TMI Blog1966 (9) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... eing one of urgency, the provisions of sub-section (1) of s. 17 of the Act applied to the land and it was therefore directed under sub-s. (4) of s. 17 that the provisions of s. 5A of the Act would not apply to the land. On October 12, 1950, a further notification was issued under s. 6 of the Act declaring that the Governor was satisfied that the land mentioned in the notification was needed for public Purposes and directing the Collector of Mirzapur to take order for acquisition of the land under s. 7 of the Act. The Collector of Mirzapvr was ,further directed by the notification under s. 17(1) of the Act, the case being one of urgency, to take possession of any waste or arable land on the expiration of the notice mentioned in s. 9(1), though no award under s. 11 had been made. On November 19, 1950, possession of the land was taken by the Collector of Mirzapur and the same was handed over to the Administrative Officer, Government Cement Factory, Churk. An award was made by the Land Acquisition Officer on January 7, 1952 stating that the amount of compensation was ₹ 23,638/13/7. The appellant thereafter filed an application under s. 18 of the Act for a reference to the Civil C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant cannot be accepted. It is manifest that the declaration made by the State Government in the notification under s. 6(1) of the Act, that the land was required for a public purpose, is made conclusive by sub-s. (3) of s. 6 and it is, therefore, not open to a court to go behind it and try to satisfy itself whether in fact the acquisition was for a public purpose. It was pointed out by this Court in Smt. Somavanti v. The State of Punjab([1963] (2) S.C.R. 774) that it was for the Government to be satisfied, in a particular case, that the purpose for which the land was needed was a public purpose and the declaration of the Government under s. 6(1) of the Act will be final subject, however, to one exception, namely in the case of colourable exercise of the power, the declaration is open to challenge at the instance of the aggrieved party. The power conferred on the Government by the Act is a limited power in the sense that it can be exercised only where it is for a public purpose (leaving aside, for the moment, where the acquisition is for a company under Part VII of the Act). if it appears that what the Government is satisfied about is not a public purpose but a private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Section 5A provides for the hearing of objections and reads. 5A. (1) Any person interested in any land which has been notified under section 4, subsection (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2)Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such ,objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision, of the appropriate Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the appropriate Government on the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r access to any such station, the Collector may, immediately after the publication of the notice mentioned in subsection (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: (3)In the case of any land to which, in the opinion of the appropriate Government, the provisions of subsection (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, subsection (1). On behalf of the appellant Mr. lyengar referred to the Inspection Note of the Collector dated December, 15, 1951 at page 91 of the Paper Book. It was pointed out that the Collector noticed that there were one lac of trees in the acquired land and there were trees of Tendu, Asan, Sidh, Bijaisal, Khair, bamboo clumps, Mahuwa and Kakora contained in the area. It was contended that the land in dispute was forest land covered by a large number of trees an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government under s. 17(1) and the action of the Collector in taking possession of the land under that subsection is ultra vires. It was also contended for the appellant that the order of the State Government under S. 17(4) of the Act that the provisions of s. 5A of the Act were not applicable to the land was illegal because the land was not waste or arable land to which the provisions of s. 17(1) were applicable. It was urged that by issuing the impugned notification the State Government deprived the appellant of a valuable right i.e., of filing an objection under S. 5A of the Act and therefore the entire proceedings taken by the Land Acquisition officer after the issue of the notification under S. 4 were defective in law. On behalf of the respondents the submission was made that the condition precedent for the application of S. 17 (4) of the Act was the subjective opinion of the State Government that the provisions of sub-s. (1) are applicable to the, land in question. If therefore the State Government had come to the conclusion that the provisions of sub-s. (1) were applicable to the land because the land was waste or arable land, the subjective opinion of the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a condition as to be unfit for (1) 72 I.A. 24t. (2) Criminal Appeal No. II 0 of 1966-decided on July 27, 1966. [1966] Supp. S.C.R. (3) [1937] A.C. 898. human habitation, the Board may by resolution declare such building to be insanitary . The Judicial Committee set aside the declaration of the Improvement Trust on two grounds; (1) that though it was made in exercise of an administrative function and in good faith, the power was limited by the terms of the said Ordinance and therefore the declaration was liable to a challenge if the authority stepped beyond those terms and (2) that the ground on which it was made was other than the one set out in the Ordinance. In another case-Ross Clunis v. Papadopovllos(1)-the appellant challenged an order of collective fine passed under Regulation 3 of the Cyprus Emergency Powers (Collective Punishment) Regulations, 1955 which provided that if an offence was committed within any area of the colony and the Commissioner has reason to believe that all or any of the inhabitants of that area failed to take reasonable steps to prevent it and to render assistance to discover the offender or offenders it would be lawful for the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at area. It is necessary to set out at this stage the history of Agori Zamindari. The ancestors of Raja Anand Brahma Shah had owned the paraganas of Agori and Barhar since the 13th century. About the year 1744 A.D. Shambhu Shah the then Raja was driven out of his domains by Raja Balwant Singh of Banaras, but after about 30 years Adil Shah, grandson of Shambhu Shah was able to regain possession over the territories after driving out Raja Chet Singh, son of Raja Balwant Singh, with the help of the British East India Company. On October 9, 1781, Raja Adil Shah was granted a Sanad by Mr. Warren Hastings the then Governor General of India restoring to him the Zamindari of Pargana Agori and Pargana Barhar with all the rights which his ancestors had before Shambhu Shah was driven out of his domains. By a second Sanad dated October 15, 1781 the Raja was granted a Jagirultamgha of certain Mahals including Pargana Agori in lieu of ₹ 8,001/per annum. It was stated for the respondent-State that the second sanad was cancelled by a resolution of the Governor in Council dated April, 1788. But a third sanad was executed in favour of the Raja on December 10, 1803 granting the whole Jagir p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure Mutsuddies in office; the zamindars, the chowdhuries, the Residents, the Mahtoos, the Ryots, the cultivators, and the inhabitants of Aggri Barhar of Sirkar Chunar in subah Allahabad, that in conformity to the orders of His Excellency the most Noble Richard Marquis Wellesley, Knight of the I llustrious order of Saint Patrick, Governor General in Councilissued on the 4th November 1803 on a consideralion ofthe good services rendered to the Hon ble Company by Raja Run Bahadur Shah, and his consequent merits, lands in the above Purgunnah producing ₹ 4,000/to form a Jagir of three lacs twenty thousands and forty dams which make eight thousand and one rupees per annum, as hereunder particularized of which a jagir of 4,001 rupees continues in the possession of the said Rajah Run Bahadur Shah agreeably to sanad dated 7th October, 1789, English Era, have been given to him the said Rajah as an ultumgah Jagger, from the Fussul Khareef of the fasli year 121 1, corresponding with the English era 1803, together with the maul, Suyer, Ruchhah, plains or meadows thereof, and exclusive of Deuuttar, Burmotter and Krishnarpur lands places of worship, habitations of Brahmans and Faquirs, ayuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 325). In other words, a transfer of the right to the surface conveys right to the minerals underneath unless there is an express or implied reservation in the grant. A contract therefore to sell or grant a lease of land will generally include mines,quarries and minerals beneath or within it (Mitchell v. Mosley( (1914]1 Ch. 438,450.). It is manifest that when the sanad was executed in favour of theRaja the Government made over the land with all its capabilities to the Raja and merely imposed on him a fixed sum of revenue in lieu of all the rights the Government had as a proprietor of the soil. When neither of the parties knew undiscovered minerals underneath the land and the idea of reservation never entered their minds it cannot be held that there was any implied reservation in the grant. Nor can afterwards a distinction be drawn between the various rights that may exist on the land for the purpose of qual fying the original grant and importing into it what neither party could have imagined. It was argued on behalf of the respondents that the assessment was made on the agricultural income, but this circumstance cannot derogate from the rights conveyed to the Raja in the two Sanad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.......... The property in the soil was never before formally declared to be vested in the landholders, nor were they allowed to transfer such rights as they did possess, or raise money upon the credit of their tenures, without the previous sanction of Government. The preamble to Regulation 1 of 1795 which relates to the Province of Benares states that the Governor-General in Council having determined, with the concurrence of the Rajah of Benares, to introduce into that province, as far as local circumstances will admit, the same system of interior administration as has been established in the provinces of Bengal, Bihar, and Orissa, and the limitation of the annual revenue payable from the lands forming an essential part of that system, as stated in the preamble to Regulation 11, 1793. It appears that Pargana Agori was permanently settled under the provisions of the Benares Regulation 1 of 1795 and there was no material difference between the permanent settlement of Benares province and that of the Provinces of Bengal, Bihar and Orissa. It is thus clear from the above Regulations that the zemindars, the proprietors of estates, were recognized to be the proprietors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the above two cases: Those 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. It is true that the Government was not a party to these decisions of the Judicial Committee but the fact that the Government never asserted its claim to mineral rights possessed by the zemindars is a circumstance which supports the interpretation of the Sanads which we have already expressed. There are other documents which support the view that the mineral rights and sub-soil rights in the area belonged to the appellant. Annexure H is a copy of the Wajibularz relating to Mauza Kota and Annexure is a copy of the Wajibularz of other villages Sali, Dokhli, Kaira and Rajpur Pargana Singrauli, district Mirzapur in respect of the settlement of 1247 fasli and 1257 fasli respectively. In Annexure H there occurs the following passage: In this village there are Jungles and hills where all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Roberts, Deputy. Collector, Mirzapur to the Commissioner of Banaras Division. In this letter, Mr. Roberts expressed the view that the right to minerals was vested in the proprietary owner of the soil and that ,the sovereign was only entitled to a portion of the revenue thereon and that in Bengal the proprietors of estates lease or assign the right of mining without any interference on the part of the Government . It is manifest that the view that we have expressed as to the interpretation of the two Sanads dated October 9, 1781 Annexure A-and December 10, 1803-Annexure B is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must be overruled. On behalf of the respondents, reference was made to the Mirzapur Stone Maha Act (U.P. Act V of 1886) and it was pointed out that under s. 5 of that Act no proprietor was entitled to place any prohibition or restriction, or to demand or receive any sum by way of rent, -premium, duty or price, in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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