Jaganmohan Reddi, C.J.:-
(1) The three writ petitions are concerned with the applications for the grant of mica mining leases. In these writ petitions, the petitioner k. Subba rami reddy, is one of the co - owners of shrotriem land bearing survey no. 535, measuring acres 215 - 44 in chengampalli alias gokula brindavanam of saidapuram village of rapur taluk in nellore district, having betn granted, after the abolition of inams, a joint ryotwari patta in his as well as in the names of other inamdars. We will refer to the respondents as they are arrayed in writ petition no. 207, throughout. The 1st respondent is the union government of india; the and respondent is the state of andhra pradesh; the 3rd respondent is linga reddy venkata reddy; the 4th respondent is b. Narasimhamurthy ; the 5th respondent is the district collector, nellore and the 6th respondent is the official receiver, nellore. On 19th may, 1942, three leases were granted by three sets of inamdars to the 3rd respondent. Under the procedure then in vogue for the grant of mineral concessions, there should be a tripartite agreement known as joint patta land agreement, between the lessee, the owners (i. E. , the lessors) and the government. This joint patta land agreement was entered into between the three parties and the periov of lease was for 20 years commencing from nth may, 1943, and ending with 10th may, 1963. Thereafter, respondent no. 3 retained for himself an area of acres 7 - 0 and sub - leased an extent of acres 48 - 53 in favour of the 4th respondent on 19th april, 1953, and acres 162 - 46 in favour of krishna mining company. It may be noticed that the leasehold right of the 3rd respondent according to the petitioner, was upto 12th may, 1963. The petitioner alleges that he has also been working the mica mines for the last 15 years, that he is one of the ryotwari pattadars and was in all 60 per cent, interest in the said lands, namely, 32 per cent interest as an owner and 28 per cent, as lessee of the other shareholders and that neither the 4th respondent nor krishna mining company owned any portion in the said land and after the expiry of the existing joint patta land agreement in favour of the 3rd respondent on 12th may, 1963, he intends to work the mines.
(2) In the year1957, the mines and minerals (regulation and developme act (hereinafter referred to as the act) was passed and rules were framed thereunder in 1960. Respondents 3 and 4 and krishna mining company have applied for regularisation of the joint patta land agreement under the new mineral concession rules, for the uncxpired period of the agreement, i. E. , upto 10th may, 1963. The petitioner having come to know that in the process of regularisation of the joint patta land agreement, the state of andhra pradesh, respondent no. 2, was contemplating inclusion of a clause for an option for a renewal of the said lease for a further period of 20 years, objected to the inclusion of such a clause, and raised a further objection in regard to the right of the state government to renew the jease beyond 12th may, 1963, without the consent of the pattadar, i. E. , himself, who had a share in the minerals. The government in its memorandum no. 47 2 - b - 3/6 1 - 2, dated 5th november, 1962, informed the collector, nellore, that no question of regulation of the joint patta land agreement under the mineral concession rules of 1960 arises, and further declared that the old rules continued to apply to the joint patta lease agreement granted in favour of the 3rd respondent. The petitioner states that as a matter of fact, the joint patta land agreement does not contain any clause for renewal of the same for any period whatsoever, and in all cases where a renewal of the agreement was requested, it was refused on the ground that it was not regularised by the execution of a lease deed under the mineral concession rules, 1960 - vide memo. No. 3114 - b - 11 - 64 - 1, dated 1st october, 1965.
(3) The act came into force on 1st june, 1958, and the mineral concession rules, on 11th november, 1960. While the joint patta lease agreement was refused to be regularised in the case of the 3rd respondent, in the case of the 4th respondent, a lease was executed in form k appended to the mineral concession rules, on 31st october, 1961, under the colour of regularising the unexpired period of the joint patta land agreement. The state government while purporting to regularise the lease in favour of the 4th respondent, included a clause for renewing the lease for a period of 20 years at their option. This was done without giving a notice to the petitioner, although he is a pattadar and lessor of the said land. On coming to know the above facts, the petitioner filed a petition before the state government for deleting the said clause on the ground that the government have no right to lease out the patta lands to anybody other than the pattadar. But the government in its memorandum dated 17th september, 1963, intimated the petitioner that the lease was renewable at the option of the lessee. Against this order, the petitioner filed a revision before the central government contending that the lease cannot be renewed either at the option of the government or of the lessee for any period after 12th may, 1963. The central government rejected this revision petition on 29th september, 1965, as untenable on the ground that the state government in its memorandum no. 4947/bill/618 dated 17th september, 1962, had merely declared the legal position and did not pass any orders giving rise to a cause of action for revision.
(4) As the state government proposed to execute a similar agreement in form k with the renewal clause in favour of respondent no. 3, the petitioner filed a writ petition no. 98. 8 of 1962. One kondur achamma also filed a writ petition no. 67 of 1963 to restrain the state government from executing a mining lease in favour of the 4th respondent or any one else in respect of the said land for any period beyond 12th may, 1963, either by way of a fresh lease or by way of renewal of an earlier lease. These writ petitions came up for hearing in october, 1963 after the period of the joint patta lease agreement has expired. Since the applications filed by the 3rd and 4th respondents for renewal, "dated 12th september, 1962 and 7th november, 1962 respectively are also detmcd to have been rejected under rule 24 of the mineral concession rules, inasmuch as no orders were passed thereon, and the period allowed for revision would expire and as they proposed to file revision petitions before the central government, the writ petitions were withdrawn, only after several days of arguments, and were accordingly dismissed. In view of the central government's letter no. 3 - 162/136/56, dated 6th december, 1962, as the pattadars or persons of their choice are entitled for mining leases in respect of patta lands without any notification under rule 58 (1) of the mineral concession rules, the petitioner applied in october, 1963, for the grant of a mining lease in respect of the said land, claiming among others a preferehtiel right thereto. As this petition was not disposed of within the prescribed period, it was consequtently deemed to have been rejected under rule 24 of the mineral concession rules. The petitioner therefore filed a revision petition before the central government under rule 54. Respondents 3 and 4 whose petitions also were deemed to have been rejected under rule 24, as no orders were passed even on their applications, also, filed revision petitions under the said rule. Upon these revision petitions, the central government called for comments of the state government. The state government in its comments submitted that the 3rd respondent violated rule 37 and that the lease of the 4th respondent was void ab initio as such, none of them were entitled to a renewal; and that the petitioners application was premature. These comments were communicated to the petitioner for submitting his representation therefor, and the petitioner in his representation "to the central government submitted several contentions. The central government (respondent no. 1) however rejected the petitioner's revision pet'tion on 25th january, 1966, without assigning any reasons whatsoever, and that order is the subject - matter of writ petition no. 207 of 1966. The petitioner having learnt that the revision petitions filed by the 3rd and 4th respondents were allowed and they were directed to approach the state government for renewal orders has also attacked their legality. The order passed by the central government in respect of the 4th respondent is the subject - matter of w. P. No. 530 of 1966 and the order passed in respect of the 3rd respondent is the subject - matter of w. P. No. 579 of 1966. W. A. No. 188 of 1966 is preferred against an order in w. P. No. 207 of 1966 passed by krishna rao, j. , vacating the interim injunction. Mr. Kuppuswamy, learned counsel for the petitioner, contends firstly, that the central government in exercising its revisional power was acting in a quasijudicial capacity, and since no reasons were given,. The order was bad; secondly, that rule 24 (3) which says that if an application is not disposed of within the specified period, it shall be deemed to have been refused, is ultra vires the provisions of sections 10 and 13 of the act, inasmuch as the act does not contemplate silence on the part pf the authorities as amounting to refusal. Likewise he contends that for the purpose of revision to the central government, the explanation to rule 54, viz. , " for the purposes of this rule, where a state government has failed to dispose of an application for the grant or renewal for a prospecting licence or a mining lease within the period specified in respect thereof in these rules, the state government shall be deemed to have made an order refusing the grant or renewal of such licence or lease on the date on which such period expires," contemplates the making of an order by the authority concerned, and the remedy of revision provided under rule 54 by virtue of the rule - making power conferred by section 13 (2) (9) of the act, argues the learned counsel, is only against an order made by the government, and the making of an order means that the order must be the result of a conscious act; thirdly, that rule 54 is ultra vires; and fourthly, that inasmuch as the ryotwari pattadar owns the minerals found in his land, the government cannot grant a lease to others without the permission or consent of the pattadar or without his being associated. With them. For these reasons, mr. Kuppuswamy contends that the application of the petitioner cannot be deemed to have been rejected by the state government and it must be considered to be pending. The central government, accordingly, has no jurisdiction to entertain the revision petitions, and the orders passed thereon are non est. Further it is submitted that the orders of both the state and the central governments are vitiated inasmuch as the state government had not rejected the applications giving reasons, and comments made by the state government cannot take the place of reasons to be given by it at the time of disposal of the petition. The orders of the central government are also bad, as no reasons have been given by it, though in two of the cases they had reversed the orders of the state government.
(5) Sri ramachandra rao for the central government contends that the petitioner himself invoked the jurisdiction of the central government and filed revision on the assumption that rule 24, the explanation to rule 54 and. Rule 55 are intra vires, and tailing a chance of success, and having failed, he cannot challenge the jurisdiction. In support of this proposition, he has cited a decision in m/s. Pannalal binjraj v. Union of india, 1957 s. C. R. 233 : air 1957 sc 397. Following o. A. O. K. Lakshmanan chettiar v. Corporation of madras, 1926 51 m. Lj. 742 : 1927 i. L. R. 50 mad 130 : air 1927 mad 130, this proposition is however subject to a rider that where there is inherent lack of jurisdiction, submission to jurisdiction will not rectify the want of it, see m/s. Sheik hussain and co. V. Stale ofa. P. ,1
(6) In so far as the petitioner's contention that rule 24, explanation to rule 54 and rule 55 are ultra vires is concerned, mr. Ramachandra rao contends that they contemplate disposal in two ways: (1) casual disposal and (2) non - disposal. The rules relating to deemed disppsal, he contends, do not in any way conflict with the provisions of the act, and are at any rate, not inconsistent with it. So, if rules are within the powers conferred by the act, rule 24 relating to deeming provision is intra vires. These rules were laid before the parliament and approved by them, and consequently have the force of law. The instances mentioned in section 13 (2) of the act are only illustrative arid do not restrict the general power under section 13 (1) , to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals, and for purposes connected , therewith. It was also contended that under section 30, the central government could exercise the power of revision suo motu, or on an application made within the prescribed time by an aggrieved party. Even though the central government has not given the reasons in its order, as they are evident from the record the court can peruse them. In any case. , in respect of the contention that the central government has to give reasons for rejecting the application of the petitioner, the learned counsel, stated that unless the land is available for grant, the application has to be rejected as premature under rule 60, in which case no reasons at all need be given in the order. According to the rules, when the land is not available for grant, no application is entertainable, and there would be no need to give any reasons for rejecting such an application by the state government, or the revision by the central government. In these circumstances, he contends, the question whether the rule is ultra vires or not, need not be considered. The very locus standi of the petitioner to file the writ petitions is wanting, and consequently, they must be dismissed. Mr. Gangadhara rao appearing for the 4th respondent contends that the result of withdrawal of the writ petitions nos. 988 of 1962 and 67. Of 1963 by the petitioner and achamma on 16th october, 1963 without an order of the court granting liberty to file a fresh writ, debars the petitioners from filing these writ petitions, as, according to him, the provisions of order 23, rule 1, civil procedure code, applies in such a case. By a reference to section 141, civil procedure code, it is submitted that in as much as the proceeding provided in the civil procedure code in regard to suits shall be followed as far as it can be made applicable to all proceedings in any court of civil jurisdiction, order 23, rule 1, would apply to writ petitions also.
(7) It has been held in chenchanna v. P. S. Transports ltd. ,2 and ramesh v. Gendalal, that the provisions of order 47, rule 1, apply to writ petitions, and on the same analogy order 23, rule 1 also should be made applicable. He also supports the contention of mr. Ramachandra rao that unless an area is not fied under rule 58 and applications are called for, no person can apply for a mining lease in respect of that area, and an appllication made in respect of areas not so notified shall not be entertained and have to be dismissed as premature. He, therefore, contends that vis - a - vis the application of the 4th respondent, the petitioner is a stranger and cites seshanna v. Union government of india, as an authority for two propositions, namely, that (1) if an area is not notified, strangers have no right; and (2) in such circumstances, the strangers need r. Ot be made parties. He states that neither the petitioner nor the 3rd and the 4th respondents were granted licences. So, neither the 3rd respondent nor the 4th respondent need make the petitioner a party to the revision petitions before the central government against the non - grant of licence in their favour. Rule 54 (2) only makes it necessary to make a person a party who has been granted a licence. Again it is contended that the 4th respondent's application is only for renewal of the lease and not a fresh application. In the case of a renewal, no third party is concerned; it is a matter between the person asking for the renewal and the government. If this be so, the petitioner is not conearned, nor can he be said to be an aggrieved person. The contention of mr. Kuppuswamy that the sub - lease itself was void, was countered by the contention that the 3rd respondent informed the collector an 31st january, 1953, about the sub - lease under rule 13 - a of the, mining m? - r. Ual which was in force in 1953, and that the collector had recorded that intimation on 8th february, 1953 and that the 3rd respondent executed the lease in favour of the 4th respondent only thereafter on 19th april, 1953. Dealing with the contention of the petitioner that he owns the mineral rights in his ryotwari patta lands, mr. Gangadhara rao contends that the supreme court in state of andhra pradesh v. Balarami reddy, 1963 2 s. C. J. 389 : (1963) 2 an. W. R. (s. C.) 90 : (1963) 2 m. L. J. (s. C.) 90 : a. I. R. 1963 sc 264, held that rights to minerals in an inam depends upon the tenure of the inam; accordingly it is for the petitioner to establish that under the terms of the inam granted to him, the mineral rights also were granted to him. This right nert having been established, the petitioner had no right to the minerals. The grant of a ryotwari patta under the inams abolition act will not, and did not confer the sub - soil rights or the rights in the minerals. In any case, the board's standing order 28 (7) to which a reference has been made by the petitioner, in which it is stated that a pattadar of a ryotwari land has a right to work the minerals, does not necessarily mean that the minerals belong to him; nor is the board's standing order conclusive in this regard. In any case, petitioner's joint possession cannot prevent the other co - owners who have equal right of ownership in the land and possession of it, from applying and obtaining mineral concessions, which they could do without his consent as long as it does not dispossess him. Mr. Gangadhara rao also contends that the act has sufficiently safeguarded the interests of third parties, in that compensation has been provided under section 13 (2) (j) of the act and rules 27 (1) (d) and 27 (2) (d) , (e) and (a) of the mineral concession rules. It is also submitted that there is not in the whole of the act, or the rules made thereunder any provision by and under which a preferential right is conferred on the owner of surface. Even the sub - lease granted in favour of the 4th respondent which was challenged, is valid, as already adverted to, as it was granted after due intimation to the collector under rule 13 - a of the mining manual then in force. Mr. Babulu reddy who appears for the 3rd respondent while supporting the contentions of mr. Ramachandra rao and mr. Gangadhara rao, says that there is no need to say that the petitioner's application is refused, when it is a fresh application for the grant of a mining lease in respect of a land which is not available, as such an application is not entertainable under rule 60 as being premature.
(8) Granting or refusing will only arise in the case of entertainablr applcations. It is in respect of such an application that the petitioner previously filed a writ petition, withdrew it, filed a revision, and when it was dismissed filed these writ petitions. The writ petitions ought not to be entertained, because there is no manifest injustice, which is one of the grounds necessary for the high court to exercise its writ jurisdiction in addition to the other grounds viz. , error of law and jurisdiction. There is no grave miscarriage of justice or substant'al injustice done in the instant case. If it is obvious that no relief can be granted, then no writ should be entertained - see guruswamy v. State of mysore, 1954 s. C. J. 644 : a. I. R. 1954 s. C. 592 at 596. Again it is contended that, if no right is involved, the proceeding will not be a quasi - judicial proceeding - see seetharamaiah v. State of andhra pradesh, 1962 1 an. W. R. 146. If a us arises at the stage of revision, it would be a quasi - judicial proceeding; but even so, a right should be involved, which is however absent in the case of the petitioner. In cases where there is an order in favour of a person, though he has no right, nonetheless there would be a us and it would be a quasijudicial proceeding. If once the application is rejected as not entertainable, unless he files a revision sic filed by another person; nor can he object to the renewal in favour of that other person. Accordingly, if writ petition no. 207 is rejected, as it ought to be then the petitioner has no locus stondi to maintain the other writ petitions, as he would have no further claim. Under rule 28, if the application of the petitioner cannot be entertained, the 3rd respondent's application must be granted.
(9) In so far as the contention that the rules are ultra vires is concerned, mr. Babulu reddy contends that though the impugned rules cannot be said to be made under any of the provisions of sub - section (2) of section 13, they are intra vires sub - section (1) of the said section. If a time is fixed for the grant of an application, which is properly within the rule - making power, and if an application is not granted within that time the rule that it is deemed to be dismissed is equally a rule for regulating the grant of a mining lease, and in any event, it is for a purpose connected therewith. The power to make a rule to refuse is also a part of the power to grant, so that the rule both for granting and rejecting the application is intra vires. It is also mr. Babulu reddy's contention that where the central government finds that it is necessary to take mines and minerals under the union control for better development of the minerals, it can take that power under item 18 of list i of the constitution. When such a power is taken, it is in the national interest for the central government to see that the state government disposes of applications for grant of mining leases within a prescribed period, failing which the applications could avail themselves of a right of revision, treating it as one of refusal. On the question whether a ryotwari pattadar has a right to the minerals in the lard, mr. Babulu reddy cites the 10th report of the law commission (page 8) which says that the sub - soil rights have never vested in the pattadar, but only in the government. Mr. Ramachandra reddy, the learned government pleader, has confined his arguments merely to the rights of the ryotwari pattadars to the minerals in the land.
(10) In this regard, he submitted that a ryotwari tenure is nothing more nor less than a system of land revenue administration introduced between 1802 and 1818, under which the proprietorship of the pattadar in the holding is recognised for the purposes of assessment in order to make the holder directly responsible for payment of revenue eliminating the middlemen. He has referred to the observations of wanchoo, j. , in karimbil kunhikoman v. State of kerala, 1962 1 mlj (sc) 213: (1962) 1 an. W. R. Sc) 213 : (1962) 1 scj 510 : air 1962 sc 723. Particularly where it is said that a ryotwari pattadar was never considered a proprietor of land under his patta, though he had many of the advantages of a proprietor. He further submits that there is not a single case where it has been held that a pattadar has sub - soil rights. Even under the mining manual, the demand of assessment is no more than a royalty for the use and consumption of that which belongs to the government, and that a token royalty w?. S being levied under it. All the cases that have been cited in support of the proposition that the mineral rights belong to the owner of a ryotwari patta were cases under the zamindaries in bengal where the privy council assumed, having regard id the particular sanads. That the underground rights did not belong to the government; but that is not the case under the madras regulation. In any case, the position of a ryrtwari pattadar cannot be equated with that of a zamindar in madras state holding under a sanad a milkiyat - e - istimrari. It was also contended that the board's standing orcjer that a ryotwari pattadar could work the minerals on payment of a separate pssessment was not happily worded, and that the work "assessment" in the board's standing order really meant royalty, which means that the government is the owner of the sub - soil rights. In support of this contention, he relied on the decision of the privy council in the secretary of state v. Srinivasachariar, 1921 lr 48 i. A. 56 : 40 mlj 262 : ilr 44 mad 421. And state of andhra pradesh v. Balarami reddy, 1963 2 scj 389 : 1963 2 anwr (sc) 90: 1963 2 mlj (sc) 90 : air 1963 sc 264 mr. Kuppuswamy on the other hand says that the preliminary objection regarding the locus standi of his client to agitate his rights or remedies in w. P. No. 207, ignores the nature of these proceedings and the manner in which the revision petitions were heard. He submits that the correct mode of approach is that all the three revision petitions of the petitioner, the 3rd respondent and the 4th respondent arose no doubt out of three separate orders, but in respect of a matter deemed to be disposed of by the central government considering the case of the writ petitioner and respondents 3 and 4 together and comments were called for from the state government. The state government made comments in respect of all the three of them.
(11) The central government also considered all these petitions together in the light of the comments and passed orders at the same time, as such, the petitioner can object to the renewal in favour of respondents 3 and 4 as (a) a co - owner of the minerals; (4) a person having the right to work the minerals as a sharer with the government; and (c) even as owner of the surface rights. In each of these cases, the petitioner is virtually affected and has a locus standi to seek his remedy in these writ petitions. Further the applicant is entitled to object to the grant of lease to respondents 3 and 4 by the central government reversing the order of the state government as it materially affects the petitioner's rights. Even as a joint owner of the land, he is prejudicially affected. Before considering the contention whether rule 24 and the explanation to rule 54 are ultra vires or whether the ryotwari pattadar has a right to minerals, it would be convenient to deal with the preliminary objection, namely, whether the application of the writ petitioner for a mining lease is entertainable at all, inasmuch as the area in question was not notified and applications were not called for. The fact that the petitioner assumed at the time of filing of the revision that silence of the department in not communicating their reply amounted to a rejection of the application, or that relaxation of the rules relating to the non - publication of a notification under rule 58 making the land available and calling for applications for the grant of a licence, was sought for by him, does not in our judgment affect in any way the validity of the respondent, argument that if the application is not entertainable at all, there can be no question of rejection. And hence no reasons need be given by the state government, and much more so by the central goverrment in revision against such an order.
(12) So far as writ petition no. 207 is concerned, it is therefore necessary to consider whether the fact the application of the petitioner was entertainable under the rules, i. E. , whether the area in question was notified under rules 58 and 60 as available and whether applications were called for, which alone will confer a right on the petitioner to make the application. Rules 58, 59 and 60 are relevant for a consideration of this contention and may now be read:
"rule 58. - (1) no area which was previously held or which is being held under a prospecting licence or a mining lease or in respect of which an order had been made for the grant thereof but the applicant has died before the execution of a licence or lease, as the case may be, or in respect of which the order granting licence or lease has been revoked under sub - rule (1) of rule 15 or sub - rule (1) of rule 31, "shall be available for grant unless : - (a) an entry to the effect is made in the register referred to in sub - rule (a) of rule 21 or sub - rule (2) of rule 40, as the case may be, in ink; and (1) the date from which the area shall be available for grant is notified in the official gazette at least thirty days in advance. (2) the central (government may, for reasons fo be recorded in writing, relax the provisions of sub - rule (1) in any special case. "
"rule 59. - in the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the state government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose the state government shall, as soon as such land becomes again available for the grant of a prospecting licence or "mining lease, grant the licence or lease after following the procedure laid down in rule 58 ".
" rule 60. - applications for the grant of a prospecting licence or a mining lease in respect of the areas in which : - (a) no notification has been issued under rule 58 or rule 59 : or (b) if any such notification has been issued the period specified in the notification has not expired, shall be deemed to be premature and shall not be entertained and the fee, if any, paid in respect of any such application shall be refunded."
According to rules 58 and 60 areas which are previously held or which is being held under prospecting licence or a mining lease or in respect of which an order had been made for the grant thereof but the applicant has died before the execution of a licence or lease, as the case may be, or in respect of which the order granting licence - or lease has been revoked, are not available for regrant unless notified as stated therein. In the instant case therefore, the area was not available, inasmuch as these very lands were previously held or which was being held under a mining lease and it was not notified. Mr. Kuppuswamy has cited memorandum no. M - ii - 162 (136) 56 dated 6th december, 1962, from the secretary to the government of india, ministry of mines and fuel, new delhi, addressed, to the secretary to the government of andhra pradesh, industries department, hyderabad, in support of his argument that this rule does not apply to pattadars. But in our view, that contention has no basis. Ah that the above memorandum states is that so far as grant or renewal of prospecting licences and mining leases in respect of patta lands in which the minerals vest in the state government is concerned, the provisions of chapter iii and iv of the mineral concession rules, 1960, will apply. In fact, what has been held in
(13) Seshanna v. Union government of india, 1966 2 an. W. R. 179, by one of us (the chief justice) also does not support the contention of the learned advocate, because there it was held that when in fact there has been r. O prospecting licence or mining lease, there is no warrant for the contention that that area is not available, which goes to show that once a mining lease has been granted, that area will not be available unless it is notified in accordance with rules 58 to 60. In this case, since the area in question was once granted, unless it is notified and applications are called for, no application for grant of a mining lease is entertainable. It cannot be contended that merely because the minerals in any particular land do not vest in the government or in which the government is a sharer, but vest exclusively in a person other than the government the provisions of chapter viii (in which rules 58 to 60 appear) do not apply. Chapters iii and iv deal with grant of prospecting licences and mining leases in respect of land in which the minerals vest in the government; chapter v deals with the procedure for obtaining a prospecting licence or mining lease in respect of land in which the minerals vest in a person other than the government; chapter vi deals with grant of prospecting licences and mining leases in respect of land in which the minerals vest partly in government and partly in private person; chapter vii deals with revisions and chapter viii with miscellaneous provisions. It may be noted that under section 4 of the act, where the minerals vest in the government or partly in the government and partly in some one else or exclusively in a person other than the government, obtaining of a prospecting licence or a mining lease in accordance with the rules is necessary and obligatory. Sub - section (2) of section 4 further provides that no prospecting licer. Ce or mining lease shall be granted otherwise than in accordance with the provisions of the act and the rules made thereunder. Rules in chapter v no doubt apply to grant of prospecting licences or mining lease in respect of a land in which the minerals vest in a person other than the government, but the provisions relating to revisions in chapter vii and the miscellaneous provisions in chapter viii are commnn, and applicable to grant of prospecting licences or mining leases in all cases failing under chapter iii to vi. Further an examination of the provisions of chapter viii fortifies this view, inasmuch as those provisions are of a general nature dealing with subjects of general application, irrespective of whether the minerals vest in the government or in a private person, or in both. Nor is there under the scheme of the rules separate provisions in chapters iii to vi dealing with the same matters as are dealt with in chapter vii. In this view also, even assuming without deciding that the petitioner is the full or part owner of the minerals in his land, rules 58 to 60 will govern his application. It has therefore to be held that the land with respect to which the petitioner has made an application was not available within the meaning of rule 58 as it was not notified under that rule, and as such the petitioner had no right whatever even to make an application. In these circumstances, he cannot complain that r. O order has been given to him why his application has not been granted, as the giving of reasons for granting or refusing a mining lease would arise only if the application is otherwise entertainable and is not premature.
(14) The facts set out above, which are not in dispute, clearly show that the state government has, in their comments, on the revision petition, stated that the application was premature - a comment which has been furnished to the petitioner, who had an opportunity to controvert it. It is apparent therefore that when the central government rejected the petitioner's revision petition, there is no question of his not being aware of the reasons for the rejection. That apart, when he had no right to make an application, correspondingly there was no jurisdiction for the state government to entertain it: it is well established that unless the authority has a duty to determine the questions affecting the rights of the citizens and to act judicially or quasi - judicially, there can be no question of not exercising the jurisdiction or acting in excess of jurisdiction, invoking the high court's writ jurisdiction under. Article 226 of the constitution. The petitioner therefore cannot challenge the order of the central government, much less says that no reasons have been given for rejecting his application. Once the petitioner's application is rejected as premature, he cannot question the order of the government granting the lease to someone else. He has no locus standi as he has no subsisting right, (vide kalyan singh v. State of u. P.) 1963 1 s. G. J. 50: (1962) 2 s. C. R. (sup.) 76; air 1962 s. C. 1183 at 1188, writ petition no. 207 of 1966 has, therefore no merits. In this view, it is unnecessary to consider the other contentions, particularly the contention whether rule 24 (3) and the explanation to rule 54 are ultra vires the rule - making powers conferred by sections 10 and 13 of the act. So far as the subject - matter of the other two writ petitions are concerned the petitioner's complaint is that the renewals in favour of the 3rd and 4th respondents should not be granted without his being consulted, as he has an interest in the land.
(15) When all the applications were deemed to have been rejected, the petitioner certainly could not have filed a revision, inasmuch as he was not aggrieved by the deemed rejections. When respondents 3 and 4 filed the revisions, they were only agitating for their respective rights. The contention that because the petitioner is a stranger his application was not entertainable and he cannot object to the renewal, is sought to be controverted on the ground that no renewal can be granted without his consent, whether on the ground that he is the owner of the minerals, or as a sharer in the minerals, or as a holder of the surface rights. On this basis it is contended that the petitioner cannot be said to have no locus standi to challenge the orders of the central government in granting a renewal to respondents 3 and 4. It may be stated that the provisions of rules 58 to 60 relate only to the re - grant of prospecting licences or mining leases and not for renewal. Renewals of these licences are governed by rule 11 (2) in chapter iii, rule 28 (2) and (4) in chapter iv and rule 43 in chapter v, applications for which cannot be deemed to be premature under rule 60, if they are filed within the time specified in those rules. If so, even if he is not a party or has not filed a revision, which he could not inasmuch as the applications for renewal of respondents 3 and 4 were also deemed to have been rejected, he could challenge the order of the central government renewing the leases in favour of respondents 3 and 4 on the ground that his rights are affected, whether on the footing that he is the owner of the minerals or as a sharer of the minerals along with the government or on the basis that he has surface rights. Whether a proprietor of land held on permanent settlement or inam or ryotwari patta is the owner of the minerals has been dealt with in the board's standing. Orders.
(16) In the board's standing orders of 1920 edition, board's standirg orders 25 rule 1 of section (i) divides the state's right to minerals in different classes of lands in accordance with the tenure in which the land is hold into 3 groups; viz. Group a : - lands in which the state claims no right to minerals; group b : - lands in which the state claims a share in minerals; and group c : - lands in which the state claims full rights in minerals. In group a, no claim should be made on behalf of the state in the following classes of land : -
(a) in estates held on sanads of permanent settlement; (b) in lands held on title - deeds issued under the waste land rules before 7th october, 1879, 'in which no reservation was made of the right of the state to minerals; and (c) in lands held on inam tenure where apart from the title - deed issued by the inam commissioner, the original grant, either - expressly or by necessary implication, made a conveyance of the state's right to minerals.
In group b, the state can claim a share in all mineral produce in the following classes of lands: -
(a) in lands occupied or hereafter assigned for agricultural purposes under ryotwari pattas ; (b) in private janmam lands in malabar and the nilgiris ; and (c) in lands held on inam tenure which do not fall under group a or group c lands.
In group c, the state has full right to all minerals in the following classes of land : -
(a) in lands sold under the waste land rules after 7th october, 1879 : (b) in escheat lands, the janmam right to which was sold by government after the issue of government order 809, dated isth july, 1880, but before the issue of government order 1384, dated 16th december, 1884; (c) in inam lands granted on service tenure, i. E. , as wages for public service, whether enfranchised or unenfranchised ; (d) in lands which have been constituted reserve forests under section 16 of the madras forest act, 1882 ; (e) in lands which have been notified as reserved lands under the rules issued by government under section 26 of the madras forest act, 1882. (f) in unreserved waste lands at the disposal of government; (g) in lands occupied or hereafter assigned, as village or town site ; and (h) in all other lands not falling under groups a or b.
(17) These rules were deleted in the subsequent board's standing orders but were incorporated as part b of the mining manual of 1929 without any change. In the board's standing orders of 1958 edition, board's standing orders 28 deals with the rights and obligations of a ryotwari holder, paragraph 7 of which provides that a holder on ryotwari tenure is entitled to work minerals on his land, but is liable to pay therefor a separate assessment in addition to the usual assessment for surface cultivation. It may be observed that the rules contained in the board's standing orders or the mining manual are not traceable to any statutory provision. They are mere administrative instructions for the guidance of the revenue authorities who are entrusted with the grant of mining licences and leases as held by rajamannar, c. J. , and venkatarama ayyar, j. , in peddarangaswami shreshti v. State of madras, 1953 1 m. L. J. 550 at 555 :i. L. R, (1953) mad. 722 : (1953) mwn. 109.
(18) No rules were made under rule 4 of the mineral concession rules by the government of the then comp site madras state or by the government of the andhra state in respect of minor minerals. The rules in respect of minor minerals referred to in sub - section (2) of section 15 of the mines and minerals (regulation and development) act, 1957 mean only statutory rules and not administrative instructions. The position therefore is that there was no preexisting rule relating to minor minerals which could be continued in force under section 15 (2) of the act.
(19) Even under the board's standing orders, which are administrative instructions the contention of mr. Kuppuswamy that mineral rights belong to the pattadar exclusively cannot be supported as they declare that claim should be made by the state for its share in all minerals produced in lands occupied or hereafter assigned for agricultural purposes under ryotwari patta. Even under board's standing orders 28, para. 7 ryotwari pattadar is entitled to work the minerals on his land on payment of a separate assessment. The payment of a separate assessment has been construed to be equivalent to the payment of royalty to government, which it can claim only as proprietor of the minerals. Mr. Kuppuswamy relies on a decision of the privy council in lakshmanna v. Venkateswarlu, 1949 l. R. 76 i. A. 202 : i. L. R. (1950) mad. 567 : (1949) 2 m. L. J. 500 at 511. For his contention that a ryotwari pattadar is the full proprietor of the land and therefore is entitled to the sub - soil rights also. In that case, the privy council was dealing with the burden of proof in respect of a claim by a holder of minor inam to eject the tenants from the holding. In considering this, sir madhavan nair delivering the opinion of their lordships observed at a page 511 thus: -
" in this connection it may be stated that it is not correct to say, as was boldly argued, that a ryotwari pattadar has no proprietorship in the land he holds under the government. In his land systems of british india, baden - powell gives the following definition of the ryotwari system : a system of land revenue administration in which there is no middleman or landlord over the individual ryots, who are severally liable for the land revenue assessment on the holding'."
Again, quoting, from the settlement manual from madras, he describes the ryotwari system as follows :
"under the ryotwari system every registered holder of land is recognised as its proprietor. He is at liberty to sub - let his property or to transfer it by gift, sale or mortgage. He cannot be ejected by government so long as he pays the fixed, assessment, and has the option of (annually) increasing or diminishing his holding or of entirely abandoning it. The ryot under this system is virtually a proprietor under a simple and perfect title, and has all the benefits of a perfect lease without its responsibilities."
These observations were made in the particular context as to on whom the burden of proof rests. The case is not an authority for the proposition that a ryotwari pattadar has the sub - soil rights. As against this decision, in karimbil kunhikoman v. State of kerala, 1962 1 s. Cj. 510 pages 518, 519: 1962 1 m. Lj (s. C.) 213: (1962) 1 an. W. R (s. C.) 213. Which considered the validity of the provisions of the kerala agrarian relations act, 1961, wanchoo, j. , speaking for the majority consisting of himself, gajendragadkar, j. (as he then was) and das gupta, j. , observed at pages 518, 519 thus ; -
"the other class of land - tenures consisted of ryotwari pattadars which, were governed by the board's standing orders, there being no act of the legislature with respect to them. The holders of ryotwari 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 relinquished by some other occupant or become otherwise available on payment of assessment. ;. Though theoretically, according to some authorities, the occupant of ryotwari land held it under an annual lease (.) it appears that in fact the collector had no power to terminate the tenant's holding for any cause 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 will liable to ejectment at the end of each year. 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."
Not a single case has been cited before us in which it was held that a ryotwari pattadar is the owner of sub - soil rights.
(20) In so far as shrotriem inam lands are concerned, it has been held, in the secretary of state for india v. Srinivasachariar, 1921 l. R. 48 la. 56 : 40 m. L. J. 262 : i. L. R. 44 mad. 421 pages 429, 431. That in the absence of an express covenant creating such an interest in the land as would vest the minerals in the grantee, the government's rights to the sale ownership thereof are not affected. Sir lawrence jenkins observed at page 429:
" a grant of this description may be no more than an assignment of revenue, and even where it is or includes a grant of land, what interest in the land passed must depend on the language of the instrument and the circumstances of each case."
At page 431, dealing with the use of the word "assessment," it was further observed:
" even in this litigation there is the same incorrect use of words used, as where the payment demanded by the government is spoken of as assessment whereas the demand is for a payment in the nature of royalty for the use and consumption of that which belongs to the government. Inaccuracies of this class can in no way assist the plaintiffs."
In state of andhra pradesh v. Balarami reddy, 1963 2 s. C. J. 389 : (1963) 2 an. W. R. (sc) 90 : 1963 2 mlj (sc) 90 : air 1963 s. C. 264 wanchoa, j. , speaking for the
(21) Court relied upon the above privy council case far reiterating the view that the mere fact that a person is the holder of an inam would not by itself be enough to establish that the inam grant included the grant of sub - soil rights in addition to the surface rights. It was held that the grant of sub - soil rights would depend upon the language used in the grant and that 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. The inam grant therefore could not by itself be equated to a complete transfer for value of all that was in the grantor. It is therefore clear that the petitioner who was an inamdar could not, before the grant of a ryotwari patta, claim the sub - soil rights, unless he could show by the production of the grant that those sub - soil rights also, were conveyed to him, which has not been done.
(22) Even so, mr. Kuppuswamy contends that after the abolition of the inams the grant of a ryotwari patta placed the petitioner in the same position as any o'ther grantee of that tenure, and if that tenure makes him the full proprietor not only of the surface rights but of the sub - soil rights as well, he would also be entitled to the same notwithstanding the fact that even if under the inam, he had no such rights. As we have already pointed out, even under the old board's standing orders, ryotwari tenure was not classified in lands coming under grade a, in which the government have no claim to minerals. It is at the most classified under grade b, where the government claims a share. But this view of the government has changed by 1958, when it was declared that the owner of a ryotwari patta is entitled only to work the minerals on the land on payment of a separate assessment in addition to the usual assessment for the surface cultivation. The use of the word "assessment" for working the minerals, as pointed out by sir lawrence jenkins in srinivasachariar's case, 1921 l. R. 48 i. A. 56 : 40 mlj 262: ilr 44 mad 421. Is an inaccurate use for the payment in the nature of royalty for the use and consumption of that which belongs to the government. These observations would indicate that the separate assessment for mining the minerals, apart from the assessment for the use of the surface rights, is a royalty payable to the government for mining the minerals belonging to the government. In h. R. S. Mutthy v. Collector of chittoor, 1964 2 scj 557 : 1964 2 mlj (sc) 125 : 1964 2 anwr (sc) 125 : 1964 6 scr 666 : air 1965 sc 177 rajagapala ayyangar, j. , dealing with the meaning of the word "royalty" in section 79 (1) of the madras district boards act, stated that "royalty" is something other than the return to the lessor or licensor for the use of the land surface and represents as it normally connotes the payment made for the materials or minerals won from the land. The law commission in its 10th report had, while dealing with the rights of the government to minerals in zamindaris, jagirs, major inams and the like, expressed the view that "in the ryotwari areas, the problem did not arise and could not arise as the right of the government to the underground rights was never disputed. " it is therefore clear from the reading of the board's standing orders, as also from the nature of the ryotwati patta tenure, that the right that the pattadar has is only a right to work the minerals, which do not belong to him but to the government, for which he pays a separate assessment or royalty, and consequently, chapter iv of the rules will govern the case for the grant of a mining lease in a ryotwari patta land. Even if the contention of mr. Kuppuswamy, that the pattadar has a share in the minerals along with the government, is right, chapter vi of the rules would apply which in turn makes chapters iii and iv applicable to the grant of such a lease with this proviso, that dead rent and royalty payable in respect of minerals which partly vest in the government and partly in a private person has to be shared by the government and by that person in proportion to the shares they have in the minerals. In this case, there is no question of the applieatidn of chapter v of the rules which are applicable only to lands in which the minerals vest in a person other than the government. It is next contended by mr. Kuppuswamy that even though the government owns the sub - scil rights in lands held under ryotwari patta either wholly or in part, inasmuch as the pattadar has surface rights no mining lease can be granted without his concurrence. The learned advocate for the respondents referred to form k which is the form of a mining lease to be adopted for executing a lease required to be so executed under rule 31, as affording an answer to mr. Kuppuswamy's contention. It is submitted by them that in form k there are provisions for payment of compensation for damage, injury or disturbance which may be done or caused by the lessee by the proposed mining operations, and the procedure to be adopted in the event of the occupier refusing his consent to the exercise of the right and powers reserved in the state government and demised to the lessee, which according to them amply safeguard the rights of a ryotwari pattadar. These provisions being statutory, there is no need to obtain the consent or a separate lease from the pattadar. Form k is referred to in rule 31, sub - rule (i) of which provides that where on an application for the grant of a mining lease, an order has been made for the grant of such a lease, a lease deed in form k or in a form as near thereto as circumstances of each case may require shall be executed within six months of the order or within such further period as the state government may allow in that behalf, and. If no such lease deed is executed within the said period due to any default on the part of the applicant, the state government may revoke the order granting the lease and in that event the application fee shall be forfeited to the state government. Form k is as much a part of the rules as rule 31. But the question is whether that form deals with interference by the lessee with the surface rights of the pattadar without his consent, or does it deal with payment of. Compensation to the occupier of the land for the damage, injury or disturbance done, arising out of the operations of the lessee who is on the land without the occupier's consent. section 13 (2) (j) of the act empowers the making of a rale as to the manner in which the rights of third parties may be protected, whether by payment of compensation or otherwise, in cases where any such party may be prejudicially affected by reason of any prospecting or mining operations.
(23) Rights of third parties may be prejudicially affected in other ways than by the occupation of the surface belonging to him without his consent. In other words does section 13 (2) (j) empower the making of a rule to authorise a lessee to occupy the surface of third parties against their consent ? we do not think that that power could be construed so widely; nor can the clauses in form k be deemed to cover this aspect of the matter. Form k in its preamble says that it is the mines, beds veins, seams situated, lying and being in or under the lands which are referred to in part i of the schedule together with the liberties, powers and privileges to be exercised or enjoyed in connection therewith which are mentioned in part ii of the schedule, subject to the restrictions and conditions as to the exercise and enjoyment of such liberties, powers and privileges which are mentioned in part iii of the schedule. In part ii, liberties, powers and privileges to be exercised and enjoyed by the lessee are mentioned. They include the liberty to enter upon the land and to search for mine, bore, dig, drill or win, work, dress, process, etc. Or sink drive, make maintain and use in the said lands any pits shafts, inclines, drifts levels' waterways, etc. , use machinery, equipment, etc. , to make roads and ways, to use the existing roads and ways, to keep building and road materials and clay, to use water from any streams, water courses, etc. To use land for stacking, heaping, storing, etc. Any produce of the mines. These liberties are subject to the restrictions and condition mentioned in part iii. They are that no building or thing shall be erected and no surface operations shall be carried on any public pleasure ground, burning or burial ground or place held sacred by any class of persons, nor in such a manner as to injure or prejudicially affect any buildings, works, property or rights of other persons and no land shall be used for surface operations which is already occupied by persons other than the state government for works or purposes not included in the lease. In para 2 it further provides that before using for surface operations any land which has not already been used for such operation, the lessee shall give to deputy commissioner or collector two calendar months' previous notice in writing specifying the name or other description of the situation and the extent of the land proposed to be so used and the purpose for which the same is required and the said land shall not be so used if objection is issued by the deputy commissioner or collector within two months after the receipt by him of such notice unless the objections so stated on reference to the state government be annulled or waived.
(24) The provisions in parts ii and iii would indicate that what is permitted and restricted is in respect of lands belonging to the government and not to third parties even in respect of lands belonging to the government, the permission to use the surface for mining operations which has not already been in use must be obtained para, 4 of part iii of the form k provides that the lessee shall not enter upon any reserved forest; para 5 prohibits the lessee from working or carrying on mining operations at or to any point within a distance of 50 metres from any railway line except with the previous permission of the railway administration : para 6 requires the lessee to allow existing and future holders of government licences or leases over any land which is comprised - in or adjoins or is reached by the land held by the lessee reasonable facilities of access thereto. There is nothing in cither part iv or part v or part vi which throws any light upon this question, except that under para. 4 of part v there is specific mention that the lessee shall pay rent and water rate to the state government in respect of all parts of the surface of the said lands which shall from time to time be occupied or used by the lessee under authority of the lease, at rates provided in the lease.
(25) This also supports the contention that what is being dealt with under the lease is the land in which the government have both the surface and sub - soil rights. Para. 4 of part vii makes it obligatory on the lessee to make and pay such reasonable compensation as may be assessed by lawful authority in accordance with the law in force on the subject for all damage, injury or disturbance which may be caused or done by him in exercise of the powers granted by the lease and shall indemnify and keep indemnified fully and completely the state government against all claims which may be made by any person or persons in respect of any such damage, injury or disturbance and all costs and expenses in connection therewith. This clause obviously posits likely claims, in the lands over which the government have no right, and which as a consequence of the lease granted exposes them to any such action as specified in that rule. The action contemplated lor which indemnity is sought may also be the unauthorised occupation or trespass on the land of a third party who has not consented or leased out the surface rights for mining operations under the lease granted by the government. Again in para. 15 of the same part it is provided the lessee shall make and pay reasonable compensation for all damage, injury or disturbance of person or property which may be caused or done by or on the part of lessee in exercise of the liberties and power granted by the lease and shall at all times save harmless and keep indemnified the state government from and against all suits, claims and demands which may be brought or made by any person or persons in respect of any such damage, injury or disturbance. These two clauses clearly show that the government does not authorise the grantee of a lease to exercise rights over lands of third parties over which it has no surface rights. In para. 2 of part viii, which specifies the covenants of the state government, it is provided that where the lessee is prepared to deposit compensation for damages or injury which may arise from the proposed operations of the lessee but the occupier refuses his consent to the exercice of the right and powers reserved to the state government and demised to the lessee under the lease, the lessee should report the matter to the state government and deposit with it the amount offered as compensation, and if the state government are satisfied that the amount of compensation offered is fair and reasonable, they shall order the occupier to allow the lessee to enter the land and to carry out such operations as may be necessary for the purpose of the lease ; and in assessing the amount of such compensation, the state government shall be guided by the principles of the land acquisition act. This clause is relied upon for the proposition that when the land belongs to a private person, whether or not such private person is entitled to the sub - soil rights, it is sufficient for the lessee intending to operate or the land to obtain a mining lease from the government; and thereafter he is not called upon to take any lease of the surface rights from the owner thereof, and he is bound to pay only compensation, and such compensation is in the last resort to be determined by the government. We cannot accept this contention, because grant of sub - soil rights would then tantamount to grant of surface rights also, subject only to payment of compensation. In our view, neither the act nor the rules framed under the act authorise interference with the surface rights of third parties, which could be interfered with, with the consent of the owner or be acquired under the land acquisition act after following the procedure laid down and subject to the several rights conferred therein. There is no justifiation for placing a construction on the several conditions and the covenants mentioned in form k which is destructive of the rights of third parties.
(26) In an unreported decision of the madras high court in subrahmanyan v. State wakf board and others, w. P. No. 239 of 1965, dated 20th april, 1965. A similar arguments was advanced before srinivasan, j. , by mr. Vedantachari. Though in that case what really fell for determination was whether the wakf board has exceeded its jurisdiction in interfering with the grant of a lease and whether it has virtually deprived the trustees (muthawallis) of the power of administration, nonetheless as it was argued, the learned judge dealt with this aspect of the matter. After referring to para. 2 of part viii of form k as also para. 4 of part vii, it was observed : -
" if it is the contention of the learned counsel that a person armed only with a mining lease, from the government in respect of a land belonging to a private person can enter upon the land of that person without any further authority and what all he is liable to pay is compensation assessed as in the manner of compulsory acquisition under the land acquisition act, i am unable to agree that those rules have that effect. Actually, this is not even part of the rules but part of a form, of a model licence. The rules themselves do not purport to deal with this aspect of the matter. Section 13 (1) which enables the central government to make. Rules with regard to the manner in which rights of third parties may be protected, as far as i can see, confers no authority to enable the grantee of mining lease to enter upon the land belonging to another. What section 13 (j) refers to is any injury or damage that may be caused to a third person by the mining operations carried on by a lessee,"
(27) Again, meeting the argument of mr. Vedantachari that in the interests of national development with regard to minerals, the government have taken the power virtually to requisition the land belonging to a private owner and what the private owner is entitled to is only compensation such as may be determined by the state government in that regard, the learned judge observed : -
". This construction seems to go far beyond the scope of the rules as i read them. On the material that has been placed before me, i am not prepared to accept this argument, and in particular, i must say that the rule - making power contemplated by section 13 (j) of the act does not appear to deprive the owner of the land of his powers of contract with regard to surface rights."
(28) These observations are in accord with the views we have expressed already. We have therefore no hesitation in holding that there is nothing in the rules or in form k which authorised the central government to grant a lease depriving the owner of the land of his power of contract with regard to his surface rights. There is no reason for taking a contrary view because of the observations of wanchoo, j. , in state of andhra pradesh v. Balarami reddy, 1963 2 s. C. J. 389 : (1963) 2 an. W. R. (s. C.) 90 : (1963) 2 m. Lj. (s. C.) 90: a. I. P. 1963 s. C. 264 at 268.
(29) What was considered there was the argument that because the shrotriemdar has surface rights he had a right to grant a lease of the sub - soil rights, which he did not have. His lordship observed :
" with respect, we have not been able to understand how the difficulty which may arise in practice on account of the sub - soil rights being in the government and the surface rights being in the shrotriemdars in the working of the mines would make the shrotriemdars sharers in the sub - soil rights and therefore entitled to grant a lease of the sub - soil rights. Whatever may have been the practice in the past and howsoever the government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdar so as to enable him to grant a mining lease to any one."
(30) The last sentence in the above passage would on the other hand indicate that there were difficulties which the government has to encounter in dealing with a lease of sub - soil rights which it has and the surface rights which someoneelse has, and that in the past it has been getting over these practical difficulties. Where however the grant of a renewal is concerned, different considerations would prevail. Under sub - rules (2) ar. D (3) of rule 28, application for first renewal of a mining lease granted in respect of minerals not specified in the first schedule shall be made to the state government in form j at least twelve months before the expiry of the lease, and the state government, subject to the provisions of sub - section 2 of section 8 ran grant the same. The renewal of mining leases in respect of a mineral in schedule i can also similarly, subject to the provisions of sub - section (2) of section 8, be granted only with the previous approval of the central government. It may be remembered that the initial grant of this mining lease was done under the joint patta lease agreement and the consent thereof will enure for the renewal. The rules also do not make it obligatory for the owner of the surface to further consent for a renewal, as that consent is assumed at the time of the first grant itself. Apart from this, the respondents claim an interest in the land and have as much right to go on the land as the petitioner. Any rights which each party has against the other will have to be determined not by reference to the mining lease but otherwise according to law. This does not however. Mean that the petitioner can prevent the mining lease being granted by the central government in favour of respondents 3 and 4.
(31) In the view we have taken, it is unnecessary to deal with the other contentions urged, before us by the learned advocates for the parties. The petitioner has not establihed that the central government has no power or jurisdiction to renew those leases without his consent. The petitions are accordingly dismissed with costs. Advocate's fee rs. 100 in each case. In view of our decision in the writ petitions, writ appeal 188 of 1966 is dismissed. Petitions dismissed, appeal also dismissed.