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Provided that all such terms and conditions shall be consistent with the provisions of any Central Act for the time being in force relating to the grant of mining leases."

Section 2(j) of the Mines Act, 1952, defines 'Mine' to mean "any excavation where any operation for the purpose of searching for obtaining mineral has been or is being carried on and includes.. "

"Minor Minerals" as defined in clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, (No. 67 OF 1957) include "ordinary sand". Clause (c) of the same Section defines "mining lease" as a "lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose." Clause (d) of the same Section defines "mining operations" to mean "any operations undertaken for the purpose of winning any minerals."

It is contended on behalf of the appellant that, according to Condition 2 of the Agreement (extracted above), "except the raising of the sand", no right, title and interest in the land was given to the defendant. It is submitted that in view of this express condition, the transaction was only a 'licence'. Relying on Paragraph 899 of Halsbury's Laws of England, 3rd Edition, Vol. 26, it is maintained that, in any case, it is not a 'lease' as defined in Section 105 of the Transfer of Property Act, but only a contract to sell sand, the price being pay able in yearly instalments. It is emphasised that the essential characteristic of a "lease" is that the subject is one which is occupied and enjoyed and the corpus of which does! not in the nature of things and by reason of user disappear. Reference has also been made to the dictum of the Judicial Committee of the Privy Council in Raj Kumar Thakur Giridhari Singh v. Megh Lal Pandey(l), and the decision of the House of Lords in Gowan v. Christie(2).

It is important to bear in mind that the term "lease" occurring in the definition of "mining lease" given in Section 3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of the Calcutta High Court in Fala Krishna Pal v. Jagannath Marwari(2), a settlement of the character of a mining lease is everywhere in India regarded as 'lease'. A mining lease, therefore, may not meticulously and strictly satisfy in all cases, all The characteristics of a 'lease' as defined in the Transfer of Property Act. Nevertheless, in the accepted legal sense, it has always been regarded as a lease in this country.

In Fala's case (ibid) Mukerji, J., speaking for the Bench, held that a coal mining settlement may be regarded as satisfying the requirements of Section 105 and treated as a lease because under such H (1) [1902] 2 Ch. 46 at page 56.

(2) I. L. R. 59 Cal. 1314.

settlement some portion, however small, of the surface has to be used for carrying on the mining operations and taking the coal out.

Be that as it may, in the instant case, as shall be presently discussed, the transaction evidenced by Ex. I, not only falls within the definition of a "mining lease" under Act 67 of 1957, but also partakes of all the essential characteristics of a 'lease' defined in Section 105 of the Transfer of Property Act.