind App 56 : (AIR 1921 PC 1).  That case came on  appeal to the Judicial Committee from the decision of the Madras High Court in Secy. Of State for   India  v.  Srinivasachariar,  ILR 40  Mad 268 :  (AIR 1918  Mad  956).   The  controversy before the   Madras  High  Court  was  with  respect  to  a  shrotriem  inam  which  was  granted  by the  Nawab  of  Carnatic in 1750 and had been enfranchised by the British Government in 1862. (para 7)

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necessarily  did  not  own  the  subsoil  rights.   Such  right  

depended upon the terms of the original grant – Inam.   It,  

therefore, follows that in a given case if the original grant  

of  Inam specifically  conveyed the subsoil  rights  (by the  

grantor),  the  Inamdar would  become  the  owner  of  the  

mineral wealth also.

25. The necessary inference is that the British recognised  

that the State had no inherent right in law to be the owner  

of all mineral wealth in this country.   They recognised that  

such  rights  could  inhere  in  private  parties,  at  least  

Zamindars and Inamdars or ryots claiming under them in a  

given case.

26. Coming to the  ryotwari  tenures, this Court held that  

they were governed by the standing orders issued from  

time to time by the Revenue Board. Under the ryotwari  

system land was given on lease by the government to the  

       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 passed 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 the judgment under appeal.  This decision thus   establishes that  the mere fact that  a  person is the holder  of an  inam grant  would not by itself by  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  would depend upon the language used in the grant.  If there are  no words in the grant from which the grant of sub-soil 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.  (para 8)

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ryot under a  patta.   Noticing the salient features of the  

ryotwari  system  as  explained  in  various  authoritative  

works, this Court opined that “though a ryotwari pattadar  

is  virtually  like  a  proprietor  and  has  many  of  the   

advantages of such a proprietor”, such pattadar was never  

considered a proprietor of land but only a tenant.13

27. We must remember that in the case of  Kunhikoman  

(supra), the petitioners did not claim any adjudication of  

their  rights as holders of  jenmom  lands.   On the other  

hand, the appellants asserted that they were holders of  

ryotwari pattas issued according to ryotwari settlement in  

13 Para  13  of  Kunhikoman  (supra)  –  ……The  other  class  of land-tenures  consisted  of  ryotwari   pattadars which were governed by the Board’s Standing Orders, there being no Act of the legislature  with respect to them.  The holders of ryotwari pattas used to hold lands on lease from Government.   The basic idea of ryotwari  settlement is that  every bit of land is assessed to a certain  revenue and  assigned a survey number for a period of years, which is usually thirty and each occupant of such land   holds it subject to his paying the land-revenue fixed on that land.   But it is open to the occupant to   relinquish  his  land  or  to take new land  which  has  been  relinquished  by some other  occupant  or   become otherwise available on payment of assessment (see Land Systems of british India by Baden- Powell, Vol. III,  Chap.  IV S. II,  p. 128).   Though,  theoretically, according to some authorities the  occupant of ryotwari land held it under an annual lease (see Macleane, Vol. I Revenue Settlement, p.   104), it appears that in fact the Collector had no power to terminate the tenant’s holding for any cause   whatever except failure to pay the revenue or the ryot’s own relinquishment  or abandonment.   The  ryot is generally called a tenant, of Government but he is not a tenant from year to year and cannot be   ousted as long as he pays the land revenue assessed.   He has also the right to sell or mortgage or gift   the land or lease it and the transferee becomes liable in his place for the revenue.   Further, the lessee   of a ryotwari  pattadar  has no rights except those conferred under the lease and is generally a sub- tenant at will liable to ejectment at the end of each year.    In the Manual of Administration, as quoted   by Baden  Powell,  in  Vol.  III  of Land  Systems of British  India  at  p.  129,  the  ryotwari  tenure  is  summarized as that   

“of a tenant of the State enjoying a tenant-right which can be inherited, sold, or burdened for  debt in precisely the same manner as a proprietary right, subject always to payment of the revenue due  to the State”.  

Though therefore the ryotwari  pattadar  is virtually like a  proprietor  and  has  many of the   advantages  of  such  a  proprietor,  he  could  still  relinquish  or  abandon  his  land  in  favour  of the   Government.    It  is  because  of this  position  that  the  ryotwari  pattadar  was  never  considered  a  proprietor of the land under his patta, though he had many of the advantages of a proprietor.

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the  erstwhile  State  of  Madras  under  the  revenue Board  

Standing Order.   This Court further recorded:-

“……..it is not in dispute that the ryotwari system was   introduced in the South Canara District in the earlier   years of this century”

28. The  question  before  this  Court  was  whether  the  

holder of such a ryotwari patta could be called the holder  

of  an  estate  within  the  meaning  of  the  Kerala  Agrarian  

Relations Act and therefore, precluded by Article 39A of  

the Constitution to claim the benefit of the fundamental  

rights under Articles 19(1)(d) and 31 of the Constitution.

29. The  legal  nature  of  the  rights  of  a  jenmi  was  

considered  in  greater  detail  in  the  case  of  Balmadies  

Plantations (supra).   At para 6 of the said judgment, the  

Constitution Bench recorded:-

“6.   ………Originally the janmis in Malabar were absolute   proprietors of the land and did not pay land revenue.  After   Malabar was annexed by the British in the beginning of the   19th century, the janmis conceded the liability to pay land   revenue……..”  

30. This Court took note of a decision of the Madras High  

Court in  Secretary of State v. Ashtamurthi  [(1890) ILR 13  

Mad 89]14 where the Madras High Court recorded:- 14 In the said case, the Madras High Court had to deal with the rights of a jenmi whose lands were   leased out to a third party by the Collector (State) without reference to the jenmi and when the tenant   defaulted  in  the  payment  of revenue,  property was attached  and  sold under  the  provisions of the  Madras Revenue Recovery Act.  The jenmi successfully challenged the legality of such a sale.

Page 18

“..  At  the  annexation  of  Malabar  in  1799,  the  Government disclaimed any desire to act as the  proprietor  of  the  soil,  and  directed  that  rent  should  be  collected  from  the  immediate  cultivators.   Trimbak  Ranu  v.  Nana  Bhavani  (1875) 12 Bom HCR 144 and Secretary of State v.  Vira Rayan (1886) ILR 9 Mad 175 thus limiting its  claim to  revenue.   Further  in  their  despatch  of  17th December 1813 relating to the settlement of  Malabar  the  Directors  observed  that  in  Malabar  they had no property in the land to confer, with  the exception of some forfeited estates.  This may  be  regarded  as  an  absolute  disclaimer  by  the  Government of the day of any proprietary right in  the janmis’ estate. …. .”

31.   This  Court  in  Balmadies  Plantations case  (supra)  

quoted with approval the above extracted passage from  

Ashtamurthi’s (supra) judgment.    

32. It  was  specifically  argued  on  behalf  of  Balmadies  

Plantations  that  by virtue  of  a  resettlement  which took  

place  in  1926,  the  jenmom  rights  were  converted  into  

ryotwari tenure.    This  Court  on  examination  of  the  

relevant standing orders reached the conclusion that the  

effect  of  the  Resettlement  of  1926  was  to  retain  the  

jenmom estates and not to abolish the same and convert  

into ryotwari estates.15   

15 Para  11  of  Balmadies  (supra) ……..  It  would  appear  from the  above that  the  effect  of the  resettlement of 1926 was to retain the janmam estates and not to abolish the same or to convert them   into ryotwari estates.   There was merely a change of nomenclature.   Government janman lands were  called the new holdings,  while private janmam lands were called the old holdings.    In respect of  janmabhogam (janmi’s share) relating to Government janman lands,  the order further  directed that   the  amount  to  be  paid  to  the  Government  should  include  both  the  taram  assessment  and   janmabhogam.   It is difficult, in our opinion, to infer from the above that janmam rights in the lands  

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33. But  neither  of  the  cases  dealt  with  the  question  

whether  a  jenmi  is  entitled  either  before  or  after  the  

abovementioned settlement of 1926 to the subsoil rights  

or minerals in the land held by him.  Therefore, we are  

required to decide the same.     

34. In Balmadies Plantations case (supra) this Court took  

note of two facts – (1)  that  originally  jenmis  of Malabar  

area were absolute proprietors of the land; and (2) when  

Malabar  area  was  annexed,  the  British  expressly  

disclaimed  the  proprietorship  of  the  soil.   These  

conclusions  were  recorded  on  the  basis  of  Ashtamurthi  

case (supra).   

35. Ashtamurthi case (supra) itself relies upon an earlier  

decision of the Madras High Court in Secretary of State v.   

Vira  Rayan  [(1886)  ILR  9  Mad  175]16 wherein  the High  

Court  found  that  the  land  in  dispute  appertains to  the  

District of Malabar and recorded as follows:-

in  question  were  extinguished  and  converted  into  ryotwari  estates.    The  use  of  the  word  Janmabhogam on the contrary indicates that the rights of janmis were kept intact. 16 It was an appeal decided by a Division Bench of the Madras High Court (Sir Charles A. Turner,   Kt., Chief Justice, and Mr. Justice Muttusami Ayyar).  The appeal arose out of a suit filed by the State   seeking declaration that certain lands (forest lands) which were the subject matter of dispute in the   said  suit  were  the  property  of  the  government  and  a  consequential  injunction  restraining  the  defendants from in any way interfering with the rights of the Government. The defendants asserted  their proprietary rights over the lands in dispute.    

Page 20

“ …………and we agree with the Judge that there   is no presumption in that district and in the tracts   administered as part  of  it,  that forest lands are   the  property  of  the  Crown.    At  the   commencement of the century it was the policy   of the Government to allow all lands to become   private  estates  where  that  was  possible.   Despatch of Lord Wellesley quoted in Baskarappa   v. The Collector of North Canara [I.L.R., 3 Bom.,   550].  The despatch and order  of  the  Governor- Gneral in Council on the annexation of Malabar,   dated the 31st December 1799 and the 18th June  1801, have not been adduced, but their purport   appears from the despatch of the 19th July 1804,  quoted  in  Vyakunta  Bapuji  v.  Government  of   Bombay [12 Bom. H.C.R. 144].   It was intimated   that  it  never  could  be  desirable  that  the   Government itself should act as the proprietor of   the lands and should collect the rents from the   immediate cultivators of the soil.  When in 1808   the  Board  of  Revenue  suggested  that  an   augmentation of revenue might be derived from  waste  lands  reserved,  they  were  informed  that   the Government did not look to any advantage of   that nature beyond the benefit of increasing the   amount of  the public taxes in proportion to the   existing  taxes  of  the  country  (Fifth  Report,   Appendix  30,  page  902.   Revenue  and  Judicial   Selection, Volume I, p. 842).   It will be seen that   at  that  time  the  Government  so  far  from  abrogating the Hindu law intended to assert  no   proprietary right to the waste, but limited itself to   its claim to revenue.   At the time Malabar came  under British rule, all the forests were claimed as   private  property  (I.R.R.,  3 Bom. 586).    In  their   despatch of 17th December 1813, relating to the  settlement  of  Malabar,  the  Directors  observed   that in Malabar they had no property in the land   to  confer,  with  the  exception  of  some forfeited   estates  Revenue  Selection,  Volume  I,  p.  511).   Although  a  different  policy  was  subsequently   pursued in other districts, and, especially in more   modern  times,  rules  have  been  framed  for  the   sale of waste lands, there is nothing to show that   any such change was notified in Malabar up to a   period  much  later  than  that  at  which  there  is   considerable  evidence   to  show  that  the   respondents Nos. 1 and 2 were in possession of   and recognised as proprietors of  the lands they   claim by Government officials….”

Page 21

36. This Court in Balmadies Plantations case (supra) after  

taking note of the above legal position with reference to  

the jenmom lands of Malabar rejected the contention that  

as  a  result  of  the  resettlement  of 1926,  jenmom  rights  

stood converted into ryotwari estate.17

37. We have already taken note of the legal position with  

respect to the minerals obtaining subsoil in the lands held  

under landlord tenures (zamindari or inam estates),  and  

also the law of England, we find it difficult to believe with  

respect  to  ryotwari  tenures  in  the  British  India  and  

particularly  the  Madras  province,  the  government  

assumed the  ownership  of  the  subsoil.   On  the  contra,  

there is positive evidence in the Board Standing Order No.  

10  dated  19.03.188818 (hereinafter  referred  to  as  BSO  17 Para 11.  …. It would appear from the above that the effect of the resettlement of 1926 was to retain   the janmam estates and not to abolish the same or to convert them into ryotwari estates.   There was   merely a change of nomenclature.   Government janmam lands were called the new holdings, while   private janmam  lands were called the old holdings.    In  respect  of janmabhogam (janmi’s  share)   relating to Government  janman  lands,  the order  further  directed that  the account to be paid to the   Government  should  include  both  the  term  assessment  and  janmabhogam.    It  is  difficult,  in  our  opinion, to infer from the above that janmam rights in the lands in question were extinguished and   converted into ryotwari estates.   The use of the word ‘Janmabhogam’ on the contrary indicates that   the rights of janmis were kept intact. 18 RESOLUTION – dated 19th March 1888, No. 277.

In supersession of the existing Standing Order, the following is issued as Standing Order No.  10 :-

1. The State lays no claim to minerals -

Page 22

No.10) that the State did not claim any proprietary right  

over  the  mineral  wealth  obtaining  in  lands  held  over  a  

ryotwari  patta or  in  jenmom lands  in  Malabar.     The  

State/British in express terms declared by the said order  

dated 19.03.1888 that  while “it  lays no claim” at  all  to  

minerals

(a)  In  estates  held  on  sanads  of  permanent  settlement (b) In enfranchised inam lands (c) In religious service tenements confirmed under  the inam rules on perpetual service tenure. (d) In lands held on title – deeds, issued under the  waste  land  rules,  prior  to  7th October,  1870,  in  

G.O. 26th May, 1882, No. 511 (Notification, paragraph 1). (a) In estates held on sanads of permanent settlementG.O. 28 th October 1882 No.1181(b) In  

enfranchised inam lands G.O.  28th April  1881 No.861(c)  In  religious service tenements  confirmed under  the inam  

rules on perpetual service tenure. (d) In lands held on title – deeds, issued under the waste land rules,  prior  to 7 th October,  

1870, in which no reservation of the right of the State to minerals is made.

2. The right  of the State in  minerals  is limited in  the following cases to a share  in  the   produce of the minerals worked, commuted into a money payment,  if thought necessary, by  Government, in like manner with and in addition to the land assessment :-

G.O. 8th October 1883 No.1248.(a) In lands occupied for agricultural purposes under ryotwari  pattas  G.O.  23rd January 1881 No.121(b) In   janmom lands  in  MalabarG.O.  16 th December  1881  No.1384 Persons  intending  to  work  minerals  in  those  lands  should  give  notice  of  their  intention  to  the   

Collector of the district,  specifying the lands in  which they intend to carry on mining operation and   should pay in  two half-yearly instalments  a  special  assessment  for minerals  in  addition  to the  land   assessment at the following rates:-

      Per acre (Rs.) 1. For mining for gold 5 2. For mining for metals other than gold 2 3. For mining for diamonds and other precious stones 15 4. For mining for coal, lime-stone or  quarrying for building stone … (Such rates as  

may be fixed by the Board from time to time

The rates will be doubled if mining operations are carried on without giving notice to the  

Board’s proceedings dated 10th July 1882 No.1751Collector.  The special assessment will be  entered in the patta granted for the land and collected under the provisions of Act II of 1834 Madras.   No  charge  will  be   made   for merely prospecting for minerals  in  patta lands if mines are not   regularly worked.  No remission will  be granted  in  respect of any land  rendered unfit  for surface  cultivation by the carrying on of mining operations.  This rule does not of course afeet in any way the   right which all holders of lands on patta possess of digging wells in their lands and of disposing of the  gravel and stones which may be thrown up in the  course of such excavation.

Page 23

which no reservation  of  the right  of  the State  to  minerals is made.

the State/British claimed a limited right in minerals w.r.t.  

lands

(a)    occupied  for  agricultural  purposes  under RYOTWARI PATTAS”,  

(b) JENMOM LANDS IN MALABAR”    

[emphasis supplied]

38. The  limited  right  claimed  is  “to  a  share  in  the  

produce of the minerals worked, if thought necessary by  

government.”  That right was exercised by the same order  

with reference to gold,  diamonds and other  metals  and  

w.r.t. minerals like coal etc. it was left to the discretion of  

the government to be exercised from time to time.  By  

necessary implication, it follows that the State recognised  

the legal right of the land holder to the subsoil metals and  

minerals  –  whatever  name  such  right  is  called  –  

proprietary or otherwise.

39. In view of BSO No. 10 referred to above, we need not  

unduly trouble  ourselves with the metaphysical  analysis  

whether  jenmom rights  still  subsist  in  lands  of  Malabar  

area or whether they are converted into  ryotwari lands.

Page 24

Apart from the legal implication of BSO No.10 with respect  

to  Malabar,  this  Court  had  already  opined  that  British  

never claimed proprietary rights over the soil and jenmis  

were recognised to be the absolute owners of the soil.  It is  

obvious from the BSO No.10 that the British never claimed  

any  proprietary  right  in  any  land  in  the  Old  Madras  

Province whether estate land and therefore both ryotwari  

pattadars and  jenmis must  also  be  held  to  be  the  

proprietors  of  the  subsoil  rights/minerals  until  they  are  

deprived of the same by some legal process.     Even if we  

accept  the  conclusion  recorded  in  the  judgment  under  

appeal that the lands in question have been converted to  

be  lands  held  on  ryotwari  settlement,  the  conclusion  

recorded by us above w.r.t. subsoil/mineral rights will still  

hold good for the reason that even in the lands held on  

ryotwari patta the British did not assert proprietary rights.

40. Nothing is brought to our notice which indicates that  

the British intended and in fact did deprive the  ryotwari  

land holders of the right to subsoil/minerals.   Subsequent  

to 19th March, 1888, no law to the contra is brought to our  

notice.   Nor  any  law made  by  the  Republic  of  India  is

Page 25

brought  to  our  notice.   Though  we  notice  laws  to  the  

contra w.r.t. the lands held under landlords tenures.

41. Article  29419 of  the  Constitution  provides  for  the  

succession  by  the  Union  of  India  or  the  corresponding  

State, as the case may be, of the property which vested in  

the British Crown immediately before the commencement  

of  the  Constitution.   On  the  other  hand,  Article  29720  

makes an express declaration of vesting in the Union of  

India of all minerals and other things of value underlying  

the ocean.

“297. All  lands,  minerals  and  other  things  of  value underlying the ocean within the territorial  waters or the continental shelf of India shall vest  in the Union and be held for the purposes of the  Union.”  

[as originally enacted21] 19 294 -  As from the commencement of this Constitution –  

(a)  all property and assets which immediately before such commencement were vested in His  Majesty for the purposes of the Government  of the Dominion of India  and all  property and assets  which immediately before such commencement  were vested in His Majesty for the purposes of the   Government of each Governor’s Province shall vest respectively in the Union and the corresponding   State, and

(b) all rights, liabilities and obligations of the Government of the Dominion of India and of   the Government of each Governor’s Province whether arising out of any contract or otherwise, shall   be the rights, liabilities and obligations respectively of the Government of India and the Government   of each corresponding State,

Subject  to  any  adjustment  made  or  to  be  made  by reasons  of  the  creation  before  the   commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal,   East Bengal, West Punjab and East Punjab. 20 Section 297 was amended by the Constitution (Fortieth Amendment) Act, 1976.   21

297 –  Things of value within territorial waters or continental shelf and resources of the  exclusive economic zone to vest in the Union

(1) All  lands,  minerals  and  other  things  of  value  underlying  the  ocean  within  the   territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the  Union and be held for the purposes of the Union.

(2) All other  resources of the exclusive economic zone of India shall  also vest in the  Union and be held for the purposes of the Union.

(3) The limits of the territorial  waters,  the continental  shelf,  the exclusive economic  zone, and other maritime zones, of India shall be such as may be specified, from time to time, by or  

Page 26

The  contradistinction  between  both  the  articles  is  very  

clear and, in our opinion, is not without any significance.  

The makers of the Constitution were aware of the fact that  

the mineral wealth obtaining in the land mass (territory of  

India) is not vested in the State in all cases.  They were  

conscious of  the  fact  that  under  the  law,  as  it  existed,  

proprietary  rights  in  minerals  (subsoil)  could  vest  in  

private parties who happen to own the land.  Hence the  

difference in the language of the two Articles.  

42. The above conclusion of ours gets fortified from the  

fact that under the Mineral Concession Rules, 1960 framed  

by  the  Government  of  India  in  exercise  of  the  powers  

conferred in Section 3 of the Mines & Minerals Regulation  

&  Development  Act,  1957,  different  procedures  are  

contemplated and different sets of rules are made dealing  

with  the  grant  of  mining  leases  in  respect  of  the  two  

categories of lands in which the minerals vest, either in  

the  Government  or  in  a  person  other  than  the  

Government.  While Chapter 4 of the said rules deals with  

the  lands  where  the  minerals  vest  in  the  Government,  

under any law made by Parliament.

Page 27

Chapter 5 deals with the lands where the minerals vest in  

a  person other  than the Government.   Correspondingly,  

the Minor Mineral Concession Rules made by the State of  

Kerala also recognises such a distinction in Chapters V and  

VI.

43. In those areas of the Old Madras Province to which  

the  Estates  Land Act  applied,  the  minerals  came to  be  

vested  in  the  State  by  virtue  of  the  subsequent  

statutory/declarations (which are already taken note of).  

But  with  reference  to  those  areas  where  the  above-

mentioned Act  had no application,  such as  the Malabar  

area of the Old Madras Province, which is now a part of the  

State of Kerala, or areas where the ryotwari system was in  

vogue, the proprietary right to the subsoil should vest in  

the holder of the land popularly called pattadar as no law  

in the pre or post constitutional period is brought to our  

notice which transferred such right to the State.

44. We must also hasten to add that even with reference  

to those areas of Old Madras Province, whether the ryots  

securing  pattas pursuant to the abolition of the estates  

under  the  Estates  Abolition  Act,  1948  etc.,  would  be

Page 28

entitled to subsoil rights or not is a question pending in  

other  matters  before  this  Court.  Whether  the  patta  

granted pursuant to the provisions of the Estate Abolition  

Act  etc.,  would  entitle  the  pattadar to  subsoil/mineral  

rights or is confined only to surfacial rights is a matter on  

which we are not expressing any opinion in this case. We  

are  only  dealing  with  the  legal  rights  of  the  pattadars  

holding lands under the ryotwari system of the Old Madras  

Province, i.e. other than the lands covered by the Estates  

Land Act – Inam Lands.

45. That leaves us with another aspect of the matter.  We  

are required to examine the correctness of the conclusion  

recorded  by  the  High  Court  on  the  basis  of  the  four  

judgments referred to in para 12 (supra) that a  ryotwari  

pattadar is  not  entitled  to  the  subsoil  (minerals)  in  his  

patta land.   

46. The first decision relied upon is Secretary of State v.  

Sri  Srinivasachariar,  AIR  1921  PC  1.   In  our  view,  the  

reliance placed by the High Court on the abovementioned  

judgment is wholly misplaced.  It was a case where the  

holder of shrotriem inam granted some 160 years prior to

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the decision “by the Government that existed prior to the  

British  Government”  claimed  that  the  shrotriemdas  had  

unfettered rights to quarry stone in the shrotriem village  

without payment of any royalty.   The Privy Council held  

that  the  rights  of  the  shrotriemdas  depended upon the  

language  and  terms  of  the  original  grant.   We  have  

already  noticed  that  the  said  judgment  was considered  

and relied upon by this Court in Duvvuru Balarami Reddy  

case (supra).  What is important in the present context is  

that  the issue in  Sri  Srinivasachariar  (supra) is  not with  

reference  to  any  claim  of  subsoil  rights  in  a  land  held  

under ryotwari patta.  Whatever was decided in that case  

is wholly inapplicable to the rights of a ryotwari pattadar.  

Nowhere  it  was  laid  down  in  the  said  decision  that  

irrespective  of  the  nature  of  the  tenure  –  all  mineral  

wealth in this country vested in the Crown or the State.

47. The next  case relied upon by the High Court  is  T.  

Swaminathan (Dead) and Another v. State Of Madras and  

others,  AIR 1971 Mad 483.  A passage22 occurring in the  

said judgment was relied upon in support of the conclusion  22 So, as a ryotwari pattadar, he has every right to the use of the surface of the soil, but his proprietary  right,  if any, in  our view, does not  extend  to the minerals  of the soil.   It  was a well  established   proposition that all minerals underground belonged to the Crown, and now to the State, except in so  far as the State has parted with the same wholly or partly in favour of an individual or body.

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that  a  ryotwari  pattadar has  no  right  to  the  

subsoil/minerals.  It  is unfortunate that the Madras High  

Court opined that it is a well established proposition that  

all minerals underground belong to the Crown and now to  

the State. Such a statement of law is recorded without any  

explanation  whatsoever  nor  examination  of  any  legal  

principle.   From our  discussion so far,  we have already  

reached the conclusion that neither in England nor in this  

country, at least in the Old Madras Province, during the  

British regime, there was any such established proposition  

of law that all the minerals belong to the Crown.  On the  

other  hand,  the  available  material  only  leads  to  an  

inevitable conclusion otherwise.

48. The next case relied upon by the Kerala High Court is  

Sashi Bhushan Misra v. Jyoti Prasad Singh Deo,  AIR 1916  

PC 191.  This decision once again dealt with the rights of  

an inamdar particularly an inam which was not part of the  

Old  Madras  Province.   Therefore,  the  decision is  wholly  

irrelevant  in  deciding  the  rights  of  a  ryotwari  pattadar  

especially in the Old Madras Province.

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49. We are only sorry to notice that the next case relied  

upon by the Kerala High Court according to the judgment  

under appeal is ILR 1969 AP 736 titled  Kaliki Subbarami  

Reddy v. Union of India. We searched in vain to secure this  

judgment.  Though  there  is  a  case  reported  by  the  

abovementioned cause title, which was decided in 1979  

i.e. AIR 1980 AP 147 : 1980 (1) APLJ 117. At any rate, in  

the light of our earlier discussion, the observation23 relied  

upon by the judgment under appeal, allegedly from the  

above case, should not make any difference.

50. Equally  the  observations24 made  in  the  case  of  V.  

Gangarathinam v. State of Tamil Nadu,  1990 TNLJ 374 is  

without any basis.

51. The other material which prompted the High Court to  

reach the conclusion that the subsoil/minerals vest in the  

State is (a) recitals of a patta which is already noted by us  

earlier (in para 12) which states that if minerals are found  

in the property covered by the  patta and if the  pattadar  

exploits  those  minerals,  the  pattadar is  liable  for  a  23 “Not a single case has been cited before us in which it was held that a ryotwari pattadar is the owner  of sub-soil rights”. 24 “from the extracts given above, we do not think that it is possible to arrive at any other conclusion  except to hold that the State is the owner of the minerals underneath the surface.   Therefore, we agree  with the learned Advocate General that the State is the owner of the minerals”.

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separate tax in addition to the tax shown in the patta and  

(2)  certain  standing  orders  of  the  Collector  of  Malabar  

which  provided  for  collection  of  seigniorage  fee  in  the  

event of the mining operation being carried on.  We are of  

the  clear  opinion  that  the  recitals  in  the  patta or  the  

Collector’s standing order that the exploitation of mineral  

wealth in the patta land would attract additional tax, in our  

opinion, cannot in any way indicate the ownership of the  

State in the minerals.  The power to tax is a necessary  

incident  of  sovereign  authority  (imperium)  but  not  an  

incident of proprietary rights (dominium).  Proprietary right  

is  a  compendium  of  rights  consisting  of  various  

constituent, rights.   If a person has only a share in the  

produce of some property, it can never be said that such  

property vests in such a person.  In the instant case, the  

State  asserted  its  ‘right’  to  demand  a  share  in  the  

‘produce of the minerals worked’ though the expression  

employed is  right  –  it  is  in  fact  the Sovereign authority  

which is asserted.  From the language of the BSO No.10 it  

is  clear  that  such right  to demand the share could  be  

exercised only when the  pattadar or somebody claiming

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through the  pattadar,  extracts/works the minerals  –  the  

authority of the State to collect money on the happening  

of an event – such a demand is more in the nature of an  

excise duty/a tax.  The assertion of authority to collect a  

duty or tax is in the realm of the sovereign authority, but  

not a proprietary right.

52. On  the  other  hand,  it  appears  from the  judgment  

under appeal that the State of Kerala itself produced the  

BSO No.10 referred to (supra).  Unfortunately, neither the  

content of the said order nor the legal effect of the said  

order has been examined by the High Court and the High  

Court  with  reference  to  the  said  order  made  a  cursory  

observation as follows:

“The  State  has  also  produced  the  proceedings of the Board of Revenue, dated 19th  March,  1888  as  Ext.R1(L).  By  that  proceedings,  standing order No.10 is issued in supersession of  the existing standing order.   It  categorises  four  kinds of lands.  The first head is the estates held  on sanads of permanent settlement, second is the  enfranchised  inam  lands  and  the  third  is  the  religious  service tenements conferred under the  inam rules  on perpetual  service tenure  and the  fourth  is  the  lands  held  on  title-deeds,  issued  under the waste land rules,  prior  to 7th October  1870, in which no reservation of the right of the  State to minerals is made.”

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53. The only other submission which we are required to  

deal with before we part with this matter is the argument  

of the learned counsel for the State that in view of the  

scheme  of  the  Mines  and  Minerals  (Development  and  

Regulation)  Act,  1957 which prohibits  under  Section 425  

the  carrying  on  of  any  mining  activity  in  this  country  

except in accordance with the permit, licence or mining  

lease  as  the  case  may  be,  granted  under  the  Act,  the  

appellants cannot claim any proprietary right in the sub-

soil.    In  our  view,  this  argument  is  only  stated  to  be  

rejected.

54. Mines and Minerals Act is an enactment made by the  

Parliament to regulate the mining activities in this country.  

The said Act does not in any way purport to declare the  

proprietary rights of the State in the mineral wealth nor  

25 4.  Prospecting  or mining operations to be  under licence  or  lease  :  - (1)   No person  shall  undertake any reconnaissance,  prospecting  or mining  operations in  any area,  except under  and  in  accordance with the terms and  conditions of a reconnaissance permit or of a prospecting licence or,  as the case  may be, a mining lease, granted under this Act and the rules made thereunder]:  

Provided that  nothing in this sub-section shall  affect any prospecting or mining operations  undertaken  in  any area  in  accordance  with  the terms  and  conditions of a   prospecting  licence or   mining lease granted before the commencement of this Act which  is in force at such commencement.

Provided further  that  nothing  in  this sub-section shall  apply to any prospecting operations  undertaken by the Geological Survey of India,  the Indian  Bureau of Mines,  the Atomic  Minerals   Directorate  for  Exploration  and  Research  of the  Department  of  Atomic   Energy  of  the  Central   Government, the Directorates of Mining and Geology of any State Government ( by whatever name  called  ),  and  the  Mineral  Exploration  Corporation  Limited,  a  Government  Company within  the   meaning of Section 617 of the Companies  Act, 1956.

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does  it  contain  any  provision  divesting  any  owner  of  a  

mine of his proprietary rights.  On the other hand, various  

enactments made by the Parliament such as Coking Coal  

Mines (Nationalisation) Act, 1972 and Coal Bearing Areas  

(Acquisition  and Development)  Act,  1957  make  express  

declarations  under  Section  4  and  7  respectively26  

providing  for  acquisition  of  the  mines  and  rights  in  or  

over  the  land from  which  coal  is  obtainable.  If  the  

understanding of the State of Kerala that in view of the  

provisions  of  the  Mines  and  Minerals  Development  

(Regulation)  Act,  1957,  the  proprietary  rights  in  mines  

stand transferred and vest in the State, it would be wholly  

an unnecessary exercise on the part of the Parliament to  

26 Section 4 of Coking Coal Mines (Nationalisation) Act, 1972 – 4(1) On the appointed day, the  right,  title  and  interest  of the  owners  in  relation  to the  coking  coal  mines  specified in  the  First   Schedule shall stand transferred to, and shall vest absolutely in, the Central Government, free from all   incumbrances.

      (2)   For the removal of doubts, it is hereby declared that if, after the appointed day, any   other coal mine is found, after an investigation made by the Coal Board, to contain coking coal, the  provisions of the Coking  Coal Mines (Emergency Provisions)  Act,  1971,  shall,  until  that  mine is   nationalized by an appropriate legislation apply to such mine.

Section 7 of Coal Bearing Areas (Acquisition and Development) Act, 1957 – 7(1) If the  Central  Government is satisfied that coal is obtainable in the whole or any part of the land notified   under  sub-section (1) of section 4,  it  may, within  a period of two years from the date of the said   notification  or within  such further  period not  exceeding  one year  in  the aggregate as the Central   Government  may specify in  this  behalf,  by notification  in  the  Official  Gazette,  give notice of its   intention to acquire the whole or any part of the land or of any rights in or over such land, as the case  may be.

(2)   if no notice to acquire the land or any rights in or over such land is given under sub- section (1) within the period allowed thereunder, the notification issued under sub-section (1) of  section 4 shall cease to have effect on the expiration of three years from the date thereof.

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make laws such as the ones mentioned above dealing with  

the nationalisation of mines.

55. Even with regard to the minerals which are greatly  

important  and  highly  sensitive  in  the  context  of  the  

national  security  and also the  security  of humanity  like  

uranium -   the  Atomic  Energy  Act,  1962  only  provides  

under Section 527 for prohibition or regulation of mining  

27   Section  5  -  Control  over  mining  or  concentration  of  substances  containing uranium

(1) If the Central  Government is satisfied that any person is mining or is about to  mine any substance from which, in the opinion of the Central Government, uranium can be  or may reasonably be expected to be, isolated or extracted, or is engaged or is about to be  engaged in treating or concentrating by any physical, chemical or metallurgical process any  substance from which, in the opinion of the Central  Government,  uranium can be or may  reasonably be expected to be, isolated or extracted, the Central Government may by notice in   writing given to that person either --

(a) require him in conducting the mining operations or in treating or concentrating   the  substance  aforesaid  to  comply  with  such  terms  and  conditions  and  adopt  such  processes as the Central Government may in the notice, or from time to time thereafter,   think fit to specify, or

(b)  totally  prohibit  him  from  conducting  the  mining  operations  or  treating  or  concentrating the substance aforesaid.

(2)  Where  any terms  and  conditions  are  imposed on any person  conducting  any  mining operations or treating or concentrating any substance under cl. (a) of sub-section (1),   the Central Government may, having regard to the nature of the terms and conditions, decide   as to whether or not to pay any compensation to that person and the decision of the Central   Government shall be final :

Provided that where the Central Government decides not to pay any compensation,   it shall record in writing a brief statement giving the reasons for such decision.

(3)  Where  the Central  Government  decides to pay any compensation  under  sub- section (2),  the amount  thereof shall  be determined  in  accordance with  section 21 but in   calculating the compensation payable, no account shall be taken of the value of any uranium   contained in the substance referred to in sub-section (1).

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activity in such mineral.   Under Section 1028 of the Act, it  

is provided that the Government of India may provide for  

compulsory  vesting  in  the  Central  Government  of  

exclusive rights to work those minerals.  The said Act does  

not in any way declare the proprietary right of the State.

(4) Where any mining operation or any process of treatment or concentration of any  substance is prohibited under clause (b) of sub-section (1), the Central Government shall pay  compensation  to  the  person  conducting  the  mining  operations  or  using  the  process  of  treatment  or  concentration  and  the  amount  of such  compensation  shall  be determined  in   accordance with section 21 but in calculating the compensation payable, no account shall be  taken of the value of any uranium contained in the substance.

28   Section 10 - Compulsory acquisition of rights to work minerals

(1) Where it appears to the Central Government that any minerals from which in its  opinion any of the prescribed substances can be obtained are present in or on any land, either   in a natural state or in a deposit of waste material obtained from any underground or surface   working,  it  may by order  provide for compulsorily vesting in the Central  Government  the  exclusive right, so long as the order remains in force, to work those minerals and any other  minerals  which  it  appears  to the Central  Government  to be necessary to work with those   minerals, and may also provide, by that order or a subsequent order, for compulsorily vesting   in  the  Central  Government  any  other  ancillary  rights  which  appear  to  the  Central   Government  to be necessary for the  purpose of working  the minerals  aforesaid including   (without prejudice to the generality of the foregoing provisions)--

(a) rights to withdraw support;

(b)  rights  necessary for  the  purpose  of access  to  or  conveyance  of the  minerals   aforesaid or the ventilation or drainage of the working;

(c) rights to use and occupy the surface of any land for the purpose of erecting any  necessary buildings and installing any necessary plant in connection with the working of  the minerals aforesaid;

(d) rights to use and occupy for the purpose of working the minerals aforesaid any  land forming part of or used in connection with an existing mine or quarry, and to use or  acquire any plant used in connection with any such mine or quarry; and

(e) rights  to obtain a supply of water  for any of the purposes connected with the   working of the minerals aforesaid, or to dispose of water or other liquid matter obtained  in consequence of working such minerals.

(2) Notice of any order proposed to be made under this section shall be served by the  Central Government--

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56. Similarly, the Oilfields (Regulation and Development)  

Act,  1948  deals  with  the  oilfields  containing  crude  oil,  

petroleum etc. which are the most important minerals in  

the modern world.   The Act does not anywhere declare  

the proprietary right of the State.

57. For  the  above-mentioned  reasons,  we  are  of  the  

opinion that there is nothing in the law which declares that  

all mineral wealth sub-soil rights vest in the State, on the  

other  hand,  the  ownership  of  sub-soil/mineral  wealth  

should normally follow the ownership of the land, unless  

the owner of the land is deprived of the same by some  

valid process.  In the instant appeals, no such deprivation  

is brought to our notice and therefore we hold that the  

appellants are the proprietors of the minerals obtaining in  

their lands.  We make it clear that we are not making any  

(a) on all persons who, but for the order,  would be entitled to work the minerals   affected; and

(b) on every owner, lessee and occupier (except tenants for a month or for less than  a month) of any land in respect of which rights are proposed to be acquired under the  order.

(3) Compensation in respect of any right acquired under this section shall be paid in  accordance with section 21, but in calculating the compensation payable, no account shall be  taken of the value of any minerals present in or on land affected by the order, being minerals   specified  in  the  order,  as  those  from  which  in  the  opinion  of  the  Central  Government   uranium or any concentrate or derivative of uranium can be obtained.

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declaration regarding their liability to pay royalty to the  

State as that issue stands referred to a larger Bench.

………………………………….J.                                                  (R.M. LODHA)

………………………………….J.                                                  (J. CHELAMESWAR )

………………………………….J.                                                 (MADAN B. LOKUR ) New Delhi; July 8, 2013.

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