# 7 S.C.R 863 THREESIAMMA JACOB & ORS v. GEOLOGIST, DPTI. OF MINING & GEOLOGY & ORS

- **Citation:** [2013] 7 S.C.R. 863
- **Court:** Supreme Court of India
- **Decided:** 2013-07-08
- **Case number:** CIVIL APPEAL NOS.4540-4548 OF 2000
- **Bench:** R.M. Lodha, J. Chelameswar, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-863-threesiamma-jacob-ors-v-geologist-dpti-of-mining-geology-ors-29259
- **Pages:** 34

## Headnote

LAND LAWS:
Jenmis or holders pf jenmom rights in Malabar area -
Rights with regard to minerals underneath the soil - Held:
Ownership of sub-soil/mineral wealth should normally follow
A
B
c
the ownership of the land, unless the owner of the land is
deprived of the same by some valid process -- In the instant
0
appeals, no such deprivation is brought to the notice of the
Court -- Appellants are, therefore, the proprietors of the
minerals obtaining in their lands -- The recitals in the patta
or the Collector's standing order that exploitation of mineral
wealth in the patta land would attract additional tax cannot in
E
any way indicate the ownership of State in minerals -- The
power to tax is a necessary incident of sovereign authority
(imperium) but not an incident of proprietary rights (dominium)
- Cqnstitution of India, 1950 - Arts. 294 and 297 -- Mines and
Minerals (Regulation and Development) Act, 1957 ..,,. JyTineral
Concession Rules, 1960 - Kera/a Minor Mineral Concession
F
Rules, 1967 - Coking Coal Mines (Nationalisation) Act, 1972.
-- Coal Bearing Areas (Acquisition and Development) Act,
1957 - Atomic Energy Act, 1962 -- Oilfields {Regulation and
Development) Act, 1948 - Mines and Minerals.
The appellants filed writ petitions before the High
Court claiming that they were holders of jenmom rights
in the subject lands situate in Malabar area in the State
of Kerala and the State had no legal authority to demand
G
863
H
864
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
payment of royalties on the minerals excavated by them.
The Full Bench of the High Court held that the owners
of jenmom lands in the Malabar area were not the
proprietors of the soil and the minerals underneath the
soil, and dismissed all the writ petitions. The appeals filed
B by the writ petitioners were referred by a two Judge
Bench to the three Judge Bench .
. Disposing of the appeals,
HELD: 1.1 There is positive evidence in the Board
C Standing Order No. 10 dated 19.03.1888 (BSO No.10) that
the State did not claim any proprietary right over the
mineral wealth obtaining in lands held over a ryotwari
patta or in jenmom lands in Malabar. The limited right
claimed is "to a share in the produce of the minerals
D worked, if thought necessary by government." By
necessary implication, it follows that the State recognised
the legal right of the land holder to the subsoil metals and
minerals ·whatever name such right is called - proprietary
E
or otherwise. [para 37-38] [884-B-C; 885-A; 886-A-B]
1.2 Apart from the legal implication of BSO No.10 with
respect to Malabar, from an analysis of the enactments
and the judicial pronouncements necessary inference is
that British recognized that the State had no inherent
F
right in law to be the owner of all mineral wealth in this
country. British never claimed proprietary rights over the
soil, and jenmis were recognised to be the absolute
owners of the soil. It is obvious from the BSO No.10 that
the British never claimed any propri~tary right in any land
in the Old Madras Province and, therefore, both ryotwari
G pattadars and jenmis must also be held to be the
proprietors of the subsoil rights/minerals until they are
deprived of the same by some legal process. This
conclusion with regard to subsoil/mineral rights will still
hold good even if the lands in question, as per the
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST,
865
DPTI. OF MINING & GEOLOGY
judgment under appeal, have been converted to be lands A
held on ryotwari settlement, for the reason that even in
the lands held on ryotwari patta, the British did not assert
proprietary rights. [para 39] [886-C-F]
State of Andhra Pradesh v. Duwuru Bafarami Reddy & . 8
Ors. 1963 SCR 173 =AIR 1963 SC 264; and Secretary of
State v. Ashtamurthi (1890) ILR 13 Mad 89 - referred to.
1.3 The Constitution of India recognized the fact that
the mineral wealth obtaining in the land mass (territory
of India) did not vest in the State in all cases; and that C
under the law, as it existed, proprietary ri

## Text

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[2013) 7 S.C.R 863
THREESIAMMA JACOB & ORS.
v.
GEOLOGIST, DPTI. OF MINING & GEOLOGY & ORS.
(CIVIL APPEAL NOS.4540-4548 OF 2000 etc.)
JULY 8, 2013
[R.M. LODHA, J. CHELAMESWAR AND
MADAN B. LOKUR, JJ.)
LAND LAWS:
Jenmis or holders pf jenmom rights in Malabar area -
Rights with regard to minerals underneath the soil - Held:
Ownership of sub-soil/mineral wealth should normally follow
A
B
c
the ownership of the land, unless the owner of the land is
deprived of the same by some valid process -- In the instant
0
appeals, no such deprivation is brought to the notice of the
Court -- Appellants are, therefore, the proprietors of the
minerals obtaining in their lands -- The recitals in the patta
or the Collector's standing order that exploitation of mineral
wealth in the patta land would attract additional tax cannot in
E
any way indicate the ownership of State in minerals -- The
power to tax is a necessary incident of sovereign authority
(imperium) but not an incident of proprietary rights (dominium)
- Cqnstitution of India, 1950 - Arts. 294 and 297 -- Mines and
Minerals (Regulation and Development) Act, 1957 ..,,. JyTineral
Concession Rules, 1960 - Kera/a Minor Mineral Concession
F
Rules, 1967 - Coking Coal Mines (Nationalisation) Act, 1972.
-- Coal Bearing Areas (Acquisition and Development) Act,
1957 - Atomic Energy Act, 1962 -- Oilfields {Regulation and
Development) Act, 1948 - Mines and Minerals.
The appellants filed writ petitions before the High
Court claiming that they were holders of jenmom rights
in the subject lands situate in Malabar area in the State
of Kerala and the State had no legal authority to demand
G
863
H
864
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
payment of royalties on the minerals excavated by them.
The Full Bench of the High Court held that the owners
of jenmom lands in the Malabar area were not the
proprietors of the soil and the minerals underneath the
soil, and dismissed all the writ petitions. The appeals filed
B by the writ petitioners were referred by a two Judge
Bench to the three Judge Bench .
. Disposing of the appeals,
HELD: 1.1 There is positive evidence in the Board
C Standing Order No. 10 dated 19.03.1888 (BSO No.10) that
the State did not claim any proprietary right over the
mineral wealth obtaining in lands held over a ryotwari
patta or in jenmom lands in Malabar. The limited right
claimed is "to a share in the produce of the minerals
D worked, if thought necessary by government." By
necessary implication, it follows that the State recognised
the legal right of the land holder to the subsoil metals and
minerals ·whatever name such right is called - proprietary
E
or otherwise. [para 37-38] [884-B-C; 885-A; 886-A-B]
1.2 Apart from the legal implication of BSO No.10 with
respect to Malabar, from an analysis of the enactments
and the judicial pronouncements necessary inference is
that British recognized that the State had no inherent
F
right in law to be the owner of all mineral wealth in this
country. British never claimed proprietary rights over the
soil, and jenmis were recognised to be the absolute
owners of the soil. It is obvious from the BSO No.10 that
the British never claimed any propri~tary right in any land
in the Old Madras Province and, therefore, both ryotwari
G pattadars and jenmis must also be held to be the
proprietors of the subsoil rights/minerals until they are
deprived of the same by some legal process. This
conclusion with regard to subsoil/mineral rights will still
hold good even if the lands in question, as per the
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST,
865
DPTI. OF MINING & GEOLOGY
judgment under appeal, have been converted to be lands A
held on ryotwari settlement, for the reason that even in
the lands held on ryotwari patta, the British did not assert
proprietary rights. [para 39] [886-C-F]
State of Andhra Pradesh v. Duwuru Bafarami Reddy & . 8
Ors. 1963 SCR 173 =AIR 1963 SC 264; and Secretary of
State v. Ashtamurthi (1890) ILR 13 Mad 89 - referred to.
1.3 The Constitution of India recognized the fact that
the mineral wealth obtaining in the land mass (territory
of India) did not vest in the State in all cases; and that C
under the law, as it existed, proprietary rights in minerals
(subsoil) could vest in private parties who happen to own
the land [Arts. 294 and 297). This conclusion gets fortified
from the provisions of the Mineral Concession Rules,
1960. While Chapter 4 of the Rules deals with the lands D
where the minerals vest in the Government, Chapter 5
deals with the lands where the minerals vest in a person
other than the Government. Correspondingly, the Minor
Mineral Concession Rules made by the State of Kerala
also recognises such a distinction in Chapters V and VI.
E
[para 42] [888-A-E]
1.4 Kunhikoman and Balm~dies did not deal with the
question whether a jenmi is entitled either before or after
the settlemen.t of 1926 to the subsoil rights or minerals in
the land held by him. In Balmadies this Court took note of F
two fare.ts - (1) that originally jenmis of Malabar area were
absolute proprietors of the land; and (2) when Malabar
area was annexed, the British expressly disclaimed the
proprietorship of the soil. This Court, in Balmadies,
rejected the contention that as a result of the resettlement G
of 1926, jenmom rights stood converted into ryotwari
estate. [para 33, 34 and 36) [882-A-C;. 883-H; 884-A]
Karimbil Kunhikoman v. State of Kera/a 1962 Suppl.
SCR 829 =AIR 1962 SC 723; and Balmadies Plantations
H
866
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
Ltd. and Anr. v. The State of Tamil Nadu 1973 (1) SCR 258
=AIR 1972 SC 2240; and Secretary of State v. Vira Rayan
(1886) ILR 9 Mad 175 - referred to.
1.5 The High Court erred in holding that a ryotwari
8
pattadar is not entitled to the subsoil (minerals) in his
patta land. The reliance placed by the High Court on the
judgment in Sri Srinivasachariar is wholly misplaced. The
issue in that case was not with reference to any claim of
subsoil rights in a land held under ryotwari patta, nor was
it laid down that irrespective of the nature of the tenure -
C all mineral wealth in this country vested in the Crown or
the State. [para 46] [889-E-F and G-H]
Secretary of State v. Sri Srinivasachariar, AIR 1921 PC
1 i and Sashi Bhushan Misra v. Jyoti Prasad Singh Deo, AIR
o 1916 PC 191 - held inapplicable.
T. Swaminathan and Anr. v. State Of Madras and Ors,
AIR 1971 Mad 483 - disapproved.
2.1 The recitals in the patta or the Collector's standing
E order that the exploitation of mineral wealth in the patta
land would attract additional tax cannot in any way
indi~ate the ownership of the State in the minerals. The
power to tax is a necessary incident of sovereign
authority (imperium) but not an incident of proprietary
F
rights (dominium). Proprietary right is a compendium of
rights· consisting of various constituent, rights. If a
person has only a share in the produce of some property,
it can never be said that such property vests in such a
person. In the instant case, the State asserted its 'right'
G to demand a share in the 'produce of the minerals
worked' though the expression employed is right - it is
in fact the Sovereign authority which is asserted. From
the language of the BSO No.10 it is clear that such right
to demand the share could be exercised only when the
H pattadar or somebody claiming through the pattadar,
THREESIAMMA JACOB & ORS. v. GEOLOGIST,
867
DPTI. OF MINING & GEOLOGY
extracts/works the minerals - the authority of the State to
A
collect money on the happening of an event - such a
demand is more in the nature of an excise duty/a tax. The
assertion of authority to collect a duty or tax is in the
realm of the sovereign authority, but not a proprietary
right. Neither the content of BSO No.10, nor the legal
B
effect thereof has been examined by the High Court. [para
51-52] [891-E-G; 892-A-D]
2.2 Mines and Minerals (Development and
Regulation) Act, 1957 is an enactment made by C
Parliament to regulate the mining activities in this country.
The said Act does not in any way purport to declare the
proprietary rights of the State in the mineral wealth nor
does it contain any provision divesting any owner of a
·mine of his proprietary rights. On the other hand, various
enactments made by the Parliament such as Coking Coal
D
Mines (Nationalisation) Act, 1972 and Coal Bearing Areas
(Acquisition and Development) Act, 1957 make express
declarations u/ss 4 and 7 respectively providing for
acquisition of the mines and rights in or over the land
from which coal is obtainable. Even with regard to the
E
minerals which are greatly important and highly sensitive
in the context of the national security and also the
security of humanity like uranium - the Atomic Energy Act,
1962 only provides u/s 5 for prohibition or regulation of
mining activity in such mineral. The said Act does not in
F
any way declare the proprietary right of the State.
Similarly, the Oilfields (Regulation and Development) Act,
1948, which deals with the oilfields containing crude oil,
petroleum etc. does not anywhere declare the proprietary
right of the State. [para 54-56] [893-B-D; 894-B-C]
G
2.3 There is nothing in the law which declares that all
mineral wealth/sub-soil rights vest in the State, on the other
hand, the ownership of sub-soil/mineral wealth should
normal1yfol1owthe ownership of the land, unless the owner
H
868
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A of the land is deprived of the same by some valid process.
In the instant appeals, no such deprivation is brought to
the notice of the Court and, therefore, this Court holds that
the appellants are the proprietors of the minerals obtaining
in their lands. [para 57] (895-B-C; 896-A]
B
Kaliki Subbarami Reddy v. Union <l India ILR 1969 AP
736; V. Gangarathinam v. State of Tamil Nadu, 1990 TNW
374; and S. Sabhayogam v. State of Kera/a, AIR 1963 Kerala
101 - cited.
c
Case Law Reference:
1973 (1) SCR 258
referred to
para 8
AIR 1963 Kerala 101
cited
para 8
D
AIR 1971 Mad 483
disapproved
para 12
AIR 1916 PC 191
,held inapplicable para 12
I
lL~ 1969 AP-'736
cited
para 12
E
1990 TNLJ 374
cited
para 12
1962 Suppl. SCR 829
referred to
para 19
1963 SCR 173
referred to
para 24
(1890) ILR 13 Mad 89
referred to
para 30
F
AIR 1921 PC 1
held inapplicable para 12
ILR 1969 AP 736
cited
para 12
(1886) ILR 9 Mad 175
referred to
para 35
G
1990 TNLJ 374
cited
para 50
CIVIL APPELLATE'JURISDICTION: Civil Appeal No,
454Cl-4548 of 2000.
H
From the Judgment and Order dated 02.08.1999 of the
. THREESIAMMA JACOB & ORS. v. GEOLOGIST,
869
DPTT. OF MINING & GEOLOGY
High Court of Kerala at Ernakulam in O.P. No. 1843 of 1998,
A
16653, 8674 of 1997, 3009 of 1994, 20992 of 1997, 4501 of
1993, C.R.P. No. 2209 of 1993 and O.P. No. 12330, 14749
of 1998 dated 06.08.1999.
WITH
C.A. No. 4549 of 2000.
S. Gurukrishnakumar, Addi. Adv. Gen., A. Raghunath, M.T.
George, Kavitha K.T., B. Balaji, A. Prasana Venkat, T. Mouli
Mahendran, R. Veeramani, Vanitha Giri, R. Sathish, T. Harish
B
Kumar for the appearing parties.
C
The Judgment of the Court was delivered by
CHELAMESWAR, J. 1. These appeals are placed before
us pursuant to the Order dated 8th December, 2004 of a
D
Division Bench of this Court which opined that the points
involved in these and certain other appeals "need to be
decided by a three Judge Bench."
2. These appeals arise out of a common judgment
rendered in a number of writ petitions by a full Bench of the
E
Kerala High Court dated 2nd August, 1999 by which all the writ
petitions were dismissed.
3. The said full Bench of the Kerala High Court was called
upon to examine the question (on a reference by another
F
Division Bench) - whether the owners of jenmom lands in the
Malabar area1 are the proprietors of the soil and the minerals
underneath the soil - and answered the said question in the
negative:
"Hence, we are of the view that so far as the lands in
G
question are concerned, th,e minerals belong to the
Government..." (para 31)
1.
Parts of Kerala popularly known as Malabar area which earlier formed
part of the erstwhile Madras province in the British India.
H
A
B
c
D
E
F
870
SUPREME COURT REPORTS
[2013] 7 S.C.R.
4. To illustrate the background in which such question
arises, we may quote the facts of one of the writ petitions
considered by the full Bench as narrated by the full Bench.
"2. According to the petitioner in this case, her husband
obtained jenmon assignment of 2 Acres of granite rocks
situated in Dhoni Akathethara Amsom and Village,
palakkad Taluk, Malabar. The petitioner's husband
obtained the property from the previous jenmy, C.P.
Thampurankutty Menon. Thereafter, the petitioner's
husband executed a registered gift deed. According to the
petitioner, the property was enjoyed by the earlier jenmy
and thereafter by the petitioner without any interference
from the Government. Due to ignorance of the legal
position, the petitioner entered into a lease agreement with
the Department of Mining and Geology to conduct
quarrying operations in her property. Later on she realised
that it was not necessary to pay any royalty to the
Government with regard to the property belonging to her.
In the above circumstances, she made a fresh application
to the Department for licence. But the respondents failed
to provide necessary permits to the petitioner. When she
received a notice from the Kerala Minerals Squad
directing her to stop the quarrying activities, she gave a
reply to reconsider her contention. Thereafter, by Ext. P6,
she was informed by the Department to renew the lease."
5. It can be seen from the above that the appellants
asserted that they are holders of jenmom rights in the lands in
question and the State has no legal authority to demand
payment of royalties on the minerals excavated by the holder
G of jenmom right.
6. Such a claim of the appellants is based on the belief
and assertion of the appellants ( 1) that the holder of the jenmom
rights is not only the proprietor of the soil for which he has
jenmom rights, but also the owner of the mineral wealth lying
H
beneath the soil. (2) that the understanding of the appellants
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 871
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]
that a claim of royalty can be made only by the owner of the
mineral against a person who is excavating the mineral with the
consent of the owner.
7. We must straightway record that the second of the
above-mentioned propositions regarding the character and
legal nature of royalty, (though was considered by this Court on
more than one occasion) stands referred to a larger Bench by
an Order of reference dated 30th March, 2011 of a three-Judge
Bench in Mineral Area Development Authority & Ors. Vs.
Steel Authority of India & Ors. (2011) 4 SCC 450, therefore,
we are not required to examine and decide the question. We
are only required to examine the amplitude of the rights of the
jenmom land holders called jenmis in the Malabar area of the
Kerala State and decide whether a jenmi is entitled to the rights
of subsoil/the minerals lying beneath the surface of the land.
8. The appellants' case is that a Jenmirz holds jenmom3
lands as absolute owner and has proprietary rights over both
the soil and subsoil. The ryotwari settlement made by the British
Government in the Malabar area of the erstwhile Madras
2.
The expression jenmi etymologically means the holder ofjenmom rights
in a piece of land. Though the expression is defined in some of the
enactments pertaining to the present State of Kera la, such definitions
areenactment specific but not comprehensive to describe the full legal
contours of the jenmom rights.
A
B,
c
D
E
3.
In Malabar the exclusive right to, and hereditary possession of, the soil is
denoted by the term jenmam which means birthright and the holder thereof
F
is known as jenmi, jenmakaran or mutalalan. Until the conquest of Malabar
by the Mahomedan princes of Mysore, the jenmis appear to have held their
lands free from any liability to make any payment, either in money or in
produce, to government and therefore until that period, such an absolute
property was vested in them as was not found in any other part of the
Presidency. The late Sir Charles Turner after noticing the various forms of
G
transactions prevalent in Malabar remarked that they pointed to an
ownership of the soil as complete as was enjoyed by a freeholder in
England.
These jenmis have been from time immemorial exercising the right of
selling, mortgaging, or otherwise dealing with the property. They had full
absolute property in the soil. (Ref. "Land Tenures In the Madras
Presidency", S. Sundararaja Iyengar, Second Edition, Page 49-50).
H
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[2013) 7 S.C.R.
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Province only obligated the jenmis to pay revenue to the State
but did not in any way affect their proprietary rights in the lands.
Nor did the ryotwari settlement have the effect of transferring
and vesting the ownership either of the land or the subsoil
(minerals) to the State. In support of this submission, the
B
appellants heavily relied on a judgment of this Court in
Balmadies Plantations Ltd. and Anr. v. The State of Tamil
Nadu AIR 1972 SC 2240 and also a standing order of the
Board of Revenue of the erstwhile Madras Province dated 19th
March 1888 and argued that earlier full Bench decision of the
c Kerala High Court in S. Sabhayogam v. State of Kera/a, AIR
1963 Kerala 101 required a reconsideration.
9. On the other hand, the State of Kerala took the stand
that subsequent to the extension of the ryotwari settlement to
the Malabar area of the erstwhile Madras Province, the jenmis
D ceased to be the absolute owners and proprietors of the lands
held by them. The ryotwari settlement had the effect of
transferring the ownership of subsoil (minerals) to the
Government. The ryotwari pattadars rights are only confined to
E
F
G
H
the surface.
10. The High Court rejected the contentions of the
petitioners. The High Court attempted to distinguish the
decision of this Court in Ba/madies Plantations (supra):
"Even though there is some force in the contention of the
petitioners, the above observations of the Supreme Court
are not inconformity wit.h the observations made by the Full
Bench (which followed the decision of the Supreme Court
in Kunhikoman's case), that does not mean that the view
taken by the Full Bench is not correct, because it can be
seen from paragraph 14 of the above judgment itself that
the Supreme Court has observed that in the Kerala case
documents were produced and on the basis of the
documents, the Court took the view that the nature of rights
has changed after the Ryotwari settlements."
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 873
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]
11. We must confess that we have some difficulty to
A
understand the exact purport of the above extract.·Be that as it
may. The High Court recorded two conclusions (1) that the
earlier full Bench decision of the Kerala High Court in the case
of S. Sabhayogam case (supra) did not require any
reconsideration as contended by the petitioners; and (2) the
B
lands in question cannot be classified any more as jenmom
lands but are lands held on a ryotwari patta.
''The State has produced certain documents to show that
the lands are Ryotwari lands. Ext.R1(a) produced will show
that there are only two categories of lands, Ryotwari and
C
lnam. Thus, on a consideration of the documents produced
by the State and on a consideration of the decisions cited,
we are satisfied that the decision reported in S.
Sabhayogam v. State of Kera/a - AIR 1963 Kerala 101 -
does not require reconsideration in the light of the decision
D
of the Supreme Court in Balmadies P/anta(ions v. State
of Tamil Nadu - AIR 1972 SC 2240. Hence, we hold that
the lands in question are not jenmom lands and they are
Ryotwari patta lands."
12. In view of such a conclusion the High Court rejected
the submission that the petitioners are entitled to the rights over
the subsoil relying upon certain passages from Secretary of
State v. Sri Srinivasachariar, AIR 1921 PC 1, T. Swaminathan
(Dead) and Another v. State of Madras and Others, AIR 1971
Mad 483, Sashi Bhushan Misra v. Jyoti Prasad Singh Deo,
AIR 1916 PC 191, Kaliki Subbarami Reddy v. Union of India,
ILR 1969 AP 736 and Gangarathinam v. State of Tamil Nadu,
1990 TNLJ 374; and certain recitals (in Malayalam) made in
E
F
the patta issued to one of the petitioners before it which is
G
translated by the High Court as follows:
''The assessment shown in the pattayam is the share due
to the Government for the agricultural produce on the
surface of the property. If minerals are found in the property
and the minerals are worked by the pattadar with regard
H
874
SUPREME COURT REPORTS
[2013) 7 S.C.R.
A
to those properties a separate tax is to be paid in addition
to the tax shown in the pattayam."
13. The High Court though referred to the standing 9rder
of the Madras Revenue Board dated 19th March 1888, it did
B not record any conclusive finding on the effect of the said order.
c
D
E
F
G
14. Before us the same submissions which were made
before the High Court were repeated by both the parties,
therefore, we are not elaborating the submissions made before
us.
15. Before we examine the correctness of the ju_dgment
under appeal, we deem it necessary to take note of the legal
position regarding the rights over minerals as they obtain ih
England. Halsbury's Laws of England4 state the legal position:
"19. Meaning of 'land' and cognate terms. Prima facie
'land' or 'lands' includes everything on or under the surface,
although this meaning has in some cases been held to
have been restricted by the context. 'Soil' is apt to denote
the surface and everything above and below it, but similarly
its meaning may be restricted by the context so as to
exclude the mines. 'Subsoil' includes everything from the
surface to the centre of the earth ...... .
20 ...... Mines, quarries and minerals in tfieir original
position are part and parcel of the land. Consequently the
owner of surface land is entitled prima facie to everything
beneath or within it, down to the centre of the earth. This
principle applies even where title to the surface has been
acquired by prescription, but it is subject to exceptions.
Thus, at common law, mines of gold and silvery belong to
the Crown, and by statute unworked coal which was, at the
restructuring date, vested in the British Coal Corporation
is vested in the Coal Authority. Any minerals removed from
land under a compulsory rights order or opencast working
H
4. [Vol.31, 4th Ed. pp.28-29].
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 875
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]
of coal become the property of the person entitled to the
A
rights conferred by the order. The property in petroleum
existing in its natural condition in strata is vested by statute
in the Crown."
16. We are required to examine whether the law of this
8
country and more particularly with reference to Malabar area
regarding the rights over the mines and minerals is the same
as it obtains in England or different.
17. By the time South India came under control of the
British Government, there were in vogue innumerable varieties C
of land tenures in various parts of South India which eventually
came to be called the Madras Presidency. The history of these
tenures and how they were dealt under the various laws made
either by the East India Company government or the British
government (hereinafter in this judgment both the above are D
referred to as 'British' for the sake of convenience) was
examined in detail in two seminal works titled - the Land
Systems of British India by Sedan Henry Powell first published
in 189i and Land Tenures in the Madras Presidency by S.
Sundararaja Iyengar, published in 1916.
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18. Both the above-mentioned works examined the nature
and legal contours of various kinds of land tenures in vogue.
While Powell's book dealt with the pan Indian situation, lyengar's
book is confined to Madras presidency alone. Both the books
took note of the existence of a land tenure known as jenmom
F
in the present State of Kerala.
19. The history of the land tenures in South India and salient
features of jenmon rights or the rights of a jenmi fell for the
consideration of this Court on more than one occasion. Two
G
Constitution Benches of this Court had occasion to examine the
above questions in Karimbil Kunhikoman v. State of Kera/a
[AIR 1962 SC 723), and Ba/madies Plantations Ltd. and Anr.
v. The State of Tamil Nadu [AIR 1972 SC 2240), wherein their
Lordships examined in some detail the nature of land tenures
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as they existed in the erstwhile Madras province generally and
the Malabar area specifically.
20. In the case of Kunhikoman (supra), this Court held that
there were two varieties of tenures in existence in the erstwhile
B province of Madras. Those tenures were known as landlord
tenures and ryotwari tenures. It was held by this Court that the.
landlord tenures were governed by the various enactments in
force from time to time whereas the ryotwari tenures were
governed by the standing orders of the Board of Revenue - in
C other words the orders issued by the Executive Government of
the Madras province5.
21. Eventually, the landlord tenures in the erstwhile
province of Madras came to be governed by the enactment
known as Madras Estates Land Act, No. 1 of 1908 which
D admittedly did not apply to Malabar area.6
22. The Madras Estates Land Act, 1908, which extensively
dealt with the rights and obligations of the landlords/landholders
owning an estate (popularly known as Zamindars) expressly
E recognises the right of the landholder to reserve mining rights
while admitting a ryot to the possession of the ryoti land.7 By
F
5.
Kunhikoman case - Para 12 ...... The usual feature of land-tenure in Madras
was the ryotwari form but in some districts, a landlord class had grown up
both in the northern and southern parts of the Presidency of Madras as it
was before the Constitution. The permanent settlement was introduced in
a part of the Madras Presidency in 1802. There were also various tenures
arising out of revenue free grants all over the Province (see Chap. JV, Vol.
Ill of Land Systems of British India by Baden Powell) and sometimes in
some districts both kinds of tenures, namely, landlord tenures and the
ryotwari tenures were prevalent. There were various Acts, in force in the
Presidency of Madras with respect to landlord tenures while ryotwari tenures
G 6.
were governed by the Standing Orders Clf the Board of Revenue.
Para 12 of Kunhikoman (supra) - ..... Eventually, in 1908, the Madras
legislature passed the Madras Estates Land Act, No. 1 of 1908
H
..................... This Act applied to the entire Presidency of Madras except
the Presidency town of Madras, the district of Malabar and ...... .
7.
Section 7 - Reservation of mining rights - Nothing in this Act shall affect
any right of a landholder to make a reservation of mining rights on admitting
any person to possession of ryoti land.
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 877
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]
necessary implication it follows that the landholder had the legal
A
right and title to the minerals/subsoil over the lands comprising
his estate and he is legally entitled either to grant the mining
rights to the ryot or withhold the same. This implication which
we drew gets fortified by Section 3 of Estates Abolition Act
which expressly declares that with effect from the 'notified date'
B
- a defined expression under Section 1(10), the estate with all
the assets including mines and minerals shall stand transferred
to and vest in the State. If the minerals/subsoil did not belong
to the estate holder, there was no need to make an express
declaration such as the one made in Section 3(b).8
c
23. Similarly, it can also be noticed that under various
enactments abolishing the various lands tenures in South India
such as inams etc., express provisions were made that the
mines and minerals existing in such abolished tenures shall 0
stand transferred to the Government and vest in the
Government. See, for example, Section 2-A9 of The Andhra
Pradesh (Andhra Area) lnams (Abolition and Conversion into
Ryotwari) Act, 1956. We must remember that Andhra area of
the present State of Andhra Pradesh was part of the old
Madras Province.
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24. State of Andhra Pradesh v. Duwuru Balarami Reddy
8.
Section 3(b) - the entire estate including minor imams (Post- settlement
or pre-settlement) included in the assets of the zamindari estate at the
permanent settlement of that estate; all communal lands and porambokes; F
other non-ryoti lands; waste lands; pasture lands; Lanka lands; forests;
mines and minerals; quarries; rivers and streams; tanks and irrigation
works; fisheries; and ferries, shall stand transferred to the Government and
vest in them, free of all encumbrances; and the Andhra Pradesh (Andhra
Area) Revenue Recovery Act, 1864 the Andhra Pradesh (Andhra Area)
Irrigation Gess Act, 1865 ·and all other enactments applicable to ryotwari G
areas shall apply to the estate;
9.
2-A. Transfer to, and vesting in the Government of all communal lands,
porambokes etc. in inam lands - Notwithstanding anything contained in
this Act all communal lands and porambokes, grazing lands, waste .lands,
forest lands, mines and querries, tanks, tank-beds andirrigation. works,
streams and rivers, fisheries and ferries in the inam lands shall stand
transferred to the Government and vest in them free of all encumbrances.
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& Ors. 10 was a case where the respondents before this Court
secured a lease of a piece of land in an inam village (shrotriem)
and sought to carry on mica mining operation and applied for
permission from the State of Andhra Pradesh under the Mineral
Concession Rules, 1949 made under the Mines & Minerals
B
Regulation & Development Act, 1948. The question was
whether the lessor (shrotriemdar) had rights over the subsoil/
minerals and whether he could pass rights therein by a lease.11
A Constitution Bench of this Court examined the rights of the
/namdar under the legal regime that existed in the Madras
c province and came to the conclusion on the basis of a decision
of the Privy Council12 that every lnamdar necessarily did not
own the subsoil rights. Such right depended upon the terms of
10. [11] AIR 1963 SC 264.
D
11. The main question therefore that falls for decision in these appeals is
whether shrotriemdars can be said to have rights in the minerals. (para 7)
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12. This matter has been the subject of consideration by the Madras High Court
on a number of occasions and eventually the controversy was set at· rest
by the decision of the Judicial Committee in Secy. Of State for India v.
Srinivasachariar. 48 Ind App 56 : (AIR 1921 PC 1). That case came on
appeal to the Judicial Committee from the decision of the Madras High
Court in Secy. Of State for India v. Srinivasachariar, ILR 40 Mad 268: (AIR
1918 Mad 956). The controversy before the Madras High Court was with
respect to a shrotriem inam which was granted by the Nawab of Carnatic
in 1750 and had been enfranchised by the British Government in 1862.
(para 7)
The Judicial Committee held that the grant of a village in inam might be no
more than an assignment of revenue, and even where there was included
a grant of land, what interest in the land passed must depend on the
language of the instrument and the circumstances of each case. The
Judicial Committee also considered the standing orders of the Board of
Revenue of 1890 and 1907 which have been referred to by the appeal court
in the judgment under appeal. This decision thus establishes that the mere
fact that a person is the holder of an inam grant would not by itself by
enough to establish that the inam grant included the grant of sub-soil rights
in addition to the surface rights and that the grant of sub-soil would depend
upon the language used in the grant. If there are no words in the grant
from which the grant of sub-soil rights can be properly inferred the inam
grant would only convey the surface rights to the grantee, and the inam
grant could not by itself be equated to a complete transfer for value of all
that was in the grantor. (para 8)
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTI. 879
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]
the original grant - lnam. It, therefore, follows that in a given
A
case if the original grant of /nam specifically conveyed the
subsoil rights (by the grantor), the lnamdar would become the
owner of the mineral wealth also.
25. The necessary inference is that the British recognised
that the State had no inherent right in law to be the owner of all
B
mineral wealth in this country. They recognised that such rights
could inhere iri private parties, at least Zamindars and
lnamdars or ryots claiming under them in a given case.
26. Coming to the ryotwari tenures, this Court held that they
were governed by the standing orders issued from time to time
C
by the Revenue Board. Under the ryotwari system land was
given on lease by the government to the ryot under a patta.
Noticing the salient features of the ryotwari system as explained
in various authoritative works, this Court opined that "though a
ryotwari pattadar is virtually like a proprietor and has many of
the advantages of such a proprietor", such pattadar was never D
considered a proprietor of land but only a tenant. 13
27. We must remember that in the case of Kunhikoman
13. Para 13 of Kunhikoman (supra) - ...... The other class of land-tenures
consisted ofryotwari pattadars which were governed by the Board's
Standing Orders, there being no Act of the legislature with respect to them.
The holders of ry_otwari pattas used to hold lands on lease from
Government. The basic idea of ryotwari settlement is that every bit of land
is assessed to a certain revenue and assigned a survey number for a
period of years, which is usually thirty and each occupant of such land holds
it subject to his paying the land-revenue fixed on that land. But it is open to
the occupant to relinquish his land or to take new land which has been
relinquished by some other occupant or become otherwise available on
payment of assessment (see Land Systems of british India by BadenPowell, Vol. Ill, Chap. IVS. II, p. 128). Though, theoretically, according to
some authorities the occupant of ryotwari land held it under an annual lease
(see Macleane, Vol. I Revenue Settlement, p. 104), it appears that in fact
the Collector had no power to terminate the tenant's holding for any cause
whatever except failure to pay the revenue or the ryot's own relinquishment
or abandonment. The ryot is generally called a tenant, of Government but
he is not a tenant from year to year and cannot be ousted as long as he
pays the land revenue assessed. He has also the right to sell or mortgage
or gift the land or lease it and the transferee becomes liable in his place
for the revenue. Further, the lessee of a ryotwari pattadar has no rights
except those conferred under the lease and is generally a sub- tenant at
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(supra}, the petitioners did not claim any adjudication of their
rights as holders of jenmom lands. On the other hand, the
appellants asserted that they were holders of ryotwari pattas
issued according to ryotwari settlement in the erstwhile State
of Madras under the revenue Board Standing Order. This Court
B further recorded:-
" ........ it is not in dispute that the ryotwari system was
introduced in the South Canara District in the earlier years
of this century"
28. The question before this Court was whether the holder
c of such a ryotwari patta could be called the holder of an estate
within the meaning of the Kerala Agrarian Relations Act and
therefore, precluded by Article 39A of the Constitution to claim
the benefit of the fundamental rights under Articles 19(1)(d) and
31 of the Constitution.
29. The legal nature of the rights of a jenmi was considered
D in greater detail in the case of Ba/madies Plantations (supra).
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At para 6 of the said judgment, the Constitution Bench
recorded:-
"6 .......... Originally the janmis in Malabar were absolute
proprietors of the land and did not pay land revenue. After
Malabar was annexed by the British in the beginning of the
19th century, the janmis conceded the liability to pay land
revenue ........ "
30. This Court took note of a decision of the Madras High
Court in Secretary of State v. Ashtamurthi [(1890) ILR 13 Mad
will liable to ejectment at the end of each year. In the Manual of
Administration, as quoted by Baden Powell, in Vol. Ill of Land Systems of
British India at p. 129, the ryotwari tenure is summarized as that
"of a tenant of the State enjoying a tenant-right which can be inherited, sold,
or burdened for debt in precisely the same manner as a proprietary right,
subject always to payment of the revenue due to the State".
Though therefore the ryotwari pattadar is virtually like a proprietor and has
many of the advantages of such a proprietor, he could still relinquish or
abandon his land in favour of the Government. It is because of this position
that the ryotwari pattadar was never considered a proprietor of the land
under his patta, though he had many of the advantages of a proprietor.
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 881
OF MINING & GEOLOGY [J. CHELAMESWAR, J.)
89]14 where the Madras High Court recorded:-
" .. At the annexation of Malabar in 1'799, the Government
disclaimed any desire to act as the.proprietor of the soil,
and directed that rerit should be collected from the
immediate cultivators. Trimbak Ranu v. Nana Bhavani
(1875) 12 Born HCR 144 and Secretary of State v. Vira
Rayan (1886) ILR 9 Mad 175 thus limiting its claim to
revenue. Further in their despatch of 17th December 1813
relating to the settlement of Malabar the Directors
observed that in Malabar they had no property in the land
to confer, with the exception of some forfeited estates.
This may be regarded as an absolute disclaimer by the
Government of the day of any proprietary right in the janmis'
estate ...... "
31. This Court in Balmadies Plantations case (supra)
quoted with approval the above extracted passage from
Ashtamurthi's (supra) judgment.
32. It was specifically argued on behalf of Balmadies
Plantations that by virtue of a resettlement which took place in
1926, the jenmom rights were converted into ryotwari tenure.
This Court on examination of the relevant standing orders
reached the conclusion that the effect of the Resettlement of
1926 was to retain the jenmom estates and not to abolish the
same and convert into ryotwari estates.15
14. In the said case, the Madras High Court had to deal with the rights of a
jenmi whose lands were leased out to a third party by the Collector (State)
without reference to the jenmi and when the tenant defaulted in the payment
of revenue, property was attached and sold under the provisions of the
Madras Revenue Recovery Act. The jenmi successfully challenged the
legality of such a sale.
15. Para 11 of Balmadies (supra) ........ It would appear from the above that
the effect of the resettlement of 1926 was to retain the janmam estates
and not to abolish the same or to convert them into ryotwari estates. There
was merely a change of nomenclature. Government janman lands were
called the new holdings, while private janmam lands were called the old
holdings. In respect of janmabhogam (janmi's share) relating to
Government janman lands, the order further directed that the amount to be
paid to the Government should include both the taram assessment and
janmabhogam. ft is difficult, in our opinion, to infer from the above that
janmam rights in the lands in question were extinguished and converted
into ryotwari estates.