• )

BHAGW AN DASS

STATE OF U.P. AND ORS.

March 24, 1976

[Y. V. CHANDRACHUD, V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.J

Mines and Minerals (Regulation and Development) Act 61, 1957 S. 3(e) r/w Rule 2(7) of the Uttar Pradesh Mines Minerals (Concession) Rules. 196' and Rule 6(a) (i) and 6(a)(ii) of the U.P. Zamindari Abolition and Land Reforms Act I of 1951-Scope of-Riparian owners do not have any title or

right over the "sand, graviel,, bajris etc.'' carried and depositid on their landi due to the fiuvial action of the river, superior to that of the State, the rightful owners-Minerals need not be subterranean.

Practice-Art. 136 of the Constitution-Arguments not advanced in cdurts below, will 1101 be accedt•d to in this C Court.

The Mining and Minerals Departments of the State of U.P. have been selling by auction from 1965 onwards as "minor minerals" the deposits left on the surface of the appellant's lands, of the sand, gravel, bajris etc. due to the :fluvial action of the receding floods of the Jamuna river. In 1970, the appellants objected to the proposed auction laying claim to the deposits, contending that since he is a riparian owner of the lands or is otherwise entitled to an unrestricted user of the lands, he would be entitled to appropriate the deposits, D to the exclusion of others. Since his objection was not accepted, the appellant challenged the order by a writ petition under Article 226 in the Allahabarl High court which was dismissed foUowing its earlier decision in ''Sultan and Anr. v. State of U.P. (Civil Misc. Writ No. 826817! dated 28-!'-73) to the effect that the 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 appeal to the Division Bench was also dismissed.

Dismissing the appeal by certificate, the Court E HELD : (i) The contention that some ot the lands being still zamindari lands, the right to mines and minerals which the zamindars originally had did not cease and, therefore, the Government had no right to the mines and minerals on such lands. cannot be acceded to, since no such argument whatsoever was made in the High Court either before the single iudge or before the Division Bench, though there was an averment to that effect in the Writ petition.

The co'ntention in regard to a part of the property raises at best a dispute between the Zamindari and the Government which the appellant has no right to raise.

F It is for the zamindars, if so advised, to take an appropriate proceeding for recognition of their claims as against the Government. The appellant cannot be heard to say in a Writ Petition filed for the assertion of his own im.Iivkhhll rights that the action of the Government is calculated to prejudice somebody else's rights and should therefore be struck down [871 G.H, 872 A-CJ

(2) The deposits in the nature of ordinary sand other than sand used for prescribed purposes, gravel, building stores and bajri squarely fall within the provision of s. 3 ( e) of the Mines and Minerals (Regulation and Development l Act 67 of 1957 and the rules 2(5). 2(7) and 3 of the Uttar Pradesh Minor Mineral (Concession) Rules. 1963 and are. therefore. 'minor minerals'. In equity, prior to the point of time when the flood waters of the river carried the sand and gravel to private lands, the title thereto was vested in the state Governm:nt. . The riyers, the river beds and the sand, bairis and building stones lytng in the rtver water are of state ownership. Nature carries these deposits to lands abutting on rivers and what the Act and Rules orovide for is to enable the Government to reclaim what is lost without anv fault of it"l own. The sand and gravel deposits left by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State.

The fluvial action of the river carries them to riparian lands but such shifting cannot erase the title of the rightful owner. [872 H, 873 A, c to G] ·

A Sultan and Anr. v. The State of U.P. (Civil Misc. Writ Petition No. 8268/

71 decided on 28-9-73) [approved]; Halsbury's Laws of England 3rd Edn. Yul, 39 p. 559 para 775 [quoted with approval].

(3) In the instant case, the minor minerals while wider the the river water "'-, tbelonged to the State and the Statute answers the question whether the natural action of the flooding river destroys the title of, the state.

The 1951 Act has vested the z.amindaris right to mines and minerals in the State Government, rendering it of secondary relevance whether prior to flood caused migration, the ownership of the minerals wasi vested in the State. [874 C-D]

Norn1an S. Wear v. State of Kansas 62 Law Ecln. 214 @ 219; Halshury's Laws of England 3rd Edn. Vol. 39 para 801 (page 568); Blewett v. 'Trigonning

(1835) 3 Adolphus and Ellis' Reports 554 (distinguished).

( 4) It is wrong to assume that mines and minerals must always be sub soil and that there can be no minerals on the surface of the earth.

The definition of mining operations and rhinor millerals in section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the 'Rules of 1963, states that mineral• need not be subterranean and that mining operations cover every operation undertaken for the purpose of "winning" any minor minerals.

Winning does not !mply a hazardous or perilous activity.

The words simply mean 'extracting a mineral' and is used generally to indicate any activity by which minerals is t' secured. E.xtracating in turn meansi drawig out or obtaining. [874 E-F] - [In view of the specific concessions in the counter affidavit by the Government the Court expressed its full confidence that in cases where it becomes heces.sary to fix the corntion under rule 67 the State would have regard to all relevant factors parhcularly the length of deprivation entailed by the conduct of mining operation.] [875 A.C]

Ovit APPELLATE JURISDICTION : Civil Appeal No. 1044 of 1975.

From the Judgment and Omer dated 20--9-1974 of the Allahabad High Court in Special Appeal No. 145 of. 1974.

J. P. Goyal and Shree Pal Singh for the appellant.

G. N. Dikshit and 0. P. Rana for the respondents.

The Judgment of the Court was delivered by CHANDRACHUD, J.-Certain .Jands situated in Usmanpur and Dariyabad in the district of Allahabad are in the possession of the appellant, some as a 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.

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 appellant's 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 auction-sale.

In October 1971 the appe11ant filed a writ petition under article 226 of the Costitution in the Allahabad High Court asking that the aforesaid order of the State Government be quashed and that the State

I /

Government be restrained from bringing the fiuvial 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 land, 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.

The writ petition came up for hearing before a learned Single Judge who dismissed it by his judgment dated April 2, 197 4, following a previous decision of the Allahabad High Court in Sultan and A nr. v.

State of U.P. (Civil Misc. Writ No. 8268 of 1971 decided on 28th September, 1973). 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 Sultan's case which hag taken the view that sand, gravel, boulders, bajris etc. deposited on lands abutting on rivers, as a resu, lt of fiuvial 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.

Under section 4 of the U.P, Zamindari Abolition and Land Reforms Act, 1of1951, all estates situated in U, P. vested in the State Government free from all encumbrances, with effect from the date specified by the Government in a notification issued for that purpose, Section 6 of the Act of 1951 deals with the consequences of such vesting and provides that on the publication of a notification under section 4, all rights, title and interest of all the intermediaries shall cease and be vested in the State of U.P,, free from all encumbrances. Clause (a) of section 6 which brings about this result consists of two sub-clauses :

(i) and (ii), Under section 6(a) (i), "all rights, title and interest of all the intermediaries in every estate" ceased and became vested in the State of U, P,, while under section 6(a) (ii), "all rights, title and interest of aU intermediaries in all sub-soil in such estates including rights, if any, in mines and minerals" ceased and became vested in the State of U , P, These provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile Zamindars possessed, stood extinguished and became vested in the State Government.

The appellant's writ petition contains an averment that two out of the four plots of land which were the subject-matter of the writ petition G were in his possession under Zamindars whose Zamindari rights were not yet abolished, as the 1951 Act was not extended to the areas in which those lands were situated, Mr. Goel appearing on behalf of the appellant repeated the same contention and argued that in respect of those lands to which the Act of 1951 did not apply, the Zamindar's right to mines and minerals remained unaffected, and therefore the Government had no right to the deposits Ieft on those lands by the R waters of the recedin¥ river, even on the assumption that the deposits were 'minor minerals'.

We cannot accede to this contention for the

simple reason that though the writ petition contained an verment. in terms of the contention no argument whatsoever was made m the High Court, either before the single Judge or before the Division Bench, that some of the lands being still Zamindari lands the right to mines , and minerals which the Zamr, idars originally had did not cease and therefore the Government had no right to the mines and minerals on such lands.

Apart from this the contention urged by Mr. Goel in regard to a part of the property involved in the writ petition, raises at best a dispute between the Zami•, idar •and the Government which the appellant has no right to ra'ise. If the title to the mines and minerals in respect of lands to which the Act of 1951 is not extended vests in the Zamindars and not in the Government, the Zamindars may, if so advised, take a\1 appropriate proceeding for recognition of their claims as against the Government.

The appellant cannot be heard to say in a writ petition filed for the assertion of .his own individual rights that the action of the Government is calculated to prejudice somebody else's rights and should therefore be struck down. The •appeal must therefore be disposed of on the basis that the rights of the erstwhile 't' Zamindars over the la\1ds in dispute stood extinguished under the Act of 1951 and that those rights are vested in the State Government under section 6 of that Act.

We are concerned in this, appeal with tl)e interpretation of the relevant provisions of the Mines and Minerals (Regulation "l!ad Development) Act, 67 of 1957 and the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. We will refer to them respectively as the Act of 1957 and the Rnles of 1963. Section 3(e) of the Act of 1957 defines (minor mineral" to mean "buildi11g stones, gravel, ordinary clay, ordinary sand other than sand nsed for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral". Sectida 15 confers power on the State Government to make rules for regulating the grant of quarry leases, or other mineral concessions in respect of minor minerals and for purposes connected therewith.

The Government of Uttar Pradesh framed Rules of 1963 ra exercJSe of the power conferred upon it by section 15 of the Act of 1957. Rule 2(5) defines "Mining operations" as meanil)g any operations under- , taken for the purpose of winning a'ny minor mineral. Rule 2 (7) defines "minor minerals" substantially in the same terms as section 3(e) of the Act of 1957. By Rule 3, no person can within the State undertake any miEing operation of any minor mineral except under and in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules.

These provsions of the Act of 1957 and the Rules of 1963 are clear and explicit, admitting of no doubt or difficulty. If the deposits left by th_e recedt1g waters of the river are of the description, mention- ed in section 3 ( e) of the Act or Rule 2 (7) of the Rules, Rule 3 must come into full play with the result that no mining operation in respect /Of the deposits can be undertaken except under and in accordance with

the terms and conditions of a lease or permit gra1.1ted by the Government under the Rules of 1963. We are concerned in this appeal with deposits in the nature of ordinary sand other than sand used for presy

cribed purposes, gravel, building stones and bajris. These fall squarely

1 within the above-quoted provisions of the Act of 1957 and the Rules of 1963 and are therefore minor minerals.

Accordingly, the appellant cannot undertake any mining operation, even on the lands now belongillg to him for the purpose of winning these minor minerals except under a lease or permit granted by the State Government. The right of the former Zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar he was entitled to mines and minerals.

With the abolition of Zamindari by the 1951 AC't, that right has passed on not to the appellant but to the State Government.

The appellant's writ petition filed to restrain the Sratc Government from auctioning the right to undertake mining operations must therefore fail.

Evidently, the appellant finds it difficult to reconcile himself with t position that what nature and good fortune have bounteously left on his lands should be permitted to be taken away by the Government which has not a vestige of title to the lands. The answer to this difficulty is two-fold. In the first place the deposits, by a definition contained in a competent legislation, are 'minor minerals' and it is of no relevance that the Act of 1957 and the Rules of 1963 bring within their compass even those deposits which, are left behind by the fluvial action of rivers.

If that is the policy and the iiatendment of law, it is unprofitable t@ explore whether the statute could not have been more generous or less grudging to riparian owners. Secondly, and that bears on equity, prior to the point of time when the flood waters of the river carried the sand and gravel to priviite lands, the title thereto was vested in the State Government.

The rivers, the river beds rrad the sand, bajris and building stones lying in the river water are of State ownership. Nature carries those deposits to lands abutting on rivers and whiit the Act and the Rules provide for is to enable the Government to reclaim what it lost without any fault of its own. Halsbury's Laws of England (3rd Ed., Vol. 39, p. 559, paragraph 775) says that "The soil of the seoashore, and of the bed of estuaries and arms of the sea and of tidal rivers, so far as the tide ebbs and flows, is prima facie vested of common right in the Crown, unless it has passed to a subject by grant or possessory title." Paragraph 768 (p. 556) says that the' Crown is also "entitled to the mines and minerals under the soil of the seas" within certain limits. The sand gravel deposited by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State.

The fluvial action of the river carries them to ripanian lands but such shifting cannot erase the title of the rightful owner.

The judgment of Jnstice Holmes in Norman S. Wear v. State of Kansas('), turned on another point and involved different considerations altogether but the basis of that decision is instructive : The fact that sand in the bed of a river is migratory and liable to be shifted does not change its character so as to entitle the public to remove the sa>;1d as against the State, which owns the bed of the stream.

(1) 62 Law Ed. 214 at 219.

In the High Court, reliance appears to have been placed by the appellant on a passage in Halsbury's Laws of England, 3rd Ed., Vol. 39, paragraph 801 (p. 568) where it is stated that gravel, stones and " I 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 decisim in Blewett v.

Tregonning (1835) 3 Adolphus and Ellis' Reports 554, where the defend•an't 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 pica of custom both on the groui,1d 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 sttute answers the question whether the natural action of the 1 floodlag river destroys the title of the State. Secondly, the 1951 Act + has vested the Zamindar's right to mines and minerals in the State Government rendering it of secondary relevance whether prior to flood. caused migration, the ownership of the minerals was vested in the State.

Only one more argumerrt made o'a behalf of the appellant requires to be noticed. It was urged that the S'and and gravel are deposited on the surface of the land a.nd 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 sub-soil 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 operation undertaken for the purpose of "winning" any minor mineral. "Wlnning" does not imply a hazardous or perilous activity.

The word simply means "extracting a mineral" and is used generally to indicate any activity by which a mineral is secured. "Extracting", in turn, means drawlag

out or obtaining. A tooth is 'extracted' as much as it fruit juice and as much as a mineral. Only, that the effort wries from tooth to tooth, from fruit to fruit and from mineral to mineral.

We would like before closing to invite especial attention to Rule 67 of the Rules of 1963 under which a "persda 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 a'ay 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 preveiated from using it by reason of a mining lease or permit, Rule A 67 provides for the payment of compensation to him for such depriva-

' 1 tion.

When the right to conduct a mining operation is auctioned by

. 1

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 col!lpented adequately for the deprivatida of such user. We have no doubt that in cases where it becomes necessary for the District Officer to fix the B 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.

For these reasons, we confirm the judgment of the High Court and dismiss the appeal with costs. c

1 S.R.

Appeal dismissed .