Civil Appeal Nos. 4540-4548 and 4549 of 2000. Case: Threesiamma Jacob and Ors. Vs Geologist, Dptt. of Mining and Geology and Ors.. Supreme Court (India)

Case NumberCivil Appeal Nos. 4540-4548 and 4549 of 2000
CounselFor Appearing Parties: S. Gurukrishnakumar, Addl. Adv. Gen., A. Raghunath, M.T. George, Kavita K.T., B. Balaji, Prasana Venkat, T. Mouli Mahendran, R. Veeramani, Vanitha Giri, R. Satish and T. Harish Kumar, Advs.
JudgesR.M. Lodha, J. Chelameswar and Madan B. Lokur, JJ.
IssueMadras Estates Land Act, 1908; Estates Abolition Act, 1948 - Sections 1(10), 3; Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 - Section 2A; Mines and Minerals Regulation and Development Act, 1948; Kerala Agrarian Relations Act; Mines and Minerals (Development And RegulationAct), 1957 - Sections 3, 4; ...
CitationAIR 2013 SC 3251, 2013 (3) AKR 566, 2013 (4) CTC 744, 2013 (3) EFLT 652, JT 2013 (10) SC 470, 2013 (3) KLJ 450, 2013 (3) KLT 275, 2013 (4) LW 677, 2014 (1) RCR 20 (Civil), 2013 (9) SCALE 1, 2013 (9) SCC 725
Judgement DateJuly 08, 2013
CourtSupreme Court (India)


J. Chelameswar, J.

1. These appeals are placed before us pursuant to the Order dated 8th December, 2004 of a Division Bench of this Court which opined that the points involved in these and certain other appeals "need to be decided by a three Judge Bench."

2. These appeals arise out of a common judgment rendered in a number of writ petitions by a full Bench of the Kerala High Court dated 2nd August, 1999 by which all the writ petitions were dismissed.

3. The said full Bench of the Kerala High Court was called upon to examine the question (on a reference by another Division Bench) - whether the owners of Janmam lands in the Malabar area1 are the proprietors of the soil and the minerals underneath the soil - and answered the said question in the negative:

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

4. To illustrate the background in which such question arises, we may quote the facts of one of the writ petitions considered by the full Bench as narrated by the full Bench.

2. According to the Petitioner in this case, her husband obtained jenmon assignment of 2 Acres of granite rocks situated in Dhoni Akathethara Amsom and Village, palakkad Taluk, Malabar. The Petitioner's husband obtained the property from the previous jenmy, C.P. Thampurankutty Menon. Thereafter, the Petitioner's husband executed a registered gift deed. According to the Petitioner, the property was enjoyed by the earlier jenmy and thereafter by the Petitioner without any interference from the Government. Due to ignorance of the legal position, the Petitioner entered into a lease agreement with the Department of Mining and Geology to conduct quarrying operations in her property. Later on she realised that it was not necessary to pay any royalty to the Government with regard to the property belonging to her. In the above circumstances, she made a fresh application to the Department for licence. But the Respondents failed to provide necessary permits to the Petitioner. When she received a notice from the Kerala Minerals Squad directing her to stop the quarrying activities, she gave a reply to reconsider her contention. Thereafter, by Ext. P6, she was informed by the Department to renew the lease.

5. It can be seen from the above that the Appellants asserted that they are holders of jenmom rights in the lands in question and the State has no legal authority to demand payment of royalties on the minerals excavated by the holder of jenmom right.

6. Such a claim of the Appellants is based on the belief and assertion of the Appellants (1) that the holder of the jenmom rights is not only the proprietor of the soil for which he has jenmom rights, but also the owner of the mineral wealth lying beneath the soil. (2) that the understanding of the Appellants that a claim of royalty can be made only by the owner of the mineral against a person who is excavating the mineral with the consent of the owner.

7. We must straightway record that the second of the above-mentioned propositions regarding the character and legal nature of royalty, (though was considered by this Court on more than one occasion) stands referred to a larger Bench by an Order of reference dated 30th March, 2011 of a three-Judge Bench in Mineral Area Development Authority and Ors. v. Steel Authority of India and Ors. (2011) 4 SCC 450, therefore, we are not required to examine and decide the question. We are only required to examine the amplitude of the rights of the jenmom land holders called jenmis in the Malabar area of the Kerala State and decide whether a jenmi is entitled to the rights of subsoil/the minerals lying beneath the surface of the land.

8. The Appellants' case is that a 'jenmi'2 holds jenmom3 lands as absolute owner and has proprietary rights over both the soil and subsoil. The ryotwari settlement made by the British Government in the Malabar area of the erstwhile Madras Province only obligated the jenmis to pay revenue to the State but did not in any way affect their proprietary rights in the lands. Nor did the ryotwari settlement have the effect of transferring and vesting the ownership either of the land or the subsoil (minerals) to the State. In support of this submission, the Appellants heavily relied on a judgment of this Court in Balmadies Plantations Ltd. and Anr. v. The State of Tamil Nadu AIR 1972 SC 2240 and also a standing order of the Board of Revenue of the erstwhile Madras Province dated 19th March 1888 and argued that earlier full Bench decision of the Kerala High Court in S. Sabhayogam v. State of Kerala AIR 1963 Kerala 101 required a reconsideration.

9. On the other hand, the State of Kerala took the stand that subsequent to the extension of the ryotwari settlement to the Malabar area of the erstwhile Madras Province, the jenmis ceased to be the absolute owners and proprietors of the lands held by them. The ryotwari settlement had the effect of transferring the ownership of subsoil (minerals) to the Government. The ryotwari pattadars rights are only confined to the surface.

10. The High Court rejected the contentions of the Petitioners. The High Court attempted to distinguish the decision of this Court in Balmadies Plantations (supra):

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

11. We must confess that we have some difficulty to understand the exact purport of the above extract. Be that as it may. The High Court recorded two conclusions (1) that the earlier full Bench decision of the Kerala High Court in the case of S. Sabhayogam case (supra) did not require any reconsideration as contended by the Petitioners; and (2) the lands in question cannot be classified any more as jenmom lands but are lands held on a ryotwari patta.

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

12. In view of such a conclusion the High Court rejected the submission that the Petitioners are entitled to the rights over the subsoil relying upon certain passages from Secretary of State v. Sri. Srinivasachariar AIR 1921 PC 1, T. Swaminathan (Dead) and Anr. v. State of Madras and Ors. AIR 1971 Mad 483, Sashi Bhushan Misra v. Jyoti Prasad Singh Deo AIR 1916 PC 191, Kaliki Subbarami Reddy v. Union of India ILR 1969 AP 736 and Gangarathinam v. State of Tamil Nadu 1990 TNLJ 374; and certain recitals (in Malayalam) made in the patta issued to one of the Petitioners before it which is translated by the High Court as follows:

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

13. The High Court though referred to the standing order of the Madras Revenue Board dated 19th March 1888, it did not record any conclusive finding on the effect of the said order.

14. Before us the same submissions which were made before the High Court were repeated by both the parties, therefore, we are not elaborating the submissions made before us.

15. Before we examine the correctness of the judgment under appeal, we deem it necessary to take note of the legal position regarding the rights over minerals as they obtain in England. Halsbury's Laws of England4 state the legal position:

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

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

16. We are required to examine whether the law of this country and more particularly with reference to Malabar area regarding the rights over the mines and...

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