Case: Bhagwan Dass Vs. State Of U.P. And Ors

Certain lands situated in Usmanpur and Dariyabad in the district of Allahabad are in the possession of the appellant, some as bhumidhar, some as a sirdar and some as a hereditary tenant. The lands abut on the Jamuna river and are submerged by the river water when the river is in flood. When the flood recedes large quantities of sand, gravel, boulders and bajris are deposited on the surface of the lands. The appellant lays claim to the deposits left behind by the fluvial action of the river contending that since he is the owner of the lands or is otherwise entitled to an unrestricted user of the lands, he would be entitled to appropriate the deposits to the exclusion of all others.2. The Mines and Minerals Department, Government of Uttar Pradesh, took steps in about 1970 to sell by auction the right to remove the sand, gravel and bajris deposited on the appellants lands. On October 13, 1970 the appellant made an application to the Officer-in-charge, Mines, Allahabad, objecting to the proposed auction on the ground that the Government had no right to deal with his property in a manner detrimental to his title. On February 18, 1971 the Department of Mines passed an order directing the disposal of the deposits by an action-sale.3. In October, 1971 the appellant filed a writ petition under Article 226 of the Constitution in the Allahabad High Court asking that the aforesaid order of the State Government be quashed and that the Stated Government be restrained from bringing the fluvial deposits to sale by auction or otherwise. On behalf of the respondents, the Naib Tehsildar (Mines) Allahabad, filed a counter-affidavit stating that the appellant had no right of any kind to utilise the deposits left by the flood waters on his lands, that the State Government had sold the deposits by auction from 1965 to 1969 to which the appellant had raised no objection, that the deposits of sand, gravel, bajris etc. were minor minerals to which the title vested in the State Government and that the only right of the appellant was to receive damages which the State Government always awarded under Rule 67 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963.4. The writ petition came for hearing before a learned Single Judge who dismissed it by his judgment dated April 2, 1974, following a previous decision of the Allahabad High Court in Sultan v. State of U. P. (Civil Misc. Writ No. 8268 of 1971 decided on September 28, 1973 (All)) The appellant filed an appeal before a Division Bench of the High Court which was dismissed on September 20, 1974. The Division Bench merely followed the decision in Sultans case which had taken the view that sand, gravel, boulders, bajris etc. deposited on lands abutting on rivers, as a result of fluvial action of a river vest in the State Government. The High Court has, however, granted a certificate of fitness to the appellant to appeal to this Court.

Reasoning: 12. In the High Court, reliance appears to have been placed by the appellant on a passage in Halsburys Laws of England, 3rd Ed., Vol. 39, paragraph 801 (p. 568) where it is stated that gravel, stones and sand, even when washed up by the seas on the foreshore are part of the freehold and belong to the owner of the foreshore who may deal with them as he pleases. This passage is based upon the decision in Blewettv. Tregonning ((1835) 3 Adolphus and Ellis Reportswhere the defendant was a rank trespasser who pleaded a custom entitling him to take the sand blown by the wind on to a land situated on the foreshore. The Court negatived the plea of custom both on the ground that it was not established and on the ground that if the custom were to receive a legal recognition it would place the whole soil at the mercy of any person claiming under the so-called custom. Besides, there is no parallel between that case and our case because here, the minor minerals while under the river water belonged to the State and the statute answers the questionwhether the natural action of the flooding river destroys the title of the State. Secondly, the 1951 Act has vested the zamindars right to mines and minerals in the State Government rendering it of secondary relevance whether prior to, the ownership of the minerals was vested in the State.Only one more argument made on behalf of the appellant requires to be noticed. It was urged that the sand and gravel are deposited on the surface of the land and not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a mining operation. It is in the first place wrong to assume that mines and minerals must always be subsoil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of mining operations and minor minerals in Section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operations undertaken for the purpose of "winning" any minor mineral. "Winning" does not imply a hazardous or perilous activity. The word simply means "extracting a mineral" and is used generally to indicated any activity by which a mineral is secured. "Extracting", in turn means, drawing out or obtaining. A tooth is extracted as much as is fruit juice and as much as a mineral. Only, that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral.14. We would like before closing to invite especial attention to Rule 67 of the Rules of 1963 under which a "person having a right in any capacity in the land covered by a mining lease or mining permit shall be entitled to get compensation" from the holder of a mining lease or mining permit of such land for the use of the surface, which may be agreed upon between the parties. In case of any dispute, the amount of compensation has to be determined by the District Officer whose order assumes finality. The counter-affidavit filed by the State Government in the High Court concedes expressly, as it ought, that considering the fact that the person entitled to the use of a land may be prevented from using it by reason of a mining lease or permit, Rule 67 provides for the payment of compensation to him for such deprivation. When the right to conduct a mining operation is auctioned by the Government the person who is otherwise entitled to the user of the land, say for agricultural purposes, is deprived of its user and the object of Rule 67 is to ensure that he should be compensated adequately for the deprivation of such user. We have no doubt that in cases where it becomes necessary for the District Officer to fix the compensation under Rule 67, he would be having due regard to all relevant factors, particularly the length of deprivation entailed by the conduct of mining operations.