Kerala High Court
Thressiamma Jacob vs Geologist, District Office Of The Dept. ... on 2 August, 1999
Equivalent citations: AIR2000KER300, AIR 2000 KERALA 300, 2000 A I H C 3541, (2000) ILR(KER) 1 KER 119, (2000) 2 KER LT 162
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Sankarasubban, J.
1. All these cases have been referred to the Full Bench by a Bench consisting of T.V. Ramakrishnan and A.S. Venkatachala Moorthy, JJ. The question for consideration is regarding the royalty payable by the petitioners on minerals extracted from the properties belonging to them. According to the petitioners, the properties are situated in Malabar area of the State. The question referred to is whether the owners of jenmom lands in the Malabar area are the proprietors of the soil and in view of that whether they are owners of the minerals underneath the soil. The Division Bench felt that even though there is a Full Bench decision of this Court reported in S. Sabhayogam v. State of Kerala, AIR 1963 Kerala 101 regarding the nature of jenmom lands in Malabar area, that decision requires reconsideration in the light of the decision of the Supreme Court in Balmadies Plantations v. State of Tamil Nadu, AIR 1972 SC 2240. The Division Bench also felt that in Shibu v. Tahsildar, 1993 (2) KLT 870 --this question did not directly arise, since that case arose from the Travancore-Cochin area.
O.P. No. 1843/96.
2. According to the petitioner in this case, her husband obtained jenmom 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 within the Department of Mining and Geology to conduct quarrying operations in her property. Later on 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.
3. The petitioner challenged Ext.P6 by filing O.P. No. 1302/95. O.P. No. 1302/95 was disposed of by Judgment dated 10th August, 1995. a copy of which is produced as Ext. P8, Ext. P8 directed the Mining Department to consider the contention of the petitioner and pass appropriate orders. Pursuant thereto, the Geologist, Department of Mining and Geology District Office at Palakkad passed an order dated 21-12-1995, which is produced as Ext. P10. In Ext. P10, the officer had taken the view that the petitioner is liable to pay royalty for the minerals excavated from her property. Prayers in the Original Petition are to quash the prosecution proceedings against the petitioner, to declare that the petitioner is not bound to pay royalty to the Government for the granite rocks removed from the quarry belonging to the petitioner and for other consequential reliefs. The gist of the grounds taken in the Original Petition is that the property is the jenmom property. The petitioner refers to various decisions of the High Courts to support her contention that in such cases, the persons concerned are the absolute owners of the properties and the Government has no right over the same. The petitioner also highlights the clasification made in the Kerala Mineral Concession Rules, according to which, there are three classes, (1) minerals which are vested in the Government ; (2) minerals which are partly vested in the Government and partly vested in the private parties and (3) minerals which are vested in the private parties.
O.P. No. 16653/974. In the above cases, petitioner challenges Ext.Pl demand notice Issued by the Taluk Office, Vadakara demanding royalty amount of Rs. 1,60,000/-. According to the petitioner, he is the owner and holder of the Jenmom property in R.S. No. 21/2 of Kayakodi Village. Kovukkunnu Desom, Badakara Taluk. The petitioner entrusted on lease the property to some persons and was collecting royalty from them. He had never paid any amount to the Government as royalty because the provisions contained in the Miners and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder did not stipulate payment of royalty to the Government in case of Jenmom lands. The petitioner further contends that since the property is in Malabar area and is jenmom property, the Government has no right over the same.
O.P. No. 8674/975. Prayers in the Original Petition are to declare that the Government is not entitled to collect royalty on minerals from the properties of the petitioners in the Malabar area and to quash Ext. P1 series of demand notices issued by the fourth respondent, Tahsildar. Here also, the petitioners have entrusted on lease the properties to different persons and were collecting royalty from such persons for the granite rocks. The petitioners raised the same contentions as raised in the other cases.
O.P. No. 21038/976. Prayers in this Original petition are to declare that the Government is not entitled to collect royalty on minerals from the property of the petitioner in the Malabar area and for consequential reliefs. According to the petitioner, the petitioner purchased the land including granite quarries and tea plantations at Vythiri, Wayanad District. The property is a Jenmom property and the granite belonged to the original Jenmi. Due to the ignorance of the law petitioner took a quarrying permit from the Geological Department. Later, he realised that it was not necessary for him to pay royalty to the Government. Hence this Original Petition is filed.
O.P. No. 3009/947. Prayers in the above Original Petition are to quash Ext. P1 and direct the first respondent to reimburse the amount collected as royalty and for a perpetual injunction restraining the State of Kerala and the Department of Mining and Geology from interfering with the quarrying activities conducted by the persons entrusted by the petitioners. Ext.Pl is the quarrying permit issued to the petitioner under the Kerala Minor Mineral Concession Rules, 1967. There are two petitioners in the above Original Petition. First petitioner is the joint Jenmon right holder along with his sister-in-law of granite rocks situated in Meppayoor Amsom, Kizhpayoor Desom in R.S. No. 43 /4A-4B of Kozhikode District. First petitioner gave the granite rocks for excavation to his son, the second petitioner. According to the petitioners, they never used to pay royalty to the Government. Since the first respondent is insisting upon payment of royalty, this Original Petition has been filed.
O.P. No. 15303/19948. There are six petitioners in this Original Petition. According to the petitioners, they obtained quarrying lease from the sixth respondent for extracting granite stones by agreement dated 30-5-1993 and on the strength of the same, they are removing the granite rocks from the property of the sixth respondent. The sixth respondent is the Jenmi of the property and the petitioners have given large sum of money as per the agreement. Till 10-10-1994 the petitioners were conducting the quarrying activities without any obstruction from the Government. On 10-10-1994, the petitioners and sixth respondent received Ext. P1 from the third respondent informing that the petitioners and sixth respondent are violating the Kerala Minor Mineral Concession Rules, 1967 and they are bound to pay the royalty. On the above cause of action, the petitioners have filed this Original Petition to declare that they are not bound to pay royalty to the Government and for other reliefs.
P.P. No. 13436/19939. In the above Original Petition, the petitioner is the owner of 1.12 Acres of land in R.S. No. 60/7 and 99 cents in R.S. No. 60/ 4 of Keezhappayyur Desom in Meppayyur Village, Koyilandy Taluk. The lands were in possession of the petitioner from time immemorial. According to the petitioner, he is excavating granite rocks from the above properties for the last so many years. The Government did not claim any royalty. But recently, the officials under the second respondent started interference in the functioning of the quarrying demanding huge amount as royalty. Prayers in the Original Petition are to declare that the petitioner is the absolute owner of the mineral lying in the property of the petitioner and for an Injunction restraining the respondents from collecting the royalty from him.
O.P. No. 4501/199310. First petitioner in this Original Petition is the Kozhikode District Quarry Owners Association and the second petitioner is the General Secretary of the abovesaid Association. Prayers in the Original Petition are for a declaration that the Government is not entitled to claim royalty for the minerals excavated by the private persons from their properties in the Malabar area and that the jenmis of Malabar area are the absolute owners of the granite rocks in the Malabar area.
O.P. No. 20992/199711. There are two petitioners in this Original Petition. The first petitioner is the owner of 51 cents granite rock held by him as jenmom in R.S. No. 135/5 of Thiruvallur Desom and Village, Vedakara Taluk, Calicut District. The first petitioner entered Into a lease agreement with the second petitioner along with 4 persons for excavation of granite rock in the property. According to the petitioners, the Government is not entitled to claim royalty from the petitioners. The main prayer in* the Original Petition is to declare that the Government is not entitled to collect royalty on minerals from the properties of the petitioners in the Malabar area. C.R.P. No. 2209/1993
12. This Civil Revision Petition is filed against the order in I.A. No. 2130/93 in A.S. No. 157/93 of the District Court, Kozhikode. Petitioners are the plaintiffs in O.S. No. 773 of 1990, They filed the suit for a declaration that they are not liable to pay royalty to the Government, since they are the absolute proprietors of the land. The suit was dismissed by the trial Court, against which the petitioners preferred A.S. No. 157/1993 before the District Court, Kozhikode. In that A.S. they filed I.A. No. 2130/1993 for a temporary injunction restraining the respondents from collecting royalty, which was dismissed. It is against that the present Civil Revision Petition is filed.
13. The contention of the petitioners is that they are the owners of jenmom lands in Malabar. According to the petitioners, the nature of proprietorship in the Malabar area is different from the remaining parts of the State. The Jenmom lands belonged to the owners absolutely and they have got lights over the soil and also under the soil. Thus, their case is that as owners in respect of minerals found in the lands belonging to them they are not liable to pay royalty. The petitioners further contended that even though there have been Ryotwari settlement in Malabar, these settlements have not affected the jenmom nature of the lands. According to them, these settlements have the effect of only subjecting the owners of lands to pay land revenue to the State and not to put an end to the absolute proprietorship over the land including the minerals found therein. Even after the settlement, the owners of jenmom lands continued to be the proprietors of the land having exclusive ownership right over the sub soil also. There was no transfer or vesting of any ownership right over the land or minerals as a result of such settlement from the owners to the State.
14. It was further contended that even if it is admitted that there has been some change after the Ryotwari settlements, that was only with regard to the right over the soil in connection with cultivation, etc. But that has not affected their ownership right over the minerals in the soil. According to the petitioners, in so far as they continued to be the owners of the soil there is a presumption that they are also the owners of the minerals underneath it. The petitioners also referred to assessments imposed on extracted minerals after the settlement. But according to them, this does not take away their right of proprietorship over the minerals, Learned counsel for the petitioners submitted that in the Full Bench decision in AIR 1963 Ker 101, this Court did not accept the arguments of the State that the owners of jenmom lands are the absolute proprietors. According to the petitioners, the above decision is not correct in view of the observations of the Supreme Court in Balmadies Plantations' Case.
15. In reply, the State contends that it was true that originally the lands in Malabar area of the erstwhile Madras State were Jenmom lands and the owners were the absolute proprietors of the soil. But this position had changed after the settlements were effected. After the settlements, the owners are only the pattadars holding the properties under the Government. They are not the absolute proprietors or owners of the lands and sub-soil and the ownership right over the minerals stood vested in the Government. As pattadars. the petitioners have got only rights over the surface soild and not sub-soil and all materials found in the subsoil including minerals. It was further contended that the effect of Ryotwari settlement regarding jenmom lands has been to put an end to the absolute ownership or proprietorship of the jenmies. The State further contends that this Issue has been finally decided by this Court in Sabhayogam' case and that the observation in Balamadies Plantation's case has no effect on the above decisions. They further contended that the pattas and the settlement register will show that the lands have been assessed as Ryotwari lands and it is the condition of the patta that if any minerals are extracted, the pattadars are liable to pay a certain amount to the State as royalty. It is further contended that so far as patta lands are concerned, there is no presumption that the pattadar, has the sub soil right also. His right is only confined to soil and that is subject to the rights of the Government. The State further contends that the various decisions of the High Courts including the Division Bench decision of this Court in Shibu v. Tahsildar 1993 (2) KLT 870 have taken the view that pattadars have no right over the minerals. Further it is contended that the petitioners and persons like them used to give royalty to the Government for the minerals extracted. It is only when prosecutions were taken for non-payment of royalty that the petitioners took a contention that they are not liable to pay royalty. The State further contends that the petitioners could not produce any document to show that they are the owners of minerals.
16. After hearing both sides, we are of the view that the following points arise for consideration :
(1) Are persons like the petitioners, who had got Jenmom rights over the properties in Malabar area of the State, the absolute owners of the properties and whether Ryotwari settlements effected any change in their ownership ?
(2) Are the petitioners owners of the minerals in their properties and are they bound to pay royalty to the Government for the minerals extracted since the lands are patta lands ?
17. So far as point No. 1 is concerned, there is a Full Bench decision of this Court reported in S. Sabhayogam v. State of Kerala, AIR 1963 Kerala 101. There, the challenge was concerning with the validity of the Kerala Agrarian Relations Act. 1960. The question there was whether the lands in Malabar were 'estates' under Article 31-A(2)(a) of the Constitution of India. Justice Vaidlallngam wrote the leading judgment while Chief Justice M.S. Menon wrote a separate concurring judgment. In that case the contention of the petitioner was that the lands in Malabar even though they were originally jenmom lands, subsequently became patta lands under the Ryotwari settlements and hence the lands changed the character from jenmom lands. The State took up the contention that in spite of the settlements, the character of the lands as jenmom lands had not changed. The judgment discusses various developments from the Inception to the Ryotwari settlements. It is pertinent to refer to the contention of the State in the case. It was contended in that case by the State that all lands in Malabar with the exception of a few properties forfeited to Government by rebellion or obtained by it by purchase or escheat are owned in jenmom right by private proprietors and the jenmom right vests in the holder full and absolute propriety in the soil. It was further contended that the Ryotwari tenure does not obtain in Malabar, where individual proprietorship of the soil was recognised by the British Government from very early times, unlike in the other parts of the Madras Presidency, where Government claim ownership of all soil and where the holder of Ryotwari pattas used to hold lands under lease from Government. The further case was that in view of the decision of the Madras High Court in Secretary of State v. Ashtamurthi ILR 13 Madras 89 the Government resolved to carry out a new settlement in Malabar having due regard to the principles laid down by the High Court. Therefore, the practice of settling with the occupants, who were not jenmies, was given up and the Government decided to ascertain the jenmies for a proper registration of such persons. Consequently, the Malabar Land Registration Act was enacted. The settlements were made in Malabar with the proprietor and pattas were issued only under the provisions of the Malabar Land Registration Act. The settlement was only for the limited purposes of revenue administration and some of the principles of Ryotwari settlements were made applicable to the Malabar District to the extent and in the manner indicated above.
18. In fact, same contentions are advanced by the counsel for the petitioners in the present case. Counsel for the petitioners relied on the decisions in Secretary of State for India in Council v. Vira Rayan, (1986) ILR 9 Madras 175, Mukkassa Nair Veetil Meenakshi Amma v. Secretary of State, AIR 1914 Madras 341 and Balmdies Plantations v. State of Tamil Nadu. AIR 1972 SC 2240. Counsel also relied on certain extracts from the Madras District Gazetteers. Malabar. Counsel referred to page 305 of the Gazetteers and the following passage is referred to:
"Parasurama created Malayalam, the Keralabhumi, and gave it as a gift to the Brahmans of the 64 gramams. The gift of flower and water given to the sixty-four gramams together for their enjoyment is called janmam. That gift was given to the tarwards of a gramam together and called Edodagam. Afterwards he gave the right called Rajamsam to 3,600 Brahmans of ten gramams by pouring water on the sword. They can put their finger in water and say this is my janmam; but the others may not put their finger in water and say 'this is my janmam'; they have only enjoyment".
Counsel also referred to page 308 of the above Gazetteers wherein it is stated that the jenm right of Malabar vests in the holder an absolute property in the soil. He also referred to the following observations in Purushothaman v. State of Kerala, AIR 1962 SC 694.
"According to this theory the King was not the owner of the cultivated land but the proprietary interest in it is vested in the cultivator, the right of the King being merely to the "Rajabhogam" which represented various proportions of the produce of the land sometimes thought of as being a sixth and at other times a higher proportions ranging up to a half.
According to us, the contentions advanced by the petitioners are similar to the contentions advanced by the State. In the case, AIR 1963 Kerala 101, Vaidialingam, J. after referring to the various contentions, in paragraph 63 observed as follows at Page 109 :
"After having given the entire matter very due consideration, we are of the opinion that after the introduction of the Ryotwari settlement in the Malabar area, whatever may have been the position of the jenmia otherwise, they can be considered to be only Ryotwari pattadars, and the lands in their possession as lands under Ryotwari tenure, in which case, the principle laid down by the Supreme Court in 1962 (1) Ker LR 67 : (AIR 1962 SC 723) will apply on all fours. We have already referred to the various incidents of Ryotwarl tenure noted by their Lordships in the said decision. One of the essential characteristics emphasised by their Lordships is that a Ryotwari Pattadar though virtually is like a proprietor, could still relinquish or abandon land in favour of the Government. On the other hand, their Lordships have also emphasised that the basic idea underlying an estate is that the person holding the estate should be the proprietor of the soil and should be in direct relationship with the State, paving land revenue to it".
In paragraph 69 of the above decision, the learned Judge referred to page 349 of the Madras District Gazetteers, which states as follows :
"At page 349 of the same book, among the special features of the re-settlement, it is mentioned that the term "janmabhagam" or "private janmam" were replaced by new holdings and old holdings respectively. That is, in the Adangal Registers etc., maintained after the settlement was introduced for the first time in 1900 and 1904, the lands of all the jenmis appear to have been shown as private janman but in the re-settlement the register shows them as old holdings".
We may also refer to paragraph 75 of the above decision, which is as follows :
"The Supreme Court, we have already pointed out, in its decision in 1962 (1) Ker LR 67 : AIR 1962 SC 723 has stated that though a Ryotwari Pattadar is virtually like a proprietor, he could still relinquish or abandon his land in favour of the Government. The manner in which the pattas are issued and the various entries referred to above clearly show, that after the introduction of the Ryotwari settlement in Malabar, persons like the petitioner are holding lands only as Ryotwari Pattadars and the lands in their possession are lands held on a Ryotwari tenure".
It is also useful to refer to the following observations in paragraph 71 of the above decision :
"But the matter is placed beyond all doubt when we come to the Adangal Registers maintained by the Government after the resurvey and resettlement, between 1931 and 1934. Here again, a copy of the descriptive memoir of Nediyiruppu Amsom of Ernad Taluk of Malabar District has been produced before us and on page 1 there are various matters mentioned in different columns. Column 4 relates to "Ryotwari (R)" or "Inam (I)" and the same thing is written in Malayam also (Original in Malayalam omitted here -Ed.) and under that heading the entry is "R". That clearly shows that the practice of treating the properties of persons like the petitioner as private janmam has been completely given the go-by, at any rate, after the resettlement during 1931-1934".
10. Chief Justice M.S. Menon in the concurring judgment in paragraph 95 and 96 observed as follows :
"95. It is not disputed that the mulwargdars of South Canara like the janmies of Malabar were absolute owners of the soil and that such ownership will attract the definition of the expression "estate" in Article 31-A of the Constitution. The controversy is as regards the result of the ryotwari settlement in the areas concerned. According to the State the settlement left the position of the janmies untouched, they continued to be the owners of the soil; and according to the petitioner it reduced their position to that of lessees under the Government, a position which cannot possibly be characterised as an "estate" under Article 31-A of the Constitution.
96. The result of the introduction of the ryotwari settlement into South Canara on the rights of a mulwargdar has been discussed and decided in Kunhikoman's case. According to that decision he became, as a result of the settlement, an ordinary ryotwarl pattadar. The Supreme Court dealt with the basic idea of a ryotwarl settlement and the rights of a ryotwari pattadar as follows :--
"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";
"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".
In paragraph 97 of the same decision, his Lordship states thus :
"It is agreed that there are large tracts in Malabar which are still unsurveyed and in respect of which no ryotwari settlement has been effected. What we are concerned with in this case are not janmam lands of that type; but janmam lands which have been subjected to a ryotwari settlement like the lands of the mulwargdars in South Canara. The ryotwari pattas Issued in Malabar after the settlement clearly provide for a surrender of the holding by the pattadar and this in the light of the Supreme Court decision in Kunhikoman's case, is crucial and against the contention of the State".
It is also useful to extract paragraph 99 of the above decision, which is as follows :
"99. All that I have been saying can be summed up in the form of five questions and answers :--
Question (1) Can the petitioner deliver a successful attack on the validity of the Agrarian Relations Act?
Answer Yes; provided he is not precluded by the immunity conferred by Article 31A of the Constitution.
(2) Will the immunity conferred by Article 31Astand in the way of the petitioner. If he is not the owner of a Janmam right?
No (3) What is the essence of a Janmam right?
The proprietorship of the soil.
(4) Was the petitioner the proprietor of the soil?
Yes, prior to the ryotwari settlement.
(5) Is the petitioner the proprietor of the soil?
No, in view of the ryotwari settlement and the reasoning in Kunhikoman' Case, 1962 (1) Ker LR 67 : (AIR 1962 SC 723)."
20. Counsel for the petitioners very vehemently relied on certain observations in the decision of the Supreme Court in Balmadies Plantations v. State of Tamil Nadu, AIR 1972 SC 2240. In that case, the validity of Gudalur Jenmom Estates (Abolition and Conversion into Ryotwari) Act 1969 was challenged on the ground of violation of Articles 14, 19. 31 and 31-A of the Constitution of India. Gudalur Taluk was originally part of Malabar District. There, the petitioner contended that even though originally the jenmies were the absolute proprietors of the lands, after the Malabar was annexed by the British, the jenmies conceded the liability to pay land revenue. Hence, there was gradual erosion of the rights of Jenmies in the lands in question and the jenmom estates became ryotwari estates after the resettlement of 1926. Hence, the contention raised was that there was no jenmom right and so the lands were not the estates under Article 31-A (2) (la) of the Constitution of India. The decision of the Supreme Court in K. Kunhlkoman v. State of Kerala, AIR 1962 SC 723 and also the decision of the Full Bench of this Court in S. Sabhayogam v. State of Kerala. AIR 1963 Kerala 101, were also relied on by the petitioners. But the Supreme Court did not accept the arguments of the petitioners and held that so far as those lands were concerned, they are jenmom lands.
Regarding the correctness of the Judgment of the Full Bench of this Court, it is useful to refer paragraph 14 of the Judgment of the Supreme Court in Balmadies Plantations v. State of Tamil Nadu, AIR 1972 SC 2240 at Page 2248 :
"Reference has been made on behalf of the petitioner-appellants to the Full Bench case of Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Kerala 101 wherein it was held that a person would cease to be proprietor of a soil if he gets a right or is under an obligation to relinquish or abandon the land. The above case related to the plains of Malabar, while we are concerned with the hilly tracts of Gudalur taluk. In the cited case pattas and Adangal registers were produced in the Court and the State accepted the authenticity of those documents. In the cases before us no patta was produced by the petitioner-appellants either in the High Court or in this Court. In view of the above, we are of the opinion that the facts of the Full Bench case are distinguishable. In any case, we are unable to subscribe to the proposition that the right of relinquishment of janmam rights of a janmi would by itself convert janmain rights into ryotwari estate".
The petitioners highlighted the following observations of the Supreme Court in the decision reported in Balmadies Plantations v. State of Tamil Nadu, AIR 1972 SC 2240 :
"In any case, we are unable to subscribe to the proposition that the right of relin-quishment of janmam rights of a janmi would by itself convert janmam rights into ryotwari estate".
Even though there is some force in the contention of the petitioners, the above observations of the Supreme Court are not in conformity 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 Fuil 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 nature of rights has changed after the Ryotwari settlement.
21. 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.
22. Shri M. K. S. Menon, learned counsel for the petitioners then contended that by the Constitutional 17th Amendment, the definition of 'estate' under Article 31-A has been amended to include Ryotwari settlement. From this, learned counsel wanted to infer that the decision of this Court in Sabhayogam's Case that the Ryotwari pattadar has no absolute proprietorship has been given the go-by. We are not able to accept this argument. The amendment was made in order to Include Ryotwari pattadar also within the meaning of the 'estate', since such persons will not come within the definition of Jenmom rights.
23. The second point which arises for consideration is since the petitioners are the proprietors of the soil, can they also be presumed to be the owners of things under the soil. Learned counsel brought to our notice certain observations of the Supreme Court in AIR 1962 SC 723 (Kunhikoman's Case), AIR 1972 SC 2240 (Balmadies Plantations' Case) and AIR 1963 Kerala 101 (Sabhayogam's Case) wherein it has been held that the Ryotwari pattadar for all practical purposes is the absolute proprietor of the property. Learned counsel also brought to our notice the observations of Madhavan Nair, J. In Lakshmana v. Venkateswarlu. (1949) 2 MLJ 500 : (AIR 1949 PC 278) wherein it was observed as follows at Page 287; of AIR) :
"In this connection it may be stated that it is not correct to say, as was boldly argued, that a ryotwari pattadar has no proprietorship in the land he holds under the Government, in his Land System of British India, Baden-Powell gives the following definition of the ryotwari system :
"A system of land revenue administration in which there is no middleman or landlord over the individual ryots, who are severally liable for the land revenue assessment on the holding".
Learned counsel further submitted that the pattadar is not only the full owner of the surface soil but also the sub soil including the minerals underneath the surface. Learned counsel also referred to certain decision of the High Courts and Supreme Court and also the orders issued by the Madras Revenue Board.
24. The State in its counter affidavit has taken the contention that the Ryotwari pattadars had only the right over the surface soil. They do not have any right over the minerals under the soil. Further, it was submitted that the burden is on the pattadar to show that the patta confers on him the right to the minerals also. Unless it is inferred from the patta that the rights of sub soil had been given to the patta holder, the latter has no right over the minerals. Learned Advocate General, who appeared for the respondents also brought to our notice various decisions of certain High Courts and Supreme Court to drive home the contentions urged by them in the counter affidavit.
25. Before dealing with the rival contentions, let us see the documents produced by the parties, so as to ascertain the nature of right of the petitioners over the properties. Ext. R1(A) is the patta issued to the petitioner in O.P. No. 1843/96. The patta contains a note at the bottom, which is as follows :
(Vernacular matter is omitted....Ed.) (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 properly 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). Ext. R1 (B) is the relevant portion of the manual of Village accounts for Malabar, pages 148 and 149. At page 149 it is stated that without permission of the high revenue officials neither the stones nor any other minerals should be extracted. But all pattadars, who are holders of nilam are entitled to construct wells. Regarding the stones and gravel obtained at the digging of the wells, there is no objection for using the same. Paragraph 2 of the manual says that if the minerals are to be used not for own purposes, then a fee is levied as Rajabhogam. The State has also produced relevant extract from the Collector's standing orders of the Malabar District. Item IX of the standing orders deals with the condition regarding quarries, which is as follows :
"IX Quarries.
The acreage assessment or seigniorage fees charged on quarries on unoccupied new holding lands should be credited to "Forests". The assessment or seigniorage fees levied on quarries on occupied new holding lands and on occupied and unoccupied old holding lands should be credited to "Land Revenue-Miscellaneous".
2. All quarries except granite quarries should be assessed at the uniform rate of Rs. 10 per acre for all kinds of material quarried, subject to the provisions of Rules 6, 10 and 18 in Chapter V of the Madras Mining Manual".
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 rights of the State to minerals is made.
26. The Mines and Minerals (Regulation and Development) Act, 1957 is an Act to provide for regulations of mines and development of minerals under the control of the Union. Section 3 is the definition section. "Minor minerals" have been defined to mean building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may. by notification in the Official Gazette, declare to be a minor mineral. "Mining lease" is defined under Section 3[c) as a lease granted for the purpose of undertaking mining operations, and Includes a sub-lease granted for such purpose. Section 15 deals with the power of the State Governments to make rules in respect of minor minerals. Section 15(g) enables framing of rule for fixing and collecting rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable. It also enables the State Government to prescribe a procedure for obtaining quarry leases, mining leases or other mining concessions.
27. In exercise of the power conferred under Section 15 of the above Act, the Government of Kerala has framed the Kerala Minor Mineral Concession Rules 1967. Chapter II deals with grant of quarrying permits in respect of lands in which minerals belong to the Government. Rule 4(1) deals with the procedure for granting permits. Rule 8 deals with the conditions on which quarrying permit can be granted. Chapter III deals with grant of permit in respect of lands in which minerals belong to a private person. Chapter IV deals with grant of quarrying permit in respect of lands in which the minerals vest partly in Government and partly in private persons. Chapter V deals with rules regarding quarrying leases in respect of lands in which the minerals vest in the Government. This Chapter contains Rule 15 to Rule 37. Rule 17 states as follows :
"17. Payment and rate of royalty :--(1) The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from the land in respect of which the lease has been granted at the rates specified in schedule I in respect of the mineral.
(2) The State Government, by notification in the official gazette, amend the schedule I, so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification".
Rule 29 deals with the conditions of quarrying lease. Rule 29(c) states that the lessee shall pay to the State Government royalty on any mineral moved out of the quarry hold at the rates specified in schedule I as may be fixed by the State Government from time to time. Chapter VI deals with the procedure for obtaining quarrying lease in respect of land the minor minerals in which vest in a person other than the State Government. This chapter does not contain any rule enabling the private person to pay any royalty to the Government. Chapter VII deals with grant of quarrying leases in respect of land in which the minerals vest partly in Government and partly in private persons. The rules in Chapter VI are made applicable to Chapter VII with a condition that the rent and royalty payable in respect of minor minerals partly vest in the Government and partly vest in private persons shall be paid by the Government and private persons proportionately. Thus, if the minerals vest in the Government, according to the rules for quarrying lease, royalty has to be paid to the Government. It is in this context that the question assumes importance.
28. We have already held that the lands in question are allotted under the Ryotwari pattas. The nature of right of such Ryotwari owners is aptly put in paragraph 13 of the decision reported in K. Kunhikoman v. State of Kerala, AIR 1962 SC 723 which is as follows at Page 732 :
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. Considering, however, that the Act of 1908 was in force all over the State of Madras but did not apply to lands held on ryotwari settlement and contained a definition of the word "estate" which was also applicable throughout the State of Madras except the areas indicated above, it is clear that in the existing law relating to land-tenures the word "estate" did not include the lands of ryotwari pattadars, however valuable might be their rights in lands as they eventually came to be recognised". Thus, it can be seen that the Ryotwari pattadars were never considered as proprietors of the land. Learned counsel for the petitioners brought to our notice certain earlier decisions, especially the decision in Lakshmanav. Venkateswarlu, (1949) 2 MLJ 500 : (AIR 1949 PC 278) wherein it was held that it is not correct to say that the Ryotwari pattadar has no proprietorship in the land he holds. But in view of the subsequent Supreme Court decisions, it is not necessary for us to refer to the earlier decisions on this point.
29. The next question is, on the basis of the patta whether the pattadars are entitled to any right under the soil or the minerals. We have already referred to the patta which shows that if the pattadar wants to work out the minerals, a fee has to be paid to the Government. Learned counsel submits that because of this it cannot be said that the mining does not belong to pattadar. Learned counsel also brought to our notice the decisions in Hind Stone v. Union of India, AIR 1981 Madras 82, India Cement Ltd. v. State of Tamil Nadu, (1990) 1 SCC 12 : (AIR 1990 SC 85), State of Tamil Nadu v. Hind Stone, AIR 1981 SC 711 and certain extracts from Halsbury's Laws of England, 4th Edn. page 325, to show that the holder of the soil is also the holder of the minerals. In The Secretary of State for India v. Srlnivasa Chariar. AIR 1921 PC 1 the Privy Council observed that in the absence of an express covenant creating such an Interest in the land as would vest the minerals in the grantee, the Government's rights to the sole ownership thereof are not affected. It was further observed as follows at Page 2 :
"A grant of this description may be no more than an assignment of revenue, and even where it is or includes a grant of land, what Interest in the land passed must depend on the language of the instrument and the circumstances of each case"
It is also worthwhile to note the following observations :
"Even in this litigation there is the same incorrect use of words used, as where the payment demanded by the Government is spoken of as assessment whereas the demand is for a payment in the nature of royalty for the use and consumption of that which belongs to the Government. Inaccuracies of class can in no way assist the plaintiffs".
In T. Swaminathan v. State of Madras, AIR 1971 Madras 483 a Division Bench of the Madras High Court had to consider the same question with regard to Ryotwarl pattadars. In paragraph 2 of the above decision, the Bench observed as follows at Page 484 :
"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".
In that case reliance was placed by the pattadars on the note in the patta that a holder of ryotwari tenure is entitled to work minerals on his land, but is liable to pay therefor a separate assessment in addition to the usual assessment for surface cultivation for the contention that they are the proprietors of the minerals also. Rejecting the contention, the Bench observed as follows :
"The separate additional assessment is the seigniorage, or royalty which the Government is entitled to collect for the working of the minerals. That shows that the State is entitled to the whole of the mineral rights under the surface, and not merely a part in the holding under ryotwari tenure".
The Bench further observed that the mere classification under the Rules does not en-able the pattadars to contend that the minerals vest in them. The learned Judges then referred to the decision in Sashi Bhusan Misra v. Jyoti Prasad Singh Deo, AIR 1916 PC 191 to hold that a right to the minerals under the land granted cannot be Interfered unless there was express evidence that the grant included them.
A Division Bench of the Andhra Pradesh High Court had to consider a similar question in the decision, reported in Kaliki Subbarami Reddy v. Union of India, ILR 1969 Andhra Pradesh 736. After referring to the various decisions and the standing orders of the Board of Revenue, the Bench referred to the decision in Kunhlkoman's Case and observed as follows :
"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".
Learned Advocate General referred to the Division Bench decision of the Madras High Court in W. P. Nos. 8542. 11672/90 and connected matters, which is reported in V. Gangarathinam v. State of Tamil Nadu rep. by Commissioner & Secretary to Government, Industries Dept.. Fort St. George, Madras 9, 1990 TLNJ 374-386. After referring to various decisions, the Court held as follows :
"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".
30. Learned counsel for the petitioners brought to our notice the decisions in Hind Stone v. Union of India, AIR 1981 Madras 82 and State of Tamil Nadu v. Hind Stone. AIR 1981 SC 711. But so far as these two cases are concerned, we don't find any observations in favour of the petitioners. The question in issue in that case was the validity of Rule 8-C of the Tamil Nadu Minor Mineral Concession Rules 1959. Under Rule 8-C, there was a prohibition in granting lease for quarrying granite to private persons, The High Court held that Rule 8-C was invalid while the Supreme Court upheld its validity. The decision does not say anything regarding the ownership of minerals. Of course, in paragraph 15 it is stated that Rule 8-C cannot have any application to quarry black granite in patta lands in which the right to minerals belonged to the applicants-private owners themselves. That was because Rule 8-C occurred under caption "Government lands in which the minerals belong to the Government". From this, it cannot be inferred that in all patta lands the minerals belong to the pattadars. In AIR 1981 Madras 82 the Court held that under Section 15 of the Mines & Minerals (Regulation and Development) Act, the State Government had only the power to regulate and it could not prohibit and the question in issue there was the right of the Government for quarrying in private lands. There is no passage in the decision to show that the pattadars are the owners of minerals. Learned counsel then brought to our notice the decision of the Supreme Court in India Cement Ltd. v. State of Tamil Nadu, (1990) 1 SCC 12 : (AIR 1990 SC 85). Counsel also brought to our notice certain extracts from paragraph 20 of the above decision, which state as follows (at Page 91-92; of AIR) :
"The learned Judge at page 306 of the report observed that in the earlier days, sovereigns had in exercise of their prerogative right claimed a share of the produce of all cultivated land known as 'Rajabhagam' or by any of the various other names, and had fixed their share or its commuted money value from time to time, according to their will and pleasure. The learned Judge noted that as long as the share of the sovereign was being paid, the sovereign had no right to the possession of the lands, and the proprietorship of these lands was vested in the occupier, who could not be removed because another offered more".
Learned counsel submitted that in the Act, it is clearly stated that what is being given to the Government for working out the minerals is 'Rajabhagam' and hence it is right to contend that the minerals belong to the owners. In the same decision in paragraph 21, it is stated as follows :
"It is however, clear that over a period of centuries, land revenue in India has acquired a connotative meaning of share in the produce of land to which the King or the Government is entitled to receive."
The Court further observed that there is a clear distinction between tax directly on land and tax on income arising from land. Royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit. Royalty is payable on a. proportion of the minerals extracted from the land. As observed by the Privy Council in Secretary of State for India v. Srinivasa Chariar, AIR 1921 Privy Council 1 "No doubt words are to be found which are in a sense appropriate to the plaintiffs' claim, but they are used in a context to which they do not belong". As already stated, the Board orders clearly say about the payment of royalty. In the Division Bench decision of this Court in Shibu v. Tahsildar, 1993 (2) KLT 870 their Lordships referred to the 10th report of the Law Commission and in paragraph 9 of the above decision, it is observed as follows :
"The Law Commission in its 10th Report had while dealing with the rights of the Governments to minerals in Zamindars, Jagirs, major inam and the like, expressed the view that in the Ryotwari areas, the problem does not arise and could not arise as the right of the Government to the underground rights was never disputed".
So far as the decision of the Supreme Court, reported in Raja Anand Brahma Shah v. State of U. P., AIR 1967 SC 1081, is concerned, it is based upon the special grounds and that decision cannot help the present petitioners.
31. Hence, we are of the view that so far as the lands in question are concerned, the minerals belong to the Government and royalty has to be paid to the Government for quarrying leases. Reference is answered accordingly.
32. In the above view of the matter, all the Original Petitions are dismissed. By interim order dated 18th December, 1997 on C.M.P. No. 8319/93 in O.P. No. 4501/93 and connected cases, the Division Bench had given certain directions regarding the issue of permit. The petitioners had been allowed to apply for permit and obtain permit for extraction of granite without realisation of royalty. This was made subject to the contentions raised by the Government. Hence we direct that in case the permits are granted to the petitioners and royalty has not been realised, the petitioners to pay royalty to the Government within a period of one month from the date of receipt of a copy of this Judgment. So also cases in which demands have been issued to them for payment of royalty, the petitioners shall pay the amount within a period of one month. So far as the Civil Revision Petition is concerned, we dismiss the Civil Revision Petition and direct the Appellate Court to dispose of the appeal within three months from the date of receipt of a copy of this judgment.