Civil Appeal No 2218 of 1969
Appeal by Special Leave from the Judgment and Decree dated 14 3 1969 of the Calcutta High Court in appeal from Appellate Decree No 718 of 1962
D N Mukherjee and N R Chaudkary for the Appellant
Purshottam Chatterjee P K Chatterjee and Rathin Das for the Respondents
The Judgment of tho Court was delivered by SARKARIA J
This appeal by special leave is directed against a judgment dated March 14 1969 of the High Court at Calcutta
22 The appellant had the interest of a Darpatnidar in the land in suit measuring 9 acres 27 bighas
The plaintiff by a lease deed Ex
A dated July 10 1941 granted to the defendant respondents a lease of this land for the purpose of raising and taking sand out of the land for a period of 9 years ending on July 13 1949
In this lease deed the property was described to be Patni Mahal
Under the terms of this lease the lessee had an option of renewal for another 9 years
Subsequently on April 27 1950 appellant made a similar grant exhibit
I for another 9 years expiring on April 13 1959 but this grant was called a licence
The respondents did not pay the licence fee for the period from 1362 14 4 1955 to 1365 BS
The plaintiffs thereupon issued notice dated March 31 1966 terminating the licence and then filed Suit No 37 of 1960 for ejectment of the respondent in the Court of the Munsif Second Court Chandernagore
The suit was resisted by the defendant respondents inter alia on the ground that the land had vested in the State under the West Bengal Estates Acquisition Act 1953 hereinafter referred to as the Acquisition Act that they were tenants and not licensees under the plaintiff and after the date of vesting with effect from April 14 1955 became direct tenants under the State in respect of suit land and were paying rent to the State
The Trial Court dismissed the suit holding i that the defendants were not licensees but were tenants and ii that the plaintiff was not in khas possession on the date of the vesting April 14 1955 so he could not retain the land under Section 61 i of the Act In the result the suit was dismissed
The first appellate Court reversed the decision of the trial court and decreed the suit with the finding that the grant being a licence the plaintiff intermediary was entitled to retain the holding under Section 6 1 i of the Act
Allowing the Second Appeal by the defendants the High Court held a that if the lease ExA being a lease for 9 years was void under Section 107 of the  it would still operate as a lease from month to month b it was not a licence and c section 28 of the Act applied and as the plaintiff was not directly working the mine in the land he could not retain it
23 Aggrieved the plaintiff has come in appeal by special leave to this Court
The principal question that falls to be determined is whether Section 6 or Section 28 of the Acquisition Act governs the case  The High Court has held that it is Section 28 and not Section 6 which is applicable while the appellant contends that Section 6 is applicable by virtue of which he is entitled to retain the holding
Section 6 so far as relevant for our purposes is in these terms 6
Rights of intermediary to retain certain kinds 1 Notwithstanding anything contained in Sections 4 and 5 an intermediary shall except in the cases mentioned in the proviso to sub section 2 but subject to the other provisions of that sub section be entitled to retain with effect from the date of vesting   i Where the intermediary is an institution established exclusively for a religious or a charitable purpose or both or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both land held in khas by such  institution or person not being a tenant by leave or licence of such institution or person
 The contention of the learned counsel for the appellant is that since the suit land was held by the appellant intermediary in khas for a religious purpose through a licensee the defendant being a licensee and not a tenant he would be entitled to retain and hold this land from the date of vesting by virtue of clause i of sub section 1 of Section 6
The other relevant provisions are in Chapter IV of the Acquisition Act
They are as follows Sec 27
Provisions of Chapter IV to override other pro visions of the Act
The provisions of this Chapter shall have effect notwithstanding anything to the contrary elsewhere in this Act Sec 28
Right of intermediaries directly working mines
So much of the land in a notified area held by an intermediary immediately before the date of vesting including sub soil rights therein but excluding rights in hats and bazars not in the khas possession of the intermediary and land comprising forests if any as was comprised in or as appertained to any mine which was being directly worked 24 by him immediately before such date shall with effect from such date be deemed to have been leased by the State Government to such  intermediary
The terms and conditions of such lease shall be as agreed upon between him and the State Government or in default of agreement as may be settled by the Mines Tribunal 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 2j of the  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
 Before the High Court it was common ground between the parties that the land in dispute has a sub soil deposit of sand and the rights granted to the respondent under the document exhibit I styled as a licence  were to raise and take away that deposit of sand
Before us an attempt was made to deviate from that stand by con tending that the deposits of sand are on the surface in the shape of sand dunes and for removing the same no excavation or mining operations are necessary
The contention must be repelled
The definition of mining operations and mine noticed above are very wide
The expression winning of mineral in the definition of mining operations  is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth
As pointed out by this Court in B Dass vs State of Uttar Pradesh1 it is wrong to assume that mines and minerals must always be sub soil and that there can be no minerals on the surface of the earth
It is true that in the definition of Mine the term excavation in the ordinary dictionary sense means hole hollow or cavity made by digging out
But the word any prefixed to excavation 1  25 in the context of the phrase for the purpose of searching for or obtaining mineral gives it a much more extensive connotation so that every excavation be it in the shape of an open cast cavity or a subterranean tunnelling will fall within the definition of Mine 
Similarly it is not a requirement of the definition of mining operation  that the activity for winning the mineral must necessarily be an under ground activity
The essence of mining operations  is that it must be an activity for winning a mineral whether on the surface or beneath the surface of earth
Thus considered the land ill dispute having large deposits of sand which is a minor mineral was admittedly being excavated and removed by the defendant was at the date of vesting comprised in or appertained to a mine within the meaning of Section 28
Having seen that the land in dispute is a mine  in which mining operations  were being carried on the further question to be considered is whether this mine was being directly worked by the appellant intermediary  The word directly according to Webster s New World Dictionary means in a direct way without a person or thing 1 coming between immediately as directly responsible
The use of the expression directly in the context of the word worked follow ed by the words by him unmistakably shows that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine as lessees under the State who immediately before the date of vesting were working the mine under their immediate control management and supervision
Thus construed the phrase being directly worked by him in the Section will not take in a case were the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the intermediary in consideration of receiving a periodic rent royalty or a like amount
It was contended by the learned counsel for the appellant that this interpretation of the phrase directly worked by him is inapplicable to an intermediary who is an idol because an idol albeit a juristic person has perforce to work the mine through a lessee or licensee
The argument is ingenious but untenable
The idol held the suit land comprised in the mine as an intermediary only in the juristic sense but in fact he was exercising his rights in the suit land through his human representative the Shebait Mohanta Srimat Dandi Swami
The Shebait could in that representative capacity directly work the mine himself
But instead of doing so he on April 27 1950 granted the right of carrying on mining operations in the land and taking away the mineral on payment of an annual sum for a period of 9 years to 3 196SCI79 26 the respondents
Thus irrespective of whether this transaction or grant dated April 27 1950 was a lease or a license the fact remains that immediately before the date of vesting the mine in the suit land was not being directly worked  by the intermediary within the con templation of Section 28
The provisions of Section 61 i of the Acquisition Act extracted earlier give to an intermediary a right to retain land held by him in khas for the purposes mentioned therein through a licensee
Section 28 as construed by us denies the right to retain the land comprised in a mine or appertaining to a mine it at the material date it was not being directly worked by the intermediary but through a licensee or other agency to whom the right to conduct mining operations had been granted by the intermediary
In that respect the provisions of Section 28 in Chapter IV are contrary to those of Section 61 i
In this situation according to the legislative mandate in Section 27 the provisions of Section 61i must yield to those in Section 28
Assuming arguendo that the plaintiff was at the material time holding the land in khas through a licensee and fulfilled all other conditions which entitled him to retain under Section 61 i then also this case being in conflict with Section 28 the latter Section would prevail over the former
In this view of the matter it is not strictly speaking necessary to resolve the controversy as to whether the transaction exhibit I dated April 27 1950 was a lease or a license
But as in the Courts below and here also a good deal of argument was addressed on this point we propose to go into the same
It is well settled that in ascertaining the real character of a document regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed
The Agreement exhibit I which is named as a licence is to be construed in the light of this cardinal canon
The Agreement exhibit I is not a very lengthy document
The material part of this document may be extracted as below This deed of Agreement is executed to the effect following   
We the First Party have been carrying on the business of sand near Haripal Station
Sand was necessary for carrying on the said business and the said sand Lying inside the land described in the schedule below should be taken out and proposal having been made to the second parties for the purpose of business the second parties agreed to take settlement to the effect that we can take out 27 the sands of the said lands and become bound by the agreement on the following terms and conditions of taking out the sand from the said land only
TERMS AND CONDITIONS 1
The sand which is in the said land belongs to the own share of the First Party and should be taken out within the month of Chaitra from 1357 to 1365
Save and except the raising of the said sand there will be no right title and interest in the land with the First Party
No right title and interest will accrue to the First Party in respect of the land
The First Party for the purpose of raising sand will pay Rs 66 Rupees sixty six per annum as the price of the said sand
If the Government fixes any new amount of demand then save and except this they will take the said amount of Rs 66 andor the Second Party will not be entitled to claim the same
If the amount is not paid within the month of Chaitra every year then the parties will not be entitled to raise the sand next year and for realisation of the said amount of Rs 66  Second Party can bring a suit against the First Party and will get the arrears of interest at the rate of 12
At the end of the stipulated period the Second Party will take khas possession of the said land and the licence of the First Party will be revoked  Emphasis added From what has been extracted above the following characteristics of the transaction are clear F i A right to raise and take out and remove sand lying inside the land in dispute was granted by the plaintiff to the defendant
The words raise and take out sand from inside the land are wide enough to include not only the right to carry out all the operations necessary for extracting sand but also to take it away and appropriate it
Construed in the context of the document as a whole these words put it beyond doubt that rights to carry out mining operations within the definition in clause d of Section 3 of the Central Act 67 of 1957 for winning sand and to appropriate it were granted
ii The rights were granted for a period of 9 years commencing from April 27 1950
28 iiiThese rights were granted for a price fixed on yearly basis irrespective of the quantity of sand extracted
The price fixed is Rs 66 per annum
This consideration is payable 0in the month of Chaitra every year
In case of default the First Party grantee shall not be entitled to raise the sand next year and the Second Party grantor shall have a right to recover the arrears of rent together with interest at 12 by bringing a suit against the First Party
iv The Second Party will be entitled to take khas possession of the land at the end of the stipulated period
This condition contained in paragraph 4 of exhibit
I read along with the other parts of the document necessarily implies that if the First Party continues to pay the price as stipulated a he shall be entitled to enter into and remain in exclusive khas possession of the land for the purpose of carrying out the mining operations for the full stipulated period of 9 years and b the Second Party plaintiff will not be entitled to retake khas possession of the land and revoke the so called license before the end of the said period of 9 years
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  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 vs Megh Lal Pandeyl and the decision of the House of Lords in Gowan vs Christie2
We are unable to accept these contentions
Para 899 of Halsbury s Laws of England ibid reads thus A lease may be granted of land or any part thereof and since minerals are a part of the land it follows that a 1 L R 44 IA246
2 1873 L R 29 lease can be granted to the surface of the land and the A minerals below or of the surface alone or of the minerals alone
It has been said that a contract for the working and getting of minerals alone though for convenience called a mining lease is not in reality a Lease at all in the sense in which one speaks of an agricultural lease and that such a contract properly considered is really a sale of a portion of 1 the land at a price payable by instalments that is by way of rent or royalty spread over a number of years
 This statement of the law in England appears to be founded on the observations of Cairns L J in Gowan vs Christie ibid and Gozens Hardy LJ in Aldam s Settled Estate1
In Raj Kumar Thakur Giridhari Singh ibid Lord Shaw delivering the opinion of the Board said that it must be born in mind also 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 the user disappear
Counsel for the appellant has adopted this very argument
But this observation should not be torn out of the context
Lord Shaw had further observed In order to cause the latter speciality to arise minerals must be expressly denominated so as thus to permit of the idea of partial consumption of the subject leased
Thus Lord Shaw had himself pointed out that minerals may be made a part of the subject matter of a lease and in such a case the lease would permit the idea of the partial consumption of the subject matter of the lease
It is important to bear in mind that the term lease occurring in the definition of mining lease given in Section 3c 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 
But as rightly pointed out by a Bench of the Calcutta High Court in Fala Krishna Pal vs Jagannath Marwari2 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 
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 at page 56
2 I L R 30 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 exhibit 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 
Section 105  defines a lease  of immovable property as a transfer of a right to enjoy such property made for a a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money a share of crops service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms
 In the second paragraph of the Section it is expressly stated that the price so paid in consideration of the transfer is called the premium and the money share service or other thing to be so rendered is called the rent
 The definition of immovable property  given in Section 3 Para I of that Act is in the negative and is not exhaustive
Therefore the definition given in Section 326 of the General Clauses Act X of 1897 will apply to the expression used in this Act except as modified by the definition in the first clause of Section 3
According to the definition given in Section 326 of the General Clauses Act immovable property shall include land benefits to arise out Or land and things attached to the earth or permanently fastened to anything attached to the earth
In short the expression immovable property  comprehends all that would be real property according to English Law and possibly more
See 1 IA 34
Thus every interest in immovable property or a benefit arising out of land will be immovable property  for the purpose of Section 105 
A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral is a right to enjoy immovable property  within the meaning of Section 105 more so when as in the instant case it is coupled with a right to be in its exclusive khas possession for a specified period
The right to enjoy immovable property  spoken of in Section 105 means the right to enjoy the property in the manner in which that property can be enjoyed
If the subject matter of the lease is mineral land or a sand mine as in the case 31 before us it can only be enjoyed and occupied by the lessee by working it as indicated in Section 108  which regulates the rights and liabilities of lessors and lessees of immovable property
In the view we take we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy vs Bengal Coal Company1
Delivering the opinion of the Board Lord Macmillan said In considering the character and effect of acts of possession in the case of a mineral field it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible
Owing to the inaccessibility of minerals in the earth it is not possible to take actual physical possession at once of a whole mineral field it can be occupied only by extracting the minerals and until the whole minerals are ex hausted the physical occupation must necessarily be partial In H V Low  Co Ltd vs Jyoti Prasad Singh Deo2 the law as laid down in Gowan s case ibid was strongly relied upon by the appellants therein
Negativing this contention the Judicial Committee pointed out that the rights and liabilities of lessor and lessee are defined in Section 108 of the  and the appellant h ad not shown that the respondent had failed or was not in a position to perform the duties incumbent on a lessor under Section 108 of the said Act
The discussion will not be complete without noticing the decision of the Patna High Court in Commissioner of Income Tax Bihar  Orissa vs Kumar Kanakhaya Narain Singh3 which is ill point
In that case
after an exhaustive survey of all the decisions on the subject including some of those which have been cited before us a Full Bench consisting of three eminent Judges held that coal mining settlements whereby certain rights of entering upon the land of the settlor sinking shafts etc
and winning and taking away the coal are granted in consideration of receiving a salami and annual sums computed on the amount of coal raised and the amount of coke manufactured subject always to a minimum annual sum which was always payable irrespective of what coal was raised or coke manufactured were not a sale of coal but could be regarded as leases  within the meaning of Section 105 read with Section 108  or with 1 1930 L R 58 I A 29
2 1931 1 L R  L R 58 I A 392
3 1
L R XX Patna 13
32 in the legal acceptance of the term lease in this country
This decision of the High Court was affirmed by the Judicial Committee and the appeal filed by Kumar Kanakhaya was dismissed
See LR 70 IA 180
The ratio of the Patna case applies with greater force to the facts of the case before us because herein a the annual fixed payment had no relation whatever with the quantity of sand extracted and appropriatei and what is more important b the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years
The transaction exhibit I though labelled as a licence has all essential elements of a lease  ever
under Section 105 of the Transfer for Property Act
In short stripped of the form in which it is draped the Agreement exhibit I in substance and in fact is a lease  in the accepted legal sense of the term and not a licence  as defined in Section 52 of the Indian Easements Act
If this be the correct construction of the document and we think it is so it is doubtful whether Section 61 i could cover the appellant s case and give him a right to retain the land in dispute eve if Section 28 was out of his way
In sum we may reiterate that even on the assumption that the respondent was a licensee the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting and as such will not be entitled to retain due to the overriding operation of Section 28
For all the foregoing reasons the appeal fails and is dismissed
In the circumstances of the case however there will be no order as to costs
VDK Appeal dismissed


Summary:
The appellant idol a juristic person was exercising the rights through the Shebait Mohanta Srimati Dandi Swami of a Darpatnidar in the land in suit
By a lease deed exhibit A dated July 10 1941 the appellant granted to the respondents a lease of the suit land for the purpose of raising and taking sand out of the land for a period of nine years ending on July 13 1949
Subsequently on April 27 1950 the appellant made a similar grant exhibit I for another nine years expiring on April 13 1959 but this grant was called licence
The respondents did not pay the licence fee for the period 1362 14 4 1955 to 1365 BS
The appellant thereupon issued notice dated March 31 1966 terminating the licence  and then filed a suit No 37 of 1960 for ejectment of the respondent in the Court of the Munsiff Chandernagore
The trial court having dismissed the suit the appellant filed a first appeal which was allowed
In second appeal the High Court restored the decree of the trial court
In appeal by special leave to this Court it was contended on behalf of the appellant a The transaction evidenced by the document exhibit I dated April 277 1950 was a license  for taking away sand and not a lease  of immovable property
Therefore the appellant intermediary will be considered to be in Khas possession of the holding on the date of vesting April 1 1955 through the licensee and as such
entitled to retain it under Section 6 of the Bengal Estates Acquisition Act
1953 b Section 28 of the Bengal Estates Acquisition Act 1953 is not applicable because there was no mine  in the suit land as defined in the Central Act 67 of 1957 the sand deposits naturally exist on the surface and not below it and mere collection and removal of the sand from the surface did not constitute mining operations
therefore it could not be said that the suit land was comprised in a mine or appertained to a mine within the meaning of the said Section 28 c Even if the land was a mine  or appertained to a mine the mine was being worked by the appellant through a licensee and as such was being 19 directly worked  by the appellant intermediary within the contemplation of Section 28 of the Bengal Estates Acquisition Act and therefore the land would be deemed to have been leased to the appellant by the Government
Rejecting these contentions and dismissing the appeal  HELD A
In ascertaining whether a document evidences a lease  or a licence  regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed
26F 
The document exhibit I the Agreement in the instant case reveals the following characteristics
which show that in fact and substance it is a lease and not a licence  27E 32C i A right to raise  and take out and remove sand lying inside the land in dispute was granted by the plaintiff to the defendant
The words raise and take out sand from inside the land are wide enough to include not only the right to carry out all the operations necessary for extracting sand but also to take it away and appropriate it
Construed in the context of the document as a whole these words put it beyond doubt that right to carry out mining operations within the definition in Cl
d of section 3 of the Central Act 67 of 1957 for winning sand and to appropriate it were granted
27F G ii The rights were granted for a period of 9 years commencing from April 27
27H iii These rights were granted for a price fixed on yearly basis irrespective of the quantity of sand extracted
The price fixed is Rs 66 per annum
This consideration is payable in the month of Chaitra every year
In case of default the First Party grantee shall not be entitled to raise the sand next year and the Second Party grantor shall have a right to recover the arrears of rent together with interest at 12 by bringing a suit against the First Party
28A B iv The Second Party will be entitled to take Khas possession of land at the end of the stipulated period
This condition contained in paragraph 4 of exhibit 1 read along with the other parts of the document necessarily implies that if the First Party continues to pay the price as stipulated a he shall be entitled to enter into and remain in exclusive khas possession of the land for the purpose of carrying out the mining operations for the full stipulated period of 9 years and b the Second Party plaintiff will not be entitled to retake khas possession of the land and revoke the so called licence before the end of the said period of 9 years
28B D The term lease occurring in the definition of mining lease given in cl
c of section 3 of the Mines and Minerals Regulation and Development Act is not used in the narrow technical sense in which it is defined in section 105 of the 
A mining lease may not meticulously and strictly satisfy in all cases all the characteristics of a lease as defined in the 
Nevertheless in the accepted legal sense it has always been regarded as a lease in this country
29E G In the instant case the transaction evidenced by exhibit I not only falls within the definition of a mining lease under Act 67 of 1957 but also partakes of 20 all the essential characteristics of a lease defined in section 105 of the 
30 A B Balakrishna Pal vs Jagannath Marwari ILR  approved Raj Kumar Thakur Girdhari Singh vs Megh Lal Pandey LR 44 IA 246 Gowan vs Christie  differed
The negative definition of immovable property given in section 3 Para 1 of the  is not exhaustive
Therefore applying the definition given in section 326 of the General Clauses Act X of 1897 to the expression used in the  except as modified by the definition in the first clause of section 3 every interest in immovable property or a benefit arising out of land will be immovable property  for the purpose of section 105 
30E G A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral is a right to enjoy immovable property within the meaning of section 105 more so when it is coupled with a right to be in its exclusive khas possession for a specified period
The right to enjoy immovable property spoken of in section 105 means the right to enjoy the property in the manner in which that property can be enjoyed
If the subject matter of the lease is mineral land or a sand mine it can be enjoyed and occupied by the lessee by working it as indicated in section 108 of the which regulates the rights and liabilities of lessors and lessees of immovable property 30G H 31A Nageshwar Bux Roy vs Bengal Coal Company 1930 LR 58 IA 29 applied
H V Low  Co Ltd vs Joyti Prasad Singh Deo Cal 699 LR 58 IA 392
differed from
Commissioner of Income Tax Bihar and Orissa vs Kumar Kanakhaya Narain Singh ILR XX Patna 13 approved
The true character of the transaction evidenced by the document exhibit 1 being that of a lease  and not a licence  Section 61i of the West Bengal Estates Acquisition Act 1953 will not cover the appellant s case and give him a right to retain the land in dispute even if section 28 of that Act was out of the way
32C D B
The definition of mining operations and mine in the Central Act 67 of 1957 are very wide
The expression winning of mineral in the definition of mining operations is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth
Mines and minerals need not always be sub soil and there can be minerals on the surface of the earth
24G B Dass vs State of UP   reiterated
It is true that in the definition of mine the term excavation in the ordinary dictionary sense means hole hollow or cavity made by digging out
But the word any prefixed to excavation in the context of the phrase for the purpose of searching for or obtaining mineral gives it a 21 much more extensive connotation so that every excavation be it in the shape of an open cast cavity or a sub terranean tunnelling will fall within the definition of mining operations 
The essence of mining operations  is that it must be an activity for winning a mineral whether on the surface or beneath the surface of the earth
24H 25A B In tho instant case the land in dispute has large deposits of sand which is a minor mineral
The sand was admittedly being excavated and removed by the respondent lessee
The land was thus at the date of vesting com prised in or appertained to a mine  within the meaning of section 28 of the West Bengal Estates Acquisition Act 1953
25B C C
The phrase being directly worked by him in section 28 of the West Bengal Estates Acquisition Act 1953 will not take in a case where the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the intermediary in consideration of receiving a periodic rent royalty or a like amount
25E F The word directly means in a direct way without a person or thing coming between immediately as directly responsible
The use of the expression directly in the context of the word worked followed by the words by him unmistakably shows that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine as lessees under the State who immediately before the date of vesting were working the mine under their immediate control management and supervision
25C E Section 28 of the West Bengal Estates Acquisition Act 1953 denies the right to retain the land comprised in a mine or appertaining to a mine if at the material date it was not being directly worked by the intermediary but through a licensee or other agency to whom the right to conduct mining operations had been granted by the intermediary
In that respect the provisions of s28 are contrary to those of section 61i which give to an intermediary a right to retain land held by him in khas for the purpose mentioned therein through a licensee
In this situation according to the legislative mandate in section 27 the provisions of section 61 i must yield to those in section 28
26 B C Thus even on the assumption that the respondent was at the material date holding the land in Khas through a licensee and fulfilling all other conditions which entitled him to retain under section 6 1 i then also the case being in conflict with section 28 the latter section would prevail over the former
26D  32E