1. This Rule was issued in regard to an order passed under Section 146, Criminal Procedure Code, attaching two plots of lands respecting which proceedings had been drawn up under Section 145, Criminal Procedure Code.
2. The petitioners are four members of the first party, and they are lessees and sub-lessees under the other members of the first party, who are described in the petition as proprietors of Estates Nos. 4551 and 769.
2. The second party, the opposite party at this stage, are the Tata Iron and Steel Co., Ltd., and its servants; and the Company holds a mining lease from the Maharaja of Burdwan, who is, according to the Company, Zamindar of the whole village in which the land is situated.
3. The cause of the dispute is that the petitioners in virtue of the rights conferred on them by their lessors want to bore in the area to which the proceedings relate, while the Company claims that the sub-soil rights have been given to them, and that they are entitled to prevent the petitioners from boring in the village. Neither party attaches any importance to the surface rights, except as a means of access to the minerals beneath. The surface is actually in the occupation of cultivators who grow crops on it, and the Company is perfectly ready that they should continue in their occupation: in fact, it does not object to their paying rent to the petitioners, for it may be many years before it requires the surface.
4. The grounds on which the Rule was issued are these:
(1) For that, having regard to the nature of the dispute between the parties, the claims put forward by them in their respective written statements and in the trial, the proceedings under Section 145, Criminal Procedure Code, are not applicable to the facts of the case, and the order of the Magistrate under Section 146, Criminal Procedure Code, is without jurisdiction;.
(2) For that, in view of the statements made by the second party (the Tata Iron and Steel Co.) in paragraph 6 of their written statement, that they are not in possession of the surface lands of the subject-matter of dispute, the order of attachment so far as it relates to the surface lands is without jurisdiction and extremely prejudicial to the petitioners.
5. Now, it has been expressly conceded by Babu Dasrathi Sanyal, Vakil for the petitioners, that the provisions of Chapter XII of the Criminal Procedure Code may be used in disputes with regard to sub-soil rights, so that the scope of the first ground is very limited. The argument is that in the present case there is no real dispute about possession of the minerals, and, therefore, Section 145, Criminal Procedure Code has no application. For this proposition reliance is placed upon the decision in the case of Indian Iron and Steel Co. v. Banso Gopal 59 Ind. Cas. 403 : 32 C.L.J. 54 : 22 Cr.L.J. 99. It appears to me that the two cases are not alike ; in the reported case the parties had prospecting leases, while in the present case the Company at least has a mining lease. There is an immense difference between mining coal, under a mining lease and ascertaining whether coal exists under a boring license. It is admitted that the Company has sunk shafts in the neighbourhood, and, in my opinion, the inference to be drawn from such operations is that as soon as the petitioners tried to get below the surface to the coal beneath, there arose a dispute about possession of the coal. It follows that proceedings under Section 145, Criminal Procedure Code, cannot be regarded as inapplicable to the facts. Other proceedings might have served equally well to preserve tranquility, but that is a matter on which the learned Magistrate was entitled to use his own discretion. Even if I were to hold that he would have been well-advised to use other measures, I could not on that ground hold that he had no jurisdiction to have recourse to Chapter XII.
6. The second ground is not seriously pressed.
7. In my opinion the Rule should be discharged.
8. I agree; I only wish to express my respectful dissent from the view expressed in the case of Indian Iron and Steel Co. v. Banso Gopal 59 Ind. Cas. 403 : 32 C.L.J. 54 : 22 Cr.L.J. 99, if I that case purports to lay down broadly that a license to dig minerals confers no interest or estate in the soil, and that a dispute concerning mining rights is not one with which the Magistrate can deal under Section 145 of the Criminal Procedure Code. The definition of land, as given in the Criminal Procedure Code of 1898, is wide enough to cover mining rights and even prospecting or boring licenses which can only be utilised by going upon the land and exercising some rights relating to it. Nor do I assent to the proposition which seems to have been stated in that case that Section 145, Criminal Procedure Code, is limited in its scope to disputes relating to actual possession only, if by that expression is meant possession by Squatting on the land. It is conceivable that actual possession in that restricted sense may be with some one else and the real dissension between the parties may be regarding the exercise of some right over it or even under it without interfering to any appreciable extent the actual or manual possession of any one. In this category falls the dispute relating to collection of rents or profits which is expressly included in the definition of 'land' and 'water' as given in the section.
9. It is not necessary to probe into the question further in this case, but I wish to guard myself against the view urged restricting the scope of Section 145, Criminal Procedure Code. I reserve my opinion as to the applicability of Section 146, Criminal Procedure Code in this case as the question was not raised or discussed at the Bar.