1. This is a petition under Article 226 of the Constitution to call up and quash by certiorari the following:
(i) An order dated 4th January, 1962, communicated by the Collector of Raipur whereby the State Government decided to grant to Chokhamal (respondent 3) a lease for quarrying earth and sand from Kh. Nos. 6/4, 9/1, 9/2, 11 and 376/2 of village Sarona [originally kh. No. 6/1 was, by mistake, mentioned for kh. No. 9/1, but it was subsequently corrected].
(ii) An order dated 11th January, 1963 by which the State Government declined to review its earlier order.
2. The facts giving rise to this petition may be shortly stated. Chokhamal (respondent 3) applied for the grant of lease of the five plots mentioned in the opening paragraph for extracting therefrom earth and sand. Out of these plots, he had purchased, by a sale-deed dated 8th June, 1961, kh. Nos. 9/2, 11 and 376/2. The remaining two plots, kh. Nos. 6/4 and 9/1, were owned by Ishwarlal and Govindram. In due course, the State Government passed the impugned order dated 4th January, 1962 by which it decided to grant the lease asked for by the respondent 3. Also, the Collector executed in favour of the respondent 3 the lease deed dated 21st January 1962.
Thereupon, the respondent 3 applied for the issuance of work order. Sugnichand, who had purchased kh. Nos. 6/4 and 9/1 from Ishwarlal and Govindram By two sale-deeds dated 31st January, 1962 and 1st February, 1962, opposed the application and prayed that those two plots may not be leased to the respondent 3. Permission to commence work on kh, Nos. 9/2, 11 and 376/2 was, however, granted. Thereupon, the respondent 3 made an application for taking action under Sub-sections (3) and (4) of Section 247 of the Madhya Pradesh Land Revenue Code, 1959, in respect of the other two plots kh. Nos. 6/4 and 9/1, Notices have been issued to the petitioners, who arc the legal representatives of Sugnichand, and the proceedings taken on the aforesaid application are still pending. But the petitioners claim to be aggrieved by the grant of the lease without hearing them and also by the dismissal of the application dated 18th August, 1962 which Sugnichand had made to the State Government for a review of the order dated 4th January, 1962.
3. Having heard the counsel, we have formed the opinion that this petition is devoid of substance. The relevant provisions, which govern this matter, are contained in Section 247 of the Madhya Pradesh Land Revenue Code, 1959, which is reproduced:
'247 (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 officers, 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.
(3) If the Government has assigned to any, person its right over any minerals, mines or quarries, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in Sub-sections (1) and (2) should be exercised, the Collector may, by an order in writing, subject to such conditions and reservation as he may specify, delegate such powers to the person to whom the right has been assigned;
Provided that no inch delegation shall be made until notice has been duly served on all persons having rights in the land affected, and their objections have been heard and considered.
(4) If, in the exercise of the right herein referred to over any land, the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Sub-Divisional Officer, or, if his award is not accepted, by the Civil Court, as nearly as may be, in accordance with the provisions of the Land Acquisition Act, 1894 (1 of 1894).
(5) No assignee of the Government shall enter on or occupy the surface of any land without the previous sanction of the Collector, and unless the compensation has been determined and tendered, to the persons whose rights are infringed.
(6) If an assignee of the Government fails to nay compensation as provided in Sub-section (4), the Collector may recover such compensation from him on behalf of the persons entitled to it, as if it were an arrear of land revenue,
(7) Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in, and has not been assigned by the Government shall, without prejudice to any other action that may be taken against him, be liable, on the order in writing of the Collector, to pay penalty not exceeding a sum calculated at double the market value of me minerals so extracted or removed;
Provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose.
(8) Without prejudice to the provisions in Sub-section (7), the Collector may seize and confiscate any mineral extracted or removed from any mine or quarry, the right to which vests in, and has not been assigned by, the Government.
Explanation.--In this section, 'minerals' include any sand or clay which the State Government may declare to have a commercial value or to be required for any public purpose.'
It is urged on the basis of the proviso to Sub-section (3) that the rights specified in Sub-sections (1) and (2) cannot be delegated 'until notice has been duly served on all persons having rights in the land affected, and their objections have been heard and considered'. In other words, the precise contention is that the right to extract minerals from land, the surface of which is owned by a third party, cannot be assigned without giving to that party an opportunity of objecting to the proposed assignment and without considering its objections thereto.
We are unable to accept this contention. Sub-section (3) itself makes a distinction between the 'right over any minerals, mines or quarries' and the 'powers' to do certain acts for the proper enjoyment of that right. While the assignment of the right to minerals, mines and quarries is not fettered, the exercise of the powers necessary for the proper enjoyment of that right is hedged with conditions and is also burdened with the liability to pay compensation as enacted in Sub-sections (4) and (5). Indeed, Sub-section (3) comes into play only after the State Government has assigned its right over any minerals, mines or quarries. There are in these provisions two separate and distinct concepts, the concept of a vested right and the concept of powers necessary for enjoyment of that right. Unfortunately, these two concepts have been mixed up in the language employed id these enactments with the consequence that contentions like the one here continue to be urged, though, as we would show immediately, we had made the position clear in Amalgamated Coal Fields Ltd. v. Collector, Chhindwara, 1963 MPLJ 9.
4. Section 247 of the 1959 Code is, except for the addition of one word in Sub-section (5), a verbatim re-enactment of Section 228 of the Code of 1954, which in its turn was a like re-enactment of Section 218 of the Central Provinces Land Revenue Act, 1917. We had occasion to examine the provisions of Section 218 of the 1917 Act in Amalgamated Coal Fields Ltd. v. Board of Revenue, 1962 MPLJ 14. We considered the effect of the provisions of Section 228 of the Code of 1954 in 1963 MPLJ 9. Construing Sub-sections (1), (2), (3) and (4), we stated as follows;
'In Sub-section (1) of Section 228, while it is declared that the right to all minerals, mines and quarries vests in the State, it is also enacted that the State Government shall have all powers necessary for the proper enjoyment of such rights. Salmond states in his treatise on Jurisprudence:
'A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons.
* * * * The correlative of a power is a subjection. Subjection in the sense in which that term is now being used, connotes the presence of power vested in someone else, as against the person in subjection' (pages 274-275).
This is what is stated in Earl Jowitt's Dictionary of English Law:
'Power is sometimes used in the same sense as 'right', as when we speak of the powers of user and disposition which the owner of property has over it; but strictly speaking a power is that which creates a special or exceptional right, or enables a person to do something which he could not otherwise do'.
This is quoted that approval in Black's Law Dictionary. In Stroud's Judicial Dictionary, the meaning of the word 'power' is thus explained:
'Power does not apply to the sort of interest which the ownership gives'.* * * *
'A power is an authority reserved by, or limited to, a person to dispose, either wholly or partially, of real or personal property, either for his own benefit or for that of others. The word is used as a technical term, and is distinct from the dominion which a man has over his own estate by virtue of ownership'.
It will thus be seen that, in Sub-section (1), there are two separate and distinct concepts--the concept of a vested right and the concept of powers necessary for enjoyment of that vested right.
Unfortunately, in Sub-section (2), the two concepts appear to have been mixed up because it is declared that the right to a mine includes the right of access to land for the purpose of mining 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.
Now, if the right to a mine included the other rights specified in Sub-section (2), then, those other rights should also be regarded under Sub-section (1) as vested in the State in the same sense and no one can be heard to complain that his rights were infringed by the exercise of such other rights. Again, as we would show in the sequel, while the enjoyment of the right to minerals, mines and quarries is unfettered, the exercise of the subsidiary powers necessary for the proper enjoyment of that right is hedged with conditions and is also burdened with the liability to- pay compensations to third persons whose rights are thereby infringed.
Although, having due regard to the two different concepts already noticed, Sub-section (2) might have been more clearly worded, we are of opinion that it specifies and delimits the collateral powers necessary for the proper enjoyment of 'all minerals, mines and quarries' indicated in Sub-section (1). This view finds support in Sub-section (3) in which the distinction between the two concepts reappears. That sub-section speaks about assignment of the right over minerals, mines or quarries in contradistinction to delegation to the assignee of the powers specified in Sub-sections (1) and (2). It will be readily seen that when the surface of the land required for use belongs to the Government or to the assignee, there can be no question of delegation of the powers contemplated by Sub-section (3).
Sub-section (4) speaks about certain consequences of the exercise of the right herein referred to over any land. The land envisaged by this sub-section and the next is the land held by another person because compensation is, required to be paid to him by the Government or the assignee and. without the previous sanction of the Collector, the assignee cannot 'enter on or occupy the surface' of the land unless the compensation has been determined and tendered to that person.
It was urged by the Government advocate that the expression 'over any land' occurring in Sub-section (4) should be read as meaning 'in relation to any land'. He made this submission to be able to argue that the right to minerals is a right in relation to land and, if, in the exercise of this right, the surface of any land is disturbed, it would be covered by Sub-section (4). We think this contention is clearly untenable because the word 'land', as defined in Section 2 (9) of the 1954 Code, means a portion of the earth's surface. In our opinion, the word, 'right' in Sub-section (4) should be construed in the sense in which the word occurring for the second time in Sub-section (2) has been used. In that view, the expression 'in the exercise of the right herein referred to over any land' occurring in Sub-section (4) relates to the exercise of the powers specified in Sub-section (2) over lands held by third persons.'
5. In view of the foregoing considerations, (SIC) conclusion is that, under Section 247 of the Code, the State Government has an unfettered power to assign its right to 'minerals, mines and quarries' even though the surface of the land affected is owned by third persons like the petitioners. The expression 'all or any of the powers specified in Sub-sections (1) and (2)' occurring in Sub-section (3) of Section 247 refers to subsidiary powers which are necessary for the proper enjoyment of the right over minerals, mines and quarries. Since the petitioners are disentitled to object to the grant of the lease to the respondent 3 and the proceedings under Sub-sections (3) and (4) for considering whether all or any of the subsidiary powers should be delegated to him are still pending, they can have no legitimate grievance against any action hitherto taken in this matter.
6. The result is that this petition fails and it dismissed. The petitioners shall bear their own costs and pay out of the security amount those insurred by the respondents. There shall be two sets of costs, one for the respondents 1 and 2 and another for the respondent 3. The remaining amount of security shall be refunded. Hearing fee Rs. 75.