Case: The Lodna Colliery Co. Ltd Vs. Bhola Nath Roy

The necessary facts are briefly these :2. The plaintiffs are the proprietors of the land in suit in C. S. Khatian No. 611 and Sub-Khatians Nos. 612 and 613 of village Sripur in Touzi No. 2597 of the Burdwan Collectorate.3. The Maharaja of Burdwan is the proprietor of the lands in village Sripur appertaining to Touzi No. 12 of Burdwan Collectorate. He let out those lands to the Pals and Goswamis of Sripur in Putni right. The Putnidars also took coal mining lease of those lands from the Maharaja and, thereafter, both the Maharaja and the Putnidars granted the coal mining lease of those lands to one P. K. Chatterji of Ikrah who, in his turn, granted a sub-lease of the same to Messrs. Lodna Colliery Co. Ltd., the predecessors-in-interest of the defendant company, the Lodna Colliery Co. (1920) Ltd.4. A portion of the lands in suit, subsided and on enquiry the plaintiffs found that the defendant company had cut away a large quantity of the underground coal from the lands in suit. It is on account of such unjustified conduct of the defendant company that the plaintiffs, on the basis of their proprietary right, sued for the recovery of damages for coal wrongfully taken away by the defendant from the land in suit and for other wrongs. The defendant company contested the suit and denied the plaintiffs alleged rights on the ground, inter alia that the plaintiffs had no title to the sub-soil of the land in suit and consequently to the coal. The contention really is that the land in suit had been permanently settled with the plaintiffs after it had been resumed as invalid Lakhraj land an that such settlement conferred no better rights than what they originally possessed on account of the land in suit being granted to their predecessors-in-interest under Brahmottar and Debutter grants, the grantees under which had no rights in the sub-soil of the land granted.5. The Trial Court held that the invalid Lakhraj tenure in the land in suit in favour of the predecessors-in-interest of the plaintiffs was resumed by the Government under the provisions of Regulation II of 1819 and, thereafter, was permanently settled with them at the fixed revenue and that therefore the plaintiffs had right to the minerals under the soil of the land settled with them. It accordingly decreed the suit in part and the decree was confirmed by the High Court.

Reasoning: It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature to be decided by the Courts of Diwani Adalat. It, however, definitely provides that the grantees or the then possessors of land, until dispossessed by a decree of the Diwani Adalat, are to be considered as the proprietors of the lands with the same right of property therein as in declared to be vested in properties of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue. Such proprietors of land were to execute engagements for revenue with which their lands may be declared chargeable, either to the Government or to the proprietor or farmer of the estates in which the lands be situated.12. The grantees of invalid Lakhraj lands therefore had the same right of property in that land, subject to the payment of revenue as had been declared to be vested in the proprietors of estates. If the zamindars, the proprietors of estates, have rights not only over the surface of the land but in the sub-soil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed rights in the sub-soil of the land settled with them.It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognised to be the proprietors of the soil.The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindarspredecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case.