Case: State Of Mysore Vs. Swamy Satyanand Saraswati, Religiouspreacher, Raichur

consumption of the subject leased."Accordingly it was held that the words founded on did not add to the true scope at the grant nor cause mineral rights to be included within it.10. It should be noted here that there was a reference to the trees on the land in the pattas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.According to the Board :"Such a lease is a lease at the surface only. This is the general case to which in the present case there is alone superadded a right to the trees. The minerals are not included."11. Most of the above cases were referred to again by the Board in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 = (AIR 1931 PC 89 ) where after noting the earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh, 1934 ILR 61 Cal 1 = (AIR 1934 Cal 430 ) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, bankar, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no. transfer of the property in the soil"12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest as to therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no. express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.13. We may also note that in State of Andhra Pradesh v. Duvvuru Balarami Reddy, (1963) 1 SCR 173 = (AIR 1963 SC 264 ) where the respondents had obtained mining leases for mining mica from the owners of a certain shrotriem village it was held that shrotriemdars had no. rights in the minerals and the leases granted by them to the respondent had no. legal effect. It is true that this Court was there dealing with rights of a different class of persons and it was claimed on behalf of the respondent that inasmuch as the grant included poramboke, it followed that mere surface rights were not the subject-matter of the grant Rejecting this contention the Court observed (p. 183) :"So far as the sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein."It is not in our view possible to hold otherwise than that granite is a mineral. According to Halsburys Laws of England :"There is no. general definition of the word "mineral." The word is susceptible of expansion or limitation in meaning according to the intention with which it is used;..........It is a question of fact whether in a particular case a substance is a mineral or not........The test of what is a mineral is what, at the date of the instrument in question, the word meant in the vernacular of the mining world, the commercial world, and among landowners, and in case of conflict this meaning must prevail over the purely scientific meaning." (See vol. 26. 3rd edition, Art. 674 page 320).In Art. 675 at p. 322 the learned authors summarise the case law on the subject as to whether particular substances are minerals or not. Reference is there made to the case of Attorney General v. Welsh Granite Co. (1885) 1 Law TR 549 where granite was held to be included under the reservation of "minerals" in the Enclosure Act which reserved all mines, minerals, ores, coal limestone, and slate to the Crown. According to Lord Coleridge the word "minerals" was large enough to include granite.14. In the view we have taken, it is not necessary to consider the effect of the Farmans or S. 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of S. 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis at the sub-soil rights to the hillock must therefore be negatived and the appeal allowed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. In our view it is not necessary to consider the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act. It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the grant thereof by the Nizam to Salar Jung I and to show that his rights in the land held by him were co-extensive with those of Nawab Salar Jung III. There is no. scope for any presumption that the Nizam had parted with the mineral rights to the jagirdar or that the jagirdar had done so in his turn. Even assuming that the Nizam conferred the right of minerals in the land or to quarry for granite therein to Nawab Salar Jung I, the question still remains, what right did the patta of the Salar Jung, estate confer on the predecessor-in-interest of the claimant. The patta for S. Nos. 312 and 313 was marked as Ex. 49 in this case.It is amply clear from the above that what was in contemplation of the grantor and grantee at the time of the grant was either the cultivation of the land or the grazing of cattle on it. Nobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein. The grantor was careful to exclude even the fruit-bearing trees. It would be wholly unrealistic to construe the grant as conferring mining rights by implication simply because of the fact that there was no. mention of it.it.10. It should be noted here that there was a reference to the trees on the land in the pattas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.Most of the above cases were referred to again by the Board in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 = (AIR 1931 PC 89  ) where after noting the earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh, 1934 ILR 61 Cal 1   = (AIR 1934 Cal 430  ) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, bankar, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no. transfer of the property in the soil"12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest as to therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no. express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.In the view we have taken, it is not necessary to consider the effect of the Farmans or S. 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of S. 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis at the sub-soil rights to the hillock must therefore be negatived and the appeal allowed.