Holding

The Court held that, absent any statutory deprivation, the owners of jenmi (and ryotwari) lands are the proprietors of the sub‑soil and minerals, and the State's claim to royalties is a tax, not a proprietary right.

Summary

The petitioners, holders of jenmi rights in Malabar, Kerala, challenged the State's demand for royalties on minerals extracted from their lands, arguing that they owned the sub‑soil. The Kerala High Court held that the minerals belonged to the State and dismissed the writ petitions. On appeal, the Supreme Court examined historical standing orders, colonial practice, and constitutional provisions, concluding that the British never claimed proprietary rights over the soil and that jenmis (and ryotwari pattadars) remain owners of the sub‑soil unless a law expressly deprives them. The Court held that Board of Revenue Standing Order No. 10 of 1888 merely gave the State a right to a share of the produce as a tax, not ownership. Consequently, the State cannot claim mineral ownership or royalty without statutory deprivation, and the petitioners are proprietors of the minerals. The appeal was allowed, overturning the High Court’s decision.

Issues considered

Whether jenmi landholders in the Malabar area are proprietors of the sub‑soil and minerals beneath their lands.
Whether the Board of Revenue Standing Order No. 10 (1888) confers ownership of minerals to the State.
Whether Articles 294 and 297 of the Constitution vest mineral ownership in the Union or allow private ownership.
Whether the demand for royalties by the State constitutes a tax or a claim of proprietary right.
Whether statutes such as the Mines and Minerals (Regulation and Development) Act, 1957, and related Acts divest private owners of sub‑soil rights.

Legislation cited

Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion) Act, 1956s. 2, s. 9
Atomic Energy Act, 1962s. 10, s. 28, s. 5
Coal Bearing Areas (Acquisition and Development) Act, 1957s. 7
Coking Coal Mines (Nationalisation) Act, 1972s. 4
Constitution of Indias. Article 294, s. Article 297
Estates Abolition Act, 1948
Kerala Minor Mineral Concession Rules, 1967
Madras Estates Land Act, 1908
Mineral Concession Rules, 1960
Mines and Minerals (Regulation and Development) Act, 1957s. 3, s. 4
Oilfields (Regulation and Development) Act, 1948s. 5

Subjects

land lawmineral rightssubsoil ownershipjenmiryotwariroyaltyconstitutional lawArticle 294Article 297taxation vs proprietary right

Judgment

[2013) 7 S.C.R 863

THREESIAMMA JACOB & ORS. A
v.
GEOLOGIST, DPTI. OF MINING & GEOLOGY & ORS.
(CIVIL APPEAL NOS.4540-4548 OF 2000 etc.)
JULY 8, 2013
B
[R.M. LODHA, J. CHELAMESWAR AND
MADAN B. LOKUR, JJ.)

LAND LAWS:
c
Jenmis or holders pf jenmom rights in Malabar area -
Rights with regard to minerals underneath the soil - Held:
Ownership of sub-soil/mineral wealth should normally follow
the ownership of the land, unless the owner of the land is
deprived of the same by some valid process -- In the instant 0
appeals, no such deprivation is brought to the notice of the
Court -- Appellants are, therefore, the proprietors of the
minerals obtaining in their lands -- The recitals in the patta
or the Collector's standing order that exploitation of mineral
wealth in the patta land would attract additional tax cannot in E
any way indicate the ownership of State in minerals -- The
power to tax is a necessary incident of sovereign authority
(imperium) but not an incident of proprietary rights (dominium)
- Cqnstitution of India, 1950 - Arts. 294 and 297 -- Mines and
Minerals (Regulation and Development) Act, 1957 ..,,. JyTineral
Concession Rules, 1960 - Kera/a Minor Mineral Concession F
Rules, 1967 - Coking Coal Mines (Nationalisation) Act, 1972.
-- Coal Bearing Areas (Acquisition and Development) Act,
1957 - Atomic Energy Act, 1962 -- Oilfields {Regulation and
Development) Act, 1948 - Mines and Minerals.
G
The appellants filed writ petitions before the High
Court claiming that they were holders of jenmom rights
in the subject lands situate in Malabar area in the State
of Kerala and the State had no legal authority to demand
863 H
864 SUPREME COURT REPORTS [2013] 7 S.C.R.

A payment of royalties on the minerals excavated by them.
The Full Bench of the High Court held that the owners
of jenmom lands in the Malabar area were not the
proprietors of the soil and the minerals underneath the
soil, and dismissed all the writ petitions. The appeals filed
B by the writ petitioners were referred by a two Judge
Bench to the three Judge Bench .

.Disposing of the appeals,

HELD: 1.1 There is positive evidence in the Board
C Standing Order No. 10 dated 19.03.1888 (BSO No.10) that
the State did not claim any proprietary right over the
mineral wealth obtaining in lands held over a ryotwari
patta or in jenmom lands in Malabar. The limited right
claimed is "to a share in the produce of the minerals
D worked, if thought necessary by government." By
necessary implication, it follows that the State recognised
the legal right of the land holder to the subsoil metals and
minerals ·whatever name such right is called - proprietary
or otherwise. [para 37-38] [884-B-C; 885-A; 886-A-B]
E
1.2 Apart from the legal implication of BSO No.10 with
respect to Malabar, from an analysis of the enactments
and the judicial pronouncements necessary inference is
that British recognized that the State had no inherent
F right in law to be the owner of all mineral wealth in this
country. British never claimed proprietary rights over the
soil, and jenmis were recognised to be the absolute
owners of the soil. It is obvious from the BSO No.10 that
the British never claimed any propri~tary right in any land
in the Old Madras Province and, therefore, both ryotwari
G pattadars and jenmis must also be held to be the
proprietors of the subsoil rights/minerals until they are
deprived of the same by some legal process. This
conclusion with regard to subsoil/mineral rights will still
hold good even if the lands in question, as per the
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST, 865
DPTI. OF MINING & GEOLOGY

judgment under appeal, have been converted to be lands A
held on ryotwari settlement, for the reason that even in
the lands held on ryotwari patta, the British did not assert
proprietary rights. [para 39] [886-C-F]
State of Andhra Pradesh v. Duwuru Bafarami Reddy & .
8
Ors. 1963 SCR 173 =AIR 1963 SC 264; and Secretary of
State v. Ashtamurthi (1890) ILR 13 Mad 89 - referred to.

1.3 The Constitution of India recognized the fact that
the mineral wealth obtaining in the land mass (territory
of India) did not vest in the State in all cases; and that C
under the law, as it existed, proprietary rights in minerals
(subsoil) could vest in private parties who happen to own
the land [Arts. 294 and 297). This conclusion gets fortified
from the provisions of the Mineral Concession Rules,
1960. While Chapter 4 of the Rules deals with the lands D
where the minerals vest in the Government, Chapter 5
deals with the lands where the minerals vest in a person
other than the Government. Correspondingly, the Minor
Mineral Concession Rules made by the State of Kerala
also recognises such a distinction in Chapters V and VI. E
[para 42] [888-A-E]
1.4 Kunhikoman and Balm~dies did not deal with the
question whether a jenmi is entitled either before or after
the settlemen.t of 1926 to the subsoil rights or minerals in
the land held by him. In Balmadies this Court took note of F
two fare.ts - (1) that originally jenmis of Malabar area were
absolute proprietors of the land; and (2) when Malabar
area was annexed, the British expressly disclaimed the
proprietorship of the soil. This Court, in Balmadies,
rejected the contention that as a result of the resettlement G
of 1926, jenmom rights stood converted into ryotwari
estate. [para 33, 34 and 36) [882-A-C;. 883-H; 884-A]

Karimbil Kunhikoman v. State of Kera/a 1962 Suppl.
SCR 829 =AIR 1962 SC 723; and Balmadies Plantations H
866 SUPREME COURT REPORTS [2013] 7 S.C.R.

A Ltd. and Anr. v. The State of Tamil Nadu 1973 (1) SCR 258
=AIR 1972 SC 2240; and Secretary of State v. Vira Rayan
(1886) ILR 9 Mad 175 - referred to.

1.5 The High Court erred in holding that a ryotwari
pattadar is not entitled to the subsoil (minerals) in his
8
patta land. The reliance placed by the High Court on the
judgment in Sri Srinivasachariar is wholly misplaced. The
issue in that case was not with reference to any claim of
subsoil rights in a land held under ryotwari patta, nor was
it laid down that irrespective of the nature of the tenure -
C all mineral wealth in this country vested in the Crown or
the State. [para 46] [889-E-F and G-H]

Secretary of State v. Sri Srinivasachariar, AIR 1921 PC
1 i and Sashi Bhushan Misra v. Jyoti Prasad Singh Deo, AIR
o 1916 PC 191 - held inapplicable.

T. Swaminathan and Anr. v. State Of Madras and Ors,
AIR 1971 Mad 483 - disapproved.

2.1 The recitals in the patta or the Collector's standing
E order that the exploitation of mineral wealth in the patta
land would attract additional tax cannot in any way
indi~ate the ownership of the State in the minerals. The
power to tax is a necessary incident of sovereign
authority (imperium) but not an incident of proprietary
F rights (dominium). Proprietary right is a compendium of
rights· consisting of various constituent, rights. If a
person has only a share in the produce of some property,
it can never be said that such property vests in such a
person. In the instant case, the State asserted its 'right'
G to demand a share in the 'produce of the minerals
worked' though the expression employed is right - it is
in fact the Sovereign authority which is asserted. From
the language of the BSO No.10 it is clear that such right
to demand the share could be exercised only when the
H pattadar or somebody claiming through the pattadar,
THREESIAMMA JACOB & ORS. v. GEOLOGIST, 867
DPTI. OF MINING & GEOLOGY

extracts/works the minerals - the authority of the State to A
collect money on the happening of an event - such a
demand is more in the nature of an excise duty/a tax. The
assertion of authority to collect a duty or tax is in the
realm of the sovereign authority, but not a proprietary
right. Neither the content of BSO No.10, nor the legal B
effect thereof has been examined by the High Court. [para
51-52] [891-E-G; 892-A-D]

2.2 Mines and Minerals (Development and
Regulation) Act, 1957 is an enactment made by C
Parliament to regulate the mining activities in this country.
The said Act does not in any way purport to declare the
proprietary rights of the State in the mineral wealth nor
does it contain any provision divesting any owner of a
·mine of his proprietary rights. On the other hand, various
enactments made by the Parliament such as Coking Coal D
Mines (Nationalisation) Act, 1972 and Coal Bearing Areas
(Acquisition and Development) Act, 1957 make express
declarations u/ss 4 and 7 respectively providing for
acquisition of the mines and rights in or over the land
from which coal is obtainable. Even with regard to the E
minerals which are greatly important and highly sensitive
in the context of the national security and also the
security of humanity like uranium - the Atomic Energy Act,
1962 only provides u/s 5 for prohibition or regulation of
mining activity in such mineral. The said Act does not in F
any way declare the proprietary right of the State.
Similarly, the Oilfields (Regulation and Development) Act,
1948, which deals with the oilfields containing crude oil,
petroleum etc. does not anywhere declare the proprietary
right of the State. [para 54-56] [893-B-D; 894-B-C] G

2.3 There is nothing in the law which declares that all
mineral wealth/sub-soil rights vest in the State, on the other
hand, the ownership of sub-soil/mineral wealth should
normal1yfol1owthe ownership of the land, unless the owner H
868 SUPREME COURT REPORTS [2013] 7 S.C.R.

A of the land is deprived of the same by some valid process.
In the instant appeals, no such deprivation is brought to
the notice of the Court and, therefore, this Court holds that
the appellants are the proprietors of the minerals obtaining
in their lands. [para 57] (895-B-C; 896-A]
B
Kaliki Subbarami Reddy v. Union <l India ILR 1969 AP
736; V. Gangarathinam v. State of Tamil Nadu, 1990 TNW
374; and S. Sabhayogam v. State of Kera/a, AIR 1963 Kerala
101 - cited.
c Case Law Reference:
1973 (1) SCR 258 referred to para 8
AIR 1963 Kerala 101 cited para 8

D AIR 1971 Mad 483 disapproved para 12
AIR 1916 PC 191 ,held inapplicable para 12
I
lL~ 1969 AP-'736 cited para 12
1990 TNLJ 374 cited para 12
E
1962 Suppl. SCR 829 referred to para 19
1963 SCR 173 referred to para 24
(1890) ILR 13 Mad 89 referred to para 30
F
AIR 1921 PC 1 held inapplicable para 12
ILR 1969 AP 736 cited para 12
(1886) ILR 9 Mad 175 referred to para 35
G 1990 TNLJ 374 cited para 50

CIVIL APPELLATE'JURISDICTION: Civil Appeal No,
454Cl-4548 of 2000.
From the Judgment and Order dated 02.08.1999 of the
H
. THREESIAMMA JACOB & ORS. v. GEOLOGIST, 869
DPTT. OF MINING & GEOLOGY

High Court of Kerala at Ernakulam in O.P. No. 1843 of 1998, A
16653, 8674 of 1997, 3009 of 1994, 20992 of 1997, 4501 of
1993, C.R.P. No. 2209 of 1993 and O.P. No. 12330, 14749
of 1998 dated 06.08.1999.
WITH
B
C.A. No. 4549 of 2000.

S. Gurukrishnakumar, Addi. Adv. Gen., A. Raghunath, M.T.
George, Kavitha K.T., B. Balaji, A. Prasana Venkat, T. Mouli
Mahendran, R. Veeramani, Vanitha Giri, R. Sathish, T. Harish
Kumar for the appearing parties. C

The Judgment of the Court was delivered by

CHELAMESWAR, J. 1. These appeals are placed before
us pursuant to the Order dated 8th December, 2004 of a D
Division Bench of this Court which opined that the points
involved in these and certain other appeals "need to be
decided by a three Judge Bench."

2. These appeals arise out of a common judgment
rendered in a number of writ petitions by a full Bench of the E
Kerala High Court dated 2nd August, 1999 by which all the writ
petitions were dismissed.

3. The said full Bench of the Kerala High Court was called
upon to examine the question (on a reference by another F
Division Bench) - whether the owners of jenmom lands in the
Malabar area 1 are the proprietors of the soil and the minerals
underneath the soil - and answered the said question in the
negative:

"Hence, we are of the view that so far as the lands in G
question are concerned, th,e minerals belong to the
Government..." (para 31)

1. Parts of Kerala popularly known as Malabar area which earlier formed
part of the erstwhile Madras province in the British India. H
870 SUPREME COURT REPORTS [2013] 7 S.C.R.

A 4. To illustrate the background in which such question
arises, we may quote the facts of one of the writ petitions
considered by the full Bench as narrated by the full Bench.

"2. According to the petitioner in this case, her husband
obtained jenmon assignment of 2 Acres of granite rocks
B
situated in Dhoni Akathethara Amsom and Village,
palakkad Taluk, Malabar. The petitioner's husband
obtained the property from the previous jenmy, C.P.
Thampurankutty Menon. Thereafter, the petitioner's
husband executed a registered gift deed. According to the
c petitioner, the property was enjoyed by the earlier jenmy
and thereafter by the petitioner without any interference
from the Government. Due to ignorance of the legal
position, the petitioner entered into a lease agreement with
the Department of Mining and Geology to conduct
D quarrying operations in her property. Later on she realised
that it was not necessary to pay any royalty to the
Government with regard to the property belonging to her.
In the above circumstances, she made a fresh application
to the Department for licence. But the respondents failed
E to provide necessary permits to the petitioner. When she
received a notice from the Kerala Minerals Squad
directing her to stop the quarrying activities, she gave a
reply to reconsider her contention. Thereafter, by Ext. P6,
she was informed by the Department to renew the lease."
F
5. It can be seen from the above that the appellants
asserted that they are holders of jenmom rights in the lands in
question and the State has no legal authority to demand
payment of royalties on the minerals excavated by the holder
G of jenmom right.

6. Such a claim of the appellants is based on the belief
and assertion of the appellants (1) that the holder of the jenmom
rights is not only the proprietor of the soil for which he has
jenmom rights, but also the owner of the mineral wealth lying
H beneath the soil. (2) that the understanding of the appellants
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 871
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

that a claim of royalty can be made only by the owner of the A
mineral against a person who is excavating the mineral with the
consent of the owner.

7. We must straightway record that the second of the
above-mentioned propositions regarding the character and
B,
legal nature of royalty, (though was considered by this Court on
more than one occasion) stands referred to a larger Bench by
an Order of reference dated 30th March, 2011 of a three-Judge
Bench in Mineral Area Development Authority & Ors. Vs.
Steel Authority of India & Ors. (2011) 4 SCC 450, therefore,
we are not required to examine and decide the question. We c
are only required to examine the amplitude of the rights of the
jenmom land holders called jenmis in the Malabar area of the
Kerala State and decide whether a jenmi is entitled to the rights
of subsoil/the minerals lying beneath the surface of the land.
D
8. The appellants' case is that a Jenmirz holds jenmom3
lands as absolute owner and has proprietary rights over both
the soil and subsoil. The ryotwari settlement made by the British
Government in the Malabar area of the erstwhile Madras
2. The expression jenmi etymologically means the holder ofjenmom rights E
in a piece of land. Though the expression is defined in some of the
enactments pertaining to the present State of Kera la, such definitions
areenactment specific but not comprehensive to describe the full legal
contours of the jenmom rights.
3. In Malabar the exclusive right to, and hereditary possession of, the soil is
denoted by the term jenmam which means birthright and the holder thereof F
is known as jenmi, jenmakaran or mutalalan. Until the conquest of Malabar
by the Mahomedan princes of Mysore, the jenmis appear to have held their
lands free from any liability to make any payment, either in money or in
produce, to government and therefore until that period, such an absolute
property was vested in them as was not found in any other part of the
Presidency. The late Sir Charles Turner after noticing the various forms of G
transactions prevalent in Malabar remarked that they pointed to an
ownership of the soil as complete as was enjoyed by a freeholder in
England.
These jenmis have been from time immemorial exercising the right of
selling, mortgaging, or otherwise dealing with the property. They had full
absolute property in the soil. (Ref. "Land Tenures In the Madras
Presidency", S. Sundararaja Iyengar, Second Edition, Page 49-50). H
872 SUPREME COURT REPORTS [2013) 7 S.C.R.

A Province only obligated the jenmis to pay revenue to the State
but did not in any way affect their proprietary rights in the lands.
Nor did the ryotwari settlement have the effect of transferring
and vesting the ownership either of the land or the subsoil
(minerals) to the State. In support of this submission, the
B appellants heavily relied on a judgment of this Court in
Balmadies Plantations Ltd. and Anr. v. The State of Tamil
Nadu AIR 1972 SC 2240 and also a standing order of the
Board of Revenue of the erstwhile Madras Province dated 19th
March 1888 and argued that earlier full Bench decision of the
c Kerala High Court in S. Sabhayogam v. State of Kera/a, AIR
1963 Kerala 101 required a reconsideration.

9. On the other hand, the State of Kerala took the stand
that subsequent to the extension of the ryotwari settlement to
the Malabar area of the erstwhile Madras Province, the jenmis
D ceased to be the absolute owners and proprietors of the lands
held by them. The ryotwari settlement had the effect of
transferring the ownership of subsoil (minerals) to the
Government. The ryotwari pattadars rights are only confined to
the surface.
E
10. The High Court rejected the contentions of the
petitioners. The High Court attempted to distinguish the
decision of this Court in Ba/madies Plantations (supra):

"Even though there is some force in the contention of the
F
petitioners, the above observations of the Supreme Court
are not inconformity wit.h the observations made by the Full
Bench (which followed the decision of the Supreme Court
in Kunhikoman's case), that does not mean that the view
taken by the Full Bench is not correct, because it can be
G seen from paragraph 14 of the above judgment itself that
the Supreme Court has observed that in the Kerala case
documents were produced and on the basis of the
documents, the Court took the view that the nature of rights
has changed after the Ryotwari settlements."
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 873
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

11. We must confess that we have some difficulty to A
understand the exact purport of the above extract.·Be that as it
may. The High Court recorded two conclusions (1) that the
earlier full Bench decision of the Kerala High Court in the case
of S. Sabhayogam case (supra) did not require any
reconsideration as contended by the petitioners; and (2) the B
lands in question cannot be classified any more as jenmom
lands but are lands held on a ryotwari patta.

''The State has produced certain documents to show that
the lands are Ryotwari lands. Ext.R1(a) produced will show
that there are only two categories of lands, Ryotwari and C
lnam. Thus, on a consideration of the documents produced
by the State and on a consideration of the decisions cited,
we are satisfied that the decision reported in S.
Sabhayogam v. State of Kera/a - AIR 1963 Kerala 101 -
does not require reconsideration in the light of the decision D
of the Supreme Court in Balmadies P/anta(ions v. State
of Tamil Nadu - AIR 1972 SC 2240. Hence, we hold that
the lands in question are not jenmom lands and they are
Ryotwari patta lands."
E
12. In view of such a conclusion the High Court rejected
the submission that the petitioners are entitled to the rights over
the subsoil relying upon certain passages from Secretary of
State v. Sri Srinivasachariar, AIR 1921 PC 1, T. Swaminathan
(Dead) and Another v. State of Madras and Others, AIR 1971
F
Mad 483, Sashi Bhushan Misra v. Jyoti Prasad Singh Deo,
AIR 1916 PC 191, Kaliki Subbarami Reddy v. Union of India,
ILR 1969 AP 736 and Gangarathinam v. State of Tamil Nadu,
1990 TNLJ 374; and certain recitals (in Malayalam) made in
the patta issued to one of the petitioners before it which is G
translated by the High Court as follows:

''The assessment shown in the pattayam is the share due
to the Government for the agricultural produce on the
surface of the property. If minerals are found in the property
and the minerals are worked by the pattadar with regard H
874 SUPREME COURT REPORTS [2013) 7 S.C.R.

A to those properties a separate tax is to be paid in addition
to the tax shown in the pattayam."

13. The High Court though referred to the standing 9rder
of the Madras Revenue Board dated 19th March 1888, it did
B not record any conclusive finding on the effect of the said order.

14. Before us the same submissions which were made
before the High Court were repeated by both the parties,
therefore, we are not elaborating the submissions made before
us.
c
15. Before we examine the correctness of the ju_dgment
under appeal, we deem it necessary to take note of the legal
position regarding the rights over minerals as they obtain ih
England. Halsbury's Laws of England 4 state the legal position:
D
"19. Meaning of 'land' and cognate terms. Prima facie
'land' or 'lands' includes everything on or under the surface,
although this meaning has in some cases been held to
have been restricted by the context. 'Soil' is apt to denote
the surface and everything above and below it, but similarly
E its meaning may be restricted by the context so as to
exclude the mines. 'Subsoil' includes everything from the
surface to the centre of the earth ...... .

20 ...... Mines, quarries and minerals in tfieir original
F position are part and parcel of the land. Consequently the
owner of surface land is entitled prima facie to everything
beneath or within it, down to the centre of the earth. This
principle applies even where title to the surface has been
acquired by prescription, but it is subject to exceptions.
G Thus, at common law, mines of gold and silvery belong to
the Crown, and by statute unworked coal which was, at the
restructuring date, vested in the British Coal Corporation
is vested in the Coal Authority. Any minerals removed from
land under a compulsory rights order or opencast working
H 4. [Vol.31, 4th Ed. pp.28-29].
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 875
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

of coal become the property of the person entitled to the A
rights conferred by the order. The property in petroleum
existing in its natural condition in strata is vested by statute
in the Crown."

16. We are required to examine whether the law of this
8
country and more particularly with reference to Malabar area
regarding the rights over the mines and minerals is the same
as it obtains in England or different.

17. By the time South India came under control of the
British Government, there were in vogue innumerable varieties C
of land tenures in various parts of South India which eventually
came to be called the Madras Presidency. The history of these
tenures and how they were dealt under the various laws made
either by the East India Company government or the British
government (hereinafter in this judgment both the above are D
referred to as 'British' for the sake of convenience) was
examined in detail in two seminal works titled - the Land
Systems of British India by Sedan Henry Powell first published
in 189i and Land Tenures in the Madras Presidency by S.
Sundararaja Iyengar, published in 1916. E

18. Both the above-mentioned works examined the nature
and legal contours of various kinds of land tenures in vogue.
While Powell's book dealt with the pan Indian situation, lyengar's
book is confined to Madras presidency alone. Both the books
took note of the existence of a land tenure known as jenmom F
in the present State of Kerala.

19. The history of the land tenures in South India and salient
features of jenmon rights or the rights of a jenmi fell for the
consideration of this Court on more than one occasion. Two G
Constitution Benches of this Court had occasion to examine the
above questions in Karimbil Kunhikoman v. State of Kera/a
[AIR 1962 SC 723), and Ba/madies Plantations Ltd. and Anr.
v. The State of Tamil Nadu [AIR 1972 SC 2240), wherein their
Lordships examined in some detail the nature of land tenures H
876 SUPREME COURT REPORTS [2013] 7 S.C.R.

A as they existed in the erstwhile Madras province generally and
the Malabar area specifically.

20. In the case of Kunhikoman (supra), this Court held that
there were two varieties of tenures in existence in the erstwhile
B province of Madras. Those tenures were known as landlord
tenures and ryotwari tenures. It was held by this Court that the.
landlord tenures were governed by the various enactments in
force from time to time whereas the ryotwari tenures were
governed by the standing orders of the Board of Revenue - in
C other words the orders issued by the Executive Government of
the Madras province 5 .

21. Eventually, the landlord tenures in the erstwhile
province of Madras came to be governed by the enactment
known as Madras Estates Land Act, No. 1 of 1908 which
D admittedly did not apply to Malabar area. 6

22. The Madras Estates Land Act, 1908, which extensively
dealt with the rights and obligations of the landlords/landholders
owning an estate (popularly known as Zamindars) expressly
E recognises the right of the landholder to reserve mining rights
while admitting a ryot to the possession of the ryoti land.7 By
5. Kunhikoman case - Para 12......The usual feature of land-tenure in Madras
was the ryotwari form but in some districts, a landlord class had grown up
both in the northern and southern parts of the Presidency of Madras as it
was before the Constitution. The permanent settlement was introduced in
F a part of the Madras Presidency in 1802. There were also various tenures
arising out of revenue free grants all over the Province (see Chap. JV, Vol.
Ill of Land Systems of British India by Baden Powell) and sometimes in
some districts both kinds of tenures, namely, landlord tenures and the
ryotwari tenures were prevalent. There were various Acts, in force in the
Presidency of Madras with respect to landlord tenures while ryotwari tenures
were governed by the Standing Orders Clf the Board of Revenue.
G 6. Para 12 of Kunhikoman (supra) - ..... Eventually, in 1908, the Madras
legislature passed the Madras Estates Land Act, No. 1 of 1908
..................... This Act applied to the entire Presidency of Madras except
the Presidency town of Madras, the district of Malabar and ...... .
7. Section 7 - Reservation of mining rights - Nothing in this Act shall affect
any right of a landholder to make a reservation of mining rights on admitting
H any person to possession of ryoti land.
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 877
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

necessary implication it follows that the landholder had the legal A
right and title to the minerals/subsoil over the lands comprising
his estate and he is legally entitled either to grant the mining
rights to the ryot or withhold the same. This implication which
we drew gets fortified by Section 3 of Estates Abolition Act
which expressly declares that with effect from the 'notified date' B
- a defined expression under Section 1(10), the estate with all
the assets including mines and minerals shall stand transferred
to and vest in the State. If the minerals/subsoil did not belong
to the estate holder, there was no need to make an express
declaration such as the one made in Section 3(b). 8 c
23. Similarly, it can also be noticed that under various
enactments abolishing the various lands tenures in South India
such as inams etc., express provisions were made that the
mines and minerals existing in such abolished tenures shall
stand transferred to the Government and vest in the 0
Government. See, for example, Section 2-A9 of The Andhra
Pradesh (Andhra Area) lnams (Abolition and Conversion into
Ryotwari) Act, 1956. We must remember that Andhra area of
the present State of Andhra Pradesh was part of the old
Madras Province. E
24. State of Andhra Pradesh v. Duwuru Balarami Reddy

8. Section 3(b) - the entire estate including minor imams (Post- settlement
or pre-settlement) included in the assets of the zamindari estate at the
permanent settlement of that estate; all communal lands and porambokes; F
other non-ryoti lands; waste lands; pasture lands; Lanka lands; forests;
mines and minerals; quarries; rivers and streams; tanks and irrigation
works; fisheries; and ferries, shall stand transferred to the Government and
vest in them, free of all encumbrances; and the Andhra Pradesh (Andhra
Area) Revenue Recovery Act, 1864 the Andhra Pradesh (Andhra Area)
Irrigation Gess Act, 1865 ·and all other enactments applicable to ryotwari G
areas shall apply to the estate;
9. 2-A. Transfer to, and vesting in the Government of all communal lands,
porambokes etc. in inam lands - Notwithstanding anything contained in
this Act all communal lands and porambokes, grazing lands, waste .lands,
forest lands, mines and querries, tanks, tank-beds andirrigation. works,
streams and rivers, fisheries and ferries in the inam lands shall stand
transferred to the Government and vest in them free of all encumbrances. H
878 SUPREME COURT REPORTS [2013) 7 S.C.R.

A & Ors. 10 was a case where the respondents before this Court
secured a lease of a piece of land in an inam village (shrotriem)
and sought to carry on mica mining operation and applied for
permission from the State of Andhra Pradesh under the Mineral
Concession Rules, 1949 made under the Mines & Minerals
B Regulation & Development Act, 1948. The question was
whether the lessor (shrotriemdar) had rights over the subsoil/
minerals and whether he could pass rights therein by a lease. 11
A Constitution Bench of this Court examined the rights of the
/namdar under the legal regime that existed in the Madras
c province and came to the conclusion on the basis of a decision
of the Privy Council1 2 that every lnamdar necessarily did not
own the subsoil rights. Such right depended upon the terms of

10. [11] AIR 1963 SC 264.
D 11. The main question therefore that falls for decision in these appeals is
whether shrotriemdars can be said to have rights in the minerals. (para 7)
12. This matter has been the subject of consideration by the Madras High Court
on a number of occasions and eventually the controversy was set at· rest
by the decision of the Judicial Committee in Secy. Of State for India v.
Srinivasachariar. 48 Ind App 56 : (AIR 1921 PC 1). That case came on
appeal to the Judicial Committee from the decision of the Madras High
E
Court in Secy. Of State for India v. Srinivasachariar, ILR 40 Mad 268: (AIR
1918 Mad 956). The controversy before the Madras High Court was with
respect to a shrotriem inam which was granted by the Nawab of Carnatic
in 1750 and had been enfranchised by the British Government in 1862.
(para 7)
The Judicial Committee held that the grant of a village in inam might be no
F more than an assignment of revenue, and even where there was included
a grant of land, what interest in the land passed must depend on the
language of the instrument and the circumstances of each case. The
Judicial Committee also considered the standing orders of the Board of
Revenue of 1890 and 1907 which have been referred to by the appeal court
in the judgment under appeal. This decision thus establishes that the mere
fact that a person is the holder of an inam grant would not by itself by
G enough to establish that the inam grant included the grant of sub-soil rights
in addition to the surface rights and that the grant of sub-soil would depend
upon the language used in the grant. If there are no words in the grant
from which the grant of sub-soil rights can be properly inferred the inam
grant would only convey the surface rights to the grantee, and the inam
grant could not by itself be equated to a complete transfer for value of all
H that was in the grantor. (para 8)
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTI. 879
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

the original grant - lnam. It, therefore, follows that in a given A
case if the original grant of /nam specifically conveyed the
subsoil rights (by the grantor), the lnamdar would become the
owner of the mineral wealth also.
25. The necessary inference is that the British recognised
that the State had no inherent right in law to be the owner of all B
mineral wealth in this country. They recognised that such rights
could inhere iri private parties, at least Zamindars and
lnamdars or ryots claiming under them in a given case.
26. Coming to the ryotwari tenures, this Court held that they
were governed by the standing orders issued from time to time C
by the Revenue Board. Under the ryotwari system land was
given on lease by the government to the ryot under a patta.
Noticing the salient features of the ryotwari system as explained
in various authoritative works, this Court opined that "though a
ryotwari pattadar is virtually like a proprietor and has many of
the advantages of such a proprietor", such pattadar was never D
considered a proprietor of land but only a tenant. 13
27. We must remember that in the case of Kunhikoman

13. Para 13 of Kunhikoman (supra) - ...... The other class of land-tenures
consisted ofryotwari pattadars which were governed by the Board's E
Standing Orders, there being no Act of the legislature with respect to them.
The holders of ry_otwari pattas used to hold lands on lease from
Government. The basic idea of ryotwari settlement is that every bit of land
is assessed to a certain revenue and assigned a survey number for a
period of years, which is usually thirty and each occupant of such land holds
it subject to his paying the land-revenue fixed on that land. But it is open to
the occupant to relinquish his land or to take new land which has been F
relinquished by some other occupant or become otherwise available on
payment of assessment (see Land Systems of british India by Baden-
Powell, Vol. Ill, Chap. IVS. II, p. 128). Though, theoretically, according to
some authorities the occupant of ryotwari land held it under an annual lease
(see Macleane, Vol. I Revenue Settlement, p. 104), it appears that in fact
the Collector had no power to terminate the tenant's holding for any cause G
whatever except failure to pay the revenue or the ryot's own relinquishment
or abandonment. The ryot is generally called a tenant, of Government but
he is not a tenant from year to year and cannot be ousted as long as he
pays the land revenue assessed. He has also the right to sell or mortgage
or gift the land or lease it and the transferee becomes liable in his place
for the revenue. Further, the lessee of a ryotwari pattadar has no rights
except those conferred under the lease and is generally a sub- tenant at H
880 SUPREME COURT REPORTS [2013) 7 S.C.R.

A (supra}, the petitioners did not claim any adjudication of their
rights as holders of jenmom lands. On the other hand, the
appellants asserted that they were holders of ryotwari pattas
issued according to ryotwari settlement in the erstwhile State
of Madras under the revenue Board Standing Order. This Court
B further recorded:-
" ........ it is not in dispute that the ryotwari system was
introduced in the South Canara District in the earlier years
of this century"
28. The question before this Court was whether the holder
c of such a ryotwari patta could be called the holder of an estate
within the meaning of the Kerala Agrarian Relations Act and
therefore, precluded by Article 39A of the Constitution to claim
the benefit of the fundamental rights under Articles 19(1)(d) and
31 of the Constitution.
29. The legal nature of the rights of a jenmi was considered
D in greater detail in the case of Ba/madies Plantations (supra).
At para 6 of the said judgment, the Constitution Bench
recorded:-
"6 .......... Originally the janmis in Malabar were absolute
proprietors of the land and did not pay land revenue. After
E Malabar was annexed by the British in the beginning of the
19th century, the janmis conceded the liability to pay land
revenue ........ "
30. This Court took note of a decision of the Madras High
Court in Secretary of State v. Ashtamurthi [(1890) ILR 13 Mad
F
will liable to ejectment at the end of each year. In the Manual of
Administration, as quoted by Baden Powell, in Vol. Ill of Land Systems of
British India at p. 129, the ryotwari tenure is summarized as that
"of a tenant of the State enjoying a tenant-right which can be inherited, sold,
or burdened for debt in precisely the same manner as a proprietary right,
G
subject always to payment of the revenue due to the State".
Though therefore the ryotwari pattadar is virtually like a proprietor and has
many of the advantages of such a proprietor, he could still relinquish or
abandon his land in favour of the Government. It is because of this position
that the ryotwari pattadar was never considered a proprietor of the land
under his patta, though he had many of the advantages of a proprietor.
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 881
OF MINING & GEOLOGY [J. CHELAMESWAR, J.)

89] 14 where the Madras High Court recorded:- A
" .. At the annexation of Malabar in 1'799, the Government
disclaimed any desire to act as the.proprietor of the soil,
and directed that rerit should be collected from the
immediate cultivators. Trimbak Ranu v. Nana Bhavani
(1875) 12 Born HCR 144 and Secretary of State v. Vira B
Rayan (1886) ILR 9 Mad 175 thus limiting its claim to
revenue. Further in their despatch of 17th December 1813
relating to the settlement of Malabar the Directors
observed that in Malabar they had no property in the land
to confer, with the exception of some forfeited estates.
This may be regarded as an absolute disclaimer by the c
Government of the day of any proprietary right in the janmis'
estate ......"
31. This Court in Balmadies Plantations case (supra)
quoted with approval the above extracted passage from
Ashtamurthi's (supra) judgment. D
32. It was specifically argued on behalf of Balmadies
Plantations that by virtue of a resettlement which took place in
1926, the jenmom rights were converted into ryotwari tenure.
This Court on examination of the relevant standing orders
reached the conclusion that the effect of the Resettlement of
1926 was to retain the jenmom estates and not to abolish the E
same and convert into ryotwari estates. 15
14. In the said case, the Madras High Court had to deal with the rights of a
jenmi whose lands were leased out to a third party by the Collector (State)
without reference to the jenmi and when the tenant defaulted in the payment
of revenue, property was attached and sold under the provisions of the
Madras Revenue Recovery Act. The jenmi successfully challenged the F
legality of such a sale.
15. Para 11 of Balmadies (supra) ........ It would appear from the above that
the effect of the resettlement of 1926 was to retain the janmam estates
and not to abolish the same or to convert them into ryotwari estates. There
was merely a change of nomenclature. Government janman lands were
called the new holdings, while private janmam lands were called the old G
holdings. In respect of janmabhogam (janmi's share) relating to
Government janman lands, the order further directed that the amount to be
paid to the Government should include both the taram assessment and
janmabhogam. ft is difficult, in our opinion, to infer from the above that
janmam rights in the lands in question were extinguished and converted
into ryotwari estates. The use of the word Janmabhogam on the contrary
indicates that the rights of janmis were kept intact. H
882 SUPREME COURT REPORTS [2013) 7 S.C.R.

A 33. But neither of the cases dealt with the question whether
a jenmi is entitled either before or after the abovementioned
settlement of 1926 to the subsoil rights or minerals in the land
held by him. Therefore, we are required to decide the same.

B 34. In Balmadies Plantations case (supra) this Court took
note of two facts - (1) that originally jenmis of Malabar area
were absolute proprietors of the land; and (2) when Malabar
area was annexed, the British expressly disclaimed the
proprietorship of the soil. These conclusions were recorded on
C the basis of Ashtamurthi case (supra).

35. Ashtamurthi case (supra) itself relies upon an earlier
decision of the Madras High Court in Secretary of State v. Vira
Rayan ((1886) ILR 9 Mad 175)1 6 wherein the High Court found
that the land in dispute appertains to the District of Malabar and
D recorded as follows:-

" ........... .and we agree with the Judge that there is
no presumption in that district and in the tracts
administered as part of it, that forest lands are the
E property of the Crown. At the commencement of the
century it was the policy of the Government to allow all
lands to become private estates where that was possible.
Despatch of Lord Wellesley quoted in Baskarappa v. The
Collector of North Canara [l.L.R., .3 Born., 550]. The
despatch and order of the Govemor-Gneral in Council on
F
the annexation of Malabar, dated the 31st December
1799 and the 18th June 1801, have not been adduced,
but their purport appears from the despatch of the 19th

16. It was an appeal decided by a Division Bench of the Madras High Court
G (Sir Charles A. Turner, Kt., Chief Justice, and Mr. Justice Muttusami Ayyar).
The appeal arose out of a suit filed by the State seeking declaration that
certain lands (forest lands) which were the subject matter of dispute in the
said suit were the property of the government and a consequential
injunction restraining the defendants from in any way interfering with the
rights of the Government. The defendants asserted their proprietary rights
H over the lands in dispute.
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTI. 883
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

A
July 1804, quoted in Vyakunta Bapuji v. Government of
Bombay [12 Bom. H.C.R. 144]. It was intimated that it
never could be desirable that the Government itself
should act as the pro-prietor of the lands and should
collect the rents from the immediate cultivators of the soil.
When in 1808 the Board of Revenue suggested that an B
augmentation of revenue might be derived from waste
lands reseNed, they were informed that the Government
did not look to any advantage of that nature beyond the
benefit of increasing the amount of the, public taxes in
proportion to the existing taxes of the country (Fifth C
Report, Appendix 30, page 902. Revenue and Judicial
Selection, Volume I, p. 842). It will be seen that at that
time the Government so far from abrogating the Hindu
law intended to assert no proprietary right to the waste,
but limited itself to its claim to revenue. At the time D
Malabar came under British rule, all the forests were
claimed as private property (/.R.R., 3 Bom. 586). In their
despatch of 17th December 1813, relating to the
settlement of Malabar, the Directors observed that in
Malabar they had no property in the land to confer, with E
the exception of some forfeited estates Revenue
Selection, Volume /, p. 511). Although a different policy
was subsequently pursued in other districts, and,
especially in more modem times, rules have been framed
for the sale of waste lands, there is nothing to show that F
any such change was notified in Malabar up to a period
much later than that at which there is considerable
evidence to show that the respondents Nos. 1 and 2 were
in possession of and recognised as proprietors of .the .
lands they claim by Government officials .... "
G
36. This Court in Balmadies Plantations case (supra) after
taking note of the above legal position with reference to the
jenmom lands of Malabar rejected the contention that as a
result of the resettlement of 1926, jenmom rights stood
H
884 SUPREME COURT REPORTS [2013) 7 S.C.R. .

A converted into ryotwari estate. 17
37. We have already taken note of the legal position with
respect to the minerals obtaining subsoil in the lands held under
landlord tenures (zamindari or inam estates), and also the law
of England, we find it difficult to believe with respect to ryotwari
B
tenures in the British India and particularly the Madras province,
the government assumed the ownership of the subsoil. On the
contra, there is positive evidence in the Board Standing Order
No. 10 dated 19.03.188818 (hereinafter referred to as BSO

c 17. Para 11 ..... It would appear from the above that the effect of the resettlement of 1926
was to retain the janmam estates and not to abolish the same or to convert them into
ryotwari estates. There was merely a change of nomenclature. Govemment janmam
lands were called the new holdings, while private janmam lands were called the old
holdings. In respect of janmabhogam uanmi"s share) relating to Govemment janman
lands, the order further directed that the account to be paid to the Govemment should
include both the term assessment and janmabhogam. It is difficult, in our opinion. to
D infer from the above that janmam rights in the lands in question were extinguished
and converted into ryotwari estates. The use of the word 'Janmabhogam' on the
contrary indicates that the rights of janmis were kept intact.
18. RESOLUTION - dated 19th March 1888, No. 277.
In supersession of the existing Standing Order, the following is
issued as Standing Order No. 10 :-
E 1. The State lays no claim to minerals-
G. O. 26th May, 1882, No. 511 (a) In estates held on sanads of permanent
(Notification, paragraph 1). settlement
G.O. 28th October 1882 No.1181(b) In enfranchised inam lands
G.0. 28th April 1881 No.861 (c) In religious service tenements confirmed under
the inam rules on perpetual service tenure.
F (d) In lands held on title - deeds, issued under the waste land rules, prior to 7th October,
1870, in which no reservation of the right of the State to minerals is made.
2. The right of the State in minerals is limited in the following cases to a share in the produce
of the minerals worked, commuted into a money payment, if thought necessary, by
Government, in like manner with and in addition to the land assessment :-
G.O. 8th October 1883 No.1248. (a) In lands occupied for agricultural purposes
G under ryotwari pattas
G.O. 23rd January 1881 No.121 (b) In janmom lands in MalabarG.O. 16th December
1881 No.1384 .
Persons intending to work minerals in those lands should give notice of their intention to
the Collector of the district, specifying the lands in which they inlend to carry on mining
operation and should pay in two half-yearly instalments a special assessment for minerals
in addition to the land assessment at the following rates:-
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 885
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

No.10) that the State did not claim any proprietary right over A
the mineral wealth obtaining in lands held over a ryotwari patta
or in jenmom lands in Malabar. The State/British in express
terms declared by the said order dated 19.03.1888 that while
"it lays no claim" at all to minerals
(a) In estates held o.n sanads of permanent settlement B

(b} In enfranchised inam lands
(c) In religious service tenements confirmed under the inam
rules on perpetual service tenure.
(d) In lands held on. title - deeds, issued under the waste
c
land rules, prior to 7th October, 1870, in which no
reservation of the right of the State to minerals is made.
the State/British claimed a limited right in minerals w.r.t.
lands D
(a) occupied for agricultural purposes under RYOTWARI
PATTAS",
(b) JENMOM LANDS IN MALABAR"
[emphasis supplied] E

Per acre (Rs.) Per acre (Rsc)
1. For mining for gold 5
2. For mining for metals other than gold 2
3. For mining for diamonds and other precious stones 15 F
4. For mining for coal, lime-stone or quarrying for building stone ... (Such rates as may be
fixed by the Board from time to time.
The rates will be doubled if mining operations are carried on without giving
notice to the Collector. The special assessment will be entered
Board's proceedings dated in the patta granted for the land and collectedunder
10th July 1882 No.1751 the provisions of Act II of 1834 Madras. No G
·charge will be made for
merely prospecting for minerals in patta lands if mines are not regularly worked.
No remission will be granted in respect of any land rendered unfit for surface
cultivation by the carrying on of miningoperations. This rule does not of course
afeet in any way the right which all holders of lands on patta possess of digging
wells in their lands and of disposing of the gravel and stones which may be
thrown up in the course of such excavation. H
886 SUPREME COURT REPORTS (2013] 7 S.C.R.

A 38. The limited right claimed is "to a share in the produce
of the minerals worked, if thought necessary by government."
That right was exerci_sed by the same order with reference to
gold, diamonds and other metals and w.r.t. minerals like coal
etc. it was left to the discretion of the government to be
B exercised from time to time. By necessary implication, it follows
that the State recognised the legal right of the land holder to
the subsoil metals and minerals - whatever name such right is
called - proprietary or otherwise.

C 39. In view of BSO No. 10 referred to above, we need not
unduly trouble ourselves with the metaphysical analysis whether
jenmom rights stil_I subsist in lands of Malabar area or whether
they are converted into ryotwari lands. Apart from the legal
implication of BSO No.10 with respect to Malabar, this Court
had already opined that British never claimed proprietary rights
D over the soil and jenmis were recognised to be the absolute
owners of the soil. It is obvious from the BSO No.10 that the
British never claimed any proprietary right in any land in the Old
Madras Province whether estate land. and therefore both
ryotwari pattadars and jenmis must also be held to be the
E proprietors of the subsoil rights/minerals until they are deprived
of the same by some legal process. Even if we accept the
conclusion recorded in the judgment under appeal that the lands
in question have been converted to be lands held on ryotwari
settlement, the conclusion recorded by us above w.r.t. subsoil/
F mineral rights will still hold good for the reason that even i.n the
lands held on ryotwari patta the British did not assert proprietary
rights.

40. Nothing is brought to our notice which indicates that
G the British intended and in fact did deprive the ryotwari land
holders of the right to subsoil/minerals. Subsequent to 19th
March, 1888, no law to the contra is brought to our notice. Nor
any law made by the Republic of India is brought to our notice.
Though we notice laws to the contra w.r.t. the lands held under
H landlords tenures.
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTI. 887
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

.~ 1. Article 294 19 of the Constitution provides for the A
succession by the Union of India or the corresponding State,
as the case may be, of the property which vested in the British
Crown immediately before the commencement of the
Constitution. On the other hand, Article 29720 makes an express
declaration of vesting in the Union of India of all minerals and B
other things of value underlying the ocean.

"297. All lands, minerals and other things of value
underlying the ocean within the territorial waters or the
continental shelf of India shall vest in the Union and be held
for the purposes of the Union."
c
[as originally enacted 21 ]
19. 294 - As from the commencement of this Constitution -
(a) all property and assets which immediately before such commencement D
were vested in His Majesty for the purposes of the Government of the
Dominion of India and all property and assets which immediately before
such commencement were vested in His Majesty for the purposes of the
Government of each Governor's Province shall vest respectively in the Union
and the corresponding State, and
(b) all rights, liabilities and obligations of the Government of the Dominion
of India and of the Government of each Governor's Province whether arising E
out of any contract or otherwise, shall be the rights, liabilities and obligations
respectively of the Government of India and the Government of each
corresponding State, Subject to any adjustment made or to be made by
reasons of the creation before the commencement of this Constitution of
the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal,
West Punjab and East Punjab.
20. Section 297 was amended by the Constitution (Fortieth Amendment) Act, F
1976.
21. 297 - Things of value within territorial waters or continental shelf and
resources of the exclusive economic zone to vest in the Union
(1) All lands, minerals and other things of value underlying the ocean within
the territorial waters, or the continental shelf, or the exclusive economic
zone, of India shall vest in the Union and be held for the purposes of the G
Union.
(2) All other resources of the exclusive economic zone of India shall also
vest in the Union and be held for the purposes of the Union.
(3) The limits of the territorial waters, the continental shelf, the exclusive
economic zone, and other maritime zones, of India shall be such as may
be specified, from time to time, by or under any law made by Parliament. H
888 SUPREME COURT REPORTS [2013] 7 S.C.R.

A The contradistinction between both the articles is very. clear
and, in our opinion, is not without any significance. The makers
of the Constitution were aware of the fact that the mineral
wealth obtaining in the land mass (territory of India) is not
vested in the State in all cases. They were conscious of the
B fact that under the law, as it existed, proprietary rights in
minerals (subsoil) could vest in private parties who happen to
own the land. Hence the difference in the language of the two
Articles.

C 42. The above conclusion of ours gets fortified from the
fact that under the Mineral Concession Rules, 1960 framed by
the Government of India in exercise of the powers conferred
in Section 3 of the Mines & Minerals Regulation &
Development Act, 1957, different procedures are·
contemplated and different sets of rules are made dealing with
0 the grant of mining leases in respect of the two categories of
lands in which the minerals vest, either in the Government or .
in a person other than the Government. While Chapter 4 of the
said rules deals with the lands where the minerals vest in the
Government, Chapter 5 deals with the lands where the
E minerals vest in a person other than the Government.
Correspondingly, the Minor Mineral Concession Rules made
by the State of Kerala also recognises such a distinction in
Chapters V and VI.

F 43. In those areas of the Old Madras Province to which
the Estates Land Act applied, the minerals came to be vested
in the State by virtue of the subsequent statutory/declarations
(which are already taken note of). But with reference to those
areas where the above-mentioned Act had no application, such
G as the Malabar area of the Old Madras Province, which is now
a part of the State of Kerala, or areas where the ryotwari system
was in vogue, the proprietary right to the subsoil should vest
in the holder of the land popularly called pattadar as no law in
the pre or post constitutional period is brought to our notice
H which transferred such right to the State.
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 889
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

44. We must also hasten to add that even with reference A
to those areas of Old Madras Province, whether the ryots
securing pattas pursuant to the abolition of the estates under
the Estates Abolition Act, 1948 etc., would be entitled to subsoil
rights or not is a question pending in other matters before this
Court. Whether the patta granted pursuant to the provisions of B
the Estate Abolition Act etc., would entitle the pattadarto subsoil/
mineral rights or is confined only to surfacial rights is a matter
on which we are not expressing any opinion in this case. We
are only dealing with the legal rights of the pattadars holding
lands under the ryotwari system of the Old Madras Province, c
i.e. other than the lands covered by the Estates Land Act - lnam
Lands.

45. That leaves us with another aspect of the matter. We
are required to examine the correctness of the conclusion
recorded by the High Court on the basis of the four judgments D
referred to in para 12 (supra) that a ryotwari pattadar is not
entitled to the subsoil (minerals) in his patta land.

46. The first decision relied upon is Secretary of State v.
Sri Srinivasachariar, AIR 1921 PC 1. In our view, the reliance E
placed by the High Court on the abovementioned judgment is
wholly misplaced. It was a case where the holder of shrotriem
inam granted ,some 160 years prior to the decision "by the
Government that existed prior to the British Government"
claimed that the shrotriemdas had unfettered rights to quarry F
stone in the shrotriem village without payment of any royalty. lhe
Privy Council held thatthe rights of the shrotriemdas depended
upon the language and terms of the original grant. We have
already noticed that the said judgment was considered and
relied upon by this Court in Duvvuru Balarami Reddy case G
(supra). What is important in the present context is that the issue
in Sri Srinivasachariar (supra) is not with reference to any claim
of subsoil rights in a land held under ryotwari patta. Whatever
was decided in that case is wholly inapplicable to the rights of
a ryotwari pattadar. Nowhere it was laid down in the said H
890 SUPREME COURT REPORTS [2013] 7 S.C.R.

A decision that irrespective of the nature of the tenure - all mineral
wealth in this country vested in the Crown or the State.

47. The next case relied upon by the High Court is T.
Swaminathan (Dead) and Another v. State· of Madras and
22
8 Others, AIR 1971 Mad 483. A passage occurring in the said
judgment was relied upon in support of the conclusion that a
ryotwari pattadar has no right to the subsoil/minerals. It is
unfortunate that the Madras High Court opined that it is a well
established proposition that all minerals underground belong
C to the Crown and now to the State. Such a statement of law is
recorded without any explanation whatsoever nor examination
of any legal principle. From our discussion so far, we have
already reached the conclusion that neither in England nor in
this country, at least in the Old Madras Province, during the
British regime, there was any such established proposition of
D law that all the minerals belong to the Crown. On the other hand,
the available material only leads to an inevitable conclusion
otherwise.

48. The next case relied upon by the Kerala High Court is
E Sashi Bhushan Misra v. Jyoti Prasad Singh Deo, AIR 1916
PC 191. This decision once again dealt with the rights of an
inamdar particularly an inam which was not part of the Old
Madras Province. Therefore, the decision is wholly irrelevant
in deciding the rights of a ryotwari pattadar especially in the Old
F Madras Province.

49. We are only sorry to notice that the next case relied
upon by the Kerala High Court according to the judgment under
appeal is ILR 1969 AP 736 titled Kaliki Subbarami Reddy v.

G
22. So, as a ryotwari pattadar, he f!as every right to the use of the surface of
the soil, but his proprietary right, if any, in our view, does not extend to the
minerals of the soil. It was a well established proposition that all minerals
underground belonged to the Crown, and now to the State, except in so far
as the State has parted with the same wholly or partly in favour of an
individual or body.
H
THREESIAMMA JACOB & ORS. v. GEOLOGIST, OPTT. 891
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

Union of India. We searched in vain to secure this judgment. A
Though there is a case reported by the abovementioned cause
title, which was decided in 1979 i.e. AIR 1980 AP 147: 1980
(1) APLJ 117. At any rate, in the light of our earlier discussion,
the observation 23 relied upon by the judgment under appeal,
allegedly from the above case, should not make any difference. B

50. Equally the observations 24 made in the case of V.
Gangarathinam v. State of Tamil Nadu, 1990 TNLJ 374 is
without any basis.
c
51. The other material which prompted the High Court to
reach the conclusion that the subsoil/minerals vest in the State
is (a) recitals of a patta which is already noted by us earlier (in
para 12) which states that if minerals are found in the property
covered by the patta and if the pattadar exploits those minerals,
0
the pattadar is liable for a separate tax in addition to the tax
shown in the patta and (2) certain standing orders of the
Collector of Malabar which provided for collection of
seigniorage fee in the event of the· mining operation being
carried on. We are of the clear opinion that the recitals in the E
patta or the Collector's standing order that the. exploitation of
mineral wealth in the patta land would attract additional tax, in
our opinion, cannot in any way indicate the ownership of the
State in the minerals. The power to tax is a necessary incident
of sovereign authority (imperium) but not an incident of
proprietary rights (dominium). Proprietary right is a compendium F
of rights consisting of various constituent, rights. If a person has
only a share in the produce of some property, it can never be
said that such property vests in such a person. In the instant

23. "Not a single case has been cited before us in which it was held that a G
ryotwari pattadar is the owner of sub-soil rights".
24. "from the extracts given above, we do not think that it is possible to arrive
at any other conclusion except to hold that the State is the owner of the
minerals underneath the surface. Therefore, we agree with the learned
Advocate General that the State is the owner of the minerals".
H
892 SUPREME COURT REPORTS [2013] 7 S.C.R.

A case, the State asserted its 'right' to demand a share in the
'produce of the minerals worked' though the expression
employed is right - it is in fact t_he Sovereign authority which is
asserted. From the language of the BSO No.10 it is clear that
such right to demand the share could be exercised only when
B the pattadar or somebody claiming through the pattadar,
extracts/works the minerals - the authority of the State to collect
money on the happening of an event - such a demand is more
in the nature of an excise duty/a tax. The assertion of authority
to collect a duty or tax is in the realm of the sovereign authority,
c but not a proprietary right.

52. On the other hand, it appears from the judgment under
appeal that the State of Kerala itself produced the BSO No.10
referred to (supra). Unfortunately, neither the content of the said
order nor the legal effect of the said order has been examined
0
by the High Court and the High Court with reference to the said
order made a cursory observation as follows:

"The State has also produced the proceedings of the
Soard of Revenue, dated 19th March, 1888 as Ext.R1(L).
E By that proceedings, standing order No.10 is issued in
supersession of the existing standing order. It categorises
four kinds of lands. The first head is the estates held on
sanads of permanent settlement, second is the
enfranchised inam lands and t~e third is the religious
F service tenements conferred under the inam rule& on
perpetual service tenure and the fourth is the lands held
on title-deeds, issued under the waste land rules, prior to
7th October 1870, in which no reservation of the right of
the State to minerals is made."
G 53. The only other submission which we are required to
deal with before we part with this matter is the argument of the
learned counsel for the State that in view of the scheme of. the
Mines and Minerals (Development and Regulation) Act, 1957

H
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT 893
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

which prohibits under Section 4 25 the carrying on of any mining A
activity in this country except in accordance with the permit,
licence or mining lease as the case may be, granted under the
Act, the appellants cannot claim any proprietary right in the sub-
soil. In our view, this argument is only stated to be rejected.
54. Mines and Minerals Act is an enactment made by the B
Parliament to regulate the mining activities in this country. The
said Act does not in any way purport to declare the proprietary
rights of the State in the mineral wealth nor does it contain any
provision divesting any owner of a mine of his proprietary rights.
On the other hand, various enactments made by the Parliament c
such as Coking Coal Mines (Nationalisation) Act, 1972 and
Coal Bearing Areas (Acquisition and Development) Act, 1957
make express declarations under Section 4 and 7
respectively26 providing for acquisition of the mines and rights
in or over the land from which coal is obtainable. If the 0
understanding of the State of Kerala that in view of the

25. 4. Prospecting or mining operations to be under licence or lease : - (1)
No person shall undertake any reconnaissance, prcspecting or mining
operations in any area, except under and in accordance with the terms
and conditions of a reconnaissance permit or of a prospecting licence or, E
as the case may be, a mining lease, granted under this Act and the rules
made thereunder]:
Provided that nothing in this sub-section shall affect any prospecting or
mining operations undertaken in any area in accordance with the terms
and conditions of a prospecting licence or mining lease granted before
the commencement of this Act which is in force at such commencement.
F
Provided further that nothing in this sub-section shall apply to any
prospecting operations undertaken by the Geological Survey of India, the
Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and
Research of the Department of Atomic Energy of the Central Government,
the Directorates of Mining and Geology of any State Government (by
whatever name called ), and the Mineral Exploration Corporation Limited,
a Government Company within the meaning of Section 617 of the G
Companies Act, 1956.
26. Section 4 of Coking Coal Mines (Nationalisation) Act, 1972 - 4(1) On the
appointed day, the right, title and interest of the owners in relation to the
coking coal mines specified in the First Schedule shall stand transferred
to, and shall vest absolutely in, the Central Government, free from all
incumbrances. H
894 SUPREME COURT REPORTS [2013] 7 S.C.R.

A provisions of the Mines and Minerals Development (Regulation)
Act, 1957, the proprietary rights in mines stand transferred and
vest in the State, it would be wholly an unnecessary exercise
on the part of the Parliament to make laws such as the ones
mentioned above dealing with the nationalisation of mines.
B 55. Even with regard to the minerals which are greatly
important and highly sensitive in the context of the national
security and also the security of humanity like uranium - the
Atomic Energy Act, 1962 only provides under Section 527 for
prohibition or regulation of mining activity in such mineral. Under
c Section 1028 of the Act, it is provided that the Government of
India may provide for compulsory vesting in the Central
Government of exclusive rights to work those minerals. The said
Act does not in any way declare the proprietary right of the
State.
D 56. Similarly, the Oilfields (Regulation and Development)
Act, 1948 deals with the oilfields containing crude oil, petroleum
(2) For the removal of doubts, it is hereby declared that if, after the appointed
day, any other coal mine is found, after an investigation made by the Coal
Board, to contain coking coal, the provisions of the Coking Coal Mines
(Emergency Provisions) Act, 1971, shall, until that mine is nationalized by
E an appropriate legislation apply to such mine.
Section 7 of Coal Bearing Areas (Acquisition and Development) Act, 1957
- 7(1) If the Central Government is satisfied that coal is obtainable in the
whole or any part of the land notified under sub-section (1) of section 4, it
may, within a period of two years from the date of the said notification or
within such further period not exceeding one year in the aggregate as the
F Central Government may specify in this behalf, by notification in the Official
Gazette, give notice of its intention to acquire the whole or any part of the
land or of any rights in or over such land, as the case may be.
(2) if no notice to acquire the land or any rights in or over such land is given
under sub-section (1) within the period allowed thereunder, the notification
issued under sub-section (1) of section 4 shall cease to have effect on the
expiration of three years from the date thereof.
G
27. Section 5 - Control over mining or concentration of substances containing
uranium
(1) If the Central Government is satisfied that any person is mining or is about
to mine any substance from which, in the opinion of the Central
Government, uranium can be or may reasonably be expected to be, isolated
H or extracted, or is engaged or is about to be engaged in treating or
THREESIAMMA JACOB & ORS. v. GEOLOGIST, DPTT. 895
OF MINING & GEOLOGY [J. CHELAMESWAR, J.]

etc. which are the most important minerals in the modern world. A
The Act does not anywhere declare the proprietary right of the
State.
57. For the above-mentioned reasons, we are of the
opinion that there is nothing in the law which declares that all
mineral wealth sub-soil rights vest in the State, on the other B
hand, the ownership of sub-soil/mineral wealth should normally
follow the ownership of the land, unless the owner of the land
is deprived of the same by some valid process. In the instant
appeals, no such deprivation is brought to our notice and
therefore we hold that the appellants are the proprietors of the c
concentrating by any physical, chemical or metallurgical process any
substance from which, in the opinion of the Central Government, uranium
can be or may reasonably be expected to be, isolated or extracted, the
Central Government may by notice in writing given to that person either --
(a) require him in conducting the mining operations or in treating or
concentrating the substance aforesaid to comply with such terms and D
conditions and adopt such processes as the Central Government may in
the notice, or from time to time thereafter, think fit to specify, or
(b) totally prohibit him from conducting the mining operations or treating or
concentrating the substance aforesaid.
(2) Where any terms and conditions are imposed on any person conducting
any mining operations or treating or eoncentrating any substance under cl. E
(a) of sub-section (1). the Central Government may, having regard to the
nature of the terms and conditions, decide as to whether or not to pay any
compensation to that person and the decision of the Central Government
shall be final :
Provided that where the Central Government decides not to pay any
compensation, it shall record in writing a brief statement giving the reasons F
for such decision.
(3) Where the Central Government decides to pay any compensation under
sub-section (2), the amount thereof shall be determined in accordance with
section 21 but in calculating the compensation payable, no account shall
be taken of the value of any uranium contained in the substance referred
to in sub-section (1 ).
G
(4) Where any mining operation or any process of treatment or concentration
of any substance is prohibited under clause (b) of sub-section (1 ), the
Central Government shall pay compensation to the person conducting the
mining operations or using the process of treatment or concentration and
the amount of such compensation shall be determined in accordance with
section 21 but in calculating the compensation payable, no account shall
be taken of the value of any uranium contained in the substance. H
896 SUPREME COURT REPORTS [2013] 7 S.C.R.

A minerals obtaining in their lands. We make it clear that we are
not making any declaration regarding their liability to pay royalty
to the State as that issue stands referred to a larger Bench.
R.P. Appeals disposed of.

B 28. Section 10 - Compulsory acquisition of rights to work minerals
( 1) Where it appears to the Central Government that any minerals from which
in its opinion any of the prescribed substances can be obtained are present
in or on any land, either in a natural state or in a deposit of waste material
obtained from any underground or surface working, it may by order provide
for compulsorily vesting in the Central Government the exclusive right, so
C long as the order remains in force, to work those minerals and any other
minerals which it appears to the Central Government to be necessary to
work with those minerals, and may also provide, by that order or a
subsequent order, for compulsorily vesting in the Central Government any
other ancillary rights which appear to the Central Government to be
necessary for the purpose of working the minerals aforesaid including
(without prejudice to the generality of the foregoing provisions)--
D (a) rights to withdraw support;
(b) rights necessary for the purpose of access to or conveyance of the minerals
aforesaid or the ventilation or drainage of the working;
(c) rights to use and occupy the surface of any land for the purpose of erecting
any necessary buildings and installing any necessary plant in connection
with the working of the minerals aforesaid;
E (d) rights to use and occupy for the purpose of working the minerals aforesaid
• any land forming part of or used in connection with an existing mine or
quarry, and to use or acquire any plant used in connection with any such
mine or quarry; and
(e) rights to obtain a supply of water for any of the purposes connected with
the working of the minerals aforesaid, or to dispose of water or other liquid
F matter obtained in consequence of working such minerals.
(2) Notice of any order proposed to be made under this section shall be served
by the Central Government--
(a) on all persons who, but for the order, would be entitled to work the minerals
affected; and
(b) on every owner, lessee and occupier (except tenants for a month or for
less than a month) of any land in respect of which rights are proposed to
G be acquired under the order.
(3) Compensation in respect of any right acquired under this section shall be
paid in accordance with section 21, but in calculating the compensation
payable, no account shall be taken of the value of any minerals present in
or on land affected by the order, being minerals specified in the order, as
those from which in the opinion of the Central Government uranium or any
H concentrate or derivative of uranium can be obtained.