judgement:
Civil Appeal No. 2218 of 1969.
Appeal by Special Leave from the Judgment and Decree dated 14 3 1969 of the Calcutta High Court in appeal from Appellate Decree No 718 of 1962.
D. N. Mukherjee and N. R. Chaudkary for the Appellant.
Purshottam Chatterjee, P. K. Chatterjee and Rathin Das, for the Respondents.
The Judgment of tho Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated March 14, 1969, of the High Court at Calcutta.
22 The appellant had the interest of a Darpatnidar in the land in suit, measuring 9 acres (27 bighas).
The plaintiff by a lease deed (Ex.
A) dated July 10, 1941, granted to the defendant respondents a lease of this land for the purpose of raising and taking sand out of the land for a period of 9 years ending on July 13, 1949.
In this lease deed, the property was described to be Patni Mahal.
Under the terms of this lease, the lessee had an option of renewal for another 9 years.
Subsequently on April 27, 1950, appellant made a similar grant (exhibit
I) for another 9 years expiring on April 13, 1959 but this grant was called a "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 being a licence, the plaintiff intermediary was entitled to retain the holding under Section 6 (1) (i) of the Act.
Allowing the Second Appeal by the defendants, the High Court held: (a) that if the lease (Ex.A), being a lease for 9 years, was void under Section 107 of the , it would still operate as a lease from month to month; (b) it was not a licence; and (c) section 28 of the Act applied and, as the plaintiff was not directly working the mine in the land, he could not retain it.
23 Aggrieved, the plaintiff has come in appeal by special leave to this Court.
The principal question that falls to be determined is: whether Section 6 or Section 28 of the Acquisition Act governs the case ? The High Court has held that it is Section 28, and not Section 6, which is applicable; while the appellant contends that Section 6 is applicable by virtue of which he is entitled to retain the holding.
Section 6, so far as relevant for our purposes, is in these terms: "6.
Rights of intermediary to retain certain kinds (1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub section (2) but subject to the other provisions of that sub section, be entitled to retain with effect from the date of vesting;. . . (i) Where the intermediary is. an institution established exclusively for a religious or a charitable purpose, or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both land held in khas by such . institution or person, not being a tenant, by leave or licence of such. institution or person.
" The contention of the learned counsel for the appellant is that since the suit land was held by the appellant intermediary in khas for a religious purpose through a licensee the defendant being a licensee, and not a tenant he would be entitled to retain and hold this land from the date of vesting by virtue of clause (i) of sub section (1) of Section 6.
The other relevant provisions are in Chapter IV of the Acquisition Act.
They are as follows: "Sec. 27.
Provisions of Chapter IV to override other pro visions of the Act.
The provisions of this Chapter shall have effect notwithstanding anything to the contrary elsewhere in this Act." "Sec. 28.
Right 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 24 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 , 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 Development) Act, (No. 67 OF 1957) include "ordinary sand".
Clause (c) of the same Section defines "mining lease" as a "lease granted for the purpose of undertaking mining operations, and includes a sub lease granted for such purpose.
" Clause (d) of the same Section defines "mining operations" to mean "any operations undertaken for the purpose of winning any minerals.
" Before the High Court, it was common ground between the parties that the land in dispute has a sub soil deposit of sand and the rights granted to the respondent, under the document (exhibit I); styled as a 'licence ', were "to raise" and "take" away that deposit of sand.
Before us, an attempt was made to deviate from that stand by con tending that the deposits of sand are on the surface in the shape of sand dunes and for removing the same no excavation or mining operations are necessary.
The contention must be repelled.
The definition of "mining operations" and "mine", noticed above, are very wide.
The expression "winning of mineral" in the definition of 'mining operations ' is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth.
As pointed out by this Court in B. Dass vs State of Uttar Pradesh(1), it is wrong to assume that mines and minerals must always be sub soil and that there can be no minerals on the surface of the earth.
It is true that in the definition of "Mine", the term "excavation", in the ordinary dictionary sense, means "hole", "hollow" or "cavity made by digging out".
But the word "any" prefixed to "excavation" (1) ; 25 in the context of the phrase "for the purpose of searching for or obtaining mineral" gives it a much more extensive connotation, so that every "excavation", be it in the shape of an open cast cavity or a subterranean tunnelling, will fall within the definition of 'Mine '.
Similarly, it is not a requirement of the definition of 'mining operation ' that the activity for winning the mineral, must necessarily be an under ground activity.
The essence of 'mining operations ' is that it must be an activity for winning a mineral, whether 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 construed, the phrase "being directly worked by him" in the Section will not take in a case were the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the intermediary in consideration of receiving a periodic rent, royalty or a like amount.
It was contended by the learned counsel for the appellant, that this interpretation of the phrase "directly worked by him", is inapplicable to an intermediary who is an idol because an idol, albeit a juristic person, has perforce to work the mine through a lessee or licensee.
The argument is ingenious but untenable.
The idol held the suit land comprised in the mine as an intermediary, only in the juristic sense, but, in fact he was exercising his rights in the suit land, through his human representative, the Shebait, Mohanta Srimat Dandi Swami.
The Shebait could in that representative capacity, directly work the mine himself.
But, instead of doing so, he, on April 27, 1950 granted the right of carrying on mining operations in the land and taking away the mineral, on payment of an annual sum for a period of 9 years to 3 196SCI/79 26 the respondents.
Thus, irrespective of whether this transaction or grant, dated April 27, 1950, was a lease or a license, the fact remains that immediately before the date of vesting, the mine in the suit land, was not being "directly worked " by the intermediary within the con templation of Section 28.
The provisions of Section 6(1) (i) of the Acquisition Act, extracted earlier, give to an intermediary a right to retain land held by him in khas for the purposes mentioned therein, through a licensee.
Section 28, as construed by us, denies the right to retain the land comprised in a mine or appertaining to a mine, it, at the material date, it was not being directly worked by the, intermediary but through a licensee, or other agency to whom the right to conduct mining operations had been granted by the intermediary.
In that respect, the provisions of Section 28 (in Chapter IV) are contrary to those of Section 6(1) (i).
In this situation, according to the legislative mandate in Section 27, the provisions of Section 6(1)(i) must yield to those in Section 28.
Assuming arguendo, that the plaintiff was at the material time, holding the land in khas through a licensee and fulfilled all other conditions 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 (exhibit 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 (exhibit I), which is named as a licence, is to be construed in the light of this cardinal canon.
The Agreement (exhibit 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 taken out and proposal having been made to the second parties for the purpose of business, the second parties agreed to take settlement to the effect that we can take out 27 the sands of the said lands and become bound by the agreement on the following terms and conditions of taking out the sand from the said land only.
TERMS AND CONDITIONS 1.
The sand which is in the said land belongs to the own share of the First Party and should be taken out within the month of Chaitra from 1357 to 1365.
Save and except the raising of the said sand there will be no right, title and interest in the land with the First Party.
No right, title and interest will accrue to the First Party in respect of the land.
The First Party for the purpose of raising sand, will pay Rs. 66/ (Rupees sixty six) per annum as the price of the said sand.
If the Government fixes any new amount of demand, then, save and except this, they will take the said amount of Rs. 66/ and/or the Second Party will not be entitled to claim the same.
If the amount is not paid within the month of Chaitra every year, then the parties will not be entitled to raise the sand next year, and for realisation of the said amount of Rs. 66/ , Second Party can bring a suit against the First Party, and will get the arrears of interest at the rate of 12%.
At the end of the stipulated period, the Second Party will take khas possession of the said land; and the licence of the First Party will be revoked. " (Emphasis added) From what has been extracted above, the following characteristics of the transaction are clear: F (i) A right to "raise" and "take out" and remove sand "lying inside" the land in dispute was granted by the plaintiff to the defendant.
The words "raise" and "take out sand" from "inside" the land are wide enough to include not only the "right to carry out all the operations" necessary for extracting sand, but also to take it away and appropriate it.
Construed in the context of the document as a whole, these words put it beyond doubt that rights to carry out mining operations" [within the definition in clause (d) of Section 3 of the Central Act 67 of 1957] for winning sand and to appropriate it were granted.
(ii) The rights were granted for a period of 9 years, commencing from April 27, 1950.
28 (iii)These rights were granted for a "price" fixed on yearly basis, irrespective of the quantity of sand extracted.
The "price" fixed is Rs. 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 exhibit
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 the said period of 9 years.
It is contended on behalf of the appellant that, according to Condition 2 of the Agreement (extracted above), "except the raising of the sand", no right, title and interest in the land was given to the defendant.
It is submitted that in view of this express condition, the transaction was only a 'licence '.
Relying on Paragraph 899 of Halsbury 's Laws of England, 3rd Edition, Vol. 26, it is maintained that, in any case, it is not a 'lease ' as defined in Section 105 of the , but only a contract to sell sand, the price being pay able in yearly instalments.
It is emphasised that the essential characteristic 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 user disappear.
Reference has also been made to the dictum of the Judicial Committee of the Privy Council in Raj Kumar Thakur Giridhari Singh vs Megh Lal Pandey(l), and the decision of the House of Lords in Gowan vs Christie(2).
We are unable to accept these contentions.
Para 899 of Halsbury 's Laws of England (ibid) reads, thus: "A lease may be granted of land or any part thereof, and since minerals are a part of the land it follows that a (1) L. R 44 I.A.246.
(2) [1873] L. R. 29 lease can be granted to the surface of the land and the A minerals below, or of the surface alone, or of the minerals alone.
It has been said that a contract for the working and getting of minerals alone though for convenience called a mining lease, is not in reality a Lease, at all in the sense in which one speaks of an agricultural lease, and that such a contract, properly considered, is really a sale of a portion of 1 the land at a price payable by instalments, that is, by way of rent or royalty, spread over a number of years.
" This statement of the law in England, appears to be founded on the observations of Cairns, L. J. in Gowan vs Christie (ibid) and Gozens Hardy, L.J. in Aldam 's Settled Estate(1).
In Raj Kumar Thakur Giridhari Singh (ibid), Lord Shaw, delivering the opinion of the Board, said that "it must be born in mind also that the essential characteristic 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".
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 .
But, as rightly pointed out by a Bench of the Calcutta High Court in Fala Krishna Pal vs Jagannath Marwari(2), 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 'lease ' as defined in the .
Nevertheless, in the accepted legal sense, it has always been regarded as a lease in this country.
In Fala 's case (ibid) Mukerji, J., speaking for the Bench, held that a coal mining settlement may be regarded as satisfying the requirements of Section 105 and treated as a lease because under such H (1) at page 56.
(2) I. L. R. 30 settlement some portion, however small, of the surface has to be used for carrying on the mining operations and taking the coal out.
Be that as it may, in the instant case, as shall be presently discussed, the transaction evidenced by exhibit I, not only falls within the definition of a "mining lease" under Act 67 of 1957, but also partakes of all the essential characteristics of a 'lease ' defined in Section 105 of the .
Section 105, , defines a 'lease ' of immovable property as "a transfer of a right to enjoy such property, made for a a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
" In the second paragraph of the Section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent.
" The definition of 'immovable property ' given in Section 3, Para I of that Act is in the negative, and is not exhaustive.
Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3.
According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth".
In short, the expression 'immovable property ' comprehends all that would be real property according to English Law and possibly more.
(See 1 I.A. 34).
Thus, every interest in immovable property or a benefit arising out of land, will be 'immovable property ' for the purpose of Section 105, .
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 31 before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, , 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 vs Bengal Coal Company(1).
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 susceptible.
Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are ex hausted the physical occupation must necessarily be partial." In H. V. Low & Co. Ltd. vs Jyoti Prasad Singh Deo(2), the law, as laid down in Gowan 's case (ibid), was strongly relied upon by the appellants, therein.
Negativing this contention, the Judicial Committee pointed out that the rights and liabilities of lessor and lessee are defined in Section 108 of the , and the appellant h ad not shown that the respondent had failed, or was not in a position to perform the duties incumbent on a lessor under Section 108 of the said Act.
The discussion will not be complete without noticing, the decision of the Patna High Court in Commissioner of Income Tax, Bihar & Orissa vs Kumar Kanakhaya Narain Singh(3), which is ill point.
In that case.
after an exhaustive survey of all the decisions on the subject, (including some of those which have been cited before us) a Full Bench consisting of three eminent Judges, held that coal mining settlements whereby certain rights of entering upon the land of the settlor, sinking shafts etc.
and winning and taking away the coal are granted in consideration of receiving a salami and annual sums computed on the amount of coal raised and the amount of coke manufactured, subject always to a minimum annual sum which was always payable irrespective of what coal was raised or coke manufactured, were not "a sale of coal", but could be regarded as 'leases ' within the meaning of Section 105 read with Section 108, , or with (1) [1930] L. R. 58 I. A. 29.
(2) [1931] 1. L. R. ; L. R. 58 I. A. 392.
(3) 1.
L. R. (XX) Patna 13.
32 in the legal acceptance of the term "lease" in this country.
This decision of the High Court was affirmed by the Judicial Committee, and the appeal filed by Kumar Kanakhaya was dismissed.
(See L.R. 70 I.A. 180).
The ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years.
The transaction (exhibit 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 (exhibit 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.

summary/full:
The appellant idol, a juristic person, was exercising the rights, through the Shebait, Mohanta Srimati Dandi Swami, of a Darpatnidar in the land in suit.
By a lease deed (exhibit A), dated July 10, 1941, the appellant granted to the respondents a lease of the suit land for the purpose of raising and taking sand out of the land for a period of nine years ending on July 13, 1949.
Subsequently, on April 27, 1950, the appellant made a similar grant (exhibit I) for another nine years expiring on April 13, 1959, but this grant was called "licence".
The respondents did not pay the licence fee for the period 1362 (14 4 1955) to 1365 B.S.
The appellant thereupon issued notice dated March 31, 1966, terminating the 'licence ' and then filed a suit No. 37 of 1960 for ejectment of the respondent in the Court of the Munsiff, Chandernagore.
The trial court having dismissed the suit, the appellant filed a first appeal which was allowed.
In second appeal the High Court restored the decree of the trial court.
In appeal by special leave to this Court, it was contended on behalf of the appellant: (a) The transaction evidenced by the document (exhibit I) dated April 277 1950 was a 'license ' for taking away sand and not a 'lease ' of immovable property.
Therefore, the appellant intermediary will be considered to be in Khas possession of the holding on the date of vesting (April 1, 1955) through the licensee and as such.
entitled to retain it under Section 6 of the Bengal Estates Acquisition Act.
1953; (b) Section 28 of the Bengal Estates Acquisition Act, 1953 is not applicable because there was no 'mine ' in the suit land, as defined in the Central Act 67 of 1957; the sand deposits naturally exist on the surface and not below it and mere collection and removal of the sand from the surface did not constitute mining operations.
therefore, it could not be said that the suit land was comprised in a mine or appertained to a mine within the meaning of the said Section 28; (c) Even if the land was a 'mine ' or appertained to a mine, the mine was being worked by the appellant through a licensee, and as such, was being 19 'directly worked ' by the appellant intermediary within the contemplation of Section 28 of the Bengal Estates Acquisition Act, and therefore, the land would be deemed to have been leased to the appellant by the Government.
Rejecting these contentions, and dismissing the appeal, ^ HELD: A.
In ascertaining whether a document evidences a 'lease ' or a 'licence ', regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed.
[26F] .
The document (exhibit I the Agreement), in the instant case reveals the following characteristics.
which show that in fact and substance, it is a 'lease" and not a 'licence ': [27E, 32C] (i) A right to "raise ' and "take out" and remove sand "lying inside" the land in dispute was granted by the plaintiff to the defendant.
The words "raise" and "take out sand" from "inside" the land are wide enough to include not only the "right to carry out all the operations" necessary for extracting sand, but also to take it away and appropriate it.
Construed in the context of the document as a whole, these words put it beyond doubt that right to carry out "mining operations" [within the definition in Cl.
(d) of section 3 of the Central Act 67 of 1957] for winning sand and to appropriate it, were granted.
[27F G] (ii) The rights were granted for a period of 9 years, commencing from April 27.
[27H] (iii) These rights were granted for a "price" fixed on yearly basis, irrespective of the quantity of sand extracted.
The "price" fixed is Rs. 66/ per annum.
This consideration is payable in 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.
[28A B] (iv) "The Second Party will be entitled to take Khas possession of land" "at the end of the stipulated period.
This condition, (contained in paragraph 4 of exhibit 1) 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 "licence" before the end of the said period of 9 years.
[28B D] The term "lease" occurring in the definition of "mining lease" given in cl.
(c) of section 3 of the Mines and Minerals (Regulation and Development) Act is not used in the narrow technical sense in which it is defined in section 105 of the .
A mining lease may not meticulously and strictly satisfy in all cases, all the characteristics of a "lease" as defined in the .
Nevertheless, in the accepted legal sense, it has always been regarded as a lease in this country.
[29E G] In the instant case the transaction evidenced by exhibit I not only falls within the definition of a mining lease under Act, 67 of 1957, but also partakes of 20 all the essential characteristics of a "lease" defined in section 105 of the .
[30 A B] Balakrishna Pal vs Jagannath Marwari, ILR ; approved Raj Kumar Thakur Girdhari Singh vs Megh Lal Pandey LR 44 I.A. 246; Gowan vs Christie, ; differed.
The negative definition of "immovable property" given in section 3, Para 1 of the , is not exhaustive.
Therefore, applying the definition given in section 3(26) of the General Clauses Act (X of 1897) to the expression used in the , except as modified by the definition in the first clause of section 3 every interest in immovable property or a benefit arising out of land, will be 'immovable property ' for the purpose of section 105, .
[30E G] 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 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, it can be enjoyed and occupied by the lessee by working it as indicated in section 108 of the which regulates the rights and liabilities, of lessors and lessees of immovable property, [30G H, 31A] Nageshwar Bux Roy vs Bengal Coal Company, [1930] LR 58 IA 29; applied.
H. V. Low & Co. Ltd. vs Joyti Prasad Singh Deo, Cal. 699; LR 58 IA 392.
differed from.
Commissioner of Income Tax, Bihar and Orissa vs Kumar Kanakhaya Narain Singh, ILR (XX) Patna 13; approved.
The true character of the transaction evidenced by the document (exhibit 1) being that of a 'lease ' and not a 'licence, ' Section 6(1)(i) of the West Bengal Estates Acquisition Act, 1953 will not cover the appellant 's case and give him a right to retain the land in dispute, even if section 28 of that Act was out of the way.
[32C D.] B.
The definition of "mining operations" and "mine", in the Central Act 67 of 1957 are very wide.
The expression "winning of mineral" in the definition of "mining operations is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth, irrespective of whether such activity is carried out on the surface or in the bowels of the earth.
Mines and minerals need not always be sub soil and there can be minerals on the surface of the earth.
[24G] B. Dass vs State of U.P. ; , reiterated.
It is true that in the definition of "mine", the term "excavation" in the ordinary dictionary sense means "hole", "hollow" or "cavity made by digging out".
But the word "any" prefixed to "excavation" in the context of the phrase "for the purpose of searching for or obtaining mineral" gives it a 21 much more extensive connotation, so that every "excavation", be it in the shape of an open cast cavity or a sub terranean tunnelling, will fall within the definition of 'mining operations '.
The essence of 'mining operations ' is that it must be an activity for winning a mineral, whether on the surface or beneath the surface of the earth.
[24H, 25A B] In tho instant case, the land in dispute has large deposits of sand, which is a minor mineral.
The sand was admittedly being excavated and removed by the respondent lessee.
The land was, thus, at the date of vesting, "com prised in or appertained to a 'mine ' within the meaning of section 28 of the West Bengal Estates Acquisition Act, 1953.
[25B C] C.
The phrase "being directly worked by him" in section 28 of the West Bengal Estates Acquisition Act, 1953, will not take in a case where the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the intermediary in consideration of receiving a periodic rent, royalty or a like amount.
[25E F] The word "directly" means "in a direct way, without a person or thing coming between", immediately as directly responsible.
The use of the expression "directly" in the context of the word "worked", followed 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.
[25C E] Section 28 of the West Bengal Estates Acquisition Act, 1953 denies the right to retain the land comprised in a mine or appertaining to a mine, if, at the material date, it was not being directly worked by the intermediary but through a licensee, or other agency to whom the right to conduct mining operations had been granted by the intermediary.
In that respect, the provisions of s.28 are contrary to those of section 6(1)(i), which give to an intermediary a right to retain land held by him in khas for the purpose mentioned therein through a licensee.
In this situation, according to the legislative mandate in section 27, the provisions of section 6(1) (i) must yield to those in section 28.
[26 B C] Thus, even on the assumption that the respondent was at the material date, holding the land in Khas through a licensee and fulfilling all other conditions which entitled him to retain under section 6 (1) (i), then also, the case being in conflict with section 28, the latter section would prevail over the former.
[26D & 32E]


judgement:
Civil Appeals Nos.
1760 1763/69.
Appeals by Special Leave from the Judgment and Decree dated 25 10 1967 of the Andhra Pradesh High Court in Civil Revision Application Nos.
342 345/64.
Vepa P. Sarathi and A. V. Rangam for the Appellant.
Ex parte for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The petitioner who lost before the Subordinate Tribunals and the High Court is the appellant in this appeal by special leave.
Alleging that he was the landlord and that the respondents were his tenants in respect of certain lands in Bhommika village, the appellant filed petition before the Tehsildar, Pathapatnam under Section 13 of the Andhra Tenancy Act for the eviction of the respon 203 dents on the ground of default in payment of rent.
The respondents pleaded that the lands were situated in an Inam Estate which had been taken over by the Government under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948, and that, they and their ancestors, who had occupancy rights were always in cultivating possession of the lands.
It was also pleaded that after the taking over of the estate by the Government there was no longer any relationship of landlord and tenant between the petitioner and the respondents.
The Tehsildar dismissed the petition for eviction on the ground, among others, that the respondents had occupancy rights in the land.
The landlord preferred an appeal before the Revenue Divisional Officer, Tekkali.
The Revenue Divisional Officer rejected the appeal on the ground that the petition for eviction was not maintainable since the question as to who was the lawful ryot in respect of any holding in an estate had to be decided by the Settlement Officer under Section 56(1)(c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, and that the decision of such question was within the exclusive competence of the Settlement Officer.
A revision petition filed before the High Court of Andhra Pradesh under Article 227 of the Constitution was dismissed by the High Court again for the reason that the question as to who was entitled to the grant of ryotwari patta had to be decided by the Settlement Officer under Section 56 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act and that the decision of such question was within the exclusive jurisdiction of the Settlement Officer.
The appellant has preferred this appeal by special leave of this Court.
Shri Vepa P. Sarathi, learned Counsel for the appellant argued that the view expressed by the High Court regarding the exclusive jurisdiction of the Settlement Officer to decide the question as to who was the lawful ryot of a holding was not good law in view of the decision of a Full Bench of three Judges of the Andhra Pradesh High Court in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors.
It is not disputed that the lands are situated in Bhommika village.
It is not also disputed that Bhommika village was in Inam estate and that it was taken over by the Government under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act.
The appellant claims that he is the lawful ryot of the lands in dispute and that the respondents are his tenants.
On the other hand the respondents claim that they are the lawful ryots of 204 the holding.
The question at issue between the parties therefore is, whether the appellant or the respondents are the lawful ryots of the holding.
Under Section 56(1)(e) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act "where, after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer".
Section 56(2) provides for an appeal to the Estates Abolition Tribunal against the decision of the Settlement Officer and further provides that the decision of the Tribunal shall be final and shall not be liable to be questioned in any Court of law.
Prima facie, therefore, the question as to who is the lawful ryot of any holding, if such question arises for decision after an estate is notified, has to be resolved by the Settlement Officer and by the Estates Abolition Tribunal under Section 56 (1) (c) and 56(2) of the Andhra Pradesh Estates Abolition Act.
The Andhra Pradesh Estates Abolition Act is a self contained code in which provision is also made for the adjudication of various types of disputes arising after an estate is notified, by specially constituted Tribunals.
On general principles, the special Tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide disputes entrusted by the statute to them for their adjudication.
Shri Vepa P. Sarathi 's submission was that Section 56(1) (c) did not enable the Settlement Officer to decide the question as to who was the lawful ryot of a holding every time such question arose and for all purposes but only when such question arose in connection with the matters dealt with by Section 55 and Section 56(1) (a) and (b).
In other words the argument was that Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b) and that an enquiry into the question as to who was the lawful ryot of a holding under Section 56(1)(c) was permissible only for the purpose of identifying the person liable to pay the arrear of rent which had accrued in respect of the holding before the taking over of the estate.
The submission of Shri Vepa P. Sarathi is supported by the decision of the Full Bench of the Andhra Pradesh High Court in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors.
(supra).
We are, however, unable to see any justification for restricting the scope of Section 56(1)(c) in the manner suggested by Shri Sarathi.
We will briefly indicate our reasons for holding that the scope of Section 56(1) (c) is not to be restricted as was done by the Full Bench of Andhra Pradesh High Court in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors.
(supra).
We 205 are fortunately relieved of the necessity of considering the matter more elaborately in view of the fact that the decision in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors.
on this part of the case has since been over ruled by a Full Bench of five Judges of the High Court of Andhra Pradesh in I. Munuswami Naidu (died) & Ors.
vs R. Venkata Reddy & Ors.
after a thorough and exhaustive consideration of the question.
We may also add here that until the decision in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors., for several years it was understood that Section 56(1) (c) conferred complete and exclusive jurisdiction on the Settlement Officer to decide rival claims of ryots for the grant of ryotwari patta and Section 55 or 56(1)(a) and (b) were never understood as controlling Section 56(1)(c).
A brief resume of the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act relevant for our present purpose is permissible here.
As stated in the preamble the Act was enacted to provide for the repeal of the Permanent Settlement, the acquisition of the Rights of land holders in permanently settled and certain other estates and the introduction of the ryotwari settlement in such estates.
Section 1(4) provides for the notification of estates and Section 3 enumerates the consequences of notifying an estate under Section 1(4) of the Act.
In particular Section 3 (b) provides that the entire estate shall stand transferred to the Government and vest in them free of all encumbrances Section 3(c) provides that all rights and interests created in/or over the estate by the land holder shall cease and determine as against the Government.
Section 3(d) empowers the Government to take possession of the estate but saves from dispossession any person who the Government considers is prima facie entitled to a ryotwari patta until the question whether he is actually entitled to such patta is decided by the Settlement officer in the case of a ryot or by the Settlement Officer and the Tribunal on appeal in the case of a land holder.
Section 3(f) provides that the relationship of the landholder and ryot shall, as between them, be extinguished.
Section 3(g) provides that ryots in the estate shall, as against the Government be entitled only to such rights and privileges as are recognised or conferred on them by or under the Act.
Section 11 confers on every ryot in an estate the right to obtain a ryotwari patta in respect of ryoti land which was included or ought to have been included in the holding on the notified date.
Sections 12, 13 and 14 confer on the land holder the right to obtain a ryotwari patta in respect of private land in a Zamindari, Inam and Under tenure estate respectively.
Section 15(1) provides for enquiry by the Settlement Officer into claims 206 by a land holder for a ryotwari patta, Under Sections 12, 13 and 14.
Section 15(2) provides for an appeal to the Tribunal from the decision of the Settlement Officer and it declares that the decision of the Tribunal shall be final and not liable to be questioned in any Court of law.
Section 16 imposes on every person, whether a land holder or a ryot who becomes entitled to a ryotwari patta under the Act in respect of any land, the liability to pay to the Government the assessment that may be lawfully imposed on the land.
Section 21 to 23 provide for the survey of estates, the manner of affecting ryotwari settlement and the determination of the land revenue.
Sections 55 to 68 occur under the heading "Miscellaneous".
Section 55 provides for the collection of rent which had accrued before the notified date.
Section 56 provides for the decision of certain disputes arising after an estate is notified.
It provides for the decision of a dispute as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is.
The dispute is required to be decided by the Settlement Officer.
Against the decision of the Settlement Officer, an appeal is provided to the Tribunal and the decision of the Tribunal is declared final and not liable to be questioned in any Court of law.
Now the Act broadly confers on every tenant in an estate the right to obtain a ryotwari patta in respect of ryoti lands which were included or ought to have been included in his holding before the notified date and on the land holder the right to obtain a ryotwari patta in respect of lands which belonged to him before the notified date as his private lands.
The Act makes express provision for the determination of claims by landholders for the grant of ryotwari patta in respect of the alleged private lands.
If there is provision for the determination of the claims of a landholder for the grant of ryotwari patta in respect of his alleged private lands, surely, in an Act aimed at the abolition of intermediaries and the introduction of ryotwari settlement, there must be a provision for the determination of the claims of ryots for the grant of ryotwari patta.
Section 56(1) is clearly such a provision.
But in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose.
The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs.
The learned Judges held that Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1)(a) and (b), that the applicability of Section 56(1)(c) must be held to be "intimately and integrally connected" 207 with those provisions.
We think that the approach of the Full Bench was wrong.
Apart from the fact that Section 55 and 56(1)(a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench over looked the serious anomaly created by its conclusion.
The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claims by ryots for the grant of ryotwari pattas.
It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding.
The object of the Act is to protect ryots and not to leave them in the wilderness.
When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding has, it is not for the Court to denude the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation".
Interpretation of a statute, contextural or otherwise must further and not frustrate the object of the statute.
We are, therefore, of the view that Cherukuru Muthuyya vs Gadde Gopalakrishnayya & ors.
(supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b).
We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) & Ors vs R. Venkata Reddi & Ors.
(supra) except to add that to adopt the reasoning of the Full Bench of three Judges in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors. would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray.
In this connection we may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna vs Sriramamurty.
"Where a special tribunal, out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunal 's jurisdiction to determine those questions is exclusive.
Under the 208 Act old rights were abolished and new rights were created.
A lawful ryot is entitled to a patta, when a question arises whether a person is a lawful ryot or not, that question falls to be decided by the special Tribunal created by the Act".
In view of the above discussion the appeal is dismissed.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Under Section 56(1)(c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and conversion into Ryotwari) Act, 1948, "where, after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer".
Section 56(2) of the Act provides for an appeal to the Estates Abolition Tribunal against the decision of the Settlement Officer whose decision was final and not to be questioned in any court of law.
The petition filed before the Tahsildar, Pathapatnam under section 13 of the Andhra Tenancy Act by the appellant, for the eviction of the respondents on the ground of default in payment of rent was dismissed on the ground, among others that the respondents had occupancy rights in the land.
The appeal before the Revenue Divisional Officer Tekkali was dismissed on the ground that the petition for eviction was not maintainable since the question as to who was the lawful ryot in respect of any holding in an estate had to be decided by the Settlement Officer under Section 56(1)(c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act and that the decision of such question was within the exclusive competence of the Settlement Officer.
In the revision petition filed before it under article 227 of the Constitution, the High Court of Andhra Pradesh agreed with the appellate order.
Dismissing the appeal by special leave the Court, ^ HELD: 1.
Interpretation of a statute contextual or otherwise must further and not frustrate the object of the statute.
[207 D] The object of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 is to protect ryots and not to leave them in wilderness.
When the Act provides a machinery in Section 56(1)(c) to discover who the lawful ryot of a holding was, it is not for the Court to denude the Act of all meaning by confining the provisions to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation".
[207 C D] 202 2.
The scope of section 56(1)(c) cannot be restricted to mean that it was controlled by Section 55 and 56(1)(a) and (b) and that an enquiry into the question as to who was the lawful ryot of a holding under that section was permissible only for the purpose of identifying the person liable to pay the arrear of rent which had accrued in respect of the holding before the taking over of the estate.[204 E G] It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwary pattas on ryots and the abolition of intermediaries is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding.
Section 56(1)(c) is indeed such a provision.
A contextual interpretation may not be quite appropriate in view of the fact that Sections 55 and 56(1)(a) and (b) occur under the heading 'Miscellaneous '.
Any other interpretation would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray.
A, B C] Munuswami Naidu (died) & Ors., vs R. Venkata Reddy and Ors., A.I.R. 1978 A.P. 200 (F.B.); approved.
The Andhra Pradesh Estates Abolition Act is a self contained Code in which a provision is also made for the adjudication of various types of disputes arising after an estate is notified by specially constituted Tribunals.
On general principles, the special Tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide disputes entrusted by the statute to them for their adjudication.
[204 D E] Appanna vs Sriramamurthy, ; approved.