the Lodna Colliery Co. Ltd. v. Bhola Nath Roy

Judgment

l'tJ 'f1 l'r•l.P BU.th Dtoli H•"" Na/A SU.,A sui. J. Court had ordered that the hearing of the appeals be expedited and heard on cyclostyled record but the record was not made ready for a long time. We also .find that a large number of documents were included in the books prepared for ueo of tJrn court to \vhich no reference was ma.de at the Bar during the course of the hearing. Wo trust that the oaee will bo taken up for hearing with the least practicable delay a.nd disposed of according to law. The appellants in the two appeals will be entitled to their costs both in this Court and the High Court. The costs of tho trial court will be the cost in the cause. Appeals allowed. Cases remitted. THE LODNA COLLIERY CO. LTD. BHOLA.NATH ROY (B. P. SINH.4, c. J., P. B. GAJENDRA.GA.D.KA.R and RAGilUJIAR DAYAL, JJ.) Lalthraj lan&--Permanently selt/.,J,-Owmra' rigll lo ,<Ub-soil mintrai..

The question arising for decision was whether a pcnon with whom a re1umed invalid Lakhraj (revenue free) land was permanently 11ttfled had rights in the sub-soil minerals or not. Held, that the right of property of the persons with whom resumed invalid Lakhraj land had been settled, being the same as of the Zamindars, extended to the sub-soil min· era ls of the land held by them. Ranjit Singlo v. Kali DMi Dt.bi (1917) L.R.44 I.A. 117, referred to. Bari Narain Singh v. Sri Ram Chakrabarli (1910) L. R. 37 I.A. 136, DurgaPrasad Singh v. Braja Nath Boae (1912) L.R. 39 I.A. 133. Sashi Bhuaan Mwa v. Jyoti Prasad Singlo Deo, (1916)L.R.44 I.A.46 and Raghtmath Roy Marwari v. Raja of Jhms, (1919) L.R. 46 I.A. 158, held not applicable. CrvIL APPELLATE JURISDICTION: Civil Appeal No. 405 of 1966. 2 S.d.R. Appeal·· from the judgment and decree dated September 11, 1952, of the Calcutta High Court in Appeal from Original Decree No. 162 of 1949. M.C. Setalvad, Attorney General for India, B. Sen, S. N. Mitkherji and B. N. Ghosh, for the appellant.

N. C. Chatterjet, J.C. Gho8e, S. P. Ghose, and P.K. Chatterjee, for the respondents. 196,2. January 19 The judgment of the Court was delivered by RAGHUllAR DAYAL J.-Tbis appeal on a certificate granted by the High Court at Calcutta, raises the question whether the person with whom a resumed invalid Lakhraj (revenue free) land was permanently settled has rights in the sub-soil minerals or not. The necessary facts are briefly these:- The plaintiffs are the proprietors of the land in suit in C. S. Khatian No. 6II and Sub-Khatians Nos. 612 and 613 of village Sripur in Touzi No. 2597 of the Burdwan Collectorate. The Maharaja of Burdwan is the proprietor of the lands in village Sripur appertaining to Touzi No. 12 of Burdwan Collectorate. He let out those lands to the Pals and Goswamis of Sripur in Putni right. The Putnidars also took coal mining lease of those lands from the Maharaja and, thereafter, both the Maharaja and the Putnidars granted the coal mining lease of those lands to one P. K. Chatterji of Ikrah who, in his tur.n, granted a sublease of the same to Messrs. Lodna Colliery Co. Ltd., th!' predecessor-in-interest of the defendant company, the Lodna Colliery Co. (1920)

Ltd. A portion of the lands in suit subsided and on enquiry the plainti.1Fs found that the defendant company had cut away a large quantity of the 11162 Tl.. Lotln• Colliery Co. Ltd. 11""4 Nath Roy RaghularDayal J, lie n. IMN C.11;,.y C.. LU. ..,.11' ... lioy ~ .. -- Dl!JWI J. 688 SUPREME COURT &EPORTS [1962) SUPP. underground coal from the lands in 1111it. It ie on account of IU.ch unjustified conduct of the defen· dant company that the plaintilfs, on the buia of their proprietary right, uaed for the recovery of damages for coal wrongfully taken away by the defendant from the land in suit and for other wrongs. The defendant company oonteeted the suit and denied the plaintiffs alle>ged ri{lhte on the ground, inter a&, that the plaintiffs had no ti,le to the sub·soil of the land in suit and consequently to the ooal.

The oontention really is that the land in suit had been permanently settled with the plaintilra after it had been resumed ae invalid Lakhraj land and that such settlement conferred no better right.II than what they originally p<l188118Cd on acoount of the land in suit being grq,nted to their predelie88Ql'll·in· interest under Brahmottar and Debutter grant&, the grantees under which had no rights in the sub«>il of the land granted. The Trial Court held that the invalid Lakhraj tenure in the land in suit in favour of the predeoees<>rs·in·interest of the plaintiffs waa resumed by the Government under the provisions of Regulation II of 1819 and, therea.ftn, was permanently aettled with them at t4e fixed revenue and that therefote the plaintiffs had right to the mineral& under the soil of the land settled with them. It .aooordingly decreed the suit in part and the deoree wa1 confirmed by t~e High Court.

It is contended for the appellant that· the person with whom reBUmed invalid !Akbraj land bad been settled hu no right.a in the &11b·10il. The respondents rely on the proviaion1 of the Regulation enacted by ~ ~overnor·General . ~ Council in support of thell' olaun to the eub·IOil m such land held by them, The Govemor·Generai in Council pUled a number of Regulation on May 1, 1793. We eball first consider Regulation XIX of 1793, · 2S.C.R. Reg11lation XIX of 1793 was made for reenac~ing with modifbations the Rules p<issed by the Governor-General in Council on December 1, 1790, for tryingthe validity of the titles of persons holding, or claiming a right to hold, lands exempted from the payment of revenue to Government, under grants and for determining the amount of the annual assessment to be imposed on lands so held which might be adjude:ed or become liable to the payment of public revenue.

The preamble makes it clear that the Regulation was creating an ae:ency for determining the title of the proprietors of land who claimed to hold it free from the liability to pay revenue on account of certain grants, that from time to time the British Government has declared all grants for holding land exempt from the payment ofrevenue without their sanction since the date of the accession of the East India Company to the Diwani on August, 12, 1765, illegal and void and that no such exempted land was to be made subject to the payment of revenue until the titles of the proprietors had been adjudged invalid by a final judicial decrPc.

It is to be :Q.oticed that the persons who laid claims to hold the land exempt from the payment of revenue were referred to as proprietors. , Section II, Clause First, deals with the grants of alienated land made previous to the 12th A11gust 1765, the date of the accession of the East India Company to the Diwani, and lays down that such grants would he deemed valid provided the grantee actually and bonafi.de obtained possession of the land or ~ranted and the land bad not been subsequently rendered subject to the payme:ut of revenue. Section III, Clause First, declares invalid all grants for holding land exempt from the payment of revenue ma.de'between the 12th Aug11st, 1765 and 1st D<1cember, 1790 j by ll.ny authority other than that of G.ivernmJnt anrl which had not been 19'>2 The Lodna r.olliery Co. Lid. Blwla /"th R<!) Ragh"bar Dayal J. 19 2 Thi Loi., C,Jlit>:f Co. Lu. Bllll/a N•t~ ROJ Ba1Awhr D9•l J. confirmed by Government or by a.ny Officer empowered to confirm them.

Section IV is eignifica.nt for our purpose a.nd rea.ds : "This Regulation, a.s far as rega.rds lands alienated previous to the 1st December 1790, respects only the question whether thPy are liable to the payment of revenue or othenr'..se. E \"'ery dispute or claim regarding the proprie· tary right in lands alienated previous to that date! and which, in conformity to this Reirula· t.ion, may become subject to the payment of revenue, i~ to be conaid1>red as a matter of a private nature to be determined by the Courts of Diwa.ni Adala.t in the event of any dispute or cla.im a.rising respecting it between the grantee and the grantor or their respective heirs or successors.

The grantel's, or the present possessors, until dispossessed by a. decree nf the Diwani Adala.t, a.re to be considerl'd a.a the proprietors of the lands with the same right of property therein as is declared to bo vested in proprietors of <'Sta.tee or depen. dent ta.Iuka, (according 1\8 the la.nd ma.y exceed or be leas than one hundred bighas, specified in sections 6, 7 and 21,) subject to the pa.yme11t of revenue, and they a.re to execute engag!lments for the revenue, with which their lands may be declared chargeable, eitht•r to Government or to the proprietor or fa.rmer of the estate in which the lands mav Le situated, or to the officer of Government, {according as the revenne. of the estate in which the land mny be situated may Le payable by the proprietor or a farmer, or collected kha.a) under the rules for the decennial aettlPment.

If bv the decision of the Diwani Ada.lat the pru,:.rietary right in the land shall be transfrrrcd, the person succeeding thereto is in 2S.C.R. like manner to be responsible for the payment of the· revenue assessed or chargeable thereon." It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature 'to be decided by the Court& of Diwani Ada.lat. It, however, definitel:r provides that the grantees or the then pcssJssors oi land, until dispossessed by a decree of the Diwani Ada.lat, are to be considered as the proprietors of the lands with the same right of property therein as is declared to be vested in proprietors of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue.

Such proprii>tors of laud were to execute engagement for reve11ue with whieh their lands may be declared ohargeaHe, either to the Government or to the proprietor or farmer of estates in which the lands be situated. The grantees cf invalid La.khraj lands therefore had the same right of property in that land subject to the payment of revenue, as had been declared to be vested in the proprietors of estates. If ~he zamindars •. the proprietors of estates, have rights not only over the surface of the land but in the subsoil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed right in the sub soil of the land settled with them.

Now, Regulation VIII of 1793, also passed on ~ay I, 1793, re-enacted with modifications and amendents the J;tules for the Decennial Settlement of the public revenue payable from the lands of the zemindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and The Lodna r allitf:" Co. Ltd. Bhola Ndl~ Roy 196% n, LxJ .. Colli"] Co. LJd. Bltal• N•lla Roy R"l4ubor D•)<ll J. Orissa., passed for those Provinces respectively on September 18, 1789, November 25, 1789 and Febru. a.ry I 0, 1790, a.nd subsequent dates. Section IV pro . vided that the settlement, under certain restrictions a.nd exceptions specified in the Regulation, shall be concluded with the actu'li proprietors of the soil, of whatever denomination, whether zcmindars, talukdars or chaudhris. It follows that the zemindars with whom settlement took place, were recognized a.s the a.ctua.1 proprietors of the soil. Tlie settlement of revenue so made wa.s made permanent by s. IV of Regulation I of 1793.

Regulation I of 1793 enacted into a Regulation certain Articles of a Proclamation dated March 22, 1793. Section I of this Regulation states that the various articles of the Proclamation wert> enacted into a Regulation and that those articles related to the limitation of public demand upon the fonds, addreBSed by the Governor-General in Council to the zemindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provi.uoes of Bengal, Bihar and Orissa. By Section IV it wa.s declared to the zemindars, independent ta.lukdars and other actual propietors of land, with or on behalf of whom a settlement had been concluded under the Regulations mentioned earlier, that at the e~piration of the term of settlement no alt.!3ration would ho made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.

The preamble to Regulation II of 1793, which abolished the Court£ of Mal Ada.lat or Revenue C(nirtS and transferred the trial of suits cognizable in those Courts to tho Courts of Diwani Ada.lat, stated, in connection with the proposed improvmcnts in agriculture : 2 $.C.R. "As being the two fundamental measures essential to the attainment of it, the property in the soil has been declared to be vested in the landholders, and the revenue payable to Government from each estate has been fixed for ever ...••. The property in the soil was never before formally declared to be vested in the landholders, nor were they allowed to transfer such rights as they .did poMsess, or raise money upon the credit of their tenures, without the previous sanction, of Government." ',It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognized to be the proprietor~ of the soil.

Such a view was expressed ,by the Privy Council also in Ranjit Singh v, KaU Dilsi Debi('). It was said· at page 122: "Passing to the settlement of 1793, it appears to their Lordships to be beyond controversy that whatever doubts be entertained as to whether before the British occupation the za.mindars had any proprietary interest in the lands comprised within 'their respective di&- tricts, the settlement itself recognizes and proceeds on the footing that they are the actua.l proprietors of the land for which they undertake to pay the Government revenue. The settlement is expressly made with the 'zemindars, independent talukdars and other actual proprietors of the soil': see Regulation I, s.3, and Regulation VIII., s.4. It is clear that since the settlement the zamindars have had at least a prima facie title to aU la.nds for which they pay revenue, such lands being commonly referred to as malguzari lands.''

The right of the zemindars to the sub-soil minerals under their land follows from their' being (I) (1917) L. R.44 I, A. 117. The Wna Collier.I Oo. Ltd. Bhola Nath R'/)' Raghubor Dayal J, 1Nt 694 SUPREMr; OOURT REPORTS [1962] Su'PP. proprietors of the soil and has been recognized in a number of 08803 brL1veen the zemindars and persons holding land undr.r a tenure from them. It has been held in those c&11es that, in the absence of the right to sub-soil minerals being conferred on the tenure holder under the torms of the tenure held by him, he docs not get any right to them. '!'he first such ()&Ile is Hari Narayan Singh v. 81-iram Ghakrararti(' ). The same view was expressed in Durga Prasad Singh v. Braja Nath &se ('). In Sashi Bhuahan Misra v. Jyoti Prashad Singh Dw (•) Lord Buckmaster said at page 53, with regard to the above two cases : "These decisions, therefore, have laid clown a principle which applies to and concludes the present dispute.

They establish that when a irrant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that efft·ct." The fact that the tenure was rent free, makes no difference to this principle, as held in Raghuna.fh Roy Maru;ari v. Raja of Jheria ('). We are therefore of opinion that the right of property of the person with whom resumPd invalid Lakhraj land bad been settled, being the same as of the zemindars, extends to the sub-soil minerals of the land held by them. Further, the plaintiff~ trace their rights to the documents Exhibits 10, 2 and 6(a). Before <lea.ling with them, we may refer to two other Regulations not so far mentioned. Regulation II of 1819 modified the then exi~­ ting Regulations regarding tho rcuumption of reYe- (1) (1910) L. R. 371. A.136. (2) 11912) L. R. 321. A. 113. (3) (1916) L. R. +11 A 46. (4) (1919) L. R. 461.

A. 1!'>8, 2 S.C.R. SUPR.EME COURT REPORTS nue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the ssme manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us. Exhibit 10 is the Robakari of the Deputy Collector of Burdwan, dated April 15, 1841, with respect to Touzi No. 2597 .. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-ininterest of the plaintiffs with respect to the land in suit.

It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, 3itaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of llrahmottar land measuring 156 bighas IO cattahs· and the Debutter land measuring 18 bighas 20 cattahs, in all 175 bighas, situated in village Pariharpur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessod to land revenue. Madhusudhan Hoy and Sita.ram Roy and other defendants claimed right to get settlement because it was the Lakhraj property obtained by their ancestors. The settlement was huwever made with Manik Chandra Roy on April 19, 1838, as the other defendants did not turn up. Subsequently, Madhusudan Roy applied for settlement jointly with l\Ianik Chandra Roy and others.

As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area a:ad with Madhusudhan Roy and Sitaram Roy The Lodna Colliery Co. Ltd. Bhola N arh Roy RaglwlJar D a;>al J. 71' Lt>iM Collw7 C,. Ltd with respect to tho rest. On April 15, 1841, .A,malnama, Exhil!it 2, was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them tc, pay their respective rents to the persons with whom settlement was made. Exhibit G(a) is certified r.opy of S<'ttlement khatian No. 61 t in respect of village Sripur, relating to Touzi No. 25~7, R.8. No. 2416. It describes the interest in the land in suit to be Bajeapti (resumed) Lakheraj Pariharpur and others. It mentions five persons including the son of Madhusudh&n Roy and the sons of Sitanath Roy, to be the proprietors in posaession of that interest. It also shows the King Emperor of India as p081e811ing the entire superior interest.

It ia thus clear thas the pOS8688ors of the Bajeapti (resumed) Lakheraj land in suit held it as proprietors under the King Emperor of India. They must consequently have the same rights which other proprietors like zamindars had. It is however urged for the appellants that the records prior to the resumption proceedings showed the lands in suit to be the Brahmottar and Debutter Janda of the prodecesaors of the plaintiiis and that therefore, in view of the principle of law laid down by the Privy Council in Hriri Nurayan Singh'a Ca.!e(')and the later decisions, thAy cannot lie held to p088ess rights in the sub-soil in the abeence of definite evidence that such rights were conveyed under those grants. We do not agree with this contention. The predecessors-in-interest of the plaintiffd held the land from the Government and not on a subordinate tenure from tho zamindars and therefore the principle of law aa stated in Hari Narayan Singh' s Ciise.

(') and later confirmed in aeveral deciaions by the Privy Counoil, doee not apply to the present case. We are therefore of opinion 'hat the plaintiffd had rightly been held to own and po88e88 the right.~ (I) (1910\ L. R. 37 I. A. 136. 2 s.c.R. li97 the minerals under the land in suit and that tho decree in· their favour is correct. We therefore dismiss the appeal with costs. Appeal dismissed. THE BAGALKOT CEMENT CO. LTD. R. K. PATHAN & ORS. (P. B. GAJENDRAGADKAR, A. IC SARKAl{ and K. N. WANCHOO, JJ.) Standing Orders-Certification of draft aubrnitted by emp· loyer-Power of Certifying Officer an_d Appell,ate A_uthority-lf can fix quantum OJ !<ave and /<Ol•day-1 nduatria! Empwyment (Standing Orders) Act, 1946 \20 of 1946), as mnended by Amending Act of 1956, ••· 4,10, Schedule, cl. 5. The appellant company submitted draft Standing Orders as required by s. 3 of the Industrial Employment (Standing Orders) Act, 1946, to the Certifying Officer.

The Certifying Officer in certifying the said draft added a clause to paragraph 11 of the said draft which provided, inter alia, for certain festival holidays and causal and annual leave for a numt>er of days. On appeal the Appellate Authority in substance !'gree with the additions made by the Certifying Officer. The question raised in the appeal was whether the Certifying Officer or the Appellate. Authority had the jurisdiction under the Act to make the additions in the draft Standing Orders. Section 4 of the Act provides, inter alia, that the draft standing orders could be certified if they provided for every matter mentioned in the Schedule to the Act and cl. 5 of the Schedule provided as follows : ''conditions of, procedure in applying for, and the authority which may grant, leave and holidays." Held, that the Certifying Officer and the Appellate Authority had the jurisdiction in making the addition that they did. The word "conditions" in cl.

5 should be construed not in a narrow way . but in a broad and liberal sense consistently with the object of the Act and, so construed, there could be no doubt that cl. 5 was not merely procedural but covered the substantive provision for fixing the quantun1 of Hl62 Tlie Lod11a Colliery Oo. Lid. Bhola Nath Rn_1·. Roghubar Da;•al J.