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T. Swaminathan (Dead) and anr. Vs. State of Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit App. Nos. 267 and 268 of 1965 and C.M.P. No. 10468 etc. of 1970
Judge
Reported inAIR1971Mad483; (1971)2MLJ146
ActsConstitution of India - Article 226; Land Encroachment Act - Sections 2(1); Waste Land Rules - Rule 53
AppellantT. Swaminathan (Dead) and anr.
RespondentState of Madras and ors.
Cases ReferredSashi Bhusan Misra v. Jyoti Prasad Singh Deo
Excerpt:
land tenure--ryotwari pattadars--nature of his right--in practice full owner of his holding--his right does not extend to minerals of soil--minerals under ground belong to state.; boards standing order 28--scope--ryotwari pattadar, liable to pay separate assessment for working minerals.; in theory, the ryotwari pattadar is a kind of a tenant with a right to hold his tenure so long as he pays the assessment. but in practice, he is the full owner, who is entitled to sell, mortgage, lease or otherwise deal with his holding. though the ryotwari pattadar was virtually like a proprietor, he could still relinquish or abandon his land in favour of the government, and that is was because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta,..........limestone, and tripartite agreements were executed between the ryotwari pattadars and the state government as required by the rules., on the expiry of the lease in respect of survey no. 86/1, the appellant applied for a further term of lease, or in effect, for renewal of it. but by an order dated 14-11-1962, the government from the department of industries, labour and co-operation, declined to grant the application. likewise, in the case of the other land too, the government purported to terminate the lease. the ground of the government was, that the limestone available in the area was of flux grade, and would be required for the propose steel plant to be set up by the government at salem. srinivasan, j. rejected an argument to the contrary and held that a ryotwari pattadar had.....
Judgment:
1. These appeal are from a common order of Srinivasan, J., who dismissed the petitions of the appellant under Article 226 of the Constitution, for a direction to the respondent-State Government to forbear from dispossessing or interfering with his right to quarry limestone in Survey No. 59/2 of an extent of 1 acre 66 cents and No. 86/1 of an extent of 10 acres and 31 cents, both situate in Motor village, Sankari taluk of Salem Dt. He had taken out lease deeds from the ryotwari pattadars of the lands for quarrying limestone, and tripartite agreements were executed between the ryotwari pattadars and the State Government as required by the rules., On the expiry of the lease in respect of Survey No. 86/1, the appellant applied for a further term of lease, or in effect, for renewal of it. But by an order dated 14-11-1962, the Government from the Department of Industries, Labour and Co-operation, declined to grant the application. Likewise, in the case of the other land too, the Government purported to terminate the lease. The ground of the Government was, that the limestone available in the area was of flux grade, and would be required for the propose Steel Plant to be set up by the Government at Salem. Srinivasan, J. rejected an argument to the contrary and held that a ryotwari pattadar had no ownership of the minerals below the surface of the land, and it is this contention which is reiterated before us.

2. Mr. Vendantachari, for the appellant, pressed on us that a ryotwari pattadar is a proprietor of the soil, including the minerals, and that the State as a co-owner of the minerals could only insist upon additional assessment in respect of the minerals owned by the pattadar, but had no right to refuse renewal of the lease to work the quarries. We agree with Srinivasan, J., that this contention cannot be accepted. The ryotwari tenure was introduced or purposes of land revenue, and convenient collection thereof. The essence of the system consists in the classification of the soil according to tharams, ascertaining the net produce fixing and collecting a fraction of the net produce as land revenue, eliminating middle-man and bringing the pattadar in direct relationship with the State, and the right of the pattadar to relinquish at his will, and in case of default in payment of revenue, the liability of the holding being brought to sale. The system is essentially a revenue arrangement under which so long as the pattadar paid the assessment, he would not be disturbed from his holding. In theory, the ryotwari pattadar is a kind of a tenant with a right to hold his tenure so long as he pays the assessment. But in practice, he is the full owners who is entitled to sell, mortgage, lease or otherwise deal with his holding--Vide Rajagopalachariar v. State of Madras, and Kunhikoman v. State of Kerala,

. In the second case, the Supreme Court observed that though the ryotwari pattadar was virtually like a proprietor, and had many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government, and that it was because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor. It is in this sense that the Land Encroachment Act by Section 2(1) does not declare the property of any person held under a ryotwari tenure to be the property of the Government. So, as a ryotwari pattadar, he has every right to the use of the surface of the soil, but his proprietary right, if any, in our view does not extend to the minerals of the soil. It was a well established proposition that all minerals underground belonged to the Crown, and now to the State, except in so far as the State has parted with the same wholly or partly in favour of an individual or body.

3. But our attention is invited to the Mining Manual which, under Chapter V. relating to Rules regarding Mining and Quarrying, has stated that the State's right to minerals varies in different classes of the land according to the tenure under which the land is held. For this purpose, land are divided into three groups (1) Lands in which the State claims no right to minerals; (2) Lands in which the State claims a share in minerals, and (3) lands in which the State claims full rights in minerals. The first is illustrated as lands and estates held on sanads of permanent, settlement, lands held on title deeds issued under the Waste Land Rules before 7-10-1879, in which no reservation was made of the right of the State to minerals, and lands held on inam tenure where apart from the title deed issued by the Inam Commissioner the original grant, either expressly or by necessary implication, made a conveyance of the State's rights to minerals. Lands occupied, or assigned for agricultural purposes subject to the conditions of ryotwari grants, private janmam lands in Malabar and the Nilgiris, and lands held on inam tenure which did not take with it mineral rights, were classified under the second groups. Under the last group are broadly all lands sold under the Waste Land Rules after 7-10-1879, the escheat lands the janmam right which was sold by Government after 15-7-1880, but before 16-12-1884, inam lands granted on service tenure whether enfranchised or unenfranchised, reserved forest lands under the Madras Forest Act. 1882, unreserved lands at the disposal of Government, lands occupied or assigned as village or town site, and all lands, not falling under groups 2 or 3, Board's Standing Order 28 in Volume 1 Par III deals with the rights and obligations of a ryotwari holder,. it speaks of the effect of register as owner of ryotwari land. We find it stated that the individual registered as the owner of a ryotwari holding is, as regards Government, the responsible proprietor of the ryotwari lands registered in his name in the land register until they passed from his possession by sale for arrears, or in some other legal manner. It also appears from this Board's Standing Order that, a registered holder of a ryotwari land may, so for as Government are concerned, alienate, sublet, mortgage, sell, give bequeath or otherwise dispose of the whole or any portion of his holding, but the land is always subject to the payment of the assessment and all the other legal charges due from it. We, then have this:

"A holder on ryotwari tenure is entitled to work minerals on his land, but is liable to pay therefor a separate assessment in addition to the usual assessment for surface cultivation".

Strong reliance has been placed on this statement in support of his contention that the ryotwari pattadar, as proprietor is entitled to work minerals on his land. We agree with Srinivasan, J., that neither the Mining Manual, nor the Board's Standing Orders we have noticed, justify the inference that minerals below the surface of the soil in ryotwari holding are vested in the pattadar as a proprietor. As a matter of fact, the extract we have made from the Board's Standing Orders itself indicates that although a holder on a ryotwari tenant is entitled to work minerals on his land it is subject to the liability to pay therefor a separate assessment for surface cultivation. The separate additional assessment is the seigniorage, or royalty which the Government is entitled to collect for the working of the minerals. That shows that the State is entitled to the whole of the mineral rights under the surface, and not merely a part in the holding under ryotwari tenure. That is the view of Srinivasan; J., and we see no reason to differ. It is true that the Mineral Concessions Rules. 1960 make a threefold classification in Chapters IV, V and VI, namely, the lands in which minerals vest in the Government, lands in which the minerals vest in a person other than the Government; and lands in which minerals vest partly in Government and partly in private persons. In respect of the last category, the proviso to Rule 53 makes it clear that the dead rent and royalty payable in respect of minerals which partly vest in the Government and partly in private person shall be shared by the Government and by the persons in proportion to the shares they have in the minerals. But the point is whether minerals have vested in the ryotwari pattadar. The reference mentioned above to not enable us to hold that the minerals are so vested in the pattadar.

4. Even where it is the case of an inam, or a permanently settled estate, whether the inamdar or the proprietor, or the landholder, was entitled to mineral right would depend on the terms of the grant. Thus Hari Narayan Singh Deo v. Sriram Chakravarthi, (1910) ILR 37 Cal 723 (PC) held that the title of the Zamindar to the village being established, he must be presumed to be the owner of the underground rights appertaining thereto in the absence of evidence that he had parted with them. The grant of a proprietor ship to the estate was construed as having conveyed to the landholder the rights of mining. On the other hand, a grant by a zamindar of a tenure at a fixed rent, even if the tenure was permanent, heritable, and transferable, was held in Sashi Bhusan Misra v. Jyoti Prasad Singh Deo, 44 Ind App 46 = (AIR 1916 PC 191) not to carry a right to the minerals under the land granted unless there was express evidence that the grant included them. We can find nothing in the ryotwari system to recognise the pattadar as entitled to the minerals under the surface of the soil.

5. That being the case we are of option that the refusal of the Government to grant or renew of the lease the appellant had asked for it not shown to be arbitrary or illegal. We do not think that the ground of the refusal was irrelevant to the subject. On that view, the appeals are dismissed with costs--one set. Counsel fee Rs. 100. C. M. Ps. 10465 to 10470 ordered.

6. Appeals dismissed.


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