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

2. The appellant was the Zamindar of Pargana Agori lying to the south of Kaimur Range in the district of Mirzapur. On October 4, 1950, a notification was issued by the State Government under S. 4(1) of the Land Acquisition Act (hereinafter referred to as thestating that the area of 409.6 acres in the village of Markundi Ghurma Pargana Agori was needed for a public purpose. The purpose specified in the notification was "for limestone quarry". The notification provided that the case being one of urgency, the provisions o sub-s.(1) of S. 17 of the Act applied to the land and it was, therefore, directed under sub-s (4) of S. 17 that the provisions of S. 5A of the Act would not apply to the land. On December 12, 1950, a further notification was issued under S. 6 of the Act declaring that the Governor was satisfied that the land mentioned in the notification was needed for public purposes and directed the Collector of Mirazpur to take order for acquisition of the land under S. 7 of the Act. The Collector of Mirazpur was further directed by the notification under S. 17 (1) of the Act, the case being one of urgency, to take possession of any waste or arable land on the expiration of the notice mentioned in S. 9 (1), though no award under S. 11 had been made. On November 19,1950, possession of the land was taken by the Collector of Mirazpur and the same was handed over to the Administrative Officer, Government Cement Factory, Churk. An award was made by the Land Acquisition Officer on January 7, 1952 stating that the amount of compensation was Rs. 23,638-13-7. The appellant thereafter filed an application under S. 18 of the Act for a reference to the Civil Court in regard to the amount of compensation payable. A reference to the Civil Court was accordingly made and the matter is still pending in the Civil Court as Land Acquisition Reference No. 4 of 1952. On May 2, 1955, the Writ Petition giving rise to this appeal was filed by the appellant in the Allahabad High Court. It is alleged by the appellant that the acquisition of the land was not for a public purpose and the acquisition proceedings were consequently without jurisdiction It was also stated that the State Government had no jurisdiction to apply the provisions of S. 17 (1) of the Act to the land in dispute as it was neither waste nor arable land. It was further claimed that the mines and minerals in the land belonged to the appellant and as such he was entitled to compensation for the same. The appellant accordingly prayed for a writ in the nature of certiorari to quash the notifications of the State Government under Sections 4 and 6 of the Act and further proceedings in pursuance of that notice in the land acquisitions case. The appellant also prayed that the State Government should be directed to pay compensation to the appellant for all the lime-stone removed from the land. By its judgment, dated November 2, 1962 the High Court dismissed the Writ Petition, holding (1) that the petitioner was not the owner of mines and minerals and was not entitled to compensation for them (2) the land had been acquired for a public purpose, and (3) that the provisions of S. 17 of the Act were applicable to the case and there was no illegality in the notifications of the State Government under Ss. 4 and 6 of the Act.

Reasoning: 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.