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Jilubha Fatehsinh Parmar Vs. A.J. Thakar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR705
AppellantJilubha Fatehsinh Parmar
RespondentA.J. Thakar and anr.
Excerpt:
- - 1. this petition raises interesting questions of law relating to the construction of certain provisions of the saurashtra land reforms act, 1951 and the mines and minerals (regulation and development) act, 1957. the petitioner was a bhayat under the former state of muli in saurashtra and as such bhayat, he was the owner of several lands which included survey no. 365 in favour of the petitioner clearly involved the determination that s. 365 and if he failed to do so, he was liable to be evicted under section 68 read with section 79 a of the bombay land revenue code, 1879 and the imposition of this condition therefore necessarily excluded the rights of the petitioner to the mines and minerals in s. 365 subject to the condition of personal cultivatian was therefore clearly.....p.n. bhagwati, j.1. this petition raises interesting questions of law relating to the construction of certain provisions of the saurashtra land reforms act, 1951 and the mines and minerals (regulation and development) act, 1957. the petitioner was a bhayat under the former state of muli in saurashtra and as such bhayat, he was the owner of several lands which included survey no. 365 situate in village kukada. the rights of the petitioner's ancestors to the mines and minerals in the bhayati lands were recognised and declared by the former rajasthanik court by a hak patrak dated 16th august, 1880 and the petitioner was therefore the owner of the mines and minerals in s. no. 365 at the date of coming into force of the saurashtra land reforms act, 1951. survey no. 365 comprised 16 acres and.....
Judgment:

P.N. Bhagwati, J.

1. This petition raises interesting questions of law relating to the construction of certain provisions of the Saurashtra Land Reforms Act, 1951 and the Mines and Minerals (Regulation and Development) Act, 1957. The petitioner was a Bhayat under the former State of Muli in Saurashtra and as such Bhayat, he was the owner of several lands which included Survey No. 365 situate in village Kukada. The rights of the petitioner's ancestors to the mines and minerals in the Bhayati lands were recognised and declared by the former Rajasthanik Court by a Hak Patrak dated 16th August, 1880 and the petitioner was therefore the owner of the mines and minerals in S. No. 365 at the date of coming into force of the Saurashtra Land Reforms Act, 1951. Survey No. 365 comprised 16 Acres and 11 gunthas of land and out of that, there were admittedly sand-stone deposits in an area of 7 Acres and 4 Gunthas. Now, according to the petitioner, mining operations in this area for the purpose of winning sand-stone were started by him long prior to the enactment of the Saurashtra Land Reforms Act, 1951, but this was disputed on behalf of the respondents and sines that raised a disputed question of fact which we would not entertain in the exercise of our extraordinary jurisdiction under Article 226 of the Constitution, the petitioner invited us to proceed on the basis accepted by the respondents that mining operations for the purpose of winning sand-stone in this area were not started until after the issue of occupancy certificate in respect of S. No. 365 in favour of the petitioner. As a matter of fact, this concession on the part of the petitioner was inevitable, as issue of occupancy certificate in respect of S. No. 365 in favour of the petitioner clearly involved the determination that S. No. 365 was Gharkhed land in personal cultivation of the petitioner at the date of the coming into force of the Saurashtra Land Reforms Act, 1951. The common accepted basis between the parties therefore was that mining operations for the purpose of winning sand-stone from S. No. 365 were started by the petitioner subsequent to 25th March 1956 being the date when the occupancy certificate was issued in favour of the petitioner. The Deputy Collector thereafter satiated proceedings against the petitioner on the basis that the petitioner as an occupant was making non-agricultural use of S. No. 365 by carrying On mining operations in an area of 7 Acres and 4 Gunthas and in this proceeding, the petitioner agreed to pay non-agricultural assessment as also royalty and the Deputy Collector ultimately passed an order dated 5th July 1961 asking the petitioner to pay non-agricultural assessment of Rs. 179/- per year from the revenue year 1951-52. The petitioner complied with this order and continued to carry on mining operations for the purpose of winning sand-stone from this area. But ere long an order dated 19th March 1962 came to be passed by the Quarry Inspector which seriously affected the right of the petitioner to carry on mining operations for the purpose of winning sand-stone belonging to him. By this order, the Quarry Inspector directed that the petitioner should stop working the mine as he had not obtained mining lease in accordance with the Mineral Concession Rules, 1960 and that he should work the mine only after obtaining such mining lease. This order of the Quarry Inspector is challenged in the present petition.

2. The ground on which the validity of the impugned order was challenged on behalf of the petitioner was that the minerals in S. No. 365 and sand-stone was admittedly a mineral within the meaning of the Mines and Minerals (Regulation and Development) Act, 1957 vested in the petitioner and the petitioner was therefore not bound to obtain any mining lease from the State Government under the provisions of that Act or the Mineral Concession Rules, 1960 for the purpose of undertaking mining operations for winning sandstone from S. No. 365. This ground was combated on behalf of the respondents and the contention urged on their behalf in answer to this ground was a two-fold one. The first contention was that by reason of the provisions of the Saurashtra Land Reforms Act, 1951, on the issue of an occupancy certificate in respect of S. No. 365 in favour of the petitioner, the rights of the petitioner to the mines and minerals in S. No. 365 which he held as a Girasdar came to an end and the said mines and minerals became vested in the State Government and the petitioner was therefore not entitled to carry on mining operations for the purpose of winning the said minerals without obtaining mining lease from the State Government as the owner of the said minerals. Now, it was not disputed on behalf of the petitioner that if on the issue of the occupancy certificate in respect of S. No. 365 in favour of the petitioner, the rights of the petitioner to the minerals in S. No. 365 came to an end and the State Government became owner of the said minerals, the petitioner would not be entitled to carry on mining operations for the purpose of winning the said minerals without obtaining mining lease from the State Government. But the argument of the petitioner was that there was nothing in the Saurashtra Land Reforms Act, 1951 which took away the rights of the petitioner to the mines and minerals in S. No. 365 and despite the issue of occupancy certificate in respect of S. No. 365 in favour of the petitioner, the petitioner continued to be the owner of the said mines and minerals. The second contention of the respondents was based on the assumption of validity of this argument of the petitioner. The respondents contended that even if the petitioner continued to be the owner of the mines and minerals in S. No. 365, the petitioner was still bound to obtain mining lease from the State Government for the purpose of undertaking mining operations for winning sand-stone from S. No. 365 and in the absence of such mining lease, the petitioner was not entitled to carry on mining operations and the Quarry Inspector was within his rights in directing the petitioner to stop carrying on mining operations without obtaining such mining lease. The rival contentions raise two questions for determination: one being whether by reason of the provisions of the Saurashtra Land Reforms Act, 1951, the rights of the petitioner to the mines and minerals in S. No. 355 cams to an end on the issue of occupancy certificate and the other being whether, even if the petitioner continued to be the owner of the mines and minerals in S. No. 365, the petitioner was not entitled to carry on mining operations for the purpose of winning sand-stone from S. No. 365 without obtaining mining lease from the State Government. The determination of these questions obviously depends upon the true interpretation of the relevant provisions of the Saurashtra Land Reforms Act, 1951 and the Mines and Minerals (Regulation and Development) Act, 1957.

3. We will first proceed to examine the question as to the effect of the issue of occupancy certificate on the rights of the petitioner to the mines and minerals in S. No. 365. In order to appreciate the arguments bearing upon this question, it is necessary to make a brief reference to the relevant provisions of the Saurashtra Land Reforms Act, 1951. This Act was passed for the purpose of introducing certain measures of land reforms in Saurashtra and it was brought into force on 1st September 1951 by a notification issued by the State Government under Section 1(3). The petitioner was admittedly a Bhayat within the meaning of the definition of the term contained in Section 2(5) and he was therefore covered by the definition of 'Girasdar' given in Section 2(15). Section 2(22) defined 'occupant' to mean a person who is in lawful possession of any land held directly from the State and who has all the rights which an occupant has under this Act, or under the Bombay Land Revenue Code, 1879, in respect of land held by him as an occupant. Section 4 declared that all land of whatever description held by a Girasdar is and shall continue to be liable to payment of land revenue to the State and Section 5 divided Girasdar into three classes, namely: 'A', 'B' and 'C' for the purpose of the Act. The petitioner was admittedly a Girasdar belonging to 'B' class. Chapter III consisting of Sections 6 to 18 dealt with the question of relationship between the Girasdars and their tenants. We need not make any reference to these sections since they have no relevance to the question which is before us for determination. Chapter IV contained a fasciculus of sections providing for allotment of lands to Girasdar for personal cultivation. Different limits were provided according as the Girasdar belonged to 'A', 'B' or 'C' class and it was that so much of land shall be allotted to the Girasdar for personal cultivation as would, when added -to the area of Gharkhed in his estate and of khalsa land, if any, in his possession, make up the total area prescribed according to his class. What would constitute Gharkhed was defined in Section 2(14) and the essence of the definition was that, barring certain exceptions which are not material, the land should be reserved by or allotted to a Girasdar for being cultivated personally and should further be in his personal cultivation. Section 28 then provided that, subject to any allotment which might be made to the Girasdar for personal cultivation under the provision of Chapter IV, a tenant of the Girasdar shall be entitled to acquire occupancy rights in his holding on payment of an amount equal to six times the assessment payable in respect of the agricultural land included in such holding and he may apply in the prescribed form to the Mamlatdar for acquiring such rights. On such application, the Mamlatdar was authorised to issue occupancy certificate to the tenant under Section 30 and the consequences of issue of such occupancy certificate were set out in Section 31. Section 33(2) provided that in addition to the compensation paid by the tenant in respect of the holding, the Government shall also pay to the Girasdar as compensation every year for fifteen years an amount equal to the assessment of the holding as fixed by the Mamlatdar under Section 30(1)(b) and Section 36 then proceeded to enact:

36. On the payment by the Government of the last instalment of compensation payable under this Act, in respect of an occupancy holding, all the remaining rights, title and interest of the Girasdar in that holding shall be deemed to have been extinguished.

This was the scheme of the Act in regard to the acquisition of occupancy rights by the tenant in respect of his holding but what was to happen in regard to Gharkhed land held by the Girasdars as also land allotted to the Girasdars for personal cultivation under the provisions of Chapter IV Provision in regard to such land was made in Section 39 and that section, which is very material section for the determination of the present controversy, declared:

39. (1) The Mamlatdar may, either of his own motion or on an application received in this behalf from a Girasdar, issue an occupancy certificate to the Girasdar in such form as may be prescribed in respect of the Gharkhed comprised in his estate and the land allotted to him in accordance with the provisions of Chapter IV.

(2) A Girasdar shall become an occupant in respect of his Gharkhed and the land allotted to him in accordance with the provisions of Chapter IV, as from the date of the issue of occupancy certificate.

It was under Section 39 that the petitioner made an application for issue of an occupancy certificate inter alia in respect of S. No. 365 on the basis that it was Gharkhed land of his estate and the Mamlatdar granted the application and issued an occupancy certificate to the petitioner in respect of S. No. 365. The question is: what is the effect of issue of this occupancy certificate ?

4. The principal argument of the respondents was that having regard to the scheme of the Act and the provisions of Sections 2(14) and 39, the only right which was preserved to the Girasdar on issue of an occupancy certificate was the right to cultivate personally the land in respect of which the occupancy certificate was issued and the Girasdar was not entitled to make any other use of the land and the rights of the Girasdar, if any, to the mines and minerals in the land must therefore be held to be extinguished by necessary implication. This argument is plainly unsound and is not justified by the provisions of the sections to which we have just referred. It is clear on a plain reading of Section 39 that on the issue of an occupancy certificate in respect of any land to the Girasdar, the Girasdar becomes an occupant in respect of such land as on the date of issue of the occupancy certificate. Transplanting the definition of 'occupant' given in Section 2(22) in Section 39, the conclusion which follows is that the Girasdar on the issue of an occupancy certificate becomes entitled to all the rights which an occupant has under the Saurashtra Land Reforms Act, 1951 or the Bombay Land Revenue Code, 1879, in respect of the land covered by the occupancy certificate The rights of the Girasdar are not restricted to personal cultivation of the land in respect of which the occupancy certificate is issued, but he can make such use of the land as is permissible to him under the provisions of the Bombay Land Revenue Code, 1879. The Girasdar may make agricultural use of the land by personally cultivating it or he may, if permitted to do so under Section 65 of the Bombay Land Revenue Code, 1879, make non-agricultural use of the land. It is no doubt true that before occupancy certificate can be issued to the Girasdar in respect of any land the land must satisfy one of two descriptions: either it must be Gharkhed land within the meaning of Section 2(14) or it must be land allotted for personal cultivation under the provisions of Chapter IV, but once an occupancy certificate is issued in respect of land falling within either of these two descriptions, there is no provision in the Saurashtra Land Reforms Act, 1951 which requires that such land must be used only for personal cultivation and cannot be used for any other purpose.

5. The respondents however relied on the occupancy certificate issued in favour of the petitioner and contended that this occupancy certificate declared the petitioner to be an occupant of S. No. 365 on condition that he will personally cultivate the same and this condition of personal cultivation being a condition annexed to the tenure of the occupancy granted under the occupancy certificate, the petitioner was bound to fulfil the condition by personally cultivating S. No. 365 and if he failed to do so, he was liable to be evicted under Section 68 read with Section 79 A of the Bombay Land Revenue Code, 1879 and the imposition of this condition therefore necessarily excluded the rights of the petitioner to the mines and minerals in S. No. 365. This contention, though prima facie attractive, is in our view without merit for it conflicts with the language of the provision enacted in Section 39 in regard to the issue of an occupancy certificate. Section 39 in terms declares that on issue of an occupancy certificate, the Girasdar shall become an occupant in respect of the land without any restriction or qualification and what is left to be prescribed by rules to be made by the State Government is merely the form in which the occupancy certificate shall be issued. The State Government cannot in the guise of prescribing the form of occupancy certificate detract from the rights which, Section 39 declares, the Girasdars shall acquire on issue of the occupancy certificate. As a matter of fact, when we turn to the Saurashtra Land Reforms Rules, 1951, made by the State Government under the Act, we find that Form No. X which is the form of occupancy certificate to be issued by the Mamlatdar is in accordance with the provisions of Section 39 and it does not refer to any condition restrictive of the rights which would belong to the Girasdar as an occupant. This form in terms provides for the issue of the following certificate: 'It is hereby certified that the said Girasdar Mr. ... shall be deemed to be the occupant of the land described below' and does not say that the Girasdar shall be deemed to be the occupant subject to the condition of personal cultivation. The introduction of the condition that the petitioner shall be deemed to be the occupant of S. No. 365 subject to the condition of personal cultivatian was therefore clearly unauthorized and it was not only beyond the terms of Section 39 but was also not in conformity with the form prescribed by the Saurashtra Land Reforms Rules, 1951. No reliance could therefore be placed on behalf of the respondents on the presence of this condition in the occupancy certificate. The net effect of the issue of the occupancy certificate, in our view, was that the petitioner became the occupant in respect of S. No. 365 and as such occupant, he was entitled to all the rights of an occupant under the Bombay Land Revenue Code, 1879 including the right to make non-agricultural use of S. No. 365 in accordance with the provisions of the Code. The argument that the rights to the mines and minerals were therefore extinguished by necessary implication must consequently be rejected.

6. It was then contended on behalf of respondents that, in any event, even if on a true construction of the provisions of the Saurashtra Land Reforms Act, 1951, the petitioner became the occupant of S. No. 365 on the issue of occupancy certificate and was entitled to all the rights of an occupant under the provisions of the Bombay Land Revenue Code, 1879, these rights of an occupant were the only rights which were preserved to him and all other rights which he possessed as a Girasdar came to an end including the rights to the mines and minerals Now the only provision dealing with the consequences of issue of an occupancy certificate is that set out in Section 39 and according to that section, the only consequence which follows upon the issue of an occupancy certificate is that the Girasdar becomes an occupant of the land in respect of which the occupancy certificate is issued to him. The land in respect of which the occupancy certificate is issued becomes unalienated land and the Girasdar becomes an occupant in respect of such land with all the rights and obligations of an occupant under the provisions of the Bombay Land Revenue Code, 1879. But apart from this consequence, the Saurashtra Land Reforms Act, 1951 does not provide for any other consequence following upon the issue of occupancy certificate. The rights of the Girasdar to the mines and minerals in the land are not extinguished or taken away by any express words used by the Legislature. The question is whether they are taken away by necessary implication. Now it cannot be disputed that if there are any rights of the Girasdar which are inconsistent with his being an occupant in respect of the land, such rights would certainly by necessary implication be extinguished but the right to the mines and minerals in the land cannot be regarded as inconsistent with the position of the Girasdar as occupant in respect of the land. Even an occupant under the Bombay Land Revenue Code, 1879 can be the owner of the mines and minerals in the land of which he is the occupant. Section 69 of the Bombay Land Revenue Code clearly contemplates cases where an occupant may be entitled to rights in respect of mines and minerals in the land. The main provision enacted in Section 69 says that the right of the Government to mines and mineral products in all unalienated land is expressly reserved but the proviso to the section declares that nothing in the section shall be deemed to affect any subsisting rights of any occupant of such land in respect of mines and mineral products. The continuance of the rights to mines and minerals is therefore not inconsistent with the Girasdar becoming the occupant of the land. As a matter of fact, the proviso to Section 69 of the Bombay Land Revenue Code, 1879 in terms saves the rights of the Girasdar to mines and minerals in the land of which he becomes the occupant on the issue of the occupancy certificate. When the occupancy certificate is issued, the land becomes unalienated land and by reason of the main provision enacted in Section 69, the Government would become the owner of the mines and minerals in such land. But by reason of the proviso, the subsisting rights of the Girasdar in respect of such mines and minerals are not affected. Therefore, far from there being anything in the Saurashtra Land Reforms Act, 1951 which would extinguish by necessary implication the rights of the Girasdar to the mines and minerals, the conjoint effect of Section 39 of the Saurashtra Land Reforms Act, 1951 and the proviso to Section 69 of the Bombay Land Revenue Code, 1879 is that the rights of the Girasdar to mines and minerals are expressly saved and the Girasdar continues to be the owner of the mines and minerals. Moreover, it must be remembered that the rights of the Girasdar to mines and minerals are rights of property and unless there are express words used by the statute extinguishing or taking away such rights, or such a conclusion is inevitable by reason of necessary implication, the Court will be slow to construe the statute so as to extinguish or destroy such rights. We do not find any provision in the Saurashtra Land Reforms Act, 1951 which either expressly or by necessary implication takes away the rights of the Girasdar to mines and minerals in the land. We may, in this connection, point out the difference in the language employed in Sections 36 and 39 of the Saurashtra Land Reforms Act, 1951. Section 36, which deals with the case where a tenant becomes the occupant of the land in his possession, declares that on payment by the Government of the last instalment of compensation to the Girasdar in respect of the occupancy holding, 'all the remaining rights, title and interest of the Girasdar in that holding shall be deemed to have been extinguished. ' But when we come to Section 39 which deals with the case where the Girasdar becomes the occupant of the land, we do not find any such words. Section 39 does not say that the Girasdar shall become an occupant in respect of the land and all his other rights as a Girasdar shall be deemed to have been extinguished. If the Legislature intended to take away all other rights of the Girasdar there was nothing to prevent the Legislature from saying so clearly by using appropriate language as it did in Section 36. The only logical and rational inference which can be drawn from the use of language in Section 39 is that the Legislature did not intend to deprive the Girasdar of his other rights save and except those which became incompatible with his position as an occupant in respect of the land. We are, therefore, of the view that though on the issue of occupancy certificate, the petitioner became the occupant in respect of S. No. 365, his rights to the mines and minerals in S. No. 365 were not affected or taken away and he continued to be the owner of such mines and minerals.

7. That takes us to the next question namely whether the petitioner was entitled to carry on mining operations for the purpose of winning sand-stone from S. No. 355 without obtaining a mining lease from the State Government. The determination of this question depends on the true interpretation of Section 4 of the Mines and Minerals (Regulation and Development) Act, 1957 but in order to understand the proper meaning and import of that section, it is necessary to refer to some other sections of the Act as well. The Mines and Minerals (Regulation and Development) Act, 1957 was passed by the Parliament on 28th December 1957 and since the power to make law for the regulation of mines and development of minerals under Entry 54, List I of the 7th Schedule to the Constitution, can be exercised by the Parliament only if a declaration is made by the Parliament, Section 2 of the Act contains declaration that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act. Section 3(c) defines 'mining lease' in the following terms:

(c) 'Mining lease' means a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose;

Section 4 imposes restrictions on undertaking of prospecting and mining operations and the provision it enacts is as under:

4. Prospecting of mining operations to be under licence or lease.

(1) No person shall undertake any prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder:

Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.(2) No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.

Section 5 provides for restrictions on the grant of prospecting licence or mining lease and lays down the qualifications which should be possessed by a person before he can be granted prospecting licence or mining lease by a State Government. Section 6 prescribes the maximum area for which a prospecting licence or mining lease may be granted and the maximum period for which a prospecting licence or mining lease may be granted or renewed is laid down in Sections 7 and 8. Section 9 provides for payment of royalty in respect of mining least and Sub-sections (1) and (2) of that section read as follows:

(1). The holder of a mining lease granted before the Commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.

(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.

Then comes a group of three sections namely 10 to 12 under the heading 'Procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government'. Section 10 provides for making of application to the State Government for a prospecting licence or a mining lease in respect of any land in which the minerals vest in the Government. Section 11 confers a preferential right on certain persons to obtain a prospecting licence or a mining lease on the strength of such application and Section 12 requires maintenance by State Government of registers of prospecting licences and mining leases in the prescribed form. Section 13 Sub-section (1) confers rule-making power on the Central Government in general terms and Sub-section (2) lays down specific matters on which rules may be made by the Central Government without prejudice to the generality of the power conferred under Sub-section (1). Clauses (a), (e) and (f) of Sub-section (2) specify the following matters:

(a) the person by whom and the manner in which, applications for prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor.

(e) the authority by which prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be granted;

(f) the procedure for obtaining a prospecting licence or a mining lease in respect of land in which the minerals vest in a person other than the Government and the terms on which, and the conditions subject to which, such a licence or lease may be granted or renewed;

In exercise of the rule-making power, the Central Government made 'The Mineral Concession Rules, 1960'. Chapter III of the rules contain rules relating to the grant of prospecting licences in respect of land in which the minerals vest in the Government and Chapter IV contains rules relating to grant of mining leases in respect of land in which the minerals vest in the Government. The procedure for obtaining a prospecting licence or a mining lease in respect of land in which the minerals vest in a person other than the Government is prescribed by rules contained in Chapter V and rules 44,45 and 47 occurring in this Chapter, omitting portions immaterial, read as follows:

44. Conditions of prospecting licence: Every prospecting licence shall be subject to the following conditions:

(i) the licensee shall pay to the grantor such prospecting fee as may be agreed upon, being not less thin twenty five naye paise and not more than two rupees fifty naye paise per hectare of the land covered by the licence for each year or a part of the year of the period for which a licence is granted or renewed;

XXX XXX XXX XXX

45. Conditions of mining lease: Every mining lease shall be subject to the following conditions;

(i) the provisions of Clauses (b) to (1) of Sub-rule (1) of Rule 27 shall apply to such leases with the modification that in Clauses (c) and (d) for the words 'State Government' the word 'lessor' shall be substituted;

XXX XXX XXX XXX

(iii) the lease may contain such other conditions, not being inconsistent with the provisions of the Act and these rules, as may be agreed upon between the parties; (iv) if the lessee makes any default in payment of royalty as required by Section 9 or commits a breach of any of the conditions of the lease, the lessor shall give notice to the lessee requiring him to pay the royalty or remedy the breach, as the case may be, within sixty days from the date of the receipt of the notice and if the royalty is not paid or (he breach is not remedied within such period, the lessor without prejudice to any proceeding that may be taken against the lessee determine the lease;

xxx xxx xxx xxx

47. Submission of copy of licence or leave: Every person obtaining a prospecting licence or a mining lease shall, within three months of the grant of such licence or lease, submit to the State Government concerned a certified copy of the licence or lease in duplicate.

These are the relevant provisions of the Act and the Rules which have a bearing on the determination of the question before us.

8. The argument of the respondents was founded on the language of i the restrictive provision contained in Section 4 and it was urged on behalf of the respondents relying on this restrictive provision that the petitioner was not entitled to carry on mining operations in S. No. 365 except under and in accordance with the terms and conditions of a mining lease granted under the Act and the Rules. The respondents strongly emphasised the absolute language in which the restrictive provision was couched and contended that the words: 'No person shall undertake any prospecting or mining operations in any area' were wide enough to take within their width even a person who wanted to carry on mining operations for the purpose of winning minerals belonging to him and unless such person obtained a mining lease from the State Government, he was not entitled to carry on mining operations. The thesis of the respondents therefore was that every person, whether owner of the minerals or not, was bound to obtain a mining lease from the State Government if he wanted to carry on mining operations for the purpose of winning the minerals. Now it is no doubt true that Section 4 is couched in words of considerable width and amplitude and on a plain literal construction, it appears to take within its restrictive net every person who wants to carry on mining operations in any area even if he be the owner of the minerals, but a little scrutiny will reveal that this construction i$ plainly incorrect. It is defective in that it gives undue emphasis to one part of the section and ignores the other. What the section requires is that no person should undertake mining operations in any area without obtaining a mining lease and it is the necessity of a mining lease which is emphasised by the section. Now, a 'mining lease' is defined to mean a lease granted for the purpose of undertaking mining operations. The very use of the word 'lease' in the definition suggests that there must be two parties: one a lessor and the other a lessee who proposes to undertake mining operations. The word 'lease' has a recognised legal connotation namely: transfer of the right to enjoy property by one person to another and a mining lease must therefore be a lease according to this legal connotation granted by a lessor to a lessee for the purpose of undertaking mining operations. Now, if the person who proposes to undertake mining operations is the owner of the minerals which he proposes to mine, it is difficult to see how he can obtain a mining lease from the State Government for the purpose of undertaking mining operations. The State Government, not being the owner of the minerals, cannot possibly grant a mining lease of the area to such person for the purpose of undertaking mining operations. Faced with this difficulty, the respondents suggested that the word 'lease' was not used in the sense of a lease as understood in the law of property but in the sense of licence or permission. But this suggestion is wholly untenable and for several reasons. In the first place, it requires the strong compulsion of other words in a statute to induce the Court to alter the well known meaning of a legal term and the word 'lease' which has a legal connotation must ordinarily, unless there is a clear indication to the contrary, be construed according to its recognised legal connotation. Secondly, it is difficult to appreciate why the Legislature should have used the inappropriate word 'lease' when it could have easily used the appropriate word 'licence' or 'permission' and in fact it used the word 'licence' when speaking of a prospecting licence. Thirdly, we find that in Section 9, Sub-sections (1) and (2) the Legislature specifically used the words 'leased area' which clearly go to show that what the Legislature contemplated by a mining lease was a lease of the area for the purpose of undertaking mining operations and that also goes to suggest that the word 'lease' was used according to its recognised legal connotation and not in the sense of licence. Furthermore, as we shall presently show, mining lease contemplated by the section is not a mining lease from the State Government in every case, irrespective of whether the State Government is the owner of the minerals, but a mining lease from the owner of the minerals. Such a mining lease would have to be from the State Government when the State Government is the owner of the minerals and in a case where a person other than the State Government is the owner of the minerals, it would have to be from such person. The argument of the respondents postulates that the mining lease must necessarily in all cases be from the State Government and without such mining lease from the State Government, no one can carry on mining operations. But this postulate cannot be sustained unless the word 'lease' is construed to mean 'licence. ' We have already set out the reasons why we are unable to accept this construction. Moreover it may be noted that the section does not talk of a 'mining lease' to be obtained from the State Government. The words used by the Legislature are 'mining lease' simpliciter and not 'mining lease from the State Government. ' Then again when we turn to the other provisions of the Act, we notice that a distinction is drawn by the Legislature between cases relating to mining leases in respect of land in which the minerals vest in the Government and cases relating to mining leases in respect of land in which the minerals vest in a person other than the Government. Vide Sections 10 to 12 and Clauses (a) and (c) of Section 13 Sub-section (2) on the one hand and Clause (f) of Section 13 Sub-section (2) on the other. Where the mining lease is sought in respect of land in which the minerals vest in the Government, the application for a mining lease is required under Section 10 to be made to the State Government but there is no provision in the Act which requires that an application for a mining lease must be made to the State Government even in a case where the minerals vest in a person other than the Government nor is any such requirement to be found in the Mineral Concession Rules, 1960 made under the Act. These circumstances clearly show that the mining lease contemplated by Section 4 is not a mining lease from the State Government as the respondents would have it but a mining lease to be obtained from the owner of the minerals.

9. This would appear to be clear on a plain reading of the provisions of the Act but even if there were any doubt in regard to the true construction of Section 4, it is dispelled by the Mineral Concession Rules, 1960 made under the Act. The Rules clearly show that no mining lease from the State Government is contemplated in respect of land in which the minerals vest in a person other than the Government. Chapter IV of the rules deals with the subject of grant of mining lease in respect of land in which the minerals vest in the Government and it is apparent from the rules contained in that Chapter that the mining lease in such cases is to be obtained from the State Government, for the minerals being vested in the State Government, the mining lease for undertaking mining operations for the purpose of winning such minerals must be obtained from the State Government. But when we turn to Chapter V, we find that the rules contained in this Chapter do not contemplate any mining lease from the State Government. Rules 44, 45 and 47 which we have reproduced above clearly suggest that the lessor of the mining lease is not the State Government but the person in whom the minerals are vested and that the mining lease is a matter of agreement between the parties. Rule 47 provides that every person obtaining a mining lease shall within three months of the grant of the lease, submit to the State Government a certified copy of the lease in duplicate. This provision shows beyond doubt that the mining lease contemplated in cases where the minerals vest in a person other than the Government, is not a mining lease from the State Government. The mining lease from the State Government is contemplated only in cases where the minerals vest in the State Government. These considerations lead us inevitably to the conclusion that the mining lease referred to in Section 4 is not a mining lease from the State Government but a mining lease from the owner of the minerals, whether such owner is the State Government or a person other than the State Government. The section can therefore obviously have no application where the owner of the minerals wants to carry on mining operations himself for the purpose of winning his own minerals. Or else the owner of the minerals would not be able to carry on mining operations himself but would be compelled to give a mining lease to another person if he wants his minerals to be exploited. Such a construction would be absurd and we find it difficult to believe that the Legislature could have intended to bring about such an absurd and mischievous consequence. The correct way of reading the section appears to us to be that the section seeks to affect only those who can conceivably comply with its requirements and in this view, it must be held that the section applies only where a person other than the owner of the minerals intends to undertake any prospecting or mining operations. The section, in our view, does not take within its ambit prospecting or mining operations proposed to be undertaken by the owner of the minerals himself. It must, therefore, be concluded that since the petitioner was the owner of the minerals in S. No. 365, Section 4 did not apply to him and he was entitled to carry on mining operations for the purpose of winning such minerals without obtaining any mining lease from the State Government.

10. The order passed by the Quarry Inspector directing the petitioner not to carry on mining operations without obtaining a mining lease must, therefore, be quashed and set aside.

11. We, therefore, allow the petition and make the rule absolute by issuing a writ quashing and setting aside the order of the Quarry Inspector dated 19th March 1962. The respondents will pay the costs of the petition to the petitioner.


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