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Supreme Court Reports [2013] 7 S.C.R [2013] 7 S.C.R. 863 864 SUPREME COURT REPORTS [2013] 7 S.C.R. THREESIAMMA JACOB & ORS. A A payment of royalties on the minerals excavated by them. v. The Full Bench of the High Court held that the owners GEOLOGIST, DPTT. OF MINING & GEOLOGY & ORS. of jenmom lands in the Malabar area were not the (CIVIL APPEAL NOS.4540-4548 OF 2000 etc.) proprietors of the soil and the minerals underneath the JULY 8, 2013 soil, and dismissed all the writ petitions. The appeals filed B B by the writ petitioners were referred by a two Judge [R.M. LODHA, J. CHELAMESWAR AND Bench to the three Judge Bench. MADAN B. LOKUR, JJ.] Disposing of the appeals, LAND LAWS: HELD: 1.1 There is positive evidence in the Board C C Standing Order No. 10 dated 19.03.1888 (BSO No.10) that Jenmis or holders of jenmom rights in Malabar area - the State did not claim any proprietary right over the Rights with regard to minerals underneath the soil - Held: mineral wealth obtaining in lands held over a ryotwari Ownership of sub-soil/mineral wealth should normally follow patta or in jenmom lands in Malabar. The limited right the ownership of the land, unless the owner of the land is claimed is "to a share in the produce of the minerals deprived of the same by some valid process -- In the instant D D worked, if thought necessary by government." By appeals, no such deprivation is brought to the notice of the necessary implication, it follows that the State recognised Court -- Appellants are, therefore, the proprietors of the the legal right of the land holder to the subsoil metals and minerals obtaining in their lands -- The recitals in the patta minerals - whatever name such right is called - proprietary or the Collector's standing order that exploitation of mineral or otherwise. [para 37-38] [884-B-C; 885-A; 886-A-B] wealth in the patta land would attract additional tax cannot in E E any way indicate the ownership of State in minerals -- The 1.2 Apart from the legal implication of BSO No.10 with power to tax is a necessary incident of sovereign authority respect to Malabar, from an analysis of the enactments (imperium) but not an incident of proprietary rights (dominium) and the judicial pronouncements necessary inference is - Constitution of India, 1950 - Arts. 294 and 297 -- Mines and that British recognized that the State had no inherent Minerals (Regulation and Development) Act, 1957 -- Mineral right in law to be the owner of all mineral wealth in this F F Concession Rules, 1960 - Kerala Minor Mineral Concession country. British never claimed proprietary rights over the Rules, 1967 -- Coking Coal Mines (Nationalisation) Act, 1972 soil, and jenmis were recognised to be the absolute -- Coal Bearing Areas (Acquisition and Development) Act, owners of the soil. It is obvious from the BSO No.10 that 1957 -- Atomic Energy Act, 1962 -- Oilfields (Regulation and the British never claimed any proprietary right in any land Development) Act, 1948 - Mines and Minerals. in the Old Madras Province and, therefore, both ryotwari G G pattadars and jenmis must also be held to be the The appellants filed writ petitions before the High proprietors of the subsoil rights/minerals until they are Court claiming that they were holders of jenmom rights deprived of the same by some legal process. This in the subject lands situate in Malabar area in the State conclusion with regard to subsoil/mineral rights will still of Kerala and the State had no legal authority to demand hold good even if the lands in question, as per the 863 H H THREESIAMMA JACOB & ORS. v. GEOLOGIST, 865 866 SUPREME COURT REPORTS [2013] 7 S.C.R. DPTT. OF MINING & GEOLOGY judgment under appeal, have been converted to be lands A A Ltd. and Anr. v. The State of Tamil Nadu 1973 (1) SCR 258 held on ryotwari settlement, for the reason that even in = AIR 1972 SC 2240; and Secretary of State v. Vira Rayan the lands held on ryotwari patta, the British did not assert (1886) ILR 9 Mad 175 - referred to. proprietary rights. [para 39] [886-C-F] 1.5 The High Court erred in holding that a ryotwari State of Andhra Pradesh v. Duvvuru Balarami Reddy & pattadar is not entitled to the subsoil (minerals) in his B B Ors. 1963 SCR 173 = AIR 1963 SC 264; and Secretary of patta land. The reliance placed by the High Court on the State v. Ashtamurthi (1890) ILR 13 Mad 89 - referred to. judgment in Sri Srinivasachariar is wholly misplaced. The issue in that case was not with reference to any claim of 1.3 The Constitution of India recognized the fact that subsoil rights in a land held under ryotwari patta, nor was the mineral wealth obtaining in the land mass (territory it laid down that irrespective of the nature of the tenure - of India) did not vest in the State in all cases; and that C C all mineral wealth in this country vested in the Crown or under the law, as it existed, proprietary rights in minerals the State. [para 46] [889-E-F and G-H] (subsoil) could vest in private parties who happen to own the land [Arts. 294 and 297]. This conclusion gets fortified Secretary of State v. Sri Srinivasachariar, AIR 1921 PC from the provisions of the Mineral Concession Rules, 1; and Sashi Bhushan Misra v. Jyoti Prasad Singh Deo, AIR 1960. While Chapter 4 of the Rules deals with the lands D D 1916 PC 191 - held inapplicable. where the minerals vest in the Government, Chapter 5 deals with the lands where the minerals vest in a person T. Swaminathan and Anr. v. State Of Madras and Ors, other than the Government. Correspondingly, the Minor AIR 1971 Mad 483 - disapproved. Mineral Concession Rules made by the State of Kerala 2.1 The recitals in the patta or the Collector's standing also recognises such a distinction in Chapters V and VI. E E order that the exploitation of mineral wealth in the patta [para 42] [888-A-E] land would attract additional tax cannot in any way 1.4 Kunhikoman and Balmadies did not deal with the indicate the ownership of the State in the minerals. The question whether a jenmi is entitled either before or after power to tax is a necessary incident of sovereign the settlement of 1926 to the subsoil rights or minerals in authority (imperium) but not an incident of proprietary the land held by him. In Balmadies this Court took note of F F rights (dominium). Proprietary right is a compendium of two facts - (1) that originally jenmis of Malabar area were rights consisting of various constituent, rights. If a absolute proprietors of the land; and (2) when Malabar person has only a share in the produce of some property, area was annexed, the British expressly disclaimed the it can never be said that such property vests in such a proprietorship of the soil. This Court, in Balmadies, person. In the instant case, the State asserted its 'right' rejected the contention that as a result of the resettlement G G to demand a share in the 'produce of the minerals of 1926, jenmom rights stood converted into ryotwari worked' though the expression employed is right - it is estate. [para 33, 34 and 36] [882-A-C; 883-H; 884-A] in fact the Sovereign authority which is asserted. From the language of the BSO No.10 it is clear that such right Karimbil Kunhikoman v. State of Kerala 1962 Suppl. to demand the share could be exercised only when the SCR 829 = AIR 1962 SC 723; and Balmadies Plantations H H pattadar or somebody claiming through the pattadar, THREESIAMMA JACOB & ORS. v. GEOLOGIST, 867 868 SUPREME COURT REPORTS [2013] 7 S.C.R. DPTT. OF MINING & GEOLOGY extracts/works the minerals - the authority of the State to A A of the land is deprived of the same by some valid process. collect money on the happening of an event - such a In the instant appeals, no such deprivation is brought to demand is more in the nature of an excise duty/a tax. The the notice of the Court and, therefore, this Court holds that assertion of authority to collect a duty or tax is in the the appellants are the proprietors of the minerals obtaining realm of the sovereign authority, but not a proprietary in their lands. [para 57] [895-B-C; 896-A] right. Neither the content of BSO No.10, nor the legal B B effect thereof has been examined by the High Court. [para Kaliki Subbarami Reddy v. Union of India ILR 1969 AP 51-52] [891-E-G; 892-A-D] 736; V. Gangarathinam v. State of Tamil Nadu, 1990 TNLJ 374; and S. Sabhayogam v. State of Kerala, AIR 1963 Kerala 2.2 Mines and Minerals (Development and 101 - cited. Regulation) Act, 1957 is an enactment made by C C Parliament to regulate the mining activities in this country. Case Law Reference: The said Act does not in any way purport to declare the 1973 (1) SCR 258 referred to para 8 proprietary rights of the State in the mineral wealth nor does it contain any provision divesting any owner of a AIR 1963 Kerala 101 cited para 8 mine of his proprietary rights. On the other hand, various AIR 1971 Mad 483 disapproved para 12 enactments made by the Parliament such as Coking Coal D D Mines (Nationalisation) Act, 1972 and Coal Bearing Areas AIR 1916 PC 191 held inapplicable para 12 (Acquisition and Development) Act, 1957 make express declarations u/ss 4 and 7 respectively providing for ILR 1969 AP 736 cited para 12 acquisition of the mines and rights in or over the land 1990 TNLJ 374 cited para 12 from which coal is obtainable.
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