State of Mysore Vs. Swamy Satyanand
Saraswati, Religious Preacher, Raichur  INSC 101 (31 March 1971)
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1569 1971 SCR 284
Grant by Jagirdar-If includes right to
minerals in favour of grantee Burden of proof.
The Nizam of Hyderabad granted a jagir to his
prime minister. The successor of the jagirdar granted an island in one of the
villages, comprising a hillock of granite, to the predecessor-in-interest of
the respondent. The area covered by the grant was acquired by the State
Government for purposes of an irrigation project.
On the question whether the respondent was
entitled to sub- soil rights, and as a consequence, became entitled to
compensation for the granite and quarries as minerals,
HELD:It was for the respondent to establish
his claim to minerals or quarry rights by putting forward proof of the grant
thereof by the Nizam to the jagirdar and by the jagirdar to his predecessor.
But assuming that the Nizam conferred the right on the jagirdar, the patta
granted by the jagirdar and the connected documents showed that what was in
contemplation of the jagirdar and his grantee at the time of the grant, was
either the cultivation of the land or the grazing of cattle on it. Nobody at
that time had any thought or idea of the land being put to any other use or any
mining or quarrying rights being exercised therein.
When the grantor was careful to exclude even
the fruit bearing trees, it would be wrong to hold that he must have parted
with the sub-soil rights by implication.
Therefore,the right to minerals was not
granted to the respondent's predecessor.[287B-C; 289B; 292D-E] What has to
beconsidered in each case is the purpose for which the lands are leased oran
interest created therein with all the clauses which throw any light on the
question as to whether the grantor purported to include his rights to the
sub-soil in the grant when there was no express mention of it. If the grant
shows that the purpose of the grant was to allow the user of the surface only
it would be wrong to presume that subsoil rights were also covered thereby.
[292C-D] The test of what is a mineral is,
what at the date of the instrument, the word meant in the vernacular of the
mining world, the commercial world, and among landowners; and in case of
conflict that meaning must prevail over the purely scientific meaning. Since
granite is a mineral according to this test the respondent had no right to the
granite or quarries. [293B-C] State of Andhra Pradesh v. Duvvuru Balarami
Reddy,  1 S.C.R. 173, followed.
Hari Narayan Singh v. Sriram Chakravarti, 37
I.A. 136, Durga Prasad Singh v. Braja Nath Bose, 39 I.A. 133, Girdhari Singh v.
Megh Lal Pandey 44 I.A. 246, Sashi Bhusan Misra v. Jyoti Prasad Singh Deo, 44
I.A. 46, Govinda Narayan Singh v. Sham Lal Singh, 58 I.A. 125, Bejoy Singh
Dudhoria v. Surendra Narayan Singh, I.L.R. 61 Cal. I (P.C.) and Attorney
General v. Welsh Granite Co. The Law Times Reports 549, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 496 of 1966.
Appeal by special leave from the judgment and
order dated August 10, 1964 of the Mysore High Court in Regular Appeal (H) No.
75 of 1956.
S. T. Desai, B. D. Sharma, Shyamala Pappu and
S. P. Nayar, for the appellant.
M. Natesan, B. Parthasarathy, J. B.
Dadachanji, O. C.
Mathur and Ravinder Narain, for respondent
Nos. 1 and 3.
The Judgment of the Court was delivered by
Mitter, J.-The main question involved in this appeal is whether the respondent
was entitled to sub-soil rights by virtue of the pattas granted in favour of
his predecessor-in-interest by Nawab Salar Jung III of Hyderabad and as a
consequence thereof became entitled to compensation claimed by him for
acquisition of a large block of land containing a hillock of granite which was
required for the Tungabhadra Project and was notified for acquisition under the
Hyderabad Land Acquisition Act on February 3, 1946.
The relevant facts are as follows. In 1820
the Nizam of Hyderabad granted a jagir, the terms whereof do not appear from
the record before us, to his Prime Minister known as Nawab Salar Jung T. This
jagir consisted of many villages in the district of Raichur one of them being
Madlapur on the bank of the river Tungabhadra. In the year 1930 the successor
of the original grantee of the jagir, Nawab Salar Jung III made a grant of an
island in that village comprising S. Nos. 154, 312 and 313 with a hillock
rising to a height of 250 ft. and measuring Ac. 290-00 in favour of one Swami
Nijananda, the predecessor-in-interest of the respondent. In February 1946 the
entire area covered by the grant to Swami Nijananda was proposed to be acquired
for an irrigation and hydroelectric project known as the Tungabhadra Project
which had been embarked upon by the Governments of Hyderabad and Madras States.
The purpose of acquisition was the gathering of granite stone for the
construction of a dam across the river Tungabhadra. The acquisition proceedings
were completed pursuant to a final notification made on June 16, 1947 followed by
an award by the Land Acquisition Officer on July 24, 1950. Before the Land
Acquisition Officer two claims were put forward, one on behalf of the
respondent Swami Satyananda and the other by Nawab Salar Jung III. But as all
jagirs including that of Nawab Salar Jung were abolished during the pendency of
the acquisition proceedings, the claim for compensation by Nawab 286 Salar Jung
III also disappeared. The claim of Swami Satyananda was for Rs. 29,91,600. The
Land Acquisition Officer awarded Rs. 31,260-8-0 as the total compensation
disallowing the claim in respect of the granite hillock on the ground that it
was not covered by the grant to Swami Nijananda. The District Judge to whom
reference was made under the Land Acquisition Act enhanced the compensation to
Rs. 48,892 exclusive of statutory allowance and interest.
Two of the issues framed by the District
Judge related to the respondent's claim to a right in the quarry and also to
the situs thereof i.e. as to whether it was within the patta land belonging to
the claimant. He found that the rock was situated within the patta land of the
claimant but with regard to the quarry rights he took the view on the basis of
two Farmans of the Nizam Exs. A-21 and A-22 and Section 2(d) of the Mines Act
and Section 3 of the Hyderabad Land Revenue Act that the claimant had no right
to the minerals and quarries. He did not record any finding as to whether the
jagir granted by the Nizam included the mining rights and whether the patta
granted by the jagirdar conferred the same rights on the claimant in view of
his conclusion on the points of law urged that mining rights were in the
exclusive ownership of the Nizam.
The High Court took the view that the
District Judge had proceeded on the assumption that there was a grant to Nawab
Salar Jung I with all the mineral products in the land by the jagir of 1820. It
however held, differing from the District Judge, that the Farmans Exs. A-21 and
A-22 did no more than explain the provisions of Section 63 of the Land Revenue
Act and did not affect any subsisting rights in the minerals if they belonged
to the jagirdar. According to the High Court the question as to whether the
grant to Nawab Salar Jung did or did not include the granite in the hillock was
never raised at any stage and it was assumed by every one that the grant to
Nawab Salar Jung included the right to granite and that right was a subsisting
right even while the Hyderabad Land Revenue Act 1907 was enacted. The High
Court was not willing to entertain the contention raised by the
Advocate-General for the first time that the grant did not include the right to
granite in the hillock. The High Court apparently fortified its conclusion
placing reliance,on the fact that copies of all the grants of jagirs should
have been available with the State authorities and as the original grant to
Nawab Salar Jung or an authenticated copy thereof was not produced, the
necessary inference would be that the same would not support the contention of
The High Court further took the view that the
granite in respect of which compensation was claimed in the case was not a
mineral and that being so neither Section 63 of the Hyderabad 287 Land Revenue
Act nor the Farmans referred to in Exs. A-21 and A-22 were relevant to the
issue before it and it would not be possible to hold that the minerals and
mineral products in the hillock vested in the Government under Section 63 of
the Hyderabad Land Revenue Act.
In our view it is not necessary to consider
the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act.
It was for the respondent to establish his claim to minerals or quarry rights
by putting forward proof of the grant thereof by the Nizam to Salar Jung and to
show that his rights in the land held by him were co-extensive with those of
Nawab Salar Jung 111. There is no scope for any presumption that the Nizam had
parted with the mineral rights to the jagirdar or that the jagirdar had done so
in his turn. Even assuming that the Nizam conferred the right of minerals in the
land or to quarry for granite therein to Nawab Salar Jung 1, the question still
remains, what right did the patta of the Salar Jung estate confer on the
predecessor-in-interest of the claimant. The patta for S.
Nos. 312 and 313 was marked as Ex. 49 in this
case. It contains various columns including those for the name of
"Khatedar", 'any increase or decrease in the land on account of
cultivation or left uncultivated', 'remarks of the, village officers',
"opinion of the Tahsildar" and "the approval of the 'Nizam' of
settlement". Under the column headed "opinion of the Tahsildar"
is to be found the following :- "The land bearing S. No. 254 Paramboke
known as Bolurguddi' is situated in Madlapur village, the area of which is Ac.
290-00 and it has not been surveyed. Narasimha Bharati Swamy has filed an
application wherein he has approved/accepted land the extent of Ac. 89-00 area
in Tahsil office. As the village was under survey the Tahsil office sent the
file to the Settlement Department... According to the profit accruing to the
State as pointed out by the applicant, the survey No. 312 measuring 109 acres
and 13 guntas, having an assessment of Rs. 27 and Survey No. 313 measuring 13
acres 13 guntas having an assessment of Rs. 19 in all 183 acres 33 guntas and with
a total assessment of Rs. 46 were given into the possession of the applicant
and the remaining 109 acres 20 guntas have been included in the Paramboke the
survey number of which is 154, the Government has got the right over the trees
bearing fruit. The patta bearing S. Nos. 312- 313 may be made in the name of
the applicant Narsimha Bharati Swamy from 1331 Fasli. The letter received from
the Settlement is worthy of perusal. According to the remarks of Settlement
Department, the entry of unculti- vated land has been made since 1330 F.
because it was 288 approved in 1330 F. The file of the Thasil has also been
submitted. The acceptor has filed an application in the District office stating
that the entry of the patta be made in the year 1330 Fasli and that he is
willing to pay the amount." Ex. 50 is a copy of the proforma No. 8
(Takavi) statement of village Madlapur and is for Paramboke (patta) granted on
7th Mehar 1336 F. The remarks of the Tahsil office in this case read :
"An assessment of Rs. 28-4-9 of the
unsurveyed Paramboke No. 154 measuring 106 acres 20 guntas at the Bolguddi is
approved as per the District Office Order. Nijanand Narasimha Bharati Swamy of
Dolurguddi is granted the excess of 'Lawani' in accordance with Rs. 0-4- 0
agreement from 'Dhara' to 'Rev-Sharan'." Reference may also be made to the
letter issued by the Superintendent, Settlement Department, Salar Jung Estate
where the petition for grant of patta of land of Bolur Gedda by Narasimha
Bharati Swamy mentioned as one for the purpose of grazing cattle. According to
this letter :
"The land once bearing survey No. 244
measuring 209 acres and known as Bolur Gedda has been lying as a waste since a
The land in the said survey number is not fit
for cultivation. On all the occasions water of the stream will be surrounded on
all the four sides. It would be useful only for grazing the cattle. Near about
the said survey land there are two tamarind trees.
But the product of the trees has not been
auctioned at any time.
Now regarding the rent received by the
Government of the State as indicated by the petitioner in regard to the
aforesaid land of the land measuring 109 acres 13 guntas and assessed at Rs. 27
and survey land No. 313 measuring 74 acres and 20 guntas assessed at Rs. 19,
thus a total of 183 acres and 33 guntas assessed at Rs. 46 has been given in
possession of the petitioner and the rest of the land 106 acres and 20 guntas
has been included in this 'purpose' land only and its survey number is 154.
The tamarind trees standing on the said
survey land would belong to the Government only. In case a petition is
presented in future the lands may be included in the patta as per rules. The
patta of the survey lands bearing S. Nos. 312, 313 may be made in the name of
the peti- 289 tioner Sri Nijanand Narasimha Bharati Swamy from the year 1331
F." It is amply clear from the above that what was in contem- plation of
the grantor and grantee at the time of the grant was either the cultivation of
the land or the grazing of cattle on it. Nobody at that time had any thought or
idea of the land being put to any other use or any mining or quarrying rights
being exercised therein. The grantor was careful to exclude even the
fruit-bearing trees. It would be wholly unrealistic to construe the grant as conferring
mining rights by implication simply because of the fact that there was no
mention of it.
A long line of decisions of the Judicial
Committee of Privy Council relating mainly to the grants of land and leases by
the Zamindars in Bengal makes it amply clear that sub-soil rights are not to be
treated as having been conveyed by implication in grants of surface rights to
tenure-holders pattidars (lessees) etc. In this connection it may be noted that
by the Permanent Settlement of 1793 the zamindars with whom the lands were
settled were held to be owners of all mines and minerals in their zamindaries.
The decisions of the Privy Council relate principally to grants of land in
coal-bearing areas before the discovery of any coal therein.
One of the early cases of this type was that
of Hari Narayan Singh v.. Sriram Chakravarti(1). There the dispute was as to
the right to minerals lying under a village called Petena situate within the
zamindari of the first appellant. The appellant's predecessor had conveyed some
sort of interest in the village to a set of persons called Goswamis who were
shebaits or priests of an idol. The Goswamis had purported to grant to the
respondents two leases by virtue of which the latter claimed to have exercised
rights with respect to minerals. There was no evidence whatever that the
zamindar Raja had ever granted mineral rights to the Goswamis or any other
person. The courts in India concurrently found that, no prescriptive rights had
been proved by the respondents to any underground rights in the village. The
High Court took the view that the Goswamis being tenure-holders had per- manent
heritable and transferable rights, from which it was inferred that the
underground rights also belonged to them.
The Subordinate Judge had however inferred
from the smallness of the jumma (rent) that only the surface rights and not the
underground rights were intended to be let out to the Goswamis. The Board held
that (p. 146) :
". . . . the title of the zamindar raja
to the village Pctena as part of his zamindari before the arrival of the
Goswamis on the scene being established as it has been, (1) 371. A. 136.
19-1 S.C. India/71 290 he must be presumed to
be the owner of the underground rights thereto appertaining in the absence of
evidence that he ever parted with them, and no such evidence has been
produced." Durga Prasad Singh v. Braja Nath Bose (1) was a case where the
zamindar of a permanently settled estate who asked for a declaration of his
right to minerals as against a lessee from a digwar tenure holder. The digwar
tenure was originally granted in consideration of the performance of military
service to which police duties were attached. The tenure was hereditary and
inalienable, the digwar being appointed by Government and being liable to be
dismissed by Government for misconduct. On such dismissal the next male heir if
fit to be appointed had the right to be appointed.
The digwar of Tasra granted a perpetual lease
of the coal mines underlying two villages to Tasra Coal Company in 1892.
On the question as to whether the digwar had
a proprietary right in the underground minerals the Board took the view that
the permanent settlement having been made between the Government and the
zamindar of Jharia and no attempt having been made to prove that the mineral
rights were vested in the digwar before or at the time of the permanent
settlement and there being no evidence to show that the zamindar had ever
parted with mineral rights to the digwar, the latter could not be held to have
any proprietary right in the minerals.
In Girdhari Singh v. Megh Lai Pandey (2) the
question before the Board was whether a mokarari lease of land with all rights
carried a right to the subjecent minerals in a permanently settled estate.
According to the Board (see page 248) "It is unavailing to urge that the
right granted by the mokrari pottah to the lessee is of a permanent, heritable,
and transferable character, as, even although this be the case, it does not
advance the question whether the lease itself embraced within its scope the
mineral rights. On the contrary, unless there. be by the terms of the lease an
express or plainly implied grant of those rights, they remain reserved to the
zamindar as part of the zamindari." Their Lordships referred to the
decisions mentioned above as also to that of Sashi Bhushan Misra v. Jyoti
Prasahad Singh Deo(3) and adopted the principle (p. 249) :
"....... 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 (1) 391. A. 133. (2) 441. A.
(3)44 I. A. 46.
291 held to have formed part of the grant in
the absence of express evidence to that effect." According to the Board
"On the assumption that the expression (mai hak hakuk) means 'with all
rights'. or may be properly amplified as 'with all right, title and interest',
such expressions ... did not increase the actual corpus of the subject affected
by the pottah. They only give expressly what might otherwise quite well be
implied, namely, that that corpus being once ascertained, there will be carried
with it all rights appurtenant thereto, including not only possession of the
subject itself, but it may be of rights of passage, water or the like which
enure to the subject of the potta and may even be derivable from outside
It must be borne in mind also that the
essential characteristics of a lease is that the subject is one which is
occupied and enjoyed and the corpus of which does not in the nature of things
and by reason of the user disappear. In order to cause the latter specially to
arise, minerals must be expressly denominated, so as thus to permit of the idea
of partial consumption of the subject leased." Accordingly it was held
that the words founded on did not add to the true scope of the grant nor cause
mineral rights to be included within it.
It should be noted here that there was a
reference to the trees on the land in the pottas it being expressly provided
that the lessee would be entitled to take the price of the trees by cutting and
selling them and the zamindar would not have any right thereto. This was held
by the Board to negative the idea that mokarari pottab could be comprehensively
viewed to include mineral rights. According to the Board :
"Such a lease is a lessee of the surface
only. This is the general case to which in the present case there is alone
superadded a right to the trees. The minerals are not included." Most of
the above cases were referred to again by the, Board in Govinda Narayan Singh
v. Sham Lai Singh (1) where after noting the earlier cases the Board concluded
that' in the case of any claim against the zamindar to the lands which were
included at the permanent settlement the burden of proof is upon the (1) 58 I.
292 claimant. Reference may also be made to
Bejoy Singh Dudhoria v. Surendra Narayan Singh (1) where the Board held that
the grant of a patni lease by a zamindar of his zamindari lands "including
all interest therein, and jalkar, banker, falkar, beels and jhils at an annual
jama containing a stipulation that the grantee should not cut trees or excavate
a tank was only consistent with the theory that the lessee and those claiming
under him were not entitled to excavate the soil for the purpose of making
bricks and that there was no transfer of the property in the soil".
In our view the principle which is to be
deduced from these cases is not one which is to be confined to the case of
zamindars in permanently settled estates. What has to be considered in each
case is the purpose for which the lands are leased or an interest created
therein with all the clauses which throw any light on the question as to
whether the grantor purported to include his rights to the subsoil in the grant
when there was no express mention of it. If the lease shows that the purpose of
the grant was to allow the user of the surface only it would be wrong to
presume that sub-soil rights were also covered thereby. The patta Ex. 49 in
this case amply demonstrates that what was in contemplation of the parties at
the time of the grant in .1930 was the cultivation thereof or grazing cattle
thereon. The grantor was even careful to reserve the right to fruit-baring
trees. It would be a strange construction to hold that although the grantor
expressly excluded such trees from his grant he must be taken to have parted
with his sub-soil rights by implication.
We may also note that in State of Andhra
Pradesh v. Duvvuru Balarami Reddy (2) where the respondents had obtained mining
leases for mining mica from the owners of a certain shor- triem village it was
held that shortriemdars had no rights in the minerals and the leases granted by
them to the respondent had no legal effect. It is true that this Court was
there dealing with rights of a different class of persons and it was claimed on
behalf of the respondent that inasmuch as the grant included poramboke if
followed that mere surface rights were not the subject matter of the grant.
Rejecting this contention the Court observed (p. 183) :
"So far as the sub-soil rights are
concerned, they can only pass to the grantee if they are conferred as such by
the grant or if it can be inferred from the grant that subsoil rights were also
included therein.' (1) I. L.R. 61 Calcutta 1 (2)  1 S. C.
R. 173 293 It is not in our view possible to
hold otherwise than that granite is a mineral.
According to Halsbury's Laws of England :
"There is no generad definition of the
word 'mineral'. The word is susceptible of expansion or limitation in meaning
according to the intention with which it is used...
It is a question of fact whether in a
particular case a substance is a mineral or not. . .
The test of what is a mineral is what, at the
date of the instrument in question, the word meant in the vernacular of the
mining world, the commercial world, and among landowners, and in case of
conflict this meaning must prevail over the purely scientific meaning".
(See Vol. 26, 3rd edition, Art. 674 page
In Article 675 at page 322 the learned
authors summarise the case law on the subject as to whether particular substances
are minerals or not. Reference is there made to the case of Attorney General v.
Welsh Granite Co.(1) where granite was held to be included under the
reservation of "minerals" in the Enclosure Act which reserved all
mines, minerals, ores, coal, limestone, and slate to the Crown. According to
Lord Coleridge, the word "minerals" was large enough to include
In the view we have taken, it is not
necessary to consider the effect of the Farmans or Section 63 of the Hyderabad
Land Revenue Act. In our view the pattas only indicating that the grant was for
the purpose of cultivation or grazing of cattle with the express reservation of
the trees on the land to the grantor, the question of grant of sub-soil rights
by implication does not arise. It is therefore not necessary to consider the
effect of the Farmans Exs. A-21 and A-22 or of Section 63 of the Hyderabad Land Revenue Act.
The claim to compensation on the basis of the
sub-soil rights to the hillock must therefore be negatived and the appeal
In the result the decree of the High Court
regarding the minerals in the land or quarry rights will be set aside and the
judgement and order of the District Judge on that point restored. The
respondent will be entitled to the costs of the appeal in pursuance of the,
order of this Court made as a condition for setting aside the abatement of the
V.P.S. Appeal allowed.
(1) 1 The Law Times Reports 549.