JILUBHA FATEHSINH PARMAR Vs. A J THAKAR

JUDGEMENT

(1.) This petition raises interesting questions of law relating to the construction of certain provisions of the Saurashtra Land Reforms Act 1951 and the Mines and Minerals (Regulation and Development) Act 1957 The petitioner was a Bhayat under the former State of Muli in Saurashtra and as such Bhayat he was the owner of several lands which included Survey No. 365 situate in village Kukada. The rights of the petitioners ancestors to the mines and minerals in the Bhayati lands were recognised and declared by the former Rajasthanik Court by a Hak Patrak dated 16th August 1880 and the petitioner was therefore the owner of the mines and minerals in S. No. 365 at the date of coming into force of the Saurashtra Land Reforms Act 1951 Survey No. 365 comprised 16 Acres and 11 gunthas of land and out of that there were admittedly sand-stone deposits in an area of 7 Acres and 4 Gunthas. Now according to the petitioner mining operations in this area for the purpose of winning sand-stone were started by him long prior to the enactment of the Saurashtra Land Reforms Act 1951 but this was disputed on behalf of the respondents and since that raised a disputed question of fact which we would not entertain in the exercise of our extraordinary jurisdiction under Article 226 of the Constitution the petitioner invited us to proceed on the basis accepted by the respondents that mining operations for the purpose of winning sand-stone in this area were not started until after the issue of occupancy certificate in respect of S. No. 365 in favour of the petitioner As a matter of fact this concession on the part of the petitioner was inevitable as issue of occupancy certificate in respect of S. No. 365 in favour of the petitioner clearly involved the determination that S No. 365 was Gharkhed land in personal cultivation of the petitioner at the date of the coming into force of the Saurashtra Land Reforms Act 1951 The common accepted basis between the parties therefore was that mining operations for the purpose of winning sand-stone from S. No. 365 were started by the petitioner subsequent to 25th March 1956 being the date when the occupancy certificate was issued in favour of the petitioner The Deputy Collector thereafter initiated proceedings against the petitioner on the basis that the petitioner as an occupant was making non-agricultural use of S. No. 365 by carrying on mining operations in an area of 7 Acres and 4 Gunthas and in this proceeding the petitioner agreed to pay non-agricultural assessment as also royalty and the Deputy Collector ultimately passed an order dated 5 July 1961 asking the petitioner to pay non-agricultural assessment of Rs. 179.00 per year from the revenue year 1951-52. The petitioner complied with this order and continued to carry on mining operations for the purpose of winning sand-stone from this area. But are long an order dated 19th March 1962 came to bypassed by the Quarry Inspector which seriously affected the right of the petitioner to carry on mining operations for the purpose of winning sand-stone belonging to him. By this order the Quarry Inspector directed than the petitioner should stop working the mine as he had not obtained mining lease in accordance with the Mineral Concession Rules 1960 and that he should d work the mine only after obtaining such mining lease. This order of the Quarry Inspector is challenged in the present petition.

(2.) The ground on which the validity of the impugned order was challenged on behalf of the petitioner was that the minerals in S. No. 365 and sand-stone was admittedly a mineral within the meaning of the Mines and Minerals (Regulation and Development) Act 1957 vested in the petitioner and the petitioner was therefore not bound to obtain any mining lease from the State Government under the provisions of that Act or the Mineral Concession Rules 1960 for the purpose of undertaking mining operations for winning sand-stone from S. No. 365. This ground was combated on behalf of the respondents and the contention urged on their behalf in answer to this ground was a two-fold one. The first contention was that by reason of the provisions of the Saurashtra Land Reforms Act 1951 on the issue of an occupancy certificate in respect of S. No. 365 in favour of the petitioner the rights of the petitioner to the mines and minerals in S. No. 365 which he held as a Girasdar came to an end and the said mines and minerals became vested in the State Government and the petitioner was therefore not entitled to carry on mining operations for the purpose of winning the said minerals without obtaining mining lease from the State Government as the owner of the said minerals. Now it was not disputed on behalf of the petitioner that if on the issue of the occupancy certificate in respect of S. No. 365 in favour of the petitioner the rights of the petitioner to the minerals in S. No. 365 came to an end and the State Government became owner of the said minerals the petitioner would not be entitled to carry on mining operations for the purpose of winning the said minerals without obtaining mining lease from the State Government. But the argument of the petitioner was that there was nothing in the Saurashtra Land Reforms Act 1951 which took away the rights of the petitioner to the mines and minerals in S. No. 365 and despite the issue of occupancy certificate.-ate in respect of S. No. 365 in favour of the petitioner the petitioner continued to be the owner of the said mines and minerals. The second contention of the respondents was based on the assumption of validity of this argument of the petitioner. The respondents contended that even if the petitioner continued to be the owner of the mines and minerals in S. No. 365 the petitioner was still bound to obtain mining lease from the State Government for the purpose of undertaking raining operations for winning sand-stone from S. No. 365 and in the absence of such mining lease the petitioner was not entitled to carry on mining operations and the Quarry Inspector was within his rights in directing the petitioner to stop carrying on mining operations without obtaining such mining lease. The rival contentions raise two questions for determination : one being whether by reason of the provisions of the Saurashtra Land Reforms Act 1951 the rights of the petitioner to the mines and minerals in S. No. 365 came to an end on the issue of occupancy certificate and the other being whether even if the petitioner continued to be the owner of the mines and minerals in S. No. 365 the petitioner was not entitled to carry on mining operations for the purpose of winning sand-stone from S. No. 365 without obtaining mining lease from the State Government. The determination of these questions obviously depends upon the true interpretation of the relevant provisions of the Saurashtra Land Reforms Act 1951 and the Mines and Minerals Regulation and Development) Act 1957

(3.) We will first proceed to examine the question as to the effect of the issue of occupancy certificate on the rights of the petitioner to the mines and minerals in S. No. 365. in order to appreciate the arguments bearing upon this question it is necessary to make a brief reference to the relevant provisions of the Saurashtra Land Reforms Act 1951 The Act was passed for the purpose of introducing certain measures of land reforms in Saurashtra and it was brought into force on 1st September 1951 by a notification issued by the State Government under sec. 1(3). The petitioner was admittedly a Bhayat within the meaning of the definition of the term contained in sec. 2(5) and he was therefore covered by the definition of Girasdar given in sec. 2(15). Sec. 2(27) defined `occupant to mean a person who is in lawful possession of any land held directly from the State and who has all the rights which an occupant has under this Act or under the Bombay Land Revenue Code 1879 in respect of land held by him as an occupant. Sec. 4 declared that all land of whatever description held by a Girasdar is and shall continue to be Liable to payment of land revenue to the State and sec. 5 divided Girasdar into three classes namely : `A `B and `C for the purpose of the Act. The petitioner was admittedly a Girasdar belonging to `B class. Chapter III consisting of secs. 6 to 18 dealt with the question of relationship between the Girasdars and their tenants. We need not make any reference to these sections since they have no relevance to the question which is before us for determination. Chapter IV contained a fasciculus of sections providing for allotment of lands to Girasdar for personal cultivation. Different limits were provided according as the Girasdar belonged to `A `B or `C class and it was that so much of and shall be allotted to the Girasdar for Personal cultivation as would when added to the area of Gharkhed in his estate and of Land land if any in his possession make up the total area prescribed according to his class. What would constitute Gharkhed was defined in sec. 2(14) and the essence of the definition was that barring certain exceptions which are not material the land should be reserved by or allotted to a Girasdar for being cultivated personally and should further be in his personal cultivation. Sec 28 then provided that subject to any allotment which might be made to the Girasdar for personal cultivation under the provision of Chapter IV a tenant of the Girasdar shall be entitled to acquire occupancy rights in his holding on payment of an amount equal to six times the assessment payable in respect of the agricultural land included in such holding and he may apply in the prescribed form to the Mamlatdar for acquiring Much rights. On such application the Mamlatdar was authorised to issue occupancy certificate to the tenant under sec. 30 and the consequences of issue of such occupancy certificate were set out in sec. 31. Sec. 33(2) provided that in addition to the compensation paid by the tenant in respect of the holding the Government shall also pay to the Girasdar as compensation every year for fifteen years an amount equal to the assessment of the holding as fixed by the Mamlatdar under sec. 30(1)(b) and sec. 36 then proceeded to enact :