The Lodna Colliery Co. Ltd. Vs. Bhola
Nath Roy  INSC 12 (19 January 1962)
19/01/1962 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.
CITATION: 1964 AIR 918 1962 SCR Supl. (2) 636
RF 1973 SC 408 (4)
Lakhraj land-Permanently settle-Owners' right
to sub-soil minerals.
The question arising for decision was whether
a person with whom a resumed, invalid Lakhraj (revenue free) land was
permanently settled had rights in the sub-soil minerals or not.
^ Held, that the right of property of the
persons with whom resumed invalid Lakhraj land had been settled, being the same
as of the Zamindars, extended to the sub-soil minerals of the land held by
Ranjit Singh v. Kali Dasi Debi (1917) L.R.44
I.A. 117, referred to.
Hari Narain Singh v. Sri Ram Chakrabarti
(1910) L. R. 37 I.A. 136, Durga Prasad Singh v.
Braja Nath Bose (1912) L.R. 39 I.A. 133.
Sashi Bhusan Misra v. Jyoti Prasad Singh Deo, (1916)L.R.44 I.A.46 and Raghunath
Roy Marwari v.
Raja of Jheria, (1919) L.R. 46 I.A. 158, held
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 405 of 1956.
687 Appeal from the judgment and decree dated
September 11, 1952, of the Calcutta High Court in Appeal from original Decree
No. 162 of 1949.
M.C. Setalvad, Attorney General for India, B.
Sen, S. N. Mukherji and B. N. Ghosh, for the
N. C. Chatterjee, J. C. Ghose, S. P. Ghose,
and P.K. Chatterjee, for the respondents.
1962. January 19 The judgment of the Court
was delivered by RAGHUBAR DAYAL J.-This appeal on a certificate granted by the
High Court at Calcutta, raises the question whether the person with whom a
resumed invalid Lakhraj (revenue free) land was permanently settled has rights
in the sub-soil minerals or not. The necessary facts are briefly these:- The
plaintiffs are the proprietors of the land in suit in C. S. Khatian No. 611 and
Sub- Khatians Nos. 612 and 613 of village Sripur in Touzi No. 2597 of the
The Maharaja of Burdwan is the proprietor of
the lands in village Sripur appertaining to Touzi No. 12 of Burdwan
Collectorate. He let out those lands to the Pals and Goswamis of Sripur in
Putni right. The Putnidars also took coal mining lease of those lands from the
Maharaja and, thereafter, both the Maharaja and the Putnidars granted the coal
mining lease of those lands to one P. K. Chatterji of Ikrah who, in his turn,
granted a sublease of the same to Messrs. Lodna Colliery Co.
Ltd., the predecessor-in-interest of the
defendant company, the Lodna Colliery Co. (1920) Ltd.
A portion of the lands in suit subsided and
on enquiry the plaintiffs found that the defendant company had cut away a large
quantity of the 688 underground coal from the lands, in suit. It is on account
of such unjustified conduct of the defendant company that the plaintiffs, on
the basis of their proprietary right, used for the recovery of damages for coal
wrongfully taken away by the defendant from the land in suit and for other
wrongs. The defendant company contested the suit and denied the plaintiffs
alleged rights on the ground, inter alia, that the plaintiffs had no title to
the sub-soil of the land in suit and consequently to the coal. The contention
really is that the land in suit had been permanently settled with the plaintiffs
after it had been resumed as invalid Lakhraj land and that such settlement
conferred no better rights than what they originally possessed on account of
the land in suit being granted to their predecessors-in- interest under
Brahmottar and Debutter grants, the grantees under which had no rights in the
sub-soil of the land granted.
The Trial Court held that the invalid Lakhraj
tenure in the land in suit in favour of the predecessors-in-interest of the
plaintiffs was resumed by the Government under the provisions of Regulation II
of 1819 and, thereafter, was permanently settled with them at the fixed revenue
and that therefore the plaintiffs had right to the minerals under the soil of
the land settled with them. It accordingly decreed the suit in part and the
decree was confirmed by the High Court.
It is contended for the appellant that the
person with whom resumed invalid Lakhraj land had been settled has no rights in
the sub-soil. The respondents rely on the provisions of the Regulation enacted
by the Governor-General in Council in support of their claim to the sub-soil in
such land held by them.
The Governor-General in Council passed a
number of Regulation on May 1, 1793. We shall first consider Regulation XIX of
689 Regulation XIX of 1793 was made for
reenacting with modifications the Rules passed by the Governor-General in
Council on December 1, 1790, for trying the validity of the titles of persons
holding, or claiming a right to hold, lands exempted from the payment of
revenue to Government, under grants and for determining the amount of the
annual assessment to be imposed on lands so held which might be adjudged or
become liable to the payment of public revenue. The preamble makes it clear
that the Regulation was creating an agency for determining the title of the
proprietors of land who claimed to hold it free from the liability to pay
revenue on account of certain grants, that from time to time the British
Government has declared all grants for holding land exempt from the payment of
revenue without their sanction since the date of the accession of the East
India Company to the Diwani on August, 12, 1765, illegal and void and that no
such exempted land was to be made subject to the payment of revenue until the
titles of the proprietors had been adjudged invalid by a final judicial decree.
It is to be noticed that the persons who laid claims to hold the land exempt
from the payment of revenue were referred to as proprietors.
Section II, Clause First, deals with the
grants of alienated land made previous to the 12th August 1765, the date of the
accession of the East India Company to the Diwani, and lays down that such
grants would be deemed valid provided the grantee actually and bonafide
obtained possession of the land or granted and the land had not been
subsequently rendered subject to the payment of revenue.
Section III, Clause First, declares invalid
all grants for holding land exempt from the payment of revenue made between the
12th August, 1765 and 1st December, 1790 by any authority other than that of
Government and which had not been 690 confirmed by Government or by any officer
empowered to confirm them.
Section IV is significant for our purpose and
"This Regulation, as far as regards
lands alienated previous to the 1st December 1790, respects only the question
whether they are liable to the payment of revenue or otherwise. Every dispute
or claim regarding the proprietary right in lands alienated previous to that
date, and which, in conformity to this Regulation, may become subject to the
payment of revenue, is to be considered as a matter of a private nature to be
determined by the Courts of Diwani Adalat in the event of any dispute or claim
arising respecting it between the grantee and the grantor or their respective
heirs or successors. The grantees, or the present possessors, until
dispossessed by a decree of the Diwani Adalat, are to be considered as the
proprietors of the lands with, the same right of property therein as is
declared to be vested in proprietors of estates or dependent taluks, (according
as the land may exceed or be less than one hundred bighas, specified in
sections 6, 7 and 21,) subject to the payment of revenue, and they are to
execute engagements for the revenue, with which their lands may be declared
chargeable, either to Government or to the proprietor or farmer of the estate
in which the lands may be situated, or to the officer of Government, (according
as the revenue of the estate in which the lands may be situated may be payable
by the proprietor or a farmer, or collected khas) under the rules for the
decennial settlement. If by the decision of the Diwani Adalat the proprietary
right in the land shall be transferred, the person succeeding thereto is in 691
like manner to be responsible for the payment of the revenue assessed or
chargeable thereon." It is clear from this section that the Regulation
simply dealt with the question about the liability of certain lands to the
payment of revenue and provided that any dispute about proprietary right between
the grantees and the grantors would be a matter of a private nature to be
decided by the Courts of Diwani Adalat. It, however, definitely provides that
the grantees or the then possessors of land, until dispossessed by a decree of
the Diwani Adalat, are to be considered as the proprietors of the lands with
the same right of property therein as is declared to be vested in proprietors
of estates or dependent taluks according as the land may exceed or be less than
one hundred bighas subject to the payment of revenue. Such proprietors of land
were to execute engagement for revenue with which their lands may be declared
chargeable, either to the Government or to the proprietor or farmer of estates
in which the lands be situated.
The grantees of invalid Lakhraj lands
therefore had the same right of property in that land subject to the payment of
revenue, as had been declared to be vested is the proprietors of estates. If
the zamindars, the proprietors of estates, have rights not only over the
surface of the land but in the subsoil as well, the persons whose grants had
been held to be invalid and who were held to be liable to pay land revenue also
possessed right in the sub-soil of the land settled with them.
Now, Regulation VIII of 1793, also passed on
May 1, 1793, re-enacted with modifications and amendents the Rules for the
Decennial Settlement of the public revenue payable from the lands of the
zemindars, independent talukdars, and other actual proprietors of land in
Bengal, Bihar and 692 Orissa, passed for those Provinces respectively on
September 18, 1789, November 25, 1789 and February 10, 1790, and subsequent
dates. Section IV provided that the settlement, under certain restrictions and
exceptions specified in the Regulation, shall be concluded with the actual
proprietors of the soil, of whatever denomination, whether zemindars, talukdars
or chaudhris. It follows that the zemindars with whom settlement took place,
were recognized as the actual proprietors of the soil. The settlement of
revenue so made was made permanent by s. IV of Regulation I of 1793.
Regulation I of 1793 enacted into a
Regulation certain Articles of a Proclamation dated March 22, 1793. Section I
of this Regulation states that the various articles of the Proolamation were
enacted into a Regulation and that those articles related to the limitation of
public demand upon the lands, addressed by the Governor-General in Council to
the zemindars, independent talukdars and other actual proprietors of land
paying revenue to Government in the Provinces of Bengal, Bihar and Orissa.
By Section IV it was declared to the
zemindars, independent, talukdars and other actual propietors of land, with or
on behalf of whom a settlement had been concluded under the Regulations
mentioned earlier, that at the expiration of the term of settlement no
alteration would be made in the assessment which they had respectively engaged
to pay, but that they and their heirs and lawful successors would be allowed to
hold their estates at such assessment for ever.
The preamble to Regulation II of 1793, which
abolished the Courts of Mal Adalat or Revenue Courts and transferred the trial
of suits cognizable in those Courts to the Courts of Diwani Adalat, stated, in
connection with the proposed improvments in agriculture:
693 "As being the two fundamental
measures essential to the attainment of it, the property in the soil has been
declared to be vested in the landholders, and the revenue payable to Government
from each estate has been fixed forever..... The property in the soil was never
before formally declared to be vested in the landholders, nor were they allowed
to transfer such righs as they did possess, or raise money upon the credit of
their tenures, without the previous sanction of Government." It is thus
clear from the above declarations that the zemindars, the proprietors of
estates, were recognized to be the proprietors of the soil.
Such a view was expressed by the Privy
Council also in Ranjit Singh v. Kali Dasi Debi (1). It was said at page 122:
"Passing to the settlement of 1793, it
appears to their Lordships to be beyond controversy that whatever doubts be
entertained as to whether before the British occupation the zamindars had any
proprietary interest in the lands comprised within their respective districts,
the settlement itself recognizes and proceeds on the footing that they are the
actual proprietors of the land for which they undertake to pay the Government
revenue. The settlement is expressly made with the 'zemindars, independent
talukdars and other actual proprietors of the soil': see Regulation I, s.3, and
Regulation VIII., s.4. It is clear that since the settlement the zamindars have
had at least a prima facie title to all lands for which they pay revenue, such
lands being commonly referred to as malguzari lands." The right of the
zemindars to the sub-soil minerals under their land follows from their being
694 proprietors of the soil and has been recognized in a number of cases
between the zemindars and persons holding land under a tenure from them. It has
been held in those cases that, in the absence of the right to sub-soil minerals
being conferred on the tenure holder under the terms of the tenure held by him,
he does not get any right to them.
The first such case is Hari Narayan Singh v. Sriram
Chakravarti(1). The same view was expressed in Durga Prasad Singh v. Braja Nath
In Sashi Bhushan Misra v. Jyoti Prashad Singh
Deo (3) Lord Buckmaster said at page 53, with regard to the above two cases:
"These decisions, therefore, have laid
down a principle which applies to and concludes the present dispute. They
establish that when a grant is made by a zamindar of a tenure at a fixed rent,
although the tenure may be permanent, heritable and transferable, minerals will
not be held to have formed part of the grant in the absence of express evidence
to that effect." The fact that the tenure was rent free, makes no
difference to this principle, as held in Raghunath Roy Marwari v. Raja of
We are therefore of opinion that the right of
property of the person with whom resumed invalid Lakhraj land had been settled,
being the same as of the zemindars, extends to the sub-soil minerals of the
land held by them.
Further, the plaintiffs tree their rights to
the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer
to two other Regulations not so far mentioned.
Regulation II of 1819 modified the then
existing Regulations regarding the resumption of reve- 695 nue of lands held
free of assessment under illegal or invalid tenures. Its Section III declared
that lands specified therein were liable to assessment in the same manner as
other unsettled mahals and that the revenue assessed on all such lands would
belong to Government. It laid down the procedure for enquiry claim of Government
to assess such land and for assessment of revenue. Regulation III of 1828 made
certain changes in the procedure, but contains nothing particular which would
affect the determination of the question before us.
Exhibit 10 is the Robakari of the Deputy Collector
of Burdwan, dated April 15, 1841, with respect to Touzi No. 2597. It is in
pursuance of this order that permanent settlement was made with Madhusudan Roy
and Sitaram Roy, predecessors-in- interest of the plaintiffs with respect to
the land in suit. It appears from this Robakari that in proceedings between the
Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and
others as defendants, the claim of the Government, in accordance with the
provisions of Regulation II of 1819 and Regulation III of 1828, in respect of
the invalid revenue free land consisting of Brahmottar land measuring 156
bighas 10 cattahs and the Debutter land measuring 18 bighas 20 cattahs, in all
175 bighas, situated in village Pariharpur and other villages within Pergana
Shergarh, was decreed in April 1837, with the result that that land was resumed
and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other
defendants claimed right to get settlement because it was the Lakhraj property
obtained by their ancestors. The settlement was however made with Manik Chandra
Roy on April 19, 1838, as the other defendants did not turn up.
Subsequently, Madhusudan Roy applied for
settlement jointly with Manik Chandra Roy and others. As a result of the
enquiry made, permanent settlement was separately made with Manik Chandra Roy
and others with respect to certain area and with Madhusudhan Roy and Sitaram
Roy 696 with respect to the rest. On April 15, 1841, Amalnama, Exhibit 2, was
issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed
them to pay their respective rents to the persons with whom settlement was
Exhibit 6(a) is certified copy of settlement
khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R.S.
No. 2416. It describes the interest in the land in suit to be Bajeapti
(resumed) Lakheraj Pariharpur and others.
It mentions five persons including the son of
Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in
possession of that interest.
It also shows the King Emperor of India as
possessing the entire superior interest. It is thus clear that the possessors
of the Bajeapti (resumed) Lakheraj land in suit held it as proprietors under
the King Emperor of India. They must consequently have the same rights which
other proprietors like zamindars had.
It is however urged for the appellants that
the records prior to the resumption proceedings showed the lands in suit to be
the Brahmottar and Debutter lands of the predecessors of the plaintiffs and that
therefore, in view of the principle of law laid down by the Privy Council in
Hari Narayan Singh's Case(1) and the later decisions, they cannot be held to
possess rights in the sub-soil in the absence of definite evidence that such
rights were conveyed under those grants. We do not agree with this contention.
The predecessors-in-interest of the plaintiffs held the land from the
Government and not on a subordinate tenure from the zamindars and therefore the
principle of law as stated in Hari Narayan Singh's Case (1) and later confirmed
in several decisions by the Privy Council, does not apply to the present case.
We are therefore of opinion that the
plaintiffs had rightly been held to own and possess the rights 697 the minerals
under the land in suit and that the decree in their favour is correct. We
therefore dismiss the appeal with costs.