S. Sankarasubban, J.

All these cases have been referred to the Full Bench by a Bench consisting of T. V. Ramakrishnan and A.S. Venkitachala Moorthy, JJ. The question for consideration is regarding the royalty payable by the petitioners on minerals extracted from the properties belonging to them. According to the petitioners, the properties are situated in Malabar area of the State. The question referred to is whether the owners of jenmom lands in the Malabar area are the proprietors of the soil and in view of that whether they are owners of the minerals underneath the soil. The Division Bench felt that even though there is a Full Bench decision of this Court reported in S. Sabhayogam v. State of Kerala (AIR 1963 Kerala 101) regarding the nature of jenmom lands in Malabar area, that decision requires reconsideration in the light of the decision of the Supreme Court in Balmadies Plantations v. State of Tamil Nadu (AIR 1972 SC 2240). The Division Bench also felt that in Shibu v. Tahsildar (1993(2) KLT 870) this question did not directly arise, since that case arose from the Travancore-Cochin area. o.p.no. 1843/96

2. According to the petitioner in this case, her husband obtained jenmom assignment of 2 acres of granite rocks situated in Dhoni Akathethara Amson 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.

3. The petitioner challenged Ext. P6 by filing O.P. No. 1302/95. O.P.No. 13027 95 was disposed of by judgment dated 10th August, 1995, a copy of which is produced as Ext. P8. Ext. P8 directed the Mining Department to consider the contention of the petitioner and pass appropriate orders. Pursuant thereto, the Geologist, Department of Mining and Geology District Office at Palakkad passed an order dated 21st December 1995, which is produced as Ext. P10. In Ext. P10, the officer had taken the view that the petitioner is liable to pay royalty for the minerals excavated from her property. Prayers in the Original Petition are to quash the prosecution proceedings against the petitioner, to declare that the petitioner is not bound to pay royalty to the Government for the granite rocks removed from the quarry belonging to the petitioner and for other consequential reliefs. The gist of the grounds taken in the Original Petition is that the property is the jenmom property. The petitioner refers to various decisions of the High Courts to support her contention that in such cases, the persons concerned are the absolute owners of the properties and the Government has no right over the same. The petitioner also highlights the classification made in the Kerala Mineral Concession Rules, according to which, there are three classes; (1) minerals which are vested in the Government (2) minerals which are partly vested in the Government and partly vested in the private parties and (3) minerals which are vested in the private parties. (His Lordship stated the facts of O.P. Nos. 16653, 8674, 20992, 21038 of 1997, 3009, 15303 of 1994, 13436, 4501 an