Full Judgment Text
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PETITIONER:
RAJAANAND BRAHMA SHAH
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH & ORS.
DATE OF JUDGMENT:
16/09/1966
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
SIKRI, S.M.
SHELAT, J.M.
CITATION:
1967 AIR 1081 1967 SCR (1) 373
CITATOR INFO :
RF 1971 SC 530 (233)
R 1971 SC1033 (8)
F 1977 SC 121 (11)
RF 1977 SC 183 (33,34)
R 1980 SC 91 (17)
ACT:
Land Acquisition Act (1 of 1894), ss. 4, 5A, 6, 17(1) and
(4)--Declaration that land acquired for public purpose-When
can be challenged-"Arable and waste land", what is-Power of
Government under s. 17(4)-When liable to challenge-Grantee
of land-Right to minerals and subsoil rights.
HEADNOTE:
In 1950, the State Government issued a notification under s.
4(1) of the Land Acquisition Act, 1894 stating that the
appellant’s land was needed for the public purpose of
limestone quarrying. It was also notified that the case was
one of urgency and that under s. 17(4) the provisions of a.
5A would not apply to the land. After the notification
under s. 6 was issued, the Collector was ordered under s.
17(1) to take possession of the arable and waste land. The
Collector took possession of the appellant’& land. The
limestone quarried from the land was utilized by the
Government for producing cement, the cement produced was
used in the construction of a dam, and when it was sold for
profit, the profit formed part of the general revenues of
the State. The acquisition proceedings were challenged by a
writ petition on the grounds,, that : (i) the acquisition
was not for _a public purpose, because, the cement was sold
for profit; (ii) the application of s. 17(1) and (4) to the
land was illegal since it was neither waste nor arable; and
(iii) the appellant was entitled to compensation for sub-
soil mines and minerals. The High Court dismissed the
petition.
In appeal,
HELD: (i) The appellant’s argument must be rejected as
he was not :able to show that the action of the Government
in issuing the notification -under s. 6 was a colorable
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exercise of power. [377 C-D]
The declaration of the Government under s. 6(1) that the
land was needed for a public purpose would be final and
conclusive, except when there was a colourable exercise of
the power by the Government in that the purpose was not a
public purpose, but a private purpose or no purpose at all.
[376 H]
Smt. Somavanti v. The State of Punjab, [1963] 2 S.C.R. 774,
followed.
The question whether production of cement as a commercial
enterprise is a public purpose within the meaning of the Act
was left open, [377 B-C]
(ii) (a) The direction of the State Government under s.
17(1), and the action of the Collector in taking possession
of the land under that subsection were ultra vires, because,
the acquired land was forest land covered with a large
number of trees, and not "arable’or waste land." [380 F]
In the context of s. 17(1) the expression "arable land" must
be construed to mean "lands which are mainly used- for
sloughing and for raising crops," and the expression "waste
land" would mean "land which is unfit 373
374
for cultivation or habitation. desolate and barren land with
little or no vegetation thereon." The jurisdiction of the
State Government depends upon the condition imposed by s.
17(1). and by wrongly deciding the character of the land the
State Government cannot give itself jurisdiction to give a
direction to the Collector to take possession of it. Where
the jurisdiction of an administrative authority depends upon
a preliminary finding of fact, the High Court is entitled in
a proceeding for the issue of a writ of certiorari to
determine, upon its independent judgment,, whether or not
that finding of fact is correct. [380 A-El
(b) The order of the State Government under 8. 17(4) that
the provisions of s. 5A were not applicable to the land was
illegal, and therefore, the notification of the State
Government under s. 6 was ultra vires, and all proceedings
taken by the Land Acquisition Officer subsequent to it were
without jurisdiction. [381 F; 383 A-B]
Even though the power of the State Government has been
formulated under s. 17(4) in subjective terms, the
expression of opinion of the State Government can be
challenged as ultra vires in a court of law if it could be
shown that the State Government never applied its mind to
the matter, or, that the action of the State Government was
mala fide. Therefore, when the acquired land was not
actually waste or arable land, but the State Government
formed the opinion that the provisions of s. 17(1) were
applicable, the court may draw the inference that the State
Government did not honestly form that opinion, or did not
apply its mind to the relevant facts. [381 D-F]
(iii) The appellant was the owner of all minerals and
sub-soil rights and was therefore entitled to compensation
for the minerals including limestone. L390 D]
A transfer of the right to the surface conveys a right to
the minerals underneath, unless there is an express or
implied ration in the grant. In the instant case there was
no reservation of mineral rights in favour of the
Government, in the two sanads granting the land to the
ancestor of the appellant. The land of which the acquired
land formed part was permanently settled under the
provisions of the Benares Regulation 1 of 1795. There was
no material difference between the permanent settlement of
Bonares province and that of the provinces of Bengal, Bihar
and Orissa and under the latter, the proprietors of estates
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were recognised to be the proprietors of the soil also. The
fact that the assessment to be paid by the grantee was made
on the agricultural income cannot derogate from the rights
conveyed to the grantee, because, no restriction was placed
on the use of the land and the use by the grantee was not
limited to agriculture. Moreover, Government never asserted
its claim to mineral rights. possessed by the Zamindars.
Even the Mirzapur Stone Mahal Act, 1886, and theRules
framed thereunder, were meant only for regulating the quarryingof
building stone and were not meant to affect the right of the
Proprietors to the sub-soil minerals. [385 G; 386 A-B;
387 F-G; 388 H; 390 F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 656 of 1964.
Appeal from the judgment and decree dated November 2, 1962
of the Allahabad High Court in Civil Misc. Writ No. 454 of
1955.
B.R. L. Iyengar, S. K. Mehta, V. P. Misra and K. L.
Mehta, for the appellant.
375
C.K, Daphtary, Attorney-General, Shanti-Bhushan Addl.
Advocate-General, U.P. and 0. P. Rana, for respondents Nos.
1 and 2.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave,
against the judgment of the Allahabad High Court dated
November 2, 1962 dismissing the writ petition No. 454 of
1955 filed by the appellant Raja Anand Brahma Shah.
The appellant was the Zamindar of Pargana Agori lying to the
south of Kaimur Range in the district of Mirzapur. On
October 4, 1950, a notification was issued by the State
Government under s. 4(a) of the Land Acquisition Act
(hereinafter referred to as the "Act") stating that the area
of 409 6 acres in the village of Markundi Ghurma Pargana
Agori was needed for a public purpose. The purpose
specified in the notification was "for limestone quarry".
The notification provided that the case being one of
urgency, the provisions of sub-section (1) of s. 17 of the
Act applied to the land and it was therefore directed under
sub-s. (4) of s. 17 that the provisions of s. 5A of the Act
would not apply to the land. On October 12, 1950, a further
notification was issued under s. 6 of the Act declaring that
the Governor was satisfied that the land mentioned in the
notification was needed for public Purposes and directing
the Collector of Mirzapur to take order for acquisition of
the land under s. 7 of the Act. The Collector of Mirzapvr
was ,further directed by the notification under s. 17(1) of
the Act, the case being one of urgency, to take possession
of any waste or arable land on the expiration of the notice
mentioned in s. 9(1), though no award under s. 11 had been
made. On November 19, 1950, possession of the land was
taken by the Collector of Mirzapur and the same was handed
over to the Administrative Officer, Government Cement
Factory, Churk. An award was made by the Land Acquisition
Officer on January 7, 1952 stating that the amount of
compensation was Rs. 23,638/13/7. The appellant thereafter
filed an application under s. 18 of the Act for a reference
to the Civil Court in regard to the amount of compensation
payable. A reference to the Civil Court was accordingly
made and the matter is still pending in the Civil Court as
Land Acquisition Reference No. 4 of 1952. On May 2, 1955,
the Writ Petition giving rise to this appeal was filed by
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the appellant in the Allahabad High Court. It is alleged by
the appellant that the acquisition of the land was not for a
public purpose and the acquisition proceedings were
consequently without jurisdiction. It was also stated that
the State Government had no jurisdiction to apply the
provisions of s. 17(1) of the Act to the land in dispute as
it was neither waste nor arable land. It was further
claimed that the mines and minerals in the land belonged to
the appellant and as such he was entitled
376
to compensation for the same. The appellant accordingly
prayed for a writ in the nature of certiorari to quash the
notifications of the State Government under s. 4 and s. 6 of
the Act and all further proceedings in pursuance of that
notice in the land acquisition case. The appellant also
prayed that the State Government should be, directed to pay
compensation to the appellant for all the lime-stone removed
from the land. By its judgment dated November 2, 1962 the
High Court dismissed the Writ Petition, holding (1) that the
petitioner was not the owner of mines and minerals and was
not entitled to compensation for them, (2) that the land had
been acquired for a public purpose, and (3) that the
provisions of s. 17 of the Act were applicable to the case
and there was no illegality in the notifications of the
State Government under s. 4 and s. 6 of the Act.
The first question to be considered is whether the
notification of the State Government under s. 4 of the Act
dated October 4, 1950 is liable to be quashed on the ground
that the acquisition of the land was not for a public
purpose. It was alleged for the appellant that the lime-
stone extracted from quarries situated in the land was used
by the State Government for the manufacture of cement which
was sold for profit in open market and was not used for any
public work of construction. It was contended that the
manufacture of cement for being sold for profit will not
amount to a public purpose and the notification of the State
Government under s. 4 of the Act must therefore be held to
be illegal. In our opinion, the argument put forward on
-behalf of the appellant cannot be accepted. It is manifest
that the declaration made by the State Government in the
notification under s. 6(1) of the Act, that the land was
required for a public purpose, is made conclusive by sub-s.
(3) of s. 6 and it is, therefore, not open to a court to go
behind it and try to satisfy itself whether in fact the
acquisition was for a public purpose. It was pointed out by
this Court in Smt. Somavanti v. The State of Punjab(1) that
it was for the Government to be satisfied, in a particular
case, that the purpose for which the land was needed was a
public purpose and the declaration of the Government under
s. 6(1) of the Act will be final subject, however, to one
exception, namely in the case of colourable exercise of the
power, the declaration is open to challenge at the instance
of the aggrieved party. The power conferred on the
Government by the Act is a limited power in the sense that
it can be exercised only where it is for a public purpose
(leaving aside, for the moment, where the acquisition is for
a company under Part VII of the Act). if it appears that
what the Government is satisfied about is not a public
purpose but a private purpose or no purpose at all, the
action of the Government would be colourable as being
outside the power conferred upon it by the Act and its
declaration under s. 6 of the Act will be a nullity. On
behalf of the respondents the argument was stressed that the
lime-stone was utilised for being
(1) [1963] (2) S.C.R. 774.
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377
used in the cement factory established in the Public Sector
at Churk. It was argued that the production of cement was
important in national interest, particularly when the cement
was used in the, construction of the Rihand dam. It is
conceded on behalf of the respondents that the allegation of
the appellant that cement was, being sold in market for
profit was not clearly controverted by the, counter-
affidavit by the State but it was said that even on the,
assumption that the cement was sold for profit the use of
the lime-stone in the production of the cement was in public
interest, because the profit from the sale of cement
benefited the General Revenues of the State. It is not
necessary for us to express any concluded opinion as to
whether the production of cement as a commercial enterprise
is a public purpose within the meaning of the Act for we
consider that the principle of the decision of this Court in
Smt. Somavanti v. The State of Punjab (1) applies to this
case and the argument of the appellant must be rejected
because he has not been able to show that the action of the
Government in issuing the, notification under s. 6 of the
Act is a colourable exercise of power..
We then proceed to consider the argument of the appellant
that the notification under s. 4 of the Act is illegal since
the land in dispute is neither waste nor arable land and the
jurisdiction of the. State Government to act under s. 17(1)
and s. 17(4) of the Act depends upon the preliminary
condition that the land to be acquired is waste or arable
land. The argument was stressed that since the jurisdiction
of the State Government depends upon the preliminary finding
of fact that the land is waste or arable, the High Court is
entitled, in a proceeding for a writ of certiorari, to
determine, upon its independent judgment, whether or not
that finding of fact is correct. It is necessary, at this
stage, to set out the relevant provisions of the Act.
Section 4(1) of the Act states:
"4.(1) Whenever it appears to the appropriate
Government that land in any locality is needed
or is likely to be needed for any public
purpose, a notification to that effect shall
be published in the Official Gazette, and the
Collector shall cause public notice of the
substance of such notification to be given at
convenient places in the said locality."
Section 5A provides for the hearing of
objections and reads.
"5A. (1) Any person interested in any land
which has been notified under section 4, sub-
section (1), as being needed or likely to be
needed for a public purpose or for a Company
may, within thirty days after the issue of the
notification, object to the acquisition of the
land or of any land in the locality, as the
case may be.
(1) [1963]2 S.C.R. 774.
(2)Every objection under sub-section (1)
shall be made to the Collector in writing, and
the Collector shall give the objector an
opportunity of being heard either in person or
by pleader and shall, after hearing all such
,objections and after making such further
inquiry, if any, as he thinks necessary,
submit the case for the decision, of the
appropriate Government, together with the
record of the proceedings held by him and a
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report containing his recommendations on the
objections. The decision of the appropriate
Government on the objections shall be final.
’Section 6 provides:
"6. (1) Subject to the provisions of Part VII
of this Act when the appropriate Government is
satisfied, after considering the report, if
any, made under section 5A, subsection (2),
that any particular land is needed for a
public purpose, or for a Company, a
declaration shall be made to that effect under
the signature of a Secretary to such Govern
’mentor of some officer duty authorised to
certify ’its orders:
Provided that no such declaration shall be
made unless the compensation to be awarded for
such property is to be paid by a Company, or
wholly or partly out of public revenues or
some fund controlled or managed by a local
authority.
(2)The declaration shall be published in
the Official Gazette, and shall state the
district or other territorial division in
which the land is situate, the purpose for
which it is needed, its approximate area, and,
where a plan shall have been made of the land,
the place where such plan may be inspected.
(3)The said declaration shall be conclusive
evidence that theland is needed for a
public purpose or for a Company, asthe case
may be; and, after making such declaration theapprop
riate
Government may acquire the land in manner
hereinafter appearing."
Section 16 relates to the power of the
Collector to take possession of the land. It
reads:
"16. When the Collector has made an award
under section 11, he may take possession of
the land, which shall thereupon vest
absolutely in the Government, free from all
encumbrances."
379
Section 17 confers special powers in cases of
urgency and reads, as follows:
"17 (1) In cases of urgency, whenever the
appropriate Government so directs, the
Collector, though no such award has been made,
may, on the expiration of fifteen days from
the publication of the notice mentioned in
section 9, sub-section (1), take possession of
any waste or arable land needed for public
purposes or for a Company. Such land shall
thereupon vest absolutely in the Government,
free from all encumbrances.
(2)Whenever, owing to any sudden change in the
channel of any navigable river or other
unforeseen emergency, it becomes necessary for
any Railway Administration to acquire the
immediate possession of any land for the
maintenance of their traffic or for the
purpose of making thereon a river-side or ghat
station, or of providing convenient connection
with or access to any such station, the
Collector may, immediately after the
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publication of the notice mentioned in sub-
section (1) and with the previous sanction of
the appropriate Government, enter upon and
take possession of such land, which shall
thereupon vest absolutely in the Government
free from all encumbrances:
(3)In the case of any land to which, in the
opinion of the appropriate Government, the
provisions of subsection (1) or sub-section
(2) are applicable, the appropriate Government
may direct that the provisions of section 5A
shall not apply, and, if it does so direct, a
declaration may be made under section 6 in
respect of the land at any time after the
publication of the notification under section
4, subsection (1)."
On behalf of the appellant Mr. lyengar referred to the
Inspection Note of the Collector dated December, 15, 1951 at
page 91 of the Paper Book. It was pointed out that the
Collector noticed that there were one lac of trees in the
acquired land and there were trees of "Tendu, Asan, Sidh,
Bijaisal, Khair, bamboo clumps, Mahuwa and Kakora contained
in the area." It was contended that the land in dispute was
"forest land" covered by a large number of trees and cannot
be treated as "waste land or arable land" within s. 17(1) or
(4) of the Act. In our opinion, the argument put forward on
behalf of the appellant is well-founded and must be accepted
as correct and in view of the facts mentioned in the
affidavits and in the Inspection Note of the Collector dated
December 15, 1961 we are of the opinion that the land sought
to be acquired is, M15Sup.CI/66-11
380
not "waste land" or "arable land" within the meaning of S.
17(1) or (4) of the Act. According to the Oxford Dictionary
"arable land" is "land which is capable of being ploughed or
fit for tillage." In the context of S. 17(1) of the Act the
expression must be construed to mean "lands which are mainly
used for ploughing and for raising crops" and therefore the
land acquired in this case is not arable land. Similarly,
the expression "waste land" also will not apply to ’forest
land’. According to the Oxford Dictionary the expression "
waste" is defined as follows:
"Waste-(from Latin. vastus-waste, desert,
unoccupied; Uncultivated, incapable of
cultivation or habitation; producing little or
no vegetation; barren, desert."
The expression "waste land" as contrasted to "arable land"
would therefore mean "land which is unfit for cultivation or
habitation, desolate and barren land with little or no
vegetation thereon." It follows therefore that S. 17(1) of
the Act is not attracted to the present case and the State
Government had therefore no authority to give a direction to
the Collector to take possession of the lands under S. 17(1)
of the Act. In our opinion, the condition imposed by s.
17(1) is a condition upon which the jurisdiction of the
State Government depends and it is obvious that by wrongly
deciding the question as to the character of the land the
State Government cannot give itself jurisdiction to give a
direction to the Collector to take possession of the land
under s. 17(1) of the Act. It is well established that
where the jurisdiction of an administrative authority
depends upon a preliminary finding of fact the High Court is
entitled, in a proceeding of writ of certiorari to
determine, upon its independent judgment, whether or not
that finding of fact is correct [See R. V. Shoreditch
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Assessment Committee(1) and White and Collins v. Minister of
Health(2).]
We are accordingly of the opinion that the direction of the
State Government under s. 17(1) and the action of the
Collector in taking possession of the land under that sub-
section is ultra vires.
It was also contended for the appellant that the order of
the State Government under S. 17(4) of the Act that the
provisions of s. 5A of the Act were not applicable to the
land was illegal because the land was not waste or arable
land to which the provisions of s. 17(1) were applicable.
It was urged that by issuing the impugned notification the
State Government deprived the appellant of a valuable right
i.e., of filing an objection under S. 5A of the Act and
therefore the entire proceedings taken by the Land Acquisi-
tion officer after the issue of the notification under S. 4
were defective in law. On behalf of the respondents the
submission was made that the condition precedent for the
application of S. 17 (4) of the
(1) [1910] 2 K.B. 859.
(2) [1939] 2 K.B. 833.
381
Act was the subjective opinion of the State Government that
the provisions of sub-s. (1) are applicable to the, land in
question. If therefore the State Government had come to the
conclusion that the provisions of sub-s. (1) were applicable
to the land because the land was waste or arable land, the
subjective opinion of the State Government cannot be
challenged in a court of law except on the ground of
colourable exercise of power. It was also contended that
the declaration of the State Government in the impugned
notification that in its opinion the provisions of sub-s.
(1) are applicable, must be taken as normally conclusive.
It is true that the opinion of the State Government which is
a condition for the exercise of the power under s. 17(4) of
the Act, is subjective and a Court cannot normally enquire
whether there were sufficient grounds or justification for
the opinion formed by the State Government under S. 17(4).
The legal position has been explained by the Judicial
Committee in King Emperor v. Shibnath Banerjee(1) and by
this Court in a recent case-Jaichand Lai Sethia v. State of
West Bengal & Ors.(2) But even though the power of the State
Government has been formulated under s. 17(4) of the Act in
subjective terms the expression of opinion of the State
Government can be challenged as ultra vires in a Court of
Law if it could be shown that the State Government never
applied its mind to the matter or that the action of the
State Government is nwlafide. If therefore in a case the
land under acquisition is not actually waste or arable land
but the State Government has formed the opinion that the
provisions of sub-s. (1) of s. 17 are applicable, the ,Court
may legitimately draw an inference that the State Government
,did not honestly form that opinion or that in forming that
opinion the State Government did not apply its mind to the
relevant facts bearing on the question at issue. It follows
therefore that the notification of the State Government
under S. 17(4) of the Act directing that the provisions of
s. 5A shall not apply to the land is ultra vires. The view
that we have expressed is borne out by the decision of the
Judicial Committee in Estate and Trust Agencies Ltd. v.
Singapore Improvement Trust(1) in which a declaration made
by the Improvement Trust of Singapore under S. 57 of the
Singapore Improvement Ordinance 1927 that the appellants’
property was in an insanitary condition and therefore liable
to be demolished was challenged. Section 57 of the
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Ordinance stated as follows:
"57. Whenever it appears to the Board that
within its administrative area any building
which is used or is intended or is likely to
be used as a: dwelling place is of such a
construction or is in such a condition as to
be unfit for
(1) 72 I.A. 24t.
(2) Criminal Appeal No. II 0 of 1966-decided
on July 27, 1966. [1966] Supp.
S.C.R.
(3) [1937] A.C. 898.
382
human habitation, the Board may by resolution
declare such building to be insanitary".
The Judicial Committee set aside the declaration of the
Improvement Trust on two grounds; (1) that though it was
made in exercise of an administrative function and in good
faith, the power was limited by the terms of the said
Ordinance and therefore the declaration was liable to a
challenge if the authority stepped beyond those terms and
(2) that the ground on which it was made was other than the
one set out in the Ordinance. In another case-Ross Clunis
v. Papadopovllos(1)-the appellant challenged an order of
collective fine passed under Regulation 3 of the Cyprus
Emergency Powers (Collective Punishment) Regulations, 1955
which provided that if an offence was committed within any
area of the colony and the Commissioner "has reason to
believe" that all or any of the inhabitants of that area
failed to take reasonable steps to prevent it and to render
assistance to discover the offender or offenders it would be
lawful for the Commissioner with the approval of the
Governor to levy a collective fine after holding an inquiry
in such manner as he thinks proper subject to satisfying
himself that the inhabitants of the area had been given an
adequate opportunity of understanding the subject-matter of
the inquiry and making representations thereon. It was
contended on behalf of the appellant that the only duty cast
on the Commissioner was to satisfy himself of the facts set
out in the Regulation, that the test was a subjective one
and that the statement as to the satisfaction in his
affidavit was a complete answer to the contention of the
respondents. In rejecting the contention the Judicial
Committee observed as follows:
"Their Lordships feel the force of this
argument, but they think that if it could be
shown that there were no grounds upon which
the Commissioner could be so satisfied, a
court might infer either that he did not
honestly form that view or that in forming it
he could not have applied his mind to the
relevant facts."
In another casc-R. V. A ustralian Stevedoring Industry
Board(2) -the High Court of Australia was called upon to
review the conduct of a board empowered to cancel the
registration of an employer of dock labour if "satisfied"
that he was unfit to be registered or had so acted as to
interfere with the proper performance of Stevedoring work.
It was held by the High Court that it was entitled to award
prohibition against the board if the board was acting
without any evidence to support the facts upon which its
jurisdiction depended, or if it was adopting an erroneous
test of the employer’s liability to cancellation of his
registration, or if it appeared likely to go outside the
scope of its statutory discretion.
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(1) [1938] 1 W.L.R. 546.
(2) (1952) 88 C.I.R. 100.
383
We accordingly hold that the appellant has made good his
submission on this aspect of the case and the notification
of the State Government under s. 6 of the Act dated October
12, 1950 is ultra vires and therefore all the proceedings
taken by the Land Acquisition Officer subsequent to the
issue of the notification under S. 6 must be held to be
illegal and without jurisdiction.
We shall pass now to consider the question whether the
appellant had sub-soil and mineral rights in the areas in
dispute and whether the appellant was entitled to
compensation for the minerals including lime-stone in that
area.
It is necessary to set out at this stage the history of
Agori Zamindari. The ancestors of Raja Anand Brahma Shah
had owned the paraganas of Agori and Barhar since the 13th
century. About the year 1744 A.D. Shambhu Shah the then
Raja was driven out of his domains by Raja Balwant Singh of
Banaras, but after about 30 years Adil Shah, grandson of
Shambhu Shah was able to regain possession over the
territories after driving out Raja Chet Singh, son of Raja
Balwant Singh, with the help of the British East India
Company. On October 9, 1781, Raja Adil Shah was granted a
Sanad by Mr. Warren Hastings the then Governor General of
India restoring to him the Zamindari of Pargana Agori and
Pargana Barhar with all the rights which his ancestors had
before Shambhu Shah was driven out of his domains. By a
second Sanad dated October 15, 1781 the Raja was granted a
Jagirultamgha of certain Mahals including Pargana Agori in
lieu of Rs. 8,001/per annum. It was stated for the
respondent-State that the second sanad was cancelled by a
resolution of the Governor in Council dated April, 1788.
But a third sanad was executed in favour of the Raja on
December 10, 1803 granting the whole Jagir permanently and
making the Raja "immovable Jagirdar of Mahal and everything
appertaining thereto to belong to him."
On behalf of the appellant reference was made to the sanad
granted by Mr. Warren Hastings dated October 9, 1781 by
which the Pargana of Agori was restored to Raja Adil Shah
with all ancient and former rights in the Raj. The Sanad
reads as follows:
"Know ye the present and future mutsuddies,
Zamindars Chowdharies, canoogoes, Residents,
Mahtees, ryots, cultivators and other
inhabitants of pargunnah ageuree Burhas in the
Sirkar of Chunnar, Soubah of Behar, that in
consequences of the service of Lal Adil Shah
in favour of the Hon’ble Company three Lacs
and forty thousand drums which amounts to
eight thousand and one rupees per annum, is
granted to him as an Ultumgah Jagger from the
Kharief ’Illegible’ Fussley year 1189 together
with the mohala, sayar rukbah, plains or
meadows thereof and exclusive of the deotter,
Bhrmotter, Krishuarpen
38 4
lands, places of worship habitations of
Brahmans, and faquire and the Aymah, Mauffy
and nomooly free rent free lands that he the
said Adil Singh having the welfare of
Government constantly in view, is
to appropriate the produce thereof to his own
use, year after year to be ever prompt to
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secure and promote the prosperity of the Hon’-
ble Company to attend and on no account be
inattentive to the police, keep contented and
satisfied all the Ryots, inhabitants and
residents of the said Mahal to study and
advance the welfare of the inhabitants to
effect the Augmentation of cultivation of the
whole Perganah.
Be it known to you Adil Singh Zamindar of
Parganah Agori as it appears from your
statement that the above Parganah is your
ancient and hereditary estate and that some
years ago Raja Balwant Singh forcibly
dispossessed you and took possession of it
himself. On a view therefore of your ancient
right the Purganah is restored to you and you
are required to bring it into cultivation
obeying the orders of the Aumil and having the
interest of Raja Mahipat Narain constantly in
view. There in fail not dated 20th Shawaul
1195 Hidgree or the October 1781 E.E.".
The appellant further relied upon the Sanad dated December
10" 1803 which confirmed all the rights granted in the 1781
Sanad and made the grant in perpetuity. The Sanad appears
on page 79 of the Paper Book and reads as follows:
"Know, ye, the present and future Mutsuddies
in office; the zamindars, the chowdhuries, the
Residents, the Mahtoos, the Ryots, the
cultivators, and the inhabitants of Aggri
Barhar of Sirkar Chunar in subah Allahabad,
that in conformity to the orders of His
Excellency the most Noble Richard Marquis
Wellesley, Knight of the I llustrious order
of Saint Patrick, Governor General in Councilissued
on the 4th November 1803 on a consideralion ofthe
good services rendered to the Hon’ble Company
by Raja Run Bahadur Shah, and his consequent
merits, lands in the above Purgunnah producing
Rs. 4,000/to form a Jagir of three lacs twenty
thousands and forty dams which make eight
thousand and one rupees per annum, as
hereunder particularized of which a jagir of
4,001 rupees continues in the possession of
the said Rajah Run Bahadur Shah agreeably to
sanad dated 7th October, 1789, English
Era, have been given to him the said Rajah as
an ultumgah Jagger, from the Fussul Khareef of
the fasli year 121 1, corresponding with the
English era 1803, together with the maul,
Suyer,
385
Ruchhah, plains or meadows thereof, and
exclusive of Deuuttar, Burmotter and
Krishnarpur lands places of worship,
habitations of Brahmans and Faquirs, ayumah,
maufy, mamully etc., rent free lands, that the
said Rajah is to appropriate the produce of
the aforementioned jageer to his own use year
after year, to be ever prompt to secure and
promote the prosperity of the Hon’ble Company
to attend strictly and conform to the rules
and customs of Jagirs, to be on no account in-
attentive to, or neglectful of the police, to
keep content and satisfied by good treatment,
all the Ryots inhabitants, and residents of
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the said mahals to study and advance that the
welfare of the inhabitants of the place to
exert effectually and augment the cultivation
of the whole pergana.
That you are to consider him the Rajah,
immovable jagerdar of the mahal and every
thing appertaining thereto, to belong to him
be interested in his welfare and not demand on
new sanad annually herein fail not but conform
to the injunctions above given within the 11th
day of the month of Poos 1211 Fussily;
Corresponding with the English era 1803.
Endorsement
Of the hereunder particularized Jagger,
perganah Agori Burhar, producing Three lacs,
twenty,thousand and forty which make eight
thousand and one rupee annually. Without
fluctuations, land producing four thousand one
rupee is already in the possession of Rajah
Run Bahadur Shah agreeably to a Sanad dated
7th October 1789 and the remaining jageer of 4
thousand rupees have been already given and
granted to him from the year 1211 Fussly
together with the Raqbah plains meadows, and
jungles thereof as an ultamagh jageer. Total
villages 209 producing 8001 rupees."
In our opinion, a reading of the two Sanads supports the
case of the appellant that there is no reservation of
mineral rights in favour of the Government. The expression
used in the Sanad of 1803 A.D. is "You ought to consider him
the Raja of immovable Jagir and of Mahal and everything
appertaining thereto belongs to him." In effect, the grant
to the Raja in the two Sanads is a grant of the lands
comprised in the Mahal of Agori and everything appertaining
thereto and as a matter of construction the grant must be
taken to be not only of the land but also of everything
beneath or within the land. Prima facie the owner of a
surface of he land is entitled ex jure to everything beneath
the land and in the
386
absence of any reservation in the grant minerals necessarily
pass with the rights to the surface (Halsbury’s Laws of
England, 3rd Edn., Vol. 26, p. 325). In other words, a
transfer of the right to the surface conveys right to the
minerals underneath unless there is an express or implied
reservation in the grant. A contract therefore to sell or
grant a lease of land will generally include mines,quarries
and minerals beneath or within it (Mitchell v. Mosley(1). It
is manifest that when the sanad was executed in favour of
theRaja the Government made over the land with all its
capabilities to the Raja and merely imposed on him a fixed
sum of revenue in lieu of all the rights the Government had
as a proprietor of the soil. When neither of the parties
knew undiscovered minerals underneath the land and the idea
of reservation never entered their minds it cannot be held
that there was any implied reservation in the grant. Nor
can afterwards a distinction be drawn between the various
rights that may exist on the land for the purpose of qual
fying the original grant and importing into it what neither
party could have imagined. It was argued on behalf of the
respondents that the assessment was made on the agricultural
income, but this circumstance cannot derogate from the
rights conveyed to the Raja in the two Sanads because no
restriction was placed on the use of the land and the use by
the Raja was not limited to agriculture.
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The view that we have expressed as to the interpretation and
the legal effect of the Sanads is supported by Regulation
VIII of 1793 which reenacted with modifications and
amendments the Rules for the Decennial Settlement of the
public revenue payable from the lands of the zemindars,
independent tallest, and other actual proprietors of land in
Bengal, Bihar and Orissa. Section IV of this Regulation
provided that the settlement, under certain restrictions and
exceptions specified in the Regulation, shall be concluded
with the actual proprietors of the soil, of whatever
denomination, whether zemindars, talukdars or chaudhris. It
is clear that the zemindars with whom settlement took place,
were recognised as the actual proprietors of the soil. The
settlement of revenue so made was made permanent by s. IV of
Regulation 1 of 1793. This Regulation enacted certain
Articles of a Proclamation dated March 22, 1793. Section 1
of this Regulation states that the various articles of the
Proclamation were enacted into a Regulation and that those
articles related to the limitation of public demand upon the
lands, addressed by the Governor-General in Council to the
zemindars, independent talukdars and other actual proprie-
tors of land paying revenue to Government in the Provinces
of Bengal, Bihar and Orissa. By Section IV it was declared
to the zemindars, independent talukdars and other actual
proprietors of land, with or on behalf of whom a settlement
had been concluded
(1) (1914]1 Ch. 438,450.
387
under the Regulations mentioned earlier, that at the
expiration of the term of settlement no alteration would be
made in the assessment which they had respectively engaged
to pay, but that they and their heirs and lawful successors
would be allowed to hold their estates at such assessment
for ever.
The preamble to Regulation 11 of 1793, which abolished the
Courts of Mal Adalat or Revenue Courts and transferred the
trial of suits cognizable in those Courts to the Courts of
Diwani Adalat, stated, in connection with the proposed
improvements in agriculture as follows:
"As being the two fundamental measures
essential to the attainment of it, the
property in the soil has been declared to be
vested in the landholders, and the revenue
payable to Government from each estate has
been fixed for ever.......... The property in
the soil was never before formally declared to
be vested in the landholders, nor were they
allowed to transfer such rights as they did
possess, or raise money upon the credit of
their tenures, without the previous sanction
of Government."
The preamble to Regulation 1 of 1795 which relates to the
Province of Benares states that "the Governor-General in
Council having determined, with the concurrence of the Rajah
of Benares, to introduce into that province, as far as local
circumstances will admit, the same system of interior
administration as has been established in the provinces of
Bengal, Bihar, and Orissa, and the limitation of the annual
revenue payable from the lands forming an essential part of
that system, as stated in the preamble to Regulation 11,
1793."
It appears that Pargana Agori was permanently settled under
the provisions of the Benares Regulation 1 of 1795 and there
was no material difference between the permanent settlement
of Benares province and that of the Provinces of Bengal,
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Bihar and Orissa.
It is thus clear from the above Regulations that the
zemindars, the proprietors of estates, were recognized to be
the "proprietors of the soil" and the permanent settlement
of the zemindaris proceeded upon that basis. Such a view
was also expressed by the Judicial Committee in Ranjit Singh
v. Kali Dasi Debi(1) at page 122;
"Passing to the settlement of 1793, it appears
to their Lordships to be beyond controversy
that whatever doubts be entertained as to
whether before the British occupation the
zamindars had any proprietary interest in the
lands comprised within their respective
districts, the settlement itself recognizes
and proceeds on the footing that they are
(1)44 I.A. 11 7.
388
the actual proprietors of the land for which
they undertake to pay the Government revenue.
The settlement is expressly made with the
zemindars, independent talukdars and other
actual proprietors of the soil’, see
Regulation 1, s. 3 and Regulation VIII, s. 4.
It is clear that since the settlement the
zamindars have had at least a prima facie
title to all lands for which they pay revenue,
such lands being commonly referred to as
malguzari lands."
The rights of the zemindars to the sub-soil minerals under
their land were derived from their being proprietors of the
soil and has been recognised in a number of cases between
the zemindars and persons holding land under a tenure from
them. It has been held in those cases that, in the absence
of the right to sub-soil minerals being conferred on the
tenure holder under the terms of the tenure held by him, he
does not get any right to them. In Hari Narayan Singh v.
Sriram Chakravarti(1) it has been held by the Judicial
Committee that where a village is shown to be a mal village
of the plaintiff’s zamindari estate, the plaintiff must be
presumed to be the owner of the underground rights thereto
appertaining in the absence of evidence that he ever parted
with them. In the course of its judgment the Judicial
Committee quoted with approval the following passage from
Field’s "Introduction to the Bengal Regulations", p. 36
where he says:
"The zamindar can grant leases either for a
term or in perpetuity. He is entitled to rent
for all land lying within the limits of his
zamindari, and the rights of mining, fishing,
and other incorporeal rights are included in
his proprietorship."
The same view has been expressed in Durga
Prasad Singh v. Braja Nath Bose(2). In Sashi
Bhushan Misra v. Jyoti Prasad Singh Deo(3)
Lord Buckmaster stated with regard to the
above two cases:
"Those decisions, therefore, have laid down a
principle which applies to and concludes the
present dispute. They establish that when a
grant is made by a zamindar of a tenure at a
fixed rent, although the tenure may be
permanent, heritable and transferable,
minerals will not be held to have formed part
of the grant in the absence of express
evidence to that effect."
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It is true that the Government was not a party to these
decisions of the Judicial Committee but the fact that the
Government never asserted its claim to mineral rights
possessed by the zemindars is a circumstance which supports
the interpretation of the Sanads which we have already
expressed.
(1) 37 I.A. 136.
(2) 39 I.A. 133.
(3)44 I.A. 46.
389
There are other documents which support the view that the
mineral rights and sub-soil rights in the area belonged to
the appellant. Annexure H is a copy of the Wajibularz
relating to Mauza Kota and Annexure is a copy of the
Wajibularz of other villages Sali, Dokhli, Kaira and Rajpur
Pargana Singrauli, district Mirzapur in respect of the
settlement of 1247 fasli and 1257 fasli respectively. In
Annexure H there occurs the following passage:
"In this village there are Jungles and hills
where all the said items such as dhup, shekae,
catechu and coal are found. A sum of Rs.
1/4/- per tauga (ace) for producing dhup and
shellac and Rs. 1/8/- per bhatti from catechu
manufacturers is taken and one Mr. Burke has
been given theka of coal by me at Rs. 20/- per
annum for unlimited period."
In Annexure I the following passage is found:
"A coal mine situate in Mauza Kota, Pargana
Singrauli, was given to Mr. Burke under a
perpetual lease in this way that he should
remain in possession thereon during his life
time on payment of the amount of Jama and that
Mr. Burke aforesaid should all along remain
in. possession thereon so long as he continued
to pay Rs. 20/- the fixed amount of Jama
annually in a lump sum either in the month of
Aghan or in Jeth. In case he fails to pay the
same, I have power to file a suit in the Civil
Court to realise the amount from Mr. Burke
aforesaid. Mr. Burke aforesaid has not the
right to transfer the same. He should remain
in possession thereon as long as he wishes to
on payment of fixed amount of Jama."
There are also subordinate leases produced on behalf of the
appellant to show that the right to minerals was always
enjoyed by the appellant and not by the lessees; for
instance, Annexure A-5 at page 125 of the Paper Book is a
deed of agreement executed by Abtal Deo on September 4,
1852. Para 4 of this agreement states:
"4. In this village, no Sayer item is
produced; but whatever little or more fish
mangoes and Mauh are available we the
occupants of the village enjoy and shall
continue to enjoy the same. If something
viz., iron ore, copper or treasure trove are
discovered in this Mahal, the Raja Saheb shall
be entitled to it. No other person should
plant a new grove without the written
permission of the Raja. If any one does so he
shall be liable to pay Rs. 10/- per bigha and
shall continue to pay annual Phota as
heretofore."
There are similar clauses in the agreements-Annexures A- I
to A-4 and A-6 to A-13. Reference was also made on behalf
of the
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390
appellant to the letter of Mr. Thornton dated October 5,
1850 to the Secretary to the Suddar Board of Revenue,
Annexure F wherein he states that "In the settled portion of
the Mirzapur district, the Government lays no claim to the
soil which includes any mineral products that may be
discovered". There is also a letter Annexure G dated August
21, 1850 from Mr. Roberts, Deputy. Collector, Mirzapur’ to
the Commissioner of Banaras Division. In this letter, Mr.
Roberts expressed the view that the right to minerals was
vested in the proprietary owner of the soil and that ,the
sovereign was only entitled to a portion of the revenue
thereon and that ’in Bengal’ the proprietors ’of estates
lease or assign the right of mining without any interference
on the part of the Government".
It is manifest that the view that we have expressed as to
the interpretation of the two Sanads dated October 9, 1781
Annexure A-and December 10, 1803-Annexure B is supported by
the subsequent events, proceedings and conduct of the
parties over a long period of time. We are, therefore, of
the opinion that the appellant is the owner of all minerals
and sub-soil ’rights of Pargana Agori and the view taken by
the High Court on this aspect of the case must be overruled.
On behalf of the respondents, reference was made to the
Mirzapur Stone Maha Act (U.P. Act V of 1886) and it was
pointed out that under s. 5 of that Act "no proprietor was
entitled to place any prohibition or restriction, or to
demand or receive any sum by way of rent, -premium, duty or
price, in respect of the opening quarry, or the quarrying of
stone, in the land, or in respect of the, storing of stone
at the quarry or the transport of stone over the land". But
there is nothing in this statute which takes away the right
of the zemindar to the minerals. It appears from the
perusal of the Act and the Rules framed thereunder that the
Mirzapur Stone Mahal Act was meant only for regulating the
quarrying of building stone and was not meant to affect the
right of the proprietors to the sub-soil minerals.
For the reasons already expressed we hold that the State
,Government has no jurisdiction to apply the provisions of
s. 17 (1) and (4) of the Act to the land in dispute and to
order that the provisions of s. 5A of the Act will not apply
to the land. We are further of the opinion that the State
Government had no jurisdiction to order the Collector of
Mirzapur to take over possession of the land under s. 17(1)
of the Act. The notification dated October 4, 1950 is
therefore illegal. For the same reasons the notification of
the State Government under s. 6 of the Act, dated October
12, 1950 is ultra vires.
We accordingly hold that a writ in the nature of certiorari
should be granted quashing the notification of the State
Govern-
391
ment dated October 4, 1950 by which the Governor has applied
s. 17(1) and (4) to the land in dispute and directed that
the provisions of s. 5A of the Act should not apply to the
land. We further order that the notification of the State
Government dated October 12, 1950 under s. 6 of the Act and
also further proceedings taken in the land acquisition case
after the issue of the notification should be quashed
including the award dated January 7, 1952 and the reference
made to civil Court under s. 18 of the Act.
In Writ Petition No. 454 of 1955 the appellant had prayed
also for a writ in the nature of mandamus commanding the
respondents to restore to him the possession of the lands in
dispute, but in our judgment in The State of Uttar Pradesh
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v. Raja Anand Brahma Shah and vice-versa(1) pronounced today
we have held that the intermediary interest of the appellant
in respect of Pargana Agor had validly vested in the State
of U.P. by notifications issued on June 30, 1953 and July 1,
1953 under the U.P. Zamindari Abolition and Land Reforms
Act, 1951 (as subsequently amended by the U. P. Zamindari
Abolition and Land Reforms (Amendment) Act, 1963U.P. Act No.
1 of 1964). In view of this decision the claim of the
appellant for restoration of possession of the land must be
rejected.
We accordingly allow this appeal to the extent indicated
above and set aside the judgment of the Allahabad High Court
dated November 2, 1962. We do not propose to make any order
as to costs.
V. P. S.
Appeal allowed,
(1) [1967] 1 S. C. R. 362.
392