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2021 Supreme(Online)(KER) 30211
HIGH COURT OF KERALA
J AND P SAND AND AGGREGATES INTERNATIONAL PVT. LTD. – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/26990/2020
SRI.RENJITH THAMPAN ADDL. AG, SRI.S.KANNAN, SPL. GOVERNMENT PLEADER
Cultivating tenants do not acquire subsoil rights under the Kerala Land Reforms Act, limiting their ownership to surface rights only.
Headnote:
Mineral Rights - Ownership Dispute - Kerala Land Reforms Act, 1963 Sections 72, 72B, 72D, 72K - The court ruled that the rights in subsoil minerals did not vest in cultivating tenants, only surface rights were conferred, as per legislative intent and historical context.
Fact of the Case:
The petitioner claimed subsoil rights over land due to ownership as successors of a cultivating tenant. The State had promulgated ordinances asserting control over all minerals in land, allegedly infringing upon property rights under constitutional provisions.
Finding of the Court:
The Court found that the petitioner, being successors of a cultivating tenant, held no subsoil rights as per the Kerala Land Reforms Act and had no locus standi to challenge the state ordinances.
Issues: Whether the petitioner, as successors of a cultivating tenant, acquired subsoil rights in the land under the Kerala Land Reforms Act.
Ratio Decidendi: Cultivating tenants under the Kerala Land Reforms Act are assigned only surface rights, and legislative intent does not support the granting of subsoil rights; thus, the petitioner lacked the standing to challenge the ordinances.
Final Decision: The writ petition is dismissed.
J U D G M E N T
Petitioner seeks in this proceedings a declaration that Exts.P1 to P5 Ordinances are bereft of any legal effect and the same do not create any right in the State over the minerals in the land referred to in the writ petition.
2. The petitioner owns a land measuring 2.2258 hectares in Resurvey Nos.25/1A Pt. and 25/1/1 of Nidiyenga village. This land was part of the erstwhile Malabar district in the Madras Presidency of the British India. It is stated by the petitioner that being the owner of a jenmom land in the Malabar district, they own subsoil rights (mineral wealth) in the land as well, as declared by the Apex Court in Thressiamma Jacob and others v. Geologist, Department of Mining and Geology and others, (2013) 9 SCC 725. It is alleged by the petitioner that in order to get over the declaration of law made by the Apex Court in Thressiamma Jacob, on 29.12.2019, the Governor of Kerala promulgated Ext.P1 Ordinance namely the Kerala Minerals (Vesting of Rights) Ordinance, 2019 providing that notwithstanding anything contained in any other law or in any judgment or decree or order of any court or proclamation, all rights in the minerals in the soil and subsoil of all lands of whatsoever ownership or tenure shall stand vested in and shall be subject to the control of the State Government from the date on which the Ordinance comes into force. It is also alleged by the petitioner that no compensation is provided for in terms of the said Ordinance to the owners of the land, whose mineral wealth is being taken over by the State as required by law. According to the petitioner, the Ordinance is therefore violative of Articles 31A and
300A of the Constitution.
3. It is stated by the petitioner that since a Bill to replace Ext.P1 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session which convened on 31.12.2019, Ext.P1 Ordinance was re-promulgated on 14.1.2020. Ext.P2 is the re- promulgated Ordinance dated 14.1.2020. Since a Bill to replace Ext.P2 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session that commenced on 29.01.2020 and ended on 12.2.2020, Ext.P2 Ordinance was re-promulgated on 17.2.2020. Ext.P3 is the Ordinance re-promulgated on 17.2.2020. Since a Bill to replace Ext.P3 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session commenced on 2.3.2020 and ended on 13.3.2020, Ext.P3 Ordinance was re-promulgated on 31.3.2020. Ext.P4 is the re-promulgated Ordinance dated 31.3.2020. Since a Bill to replace Ext.P4 Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session convened on 24.8.2020, Ext.P4 Ordinance was re-promulgated on 26.9.2020. Ext.P5 is the Ordinance re-promulgated on 26.9.2020. It is also the case of the petitioner that laying of an Ordinance before the State Legislature is mandatory and failure to lay an Ordinance before the State Legislature constitutes a serious infraction of the constitutional obligation imposed on the State by Article 213 (2) of the Constitution. It is the further case of the petitioner that promulgation and re-promulgation of an Ordinance would amount to a fraud on the Constitution and subversion of the democratic legislative process.
4. Counter statements have been filed in the matter by respondents 2 and 3 and the petitioner has filed a reply affidavit dealing with the contentions taken by respondents 2 and 3 in the counter statements.
5. Heard the learned counsel for the petitioner as also the learned Additional Advocate General.
6. The learned Additional Advocate General has raised a preliminary objection as to the maintainability of the writ petition. It was pointed out by the learned Additional Advocate General that the petitione
