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TMI Blog1979 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... t;licence". The respondents did not pay the licence fee for the period from 1362 (14-4-1955) to 1365 B.S. The plaintiffs thereupon issued notice, dated March 31, 1966, terminating the licence and then filed Suit No. 37 of 1960 for ejectment of the respondent in the Court of the Munsif, Second Court, Chandernagore. The suit was resisted by the defendant-respondents, inter alia, on the ground that the land had vested in the State under the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Acquisition Act); that they were tenants, and not licensees, under the plaintiff and after the date of vesting with effect from April 14, 1955, became direct tenants under the State in respect of suit land and were paying rent to the State. The Trial Court dismissed the suit holding: (i) that the defendants were not licensees, but were tenants; and (ii) that the plaintiff was not in khas possession on the date of the vesting (April 14, 1955); so he could not retain the land under Section 6(1) (i) of the Act In the result, the suit was dismissed. The first appellate Court reversed the decision of the trial court and decreed the suit with the finding that the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of intermediaries directly working mines.-So much of the land in a notified area held by an intermediary immediately before the date of vesting (including sub-soil rights therein, but excluding rights in hats and bazars not in the khas possession of the intermediary and land comprising forests, if any) as was comprised in or as appertained to any mine which was being directly worked by him immediately before such date shall with effect from such date be deemed to have been leased by the State Government to such .. intermediary. The terms and conditions of such lease shall be as agreed upon between him and the State Government, or in default of agreement as may be settled by the Mines Tribunal: Provided that all such terms and conditions shall be consistent with the provisions of any Central Act for the time being in force relating to the grant of mining leases." Section 2(j) of the Mines Act, 1952, defines 'Mine' to mean "any excavation where any operation for the purpose of searching for obtaining mineral has been or is being carried on and includes.. " "Minor Minerals" as defined in clause (e) of Section 3 of the Mines and Minerals (Regulation and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether on the surface or beneath the surface of earth. Thus considered, the land ill dispute having large deposits of sand, which is a minor mineral, was admittedly being excavated and removed by the defendant, was at the date of vesting "comprised in or appertained to a mine" within the meaning of Section 28. Having seen that the land in dispute is a 'mine' in which 'mining operations' were being carried on, the further question to be considered is, whether this mine was "being directly worked" by the appellant intermediary ? The word "directly", according to Webster's New World Dictionary means "in a direct way, without a person or thing 1 coming between"; "immediately: as directly responsible". The use of the expression "directly" in the context of the word "worked", follow ed by the words "by him", unmistakably shows that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine, as lessees under the State, who immediately before the date of vesting, were working the mine under their immediate control, management and supervision. Thus constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions which entitled him to retain under Section 6(1) (i), then also, this case being in conflict with Section 28, the latter Section would prevail over the former. In this view of the matter, it is not, strictly speaking, necessary to resolve the controversy as to whether the transaction (Ex. I) dated April 27, 1950, was a lease or a license. But, as in the Courts below, and here also, a good deal of argument was addressed on this point, we propose to go into the same. It is well-settled that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed. The Agreement (Ex. I), which is named as a licence, is to be construed in the light of this cardinal canon. The Agreement (Ex. I) is not a very lengthy document. The material part of this document may be extracted as below: "This deed of Agreement is executed to the effect following:- ................ We the First Party, have been carrying on the business of sand near Haripal Station. Sand was necessary for carrying on the said business and the said sand Lying inside the land described in the schedule below should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese rights were granted for a "price" fixed on yearly basis, irrespective of the quantity of sand extracted. The "price" fixed is ₹ 66/- per annum. This consideration is payable 0in the month of Chaitra every year. In case of default, the First Party (grantee) shall not be entitled "to raise" the sand "next year" and the Second Party (grantor) shall have a right to recover the arrears of rent together with interest at 12% by bringing a suit against the First Party. (iv) "The Second Party will be entitled to take khas possession of the land" "at the end of the stipulated period". This condition, (contained in paragraph 4 of Ex.I) read along with the other parts of the document, necessarily implies that if the First Party continues to pay the "price", as stipulated, (a) he shall be entitled to enter into and remain in exclusive khas possession of the land for the purpose of carrying out the mining operations for the full stipulated period of 9 years and (b) the Second Party (plaintiff) will not be entitled to retake khas possession of the land and revoke the so-called "license" before the end of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppear". Counsel for the appellant has adopted this very argument. But this observation should not be torn out of the context. Lord Shaw had further observed: "In order to cause the latter speciality to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased". Thus, Lord Shaw had himself pointed out that minerals may be made a part of the subject-matter of a lease, and in such a case the lease would permit the idea of the partial consumption of the subject-matter of the lease. It is important to bear in mind that the term "lease" occurring in the definition of "mining lease" given in Section 3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of the Calcutta High Court in Fala Krishna Pal v. Jagannath Marwari(I. L. R. 59 Cal. 1314.), a settlement of the character of a mining lease is everywhere in India regarded as 'lease'. A mining lease, therefore, may not meticulously and strictly satisfy in all cases, all The characteristics of a 'le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a 'right to enjoy immovable property' within the meaning of Section 105; more so, when-as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The 'right to enjoy immovable property' spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immovable property. In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company([1930] L. R. 58 I. A. 29.). Delivering the opinion of the Board, Lord Macmillan said: "In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is suscepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field for the stipulated period of 9 years. The transaction (Ex. I), though labelled as a licence, has all essential elements of a 'lease' ever. under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a 'lease' in the accepted legal sense of the term and not a 'licence' as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1) (i) could cover the appellant's case and give him a right to retain the land in dispute eve if Section 28 was out of his way.
In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28.
For all the foregoing reasons, the appeal fails and is dismissed. In the circumstances of the case, however, there will be no order as to costs.
V.D.K. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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