Judgment :-

Chelameswar, J.

1. These appeals are placed before us pursuant to the Order dated 8th December, 2004 of a 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 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 Division Bench) - whether the owners of jenmom lands in the Malabar area [Parts of Kerala popularly known as Malabar area which earlier formed part of the erstwhile Madras province in the British India] are the proprietors of the soil and the minerals underneath the soil - and answered the said question in the negative:

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 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 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 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 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.”

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 of jenmom right.

6. Such a claim of the appellants is based on the belief and assertion of the appellants

“Hence, we are of the view that so far as the lands in question are concerned, the minerals belong to the Government…” (para 31) (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 beneath the soil. (2) that the understanding of the appellants that a claim of royalty can be made only by the owner of the 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 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 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.

8. The appellants’ case is that a ‘jenmi’ [The expression jenmi etymologically means the holder of jenmom rights in a piece of land. Though