1. In these three matters Rules were issued on the same day practically based on the same fasts. They arise out of some boring operations in Mouzah Parsundi comprising of about 5,000 bighas of land (4,906 according to the Revenue Survey). The Iron and Steel Company, who are the first party in the proceedings under Section 145 initiated on the 10th July 1919, obtained as petitioners, Rule No. 847 on the following allegations, namely, that the Maharaja of Burdwan was the Zemindar of the Mouzah and sole owner of the minerals and mineral rights therein. On the 9th September 1839 he granted a putni settlement of the Mouzah to certain persons shortly referred to as the Chatterjees and Misras. On the 5th April he authorised one E.J. Seth Sam on behalf of the Parsundi Mining Syndicate to go on with boring operations in the Mouzah pending execution and registration of a formal document and Seth Sam in his turn on the 12th April 1918 authorised the petitioners to carry on boring operations therein in a similar way. On the 27th September 1918 the Maharaja granted Seth Sam a formal document and Seth Sam in his turn executed and registered a similar document in favour of the petitioners on the 28th April 1919 confirming the authority given to them on the 12th April 1918. The petitioners further allege that they were peacefully and uninterruptedly carrying on boring operations in the Mouzah, and were 'in possession thereof both surface and underground, for boring purposes by bringing boiler and boring instruments, fitting machinery, building bungalows and cooly huts, driving bore-holes and bringing out coal and exercising various other acts of actual possession in other ways;' that the place where boring operations were actually going on, having been claimed by Protapchandra Mondal and others as mokurarridars the petitioners had acquired all their rights including mining and mineral rights, if any, by documents, dated 4th December 1918 and 1st February 1919. The petitioners further allege that one Mr. Sampson of H V. Low & Company had joined hands with the putnidars and had obtained an amalnamah from them on the 22nd January 1919 to carry on boring operations in the said Mouzah and that he had commenced boring operations on the 31st March 1919 in another part of the Mouzah, that he had prevented carts carrying coal for the petitioners at a plane outside the Mouzah about three miles from their boring site and a breach of the peace being apprehended the petitioners had informed the Police and that the Police thereupon submitted reports.
2. On the 19th May the Sub-Divisional Officer of Suri passed an order under Section 144, Criminal Procedure Code, based upon the Police reports, dated 6th April 1919 and 16th May 1919, to the effect that a breach of the peace was likely at any moment. Therefore, he directed both parties to abstain from doing anything which might cause a breach of the peace.
3. On the 8th July 1919 he passed a fresh order that as the first party was trying to commit a breach of the peace in connection with their boring operations they were to be stopped carrying them on.
4. On the 9th July the Deputy Superintendent of Police reported that he had failed to effect an amicable settlement that both parties were strong and apparently irrevocably imbued with the idea of righteousness of their claim and possession and as a breach of the peace was likely it was necessary to take action under Section 107 or 145, Criminal Procedure Code, as soon as possible and thereupon proceedings under Section 145 were taken on the 10th July by the Sub-Divisional Officer 'in respect of such portion of Mouzah Parsundi where the parties had set up their boring operations and all land in and around such places which they intended to be used for the boring operations.' The order proceeded thus: 'Let all these lands be attached by the Police till the disposal of this case. Let copies of the proceedings be served on the parties as well as the lands in dispute and all other places according to law.'
5. The putnidars and Mr. Sampson and his employers were named as the second party. They put in a petition for amendment of the order and the proceedings were accordingly amended on the 1st August 1919. Other names were added and the boundaries of the entire Mouzah Parsundi were given as being the boundaries of the subject-matter of dispute. The dispute was mentioned as 'concerning certain boring operations carried on in Mouzah Parsundi' and the parties were directed to put in written statements of their claim regarding the fact of actual possession of the land in dispute.
6. On the 19th August the parties appeared and further applications were made for addition of parties on behalf of the second party and the same were granted and the proceedings were again amended. The dispute was mentioned as concerning certain boring operations carried on at Parsundi for possession of the underground coal and other mineral products in the said Mouzah.' It also directed that written statements were to be put in to the respective claims of the parties regarding the fact of actual possession of the land in dispute.
7. On that day the petitioners put in an objection against the maintainability of the said proceedings, contending that the only overt act from which a breach of the peace was apprehended proceeded from the side of the second party, namely, obstruction to carts carrying coal for the petitioners, and that action should, therefore, be taken under Section 107, Criminal Procedure Code, and that no proceedings under Section 145 were maintainable as the Police report did not disclose any dispute as to possession of the entire Mouzah, but only as to the boring operations carried on in certain portions of the said Mouzah and that the proceedings if at all maintainable should be confined to those portions. They further contended that the Zemindar alone was entitled to the minerals and mineral rights and having been authorised by the Zemindar and haying carried on boring operation', were in actual possession thereof and the second party having been mere wrong doers claiming title through the putindars who had no right to the minerals and mineral rights could not be said to have such a claim to possession as would justify proceedings under Section 145.
8. The Sub-Divisional Magistrate overruled these objections and again amended these proceedings mentioning that the dispute was 'concerning certain boring operations carried on in the Mouzah for possession of the underground coal and other mineral products in the said Mouzah' and written statements were again directed to be filed regarding the fact of actual possession of the land in dispute. Written statements were filed and evidence was directed to be produced on the 1st September 1919. The petitioners filed a list of 26 witnesses to be summoned on their behalf.
9. On the 1st September 1919 the second party verbally applied for a further amendment which was objected to by the petitioners but the Sub-Divisional Officer amended the proceedings for the fourth time stating that the dispute was concerning possession of the under ground coal and other mineral products in the said Mouzah' and the parties were directed to put in written statements of their respective claims regarding the fact of actual possession of the land in dispute.
10. The petitioners applied for the inclusion of the mokarraridars whose rights they had acquired as additional parties, which was refused. The mokarraridars themselves applied to be added and they were also refused on the 1st September 1919 which is the subject-matter of Rule No. 870. They alleged that they were vitally interested in the subject-matter and that if the Maharaja of Burdwan had not got the mineral and mining rights they as mokarraridars had them and that they had transferred such rights to the first party petitioners.
11. The third Rule relates to the application of one Soshi Bhusan Tewari as one of the lakherajdars of certain portions of the Mouzah.
12. It is quite clear that the dispute is as regards the right to carry on boring operations in the said Mouzah. The first party petitioners claim such right upon a grant by the Zemindar, that Sampson, that is to say, Low & Company, on the other hand claim a similar right from the putnidars. The issue as between the Zemindar and the putnidars is as to whether there being no express mention of the mining rights and minerals in the grant by the Zemindar to the putnidars as alleged by the Zemindar the putnidars are at all entitled to such rights. The Zemindar relies upon the recent Privy Council rulings and asserts that the putnidars have no such right. The putnidars alleged that they have been in possession of the Mouzah from long before 1839 and prior to the decennial settlement, that one Mritunjoy Chatterjee had executed a registered kabuliyat in favour of the putnidars in December 1907 in respect of the underground right of Nij Mouzah Nakrakuda which includes Mouza Persundi and that Mritunjoy had let out such rights to the Indian Mineral Syndicate in March 1917 who in their turn had leased them out to the Tata Iron and Steel Co., Limited, and that the company were 'in possession of the Mouzah both surface and soil by bringing boiler, boring instruments, fitting machinery and building bungalows and cooly huts, driving vehicles, sinking shafts and bringing out coal and exercising other divers acts of actual possession since June 1917;' that Low & Co. had taken a settlement of the surface and underground rights of Mouzah Parsundi from the putnidars the Chatterjees and mokarraridars the Misras and have been 'in peaceful and undisturbed possession by making borings, sinking shafts, raising coal and testing fire day and digging stones;' that Low & Co. having derived their title from the putnidars have been exercising acts of possession and were in actual possession of the minerals of the whole Mouzah by making borings and sinking shafts and raising fire clay and coal and other minerals since January 1919.' They contend that the sole question for determination is as to who was in actual possession of the disputed land at the time of the initiation of these proceedings. The second party say that the first party have not carried on any boring operations although they may have collected machinery and men for that purpose, but that they themselves had bored in at least four different places and that two of their shafts were about 90 and 116 feet deep, a fact reported to by the District Superintendent of Police on the 9th July 1919. They further contend that the dispute is as to the right to carry on boring operations over the whole of the Mouzah and not in respect of portions in which boring operations are said to be going on and that it is not possible to give the boundaries of the separate plots where the boring operations are said to be going on and that these proceedings should, therefore, cover the whole of the Mouzah.
13. The Mouzah was originally let out to putnidars. The putnidars have let out portions to mokurarridars and the mokurarridars have tenants under them. The Mouzah is a very large one. The surface appears to be in the actual possession of tenants.
14. The first party contends that there has been no dispute with regard to the boring operations carried on by the second party which have not been interfered with, and say that they do not intend to interfere with their boring operations where they are being carried on; that so far as their own boring operations are concerned the tenants at the place do not object; that they have got their consent; that there was no dispute between them and the tenants who were in actual possession of the tracts where they were carrying on their boring operations. Mere recital of the above facts shows that the question of title in this matter is one of considerable difficulty in this case and involves a construction of documents, determination of rights of land owners prior to the decennial settlement and after the permanent settlement, and the consideration of Privy Council cases. It also involves a consideration of what is meant by possession in such matters and the difference between actual and constructive possession in the case of mines and minerals. The fact that the proceedings were amended four times shows that the Magistrate had difficulty in his own mind as to how to word the nature of the dispute. The dispute is not only as between the Zemindar and the putnidars but also between the putnidars, mokurarridars, alleged lakherajdars and actual tenants. What the Court has to find in proceedings under Section 145 is actual possession only. Actual possession of the surface where the boring operations may have to be carried on is presumably in the tenants of the land. Finding of such actual possession will not help the matter at all. Sinking of a shaft and touching coal may be said to give title to the underground seam, but it is not for a Criminal Court to deal with these matters. It is not the function of that Court to go into such complicated questions of title and possession including that of adverse possession and of constructive possession of wide areas inferred from actual possession of limited areas, based upon disputed contractual rights and obligations and contested by independent claimants. The actual disputants do not hold mining leases but merely prospecting licenses. We have seen copies of the Amalnamah of the second party and the prospecting licenses of the first party. A license to dig minerals confers no estate or interest in the soil or mine containing them. Nor does it confer any estate or interest in the minerals before they are actually gotten. A license to dig minerals, coupled with a grant to carry them away, is a profit a prendre, an incorporeal hereditament lying in grant, and if exercised by an actual taking of possession it may be the subject-matter of use and occupation; and (if exclusive) may be, and (even if non-exclusive) probably may be, the subject-matter of an action to recover possession.
15. The documents, so far as we have seen them, give the holders a right to bore and in the event of their finding coal certain terms are to be arranged between the parties and leases granted. I do not think that, in a case like this, the dispute is one concerning land involving a question of actual possession. What is actually in possession of the parties is not in dispute, but what has given rise to the dispute between the parties is the right claimed by the first party, petitioners, and the second party, Low & Co., to bore holes for prospecting purposes over the entire Mouzah. I do not think that the Court has jurisdiction in a matter of this character to go into questions of title and possession which will arise between the various parties claiming and interested in the land both surface and underground.
16. A somewhat similar case is that of Bejoy Nath Chatterji v. Bengal Coal Co., Limited 23 W.R. Cr. 45. The learned Judges there held that, although Courts are anxious not to unduly tie the bands of Magistrates who are responsible for maintaining the peace, the High Court has always so construed the provisions of Section 530 (corresponding to our present Section 145) and the corresponding provisions of earlier enactments on the same subject, as to take care that the Magistrates do not volunteer decisions on question properly cognisable by other Courts and unnecessarily complicate investigations which afterwards take place in those Courts. That case related to a dispute regarding the right to dig for coal on some land comprised within the limits of the Mouzah which belonged to the proprietors under whom both the contending parties claimed. In that case the question of actual possession of the whole Mouzah was raised and it was asserted by one party that they were in possession of the whole of that property. It was clear in that case, upon the terms of the document relied upon, that all that the Coal Company took under the grant was the right to dig for coals under such portions of the estate as might be found fit for the purpose. Such right was distinctly limited to purposes ancillary to the working of coal underground. The learned Judges there say that the jurisdiction of a Magistrate under Section 530 is defined in these words, 'that if he is satisfied that a dispute likely to induce a breach of the peace exists concerning any land or the boundaries of any land or concerning any houses, water, fisheries, crops or other produce of land within the limits of his jurisdiction, he is directed, without reference to the merits of the claims of any party to a right of possession, to proceed to enquire and decide which party is in possession of the subject of dispute.' It is practically the same thing under the present section. The learned Judges held that the possession in regard to which a Magistrate's jurisdiction under Section 530 should be exercised must be of a real and tangible character. They thought that when a party claimed under a document or agreement the right of doing certain things over a large extent of territory, the performance of acts under such alleged right in one portion of the ground over which the right extends, although it may be good and sufficient for the purpose of keeping alive that right so as to be an answer to the plea of limitation raised in a civil suit, was not of itself a sufficient possession on which the Magistrate's order under Section 530 may be based for the purpose of forbidding in a distant locality acts not necessarily in conflict with such possession, though at variance with the right. They thought that the Magistrate was not the proper forum for determining such questions. I take the same view in this case.
17. One is always extremely unwilling to interfere with the orders of a Magistrate who is the proper authority for maintaining the peace, but I am of opinion that the same object can well be attained in this case by taking proceedings under Section 107, Criminal Procedure Code. It is said that such proceedings may be infructuous as the man bound down may be immediately changed and re-placed by another set. There is no difficulty in binding down the principal officers in charge and any change in the officers can be immediately supplemented by taking proceedings against the re-placed man. Some vigilance is to be expected from the authorities. There has been no disturbance of any kind for a considerable number of months. No doubt there is a statement in the report that men had been collected on both sides; but it is clear from the report itself that such men had been collected for the purpose of carrying on mining operations. They are not mentioned as lathials and no reference is made that these men (coolies) who have been brought upon the land for the purpose of carrying on the boring operations have committed any unlawful acts. The only unlawful act mentioned is the stoppage of the first party's cart by the second party three miles away from the spot where they were preparing to carry on boring operations, and outside the Mouzah in question.
18. I am sorry that my learned colleague is of a different opinion. He thinks that the matter is concluded by the fact that the report shows that there is a likelihood of a breach of the peace and the dispute concerns land, He is opinion that if the Magistrate is unable to find possession he will act under Section 146, if necessary, and that at this stage we ought not to interfere. I am of opinion that proceedings under Section 146 with regard to such a large Mouzah may cause great injustice to the persons in actual occupation. It strikes me also that if proceedings under Section 107 may be rendered nugatory by re-placing the men bound down by different sets of men, proceedings under Section 145 may also be made nugatory by persons who are not actual parties to these proceedings. All the persons interested in the Mouzah are not before the Court. The mokuraridars and lakhrajdars and actual tenants of the whole Mouzah are not before the Court.
19. While I feel that it is our duty to support a Magistrate in orders passed by him to prevent breaches of the peace, it is also a duty cast upon us to see that proceedings are adopted which are simple in their nature and which may be summarily and expeditiously dealt with. I think that proceedings under Section 107 ought to be adopted. We agree with the ruling of this Court in Moniram Bewah v. Mirjan Sardar 54 Ind. Cas. 169 : 24 C.W.N. 97 : 31 C.L.J. 183 : 21 Cr. L.J. 25 : 44 C. 438, that in such matters the Senior Judge's opinion prevails as the jurisdiction exercised by this Court is under Section 107 of the Government of India Act of 1915, and not under the revisional sections of the Criminal Procedure Code. We direct that the proceedings under Section 145 are to be set aside and that the Magistrate will take proceedings under Section 107 if so advised, and if he considers the same necessary. All the three Rules are made absolute.