S.A. Shah, J.
1. The appellant is the original plaintiff who filed a suit for declaration against the State of Gujarat and its officers to the effect that the suit land bearing Survey Nos. 56/1 and 56/2/A of village Motiwada, taluka Pardi, district Bulsar leased to the plaintiff by private owner for the purpose of quarry are private khata lands and that the rules framed by the State of Gujarat, namely the Gujarat Minor Minerals Rules, 1966 are not applicable to such lands and that the plaintiff is not required to apply to the defendant No. 2 for grant of quarry lease as per the said rules and he was not liable to pay any amount by way of royalty fees or otherwise and is also not liable to any criminal action for breach of the said rules and it be further declared that the Criminal Case No. 1936 of 1971 and 519 of 1972 against the plaintiffs partners pending before the Court of the Judicial Magistrate, First Class at Pardi be quashed directing the defendants to withdraw the said criminal proceedings and injunction restraining the defendants from taking any action for recovery of royalty fees or otherwise.
2. The Civil Judge, Sr. Dn. Navsari dismissed the plaintiffs suit with costs by his judgment and decree dt. 29-11-75. The appellant-plaintiff filed an appeal in the Court of District Judge, Bulsar at Navsari being Regular Civil Appeal No. 3 of 1976 and the learned District Judge, Valsad also dismissed the appeal by his judgment and decree dated 21-8-76 and hence the plaintiff has filed this second appeal.
3. Since the appeal has been filed prior to 1-2-77 i. e. to say prior to the coming into force of the Civil Procedure Amendment Act, 1976 (104 of 1976), no questions of law have been framed by the High Court.
4. Mr. S.N. Shelat appearing on behalf of the appellant-plaintiff has contended that (i) the suit land being a private land is not subjected to the provisions of Gujarat Minor Minerals Rules, 1966 and, therefore, the plaintiff is not liable to pay any royalty and, therefore, not subjected to any prosecution for breach of the provisions of Mines and Minerals (Regulation and Development) Act, 1957 or Gujarat Minor Minerals Rules, 1966 (hereinafter referred to as 'the Act' and as 'the Rules' respectively). To appreciate the contentions of the plaintiff, short facts which are more or less admitted are necessary to be reproduced.
The plaintiff is a partnership firm and named as M/s. Steel Pipe & Fabrication Works which has obtained part of the suit land on lease from the original owners Manchhubhai Narsi, Dhedabhai Manchhubhai and Durlabhji Manchbubhai of Motiwada on 30-12-76 vide Ex. 64. The other part of the suit land was obtained by way of lease on the same day from Purshottam Dahyabhai and Laduben Jagjivan by Ex. 65. It is, therefore, necessary to know the title of the lessor in respect of the suit land. The entries from record of rights are produced at Ex. 44 and 45 in which the lessors have been shown as occupants and the land is shown as agricultural land which was actually not under cultivation on account of stones.
5. The defendants Nos. 1, 2 and 3 have filed their written statement in which it has been stated that the plaintiff had no right to extract atone or excavate stone, kapchi etc. from stone quarry, out of Survey No. 56/1, 56/2 of village Motiwada taluka Pardi. They have stated that mineral rights are vested in Government and the plaintiff had not obtained the permission for excavating or extracting the stones under the Rules and, therefore, the plaintiff does not get any right to excavate the mineral products. It is the further contention of the State Government that even if the N. A. permission is granted, the grantee does not get authority to excavate and remove the stone. N.A. permission is granted only for the use of land for the purpose other than agriculture and not for excavation and removal of the mineral from the land.
6. The contention of Mr. Shelat that the Act and the Rules are not applicable to the private properties has no merit, It is not in dispute that the land is unalienated land belonging to the Government and the original owners were the occupants of the suit land as will be seen from Ex. 44 and Ex. 45. Section 65 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as the 'Code') provides that:
Any occupant of land (assessed or held for the purpose of agriculture) is entitled by himself, his servants tenants, agents or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient (use for the purpose aforesaid).
But if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant.
So the occupant can utilise the land for the purpose of other than agriculture in accordance with the permission only. However, Section 69 of the Code as it stood in 1977 was under:
The right of the Government to mines and mineral products in all unalienated land is and is hereby declared to be expressly reserved.
Thereafter, Section 69 A has been inserted by Gujarat Act VIII of 1982 and since the said provision has retrospective effect, it is necessary to reproduce the same.
After Section 69, the following section shall be deemed always to have been inserted with effect from 1-5-60 namely:
69 (A)(1) : Notwithstanding anything contained in any custom, usage, grant, sanad or order or agreement or any law for the time being in force, or in any judgment, decree or order of court or of other authority with effect and from the 1st May 1960 all mines whether being worked or not and minerals whether discovered or not and all quarries which are situate within the limits of any land, granted or recognised under any contract, grant or law for the time being in force or decree of a court, shall vest in and with all rights over the same or appurtenant thereto be the property of the State Government, and the State Govt. shall subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 have all powers necessary for the proper enjoyment and disposal of such rights.'
(2) The rights of the Govt. to mines and mineral products in land reserved under Section 69 of the rights of the Govt. to mines, minerals and quarries vested under Sub-section (1) includes the right of access to land for the purpose of prospecting and working mines and the right to occupy such other lands as may be necessary for purposes of 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 Govt. may declare to be subsidiary to prospecting and working mines.
Rest of the provisions are not relevant and hence not reproduced.
7. It is, therefore, very clear that the appellant plaintiff cannot have better rights than the right which has been acquired by the original owner. Even if the permission is granted for N. A. use, the occupant does not get any right to mines and mineral product because the same had been expressly reserved by the State Government. No officer has got the powers under Section 65 while granting N.A. permission to grant rights in respect of mines and minerals. However, new Section 69 A which has come into force retrospectively from May 1960 further makes the position clear. Even in the case where such a right has been granted in past, by the then States or authorities or the same has been granted by any other law or the same has been determined by judgment and decree of any court w. e. f. 1-5-60, these rights have been withdrawn and have been vested with the State Government.
8. In view of this statutory provision, there remains no doubt that the occupants of the land who are permitted to make N. A. use of the said land had no right in respect of mines or mineral product and since the same has been specifically reserved by the State Government, it can be disposed of only in accordance with the provisions of Mines and Minerals (Regulation & Development) Act, 1957 and Gujarat Minor Minerals Rules, 1966.
9. Mr. Shelat bad also contended that the stone is a natural product and is on the surface of the suit land and not beneath the suit land, therefore, it cannot be said to be minerals or the plaintiffs are not excavating the same. This argument has also no merit and is also liable to be rejected.
10. The argument that there was a hillock and the rock was blasted and the stones were removed and, therefore, the stones would not be minor mineral and the stone would be minor mineral if a pit has been dug or the mine has been excavated is no longer available to the plaintiff-appellant in view of the Supreme Court decision in the case of B. D. Chadha & Bros. v. Lt. Governor, Delhi Admn. reported in : 1SCR271 The Supreme Court held that:
It was urged that the sand and gravel are deposited on the surface of the land and 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-section'il 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, 'Winning' 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 drawing out or obtaining. A tooth is 'extracted' as much as is fruit juice and as much as a mineral. Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral.
11. Their Lordships further referred the decision of Northern Pacific Railway Co. v. John A. Sedragarg (1902) 47 Law Ed. 575 where the Supreme Court of United States observed as follows:
The Supreme Court of United States also referred to several English cases where stone for road making or paving was held to be 'minerals' as also granite, sandstone, flint stone, gravel, marble, fire clay, brick clay, and the like. It is clear that the word 'mineral' has no fixed but a contextual connotation.
Relying upon the aforesaid observation, and since the question in the said case was whether the brick earth should be held to be a minor mineral, the Supreme Court held that:
If the expression 'minor mineral' as defined in Section 3 (e) of the Act includes 'ordinary clay' and 'ordinary sand' there is no reason why earth used for the purpose of making bricks should not be comprehended within the meaning of the words 'any other mineral' which may be declared as a 'minor mineral' by the Government.
12. In view of the aforesaid observation by the Supreme Court, there is no merit in the contention of the appellant that the stones, kapchi and other products are not deemed to be the minor mineral. The stones were the property of the Government and even if the same is removed from surface of the land, without actual excavation, there is no merit in the contention that if such minerals are removed from the surface, it will not amount to a mining operation or that the stones so gathered would not amount to minerals and requires to be rejected. Both the Courts have rightly held that the property in the stones is vested in the Government and Government was entitled to proceed with the realisation of the price of stone and the plaintiffs are not entitled to any of the reliefs prayed in the suit.
In the result, the appeal is dismissed with costs.