Case: Rajaanand Brahma Shah Vs. State Of Uttar Pradesh &amp; Ors

I have power to file a suit in the Civil Court to realise the amount from Mr. Burke aforesaid. Mr. Burke aforesaid has not the right to transfer the same. He should remain in possession thereon as long as he wishes to an payment of fixed amount of Jama."27. There are also subordinate leases produced on behalf of the appellant to show that the right to minerals was always enjoyed by the appellant and not by the lessees: for instance, Annexure A-5 at p. 125 of the Paper Book is a deed of agreement executed by Abtal Deo on September 4, 1852. Paragraph 4 of this agreement states :"4. In this village, no Sayer item is produced; but whatever little or more fish, mangoes and Mauah are available we the occupants of the village enjoy and shall continue to enjoy the same. If something viz., iron ore, copper or treasure trove are discovered in this Mahal, the Raja Saheb shall be entitled to it. No other person should plant a new grove without the written permission of the Raja. If any one does so he shall be liable to pay Rs. 10 per bigha and shall continue to pay annual Phota as heretofore.".28. There are similar clauses in the agreements - Annexures A-1 to A-4 and A-6 to A-13. Reference was also made on behalf of the appellant to the letter of Mr. Thornton, dated October 5, 1850 to the Secretary to the Suddar Board of Revenue, Annexure F wherein he states that "In the settled portion of the Mirzapur district, the Government lays no claim to the soil which includes any mineral products that may be discovered". There is also a letter-Annexure G, dated August 21, 1850 from Mr. Roberts, Deputy Collector, Mirzapur to the Commissioner of Baneras Division. In this letter, Mr. Roberts expressed the view that the right to minerals was vested in the proprietary owner of the soil and that the sovereign was only entitled to a portion of the revenue thereon and that "in Bengal, the proprietors of estates lease or assign the right of mining without any interference on the part of the Government".29. It is manifest that the view that we have expressed as to the interpretation of the two Sanads, dated October 9, 1781-Annexure A-and December 10, 1803-Annexure B -is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must be overruled.30. On behalf of the respondents, reference was made to the Mirzapur Stone Mahal Act (U. P. Act V of 1886) and it was pointed out that under S. 5 of that Act "no proprietor was entitled to place any prohibition or restriction, or to demand or receive any sum by way of rent, premium, duty or price, in respect of the opening quarry, or the quarrying of stone, in the land, or in respect of the storing of stone at the quarry or the transport of stone over the land". But there is noting in this statue which takes away the right of the zamindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.31. For the reasons already expressed we hold that the State Government has no jurisdiction to apply the provisions of Section 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land. We are further of the opinion that the State Government had no jurisdiction to order the Collector of Mirzapur to taken over possession of the land under S. 17 (1) of the Act. The notification, dated October 4, 1950 is therefore, illegal. For the same reasons the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires.32. We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of the State Government dated October 4, l950 by which the Governor has applied S. 17 (1) and (4) to the land in dispute and directed that the provisions of S. 5A of the Act should not apply to the land. We further order that the notification of the State Government, dated December 12, 1950 under S. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated, January 7, 1952 and the reference made to Civil Court under S. 18 of the Act.33. In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute but in our judgment in State of Uttar Pradesh v. Raja Anand Brahma Shah Civil Appeals Nos. 653-654 and 655 of 1964: (reported in AIR 1967 SC 661 ), pronounced today we have held that the intermediary interest of the appellant in respect of pargana Agori had validly vested in the State of U. P. by notifications issued on June 30, 1953 and July 1, 1953 under the U. P. Zamindari Abolition and Land Reforms Act 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act 1963 U. P. Act No. 1 of 1964-). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected.34.

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

Explanation:
1[ds]In our opinion, the argument put forward on behalf of the appellant cannot be accepted. It is manifest that the declaration made by the State Government in the notification under S. 6 (1) of the Act, that the land was required for a public purpose, is made conclusive by sub-s. (3) of S. 6 and it is, therefore. not open to a Court to go behind it and try to satisfy itself whether in fact the acquisition was for a publicour opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct and in view of the facts mentioned in the affidavits and in the Inspection Note of the Collector, dated December 15, 1961 we are of the opinion that the land sought to be acquired is not waste land or arable land within the meaning of S. 17 (1) or (4) of the Act. According to the Oxford Dictionary arable land is "land which is capable of being ploughed or fit for village".In the context of S. 17 (l) of the Act the expression must be construed to mean "lands which are mainly used for ploughing and for raising crops" and, therefore, the land acquired in this case is not arableexpression "waste land" as contrasted to "arable land" would, therefore, mean land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon". It follows, therefore, that S. 17 (1) of the Act is not attracted to the present case and the State Government had, therefore no authority to give a direction to the Collector to take possession of the lands under S. 17 (1) of the Act. In our opinion, the, condition imposed by Section 17 (1) is a condition upon which the jurisdiction of the State Government depends and it is obvious that by wrongly deciding the question as to the character of the land the State Government cannot give itself Jurisdiction to give a direction to the Collector to take possession of the land under S. 17 (1) of the Act. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High Court is entitled, in a proceeding of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct. SeeR. v. Shoreditch Assessment Committee, (1910) 2 KB859 and White and CollinsWe are accordingly of the opinion that the direction of the State Government under S. 17 (1) and the action of the Collector in taking possession of the land under that sub-section is ultra vires.We accordingly hold that the appellant has made good his submission on this aspect of the Case and the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires and, therefore all the proceedings taken by the Land Acquisition Officer subsequent to the issue of the notification under S.6 must be held to be illegal and without jurisdiction.In our opinion, a reading of the two Sanads supports the case of the appellant that there is no reservation of mineral rights in favour of the Government. The expression used in the Sanad of 1803 A. D. is "You ought to consider him the Raja of immovable Jagir and of Mahal and everything appertaining thereto belongs to him".In effect, the grant to the Raja in the two Sanads is a grant of the lands comprised in the Mahal of Agori and everything appertaining thereto and as a matter of construction the grant must be taken to be not only of the land but also of everything beneath or within the land. Prima facie the owner of a surface of the land is entitled ex jure to everything beneath the land and in the absence of any reservation in the grant minerals necessarily pass with the rights to the surface (Halsburys Laws of England, 3rd Edn., Vol. 26. p. 325). In other words, a transfer of the right to the surface conveys right to the minerals underneath unless there is an express or implied reservation in the grant. A contract, therefore, to sell or grant a lease of land will generally include mines, quarries and minerals beneath or within it: Mitchellv. Mosley, 1914-1 Ch 438is manifest that when the Sanad was executed in favour of the Raja the Government made over the land with all its capabilities to the Raja and merely imposed on him a fixed sum of revenue in lieu of all the rights the Government had as a proprietor of the soil. When neither of the parties knew undiscovered minerals underneath the land and the idea of reservation never entered their minds it cannot be held that there was any implied reservation in the grant. Nor can afterwards a distinction be drawn between the various rights that may exist on the land for the purpose of qualifying the original grant and importing into it what neither party could have imagined. It was argued on behalf of the respondents that the assessment was made on the agricultural income, but this circumstance cannot derogate from the rights conveyed to the Raja in the two Sanads because no restriction was placed on the use of the land and the use by the Raja was not limited toand amendments the Rules for the Decennial Settlement of the public revenue payable from the lands of the zamindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and Orissa. Section IV of this Regulation provided that the settlement, under certain restrictions and exceptions specified in the Regulation, shall he concluded with the actual proprietors of the soil of whatever denomination, whether zamindars, talukdars or chaudhris. It is clear that the zamindars with whom settlement took place, were recognised as the actual proprietors of the soil. The settlement of revenue so made was made permanent by S. IV of Regulation I of 1793. This Regulation enacted certain Articles of a Proclamation, dated March 22, 1793. Section I of this Regulation states that the various articles of the Proclamation were enacted into a Regulation and that those articles related to the limitation of public demand upon the lands, addressed by the Governor-General in Council to the zamindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provinces of Bengal, Bihar and Orissa. By Section IV it was declared to the zamindars, independent talukdars and other actual proprietors of land, with or on behalf of whom a settlement had been concluded under the Regulations mentioned earlier, that at the expiration of the term of settlement no alteration would be made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.It appears that Pargana Agori was permanently settled under the provisions of the Benaras Regulation I of 1795 and there was no material difference between the permanent settlement of Benares Province and that of the Provinces of Bengal, Bihar and Orissa.It is thus clear from the above Regulations that the zamindars, the proprietors of estates, were recognized to be the "proprietors of the soil"; and the permanent settlement of the zamindaris proceeded upon that basis.It is manifest that the view that we have expressed as to the interpretation of the two Sanads, dated October 9, 1781-Annexure A-and December 10, 1803-Annexure B -is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must bethere is noting in this statue which takes away the right of the zamindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.For the reasons already expressed we hold that the State Government has no jurisdiction to apply the provisions of Section 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land. We are further of the opinion that the State Government had no jurisdiction to order the Collector of Mirzapur to taken over possession of the land under S. 17 (1) of the Act. The notification, dated October 4, 1950 is therefore, illegal. For the same reasons the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires.We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of the State Government dated October 4, l950 by which the Governor has applied S. 17 (1) and (4) to the land in dispute and directed that the provisions of S. 5A of the Act should not apply to the land. We further order that the notification of the State Government, dated December 12, 1950 under S. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated, January 7, 1952 and the reference made to Civil Court under S. 18 of the Act.In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute but in our judgment in State of Uttar Pradesh v. Raja Anand Brahma Shah Civil Appeals Nos. 653-654 and 655 of 1964: (reported in AIR 1967 SC 661  ), pronounced today we have held that the intermediary interest of the appellant in respect of pargana Agori had validly vested in the State of U. P. by notifications issued on June 30, 1953 and July 1, 1953 under the U. P. Zamindari Abolition and Land Reforms Act 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act 1963 U. P. Act No. 1 of 1964-). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected.