S.P. Kotval, J.
1. The petitioners Ramlal Lalchand and Jagannath Ramlal challenge the grant of a lease on 22-1-1962 to the respondent No. 5 Messrs. Sadiq and Company of Nagpur. It appears that both the petitioners and the respondent No. 5 had for several years prior to the grant of the quarry lease to the respondent No. 5 made applications to the-State Government through the Collector, Nagpur, for the grant of quarry rights in several fields. We are here concerned with field No. 18 of village Bina. Both the petitioners and the respondent No. 5 are engaged in the business of manufacturing bricks and for that purpose they require the soil of that field for use in brick-making.
2. The history of the dealings of the respondent No. 5 which resulted in the grant of the lease on 22-1-1962 to them is as follows on 24-1-1960 the respondent No. 5 entered into an agreement with the then owner of the field Deorao Patil to Bina. By that agreement, Deorao Patil agreed to sell the field and another field No. 23/2 to the respondent No. 5 for R.s. 13.000/-. Having entered into that agreement, the respondent No. 5 approached the petitioners and entered into an agreement with the petitioner No. 1 for a certain right of passage to that field from the petitioners' field No. 23. That agreement was entered into on 22-3-1960 and is at annexure R-7. The respondent No. 5, having thus cleared the ground for 'quarrying operations by acquiring surface rights and the right of way for themselves, applied on 11-8-1960 to the Collector, Mining Section, Nagpur, for a quarry lease in 6.51 acres of land in khasra Nos. 23/2 and is.
The Collector, by his letter dated 7-10-1960 (annexure R. 9), asked the respondent No. 5 to file land plans for the area which the Collector said was available for grant subject to its approval by the Collector. Those plans were filed; but on 10-8-1961 the Collector rejected the application of the respondent No. 5 for the quarry lease. That letter is annexure R. 13, dated 10-8-1961. The reason given was that the area applied for by the respondent No. 5 was useful for agricultural purposes. The respondent No. 5 then wrote a letter dated 14-8-1961 to the Collector.
In order to explain the contents of that letter it is necessary to state that by this time the respondent No. 5 had, pursuant to the agreement entered into with the owner of the fields on 24-1-1960, obtained from the owner Deorao Patil a registered sale deed for the two fields Nos. 23/2 and 18. That registered sale deed is annexure R-6, when the respondent No. 5 wrote to the Collector on 14-8-1961 they referred to this fact that they had purchased the field No. 18, and then continued:
'We have to state that the original sale deed [will be produced on receipt of information. We also enclose herewith the consent letter for the road executed by Shri Ramlal on 22-3-60 (copy enclosed) for your reference.
We request you to review our claims in the light of circumstances stated above at an early date.'
It is the use of the expression 'review' in this letter that has given rise to the argument on behalf of the petitioners as to the scope and extent of the power of the Collector to act as a reviewing authority in the circumstances of this case, with which we shall presently deal. There is no further correspondence before us after the letter dated 14-8-1961, but it is clear that the Collector issued on 15-12-1961 an order sanctioning a quarry lease' in favour of the respondent No. 5 over an area of 3 acres comprised in khasra No. 18 of village Bina, and after the crediting of the security deposit and fees, a formal quarry lease was granted on 22-1-1962. That is the grant which the petitioners challenge in the present petition.
3. Now, while the respondent No. 5 were taking all these steps, the petitioners on their part were not silent. On 29-6:1962 the petitioner Ram: lal made his first application and on 14-5-1954 he had been informed that Government was pleased to sanction a quarry lease over 2.28 acres of land, though the area is not clearly mentioned, nor any field numbers. The order sanctioning the grant of quarry lease is at annexure D.
Thereafter the petitioners allege in their petition that for some reason Government withdrew its order dated 14-5-1954 and in lieu of the land granted by that order, gave the petitioners some other land as indicated in the map at annexure E. According to the petitioners, this land was also land out of khasra No. 18. On 4-6-1957 the petitioner Ramlal was given, a quarry lease in respect of 1.40 acres of khasra No. 18, along with other areas from khasra Nos. 16, 21 and 22. Appended to this lease is a map which shows the area granted to the petitioner Ramlal.' The total area granted to him was 3.28 acres. There is a dispute between the parties as to the exact location of the two areas granted to the petitioner Ramlal and to the respondent 5 by their lease deed dated 02-1-1962; but for the purposes of this petition it is unnecessary to go into that' question. In fact that is hardly a question which this Court would undertake to determine in a writ petition.
4. We have already indicated that the lease granted to the petitioner Ramlal on 4-6-1957 was only in regard to a small portion of khasra No. 18. On 28-8-1959 Ramlal put in a second application, and it appears from the letter dated 4-3-1961 at annexure C that that application was rejected and the reason given was 'the area applied for is useful for cultivation. Hence it stands rejected.'
On 17-5-1960 Ramlal again applied for a further area comprising 7.10 acres of laud and that application was also rejected by the letter dated 7-6-1960 (annexure F) and the applicant was informed that 'there is a temple in some area, some area in adjoining to the Kanhan river and some area is under orange garden and cultivation and as such area applied by you is not available.'
5. After all these applications of Ramlal were rejected he complained to the Commissioner on 14-10-1961 alleging that he had learnt that the respondent No. 5 were likely to get the area but that his (Ramlal's) application was prior in point of time to the application of the respondent No. 5 and that his application had been rejected upon untenable grounds and the respondent No. 5 who were not entitled to the grant of the quarry lease were given the area. The petitioner prayed:
'Under these circumstances, if it is decided to grant the lease over the area in question, it should be granted to me and the appeal of M/s Sadiq and Company may be rejected as surrounding to the area in question, I hold the quarry lease and as such it will be beneficial to me if this portion is granted to me under a quarry lease.'
To this objection and application (annexure H), Ramlal received a reply on 11-8-1961 which is at annexure G. He was informed:
'The application of M/s Sadiq and Company for the area in question has been rejected, It has been decided that the area is not to be leased out to anybody as it is useful for agricultural purpose.'
6. It will thus be seen that till this date, that is to say, till 11-8-1961, the respondents Nos. 1 to 4 were taking up the position that the area in question was not to be granted to anybody for certain reasons. It may be mentioned here that only one day before this reply was given to the petitioner Ramlal, a similar reply (annexure R-13) was given to the respondent No. 5 on 10-8-1961, to which we have already referred. It was thereafter that the respondent No. 5 applied on 14-8-1961 for a reconsideration by their letter at annexure R-14 in which they used the expression 'review our claims' and pursuant to that application a lease deed was granted to them on 22-1-1962.
7. Now, the grant of the lease has been challenged on behalf of the petitioners on several grounds. The principal contention of Mr. Mandlekar on behalf of the petitioners has been that the order granting the lease in favour of the respondent No. 5 Was an order passed under Section 228 pf the Madhya Pradesh Land Revenue Code, 1954, and therefore that order would be subject to the provisions of that Code. That being so, the Collector had no power to review his previous orders and grant a lease to the respondent No. 5, because the conditions subject to which alone the Collector could review his orders under Section 47 of the Code had not been fulfilled. He urged that in view; of the letter dated 14-8-1961 from the respondent No. 5, there could be no doubt that the Collector's order granting the lease amounted to review. So far as his order can be deemed to be one under Section 47, Mr. Mandlekar urged that it was essential that he should have first issued notice to the party most aggrieved by his review, namely, the petitioners, and in any case, he could not review the order and vary or reverse it without sanction from his higher officer, namely, the Commissioner.
8. The question whether Section 47 of the M.P. Land Revenue Code would apply falls to be determined upon the nature of the order passed tinder Section 228. No doubt, the order was passed by the Collector; but the Collector as a Collector occupies several capacities, one of them being his capacity as a Revenue Officer under Section 10 of the Code. Now, a consideration of the provisions of Section 228 clearly shows that it falls naturally into two parts; the first two sub-Sections thereof merely declare the rights of the State vis-a-vis mines and quarries. Those Sub-sections make no provision for the guidance of the officers concerned or of citizens, nor do they lay down any' obligations or duties. Sub-sections (1) and (2) run as follows:
'228 (1) Unless it is otherwise expressly provided by the terms of a grant made by the Government, the right to all minerals, mines and quarries shall vest in the State Government which shall have' all powers necessary for the proper enjoyment of such rights.
(2) The right to all mines and quarries includes the right of access to land for the purpose of mining and quarrying and the right to occupy such other land as may be necessary for purposes subsidiary thereto, including the erection of offices, workmen's dwellings, and machinery, the stacking of minerals and deposit of refuse,, the construction of, roads, railways or tram-lines, and any other purposes Which the State Government may declare to be subsidiary to mining and quarrying,'
It will be seen that Government intended by the enactment of Sub-sections; (1) and.(2).,to declare that all minerals, mines and quarries, vested in the State Government and the State Government enjoy-ed all the necessary powers for the proper enjoyment of such rights. It is clear from this declaration that the State Government; is made the full' owner of all the minerals, mines and quarries and, has all -the powers necessary for the proper end enjoyment of those rights. Sub-section (2)., then declares ancillary rights for the purpose of the enjoyment of the rights to minerals, mines and quarries and these include the right of access' for the purpose of mining and quarrying and the right to occupy such other land' &$ 'may be necessary for purposes subsidiary thereto including, the erection' of offices, workmen's dwell rigs and machinery, the stacking of minerals and deposit of refuse, the construction of roads, railways or tramline's, 'and any other purposes which' the 'State Government may declare to be subsidiary' ;to' miming and quarrying- --
9. In sharp contrast to the provisions of the first two Sub-sections, Sub-sections (3) to..(8) prescribe rules' as to how the rights to the surface above the quarries and mines are to be governed A person who owns the surface rights has a right not to be disturbed in the use, enjoyment and ownership thereof, and in the event of such, disturbance, provision is made for compensation for such infringement of surface rights and how the amount of such compensation is to be calculated. Sub-sections (5) and (6) make provision for the adjustment of the rights between the owner of the surface and the assignee from Government of the minerals, mines or quarries. Sub-section (7) declares that no person shall extract or remove mineral from any mine or quarry without lawful authority, and a penalty is attached to its contravention. Subsection (8) gives the power to the Collector to seize and confiscate minerals extracted or removed in consequence of Sub-section (7).
10. Now it is clear that Sub-sections (3) to (8i alone deal with the rights of individuals affected by the rights of Government to minerals, mines, and quarries, and it is only in so far as those rights vested in the Government affect or impinge upon / the surface rights of the citizen that it was necessary to refer to the rights of Government to minerals, mines and quarries in Sub-sections (1) and (2) of Section 228; otherwise, the subject-matter of subSections (1) and (2) is wholly alien to the purpose and object of the M. P. Land Revenue Code, which, as stated in the preamble, is
'to' consolidate and amend the law relating to land1 revenue.....rights and liabilities of holders of land from the State Government; agricultural tenures and other matters relating to land and the liabilities incidental thereto in Madhya Pradesh.'
The Governmental rights referred to in Sub-sections (1) and (2) have only been incidentally mentioned in Section 228 in so-far as they .tend to or are likely to, affect the rights of the surface owner namely, the agricultural tenant.
11. The rights mentioned-in Sub-sections (1) and (2) of Section 228 therefore are rights of Government, and there is no limitation to' the enjoyment of those rights, nor to the ownership of those rights by Government, except when the surface right of the. tenant is disturbed. Now, so far as the administration or enjoyment of those rights Mentioned in Sub-sections (1) and (2) is concerned, it appears'. to us, that, the State Government qua 'Government is' in no better pr worse position than the ordinary citizen owning, property. Therefore, has it been declared in Sub-section is (1) and (2) that those rights vest in 'Government which has all the necessary powers for the proper enjoyment of such rights, No doubt,, in exercising those rights and enjoying, them Government has to act through some individual, and in the instant case, Government acted through the Collector.
12. The Question which then arises is whether the Collector' assigning' the fights of Government to the respondent 'No.--5' was acting as a Revenue Officer within the meaning; of section 10 of the Land ' Revenue Code, or whether he was merely acting as' a servant' or agent of Government, the true owner-'-'of the' rights in the quarry. It is of course beyond doubt that an officer of Government may occupy more- than one capacity, that is to say, net as a Revenue Officer under the M.P. Land Revenue Code and at the same time act as a servant of agent of Government. In fact, the Collectors nowadays act in many more capacities under various other :local and central laws than mere Revenue Officers.
In our opinion, the Collector in the instant case, when he passed the order granting the lease to the respondent No. 5, was not acting as a Revenue Officer under Section 10 of the Code. He was merely acting as a servant or agent of Government whom Government like any other owner of property could appoint. That be was called the Collector and subscribed himself as such in the letters written to the respondent No. 5 makes no difference. We are fortified in this view by the observations of a Division Bench of the then Nagpur High Court in Shamji Naranji v. State of M.P., 1954 NLJ 478: AIR 1954 Nag 161 wherein Sinha C. .J. (as he then was) considering the provisions of the Mines and Minerals (Regulation and 'Development) Act, 1948, remarked:
'It will appear from the above that the right to grant or refuse a prospecting license or a mining lease vested under the Old Rules in the Collector or the Local Government, as the case was one of license or lease. 'This was only an ordinary incident of ownership where the mines or minerals Were the property of Government'.
(the underlining (here into is ours) What was clearly decided in that case was that the State Government has the power to refuse to grant a prospecting licence on the ground that the area 'was not available for re-grant and that the Mineral Concession Rules did not create any right in an applicant to a license or lease as against the Government because the owner is ordinarily entitled firstly to decide whether or not and when he would like to make his property open for disposition or grant, and if and when he so decides, his decision could not be the subject of any legal action.
13. In this view of the matter, it seems to this that neither Section 47 nor any of the provisions of the M. P. Land Revenue Code would be attracted where orders are passed by the Collector granting a quarry lease or other rights in mines or minerals. In such a case, the Collector must be deemed 'to be acting merely as a servant or agent of the true owner, namely, the State Government, and the right of the true owner to assign or transfer any part of his property through his servant or agent is the same as that which any citizen may possess under the ordinary law. We need not therefore go into the question which was argued on behalf of the petitioners as to whether Section 47 of the M. P. Land Revenue Code has been complied with in the instant case.
14. Assuming that the order passed in the instant case was an order passed under the M.P. Land Revenue Code, the petitioners would have a right of appeal against that order as prescribed by Sections 41 to 43 thereof, and since the petitioners would be entitled to another remedy, they would in any case not be entitled to move by way of a writ petition.
15. The other contention on behalf of the petitioners raised by Mr. Mandlekar was that under the rules framed by the Government itself, the petitioners' application for the grant of the quarry lease was prior in point of time to the application dated 11-8-1960 made by the respondent No. 5. As to the facts, there is no dispute. The petitioners had been trying to get the said area since 1957 and therefore their applications for the grant of quarry leases were in point of fact earlier than the applications of the respondent No. 5. Mr. Mandlekar referred to Mining Rule 42 at page 35 of the Mining Manual of the Central Provinces and Berar, 1928 edition. That rule no doubt did prescribe (hat applications for prospecting licenses and leases shall be governed by a rule of priority; but those rules were made under the Indian Mines Act and since the repeal of that Act by the Mines and Minerals. (Regulation and Development) Act, 1948, those rules have no longer the force of law. Apart from this, the specific provisions of the Mines and Minerals (Regulation and Development) Act, 1957, negative the contention raised. In the Act of 1957 also the rule of priority was made to prevail, vide Section 11(2), but Section 14 of that Act provides that the provisions of Sections 4 to 13 (inclusive) shall not apply to prospecting licenses and mining leases in respect of 'minor minerals'. The expression 'minor minerals' has been defined in S. 3(e) to mean
'building stones, gravel, ordinary clay, ordinary sand.. and any other mineral which the Central Government may, by notification in the official Gazette, declare to be a minor mineral.'
There is no doubt that the earth or clay used for making bricks, which was the subject of the grant in the instant case, would be a minor mineral having regard to the above definition. Therefore, the provisions relating to the priority which govern major minerals cannot apply to a minor mineral like clay. The petitioners therefore cannot claim any preferential right simply because their applications were prior in point of time. Thus, we may reiterate that in the absence of any specific provision of law or a rule binding Government their untrammeled right to enjoy the property as owners cannot be affected.
16. Mr. Mandlekar referred to a number of decisions of the then Madhya Pradesh Board of Revenue. Those' were Munni lal, in re, 1951 NLJ 154; C.L. Jaipuria, in re, 1954 NLJ 677 and Motiram v. Kisan, 1955 NLJ 586. A perusal of those cases shows that they were all cases governing those rights which are created by sub-Sections (3) to (8) of Section 228 of the M.P. Land Revenue Code or the analogous provisions contained in Section 218 of the C.P. Land Revenue Act, as it then was.
Those cases show that no doubt the orders granting or deciding upon rights arising under subsections (3) to (8) of Section 228 of the M. P. Land Revenue Code or under Sub-sections (3) to (7) of Section 218 of the C. P. Land Revenue Act could rightly be categorised as orders under the respective Land Revenue Acts, but none of those cases is a case with reference to the grant of mineral fights in any mines or quarries. They are all concerned either with compensation given for disturbance of surface rights or computation of royalty for minerals already extracted for which rules have been laid down. Those cases rather serve to-illustrate the distinction between the rights of ownership in mines, minerals and quarries 'which Government enjoy as any other owner of property on the one hand and the rights to the surface of the land or Government's right to recover royalty for minerals extracted, on the other.
17. We are unable to accept the contentions raised in this petition. The petition is dismissed, There shall be no order as to costs.
18. Petition dismissed.