JUDGMENT <NAME>, J.

1. In these appeals by special leave the only question that is raised is whether the substance known as Pyratax-Vinyl Pyridine Latex (for short, V.P. Latex) is not rubber raw classifiable under item No. 39 of the Indian Tariff Act, 1934 (hereinafter referred to as I.C.T.).

2. The appellants are manufacturers of automotive tyres. V.P. Latex is required in the process of manufacturing of tyres. V.P. Latex is required is the process of manufacturing of tyres V.P. Latex is not manufactured in India and has to be imported from outside the country. The tyre industry uses V.P. Latex as one of the essential ingredients in the course of manufacture of automotive tyres.

3. The appellant in Civil Appeal No. 1446 of 1972 imported sometime in April 1969, 3 consignments of V.P. Latex. In appeal from the proceedings before the Assistant Collector of <ORG> for appraisement of the said consignments for the purpose of imposition of customs duty and/or countervailing duty, the Appellate Collector of <ORG>, Calcutta upheld the appellant's contention and classified V.P. Latex under item 39 of the I.C.T. as raw rubber. The classification made by the Appellate Collector was revised by <ORG> in a proceeding initiated, suo motu, under Section 131(2) of the <ORG> Act, 1962. <ORG> held by the impugned order, that the said V.P. Latex was "an aqueous dispersion of synthetic resin", and hence classifiable under item 87 of the I.C.T. prior to 1st March, 1970, and thereafter under the new item No. 82(3) I.C.T. <ORG> by the same order further held that the said goods were liable to countervailing duty under item No. 15A, C.E.T. both before and after 1st March, 1970. It is apparent that if V.P. Latex were to be classified under Item No. 87, higher duty will be leviable and that is the reason for the controversy in these appeals.

4. In Civil Appeal No. 2746 of 1972, the appeal is directed against the order of August 17, 1972, of the Appellate Collector of Customs, Madras, dismissing a batch of 18 appeals of the <ORG>. The Appellate Collector confirmed the order of the Assistant Collector of Customs Appraising, Madras, rejecting the appellant's claim for refund of duty on the basis that V.P. Latex should be classified under item 39 I.C.T. and not under item 82(3) of the I.C.T. The appellant did not go in revision before <ORG> as already similar claims had been rejected by <ORG>.

5. There are several interveners in the appeals and the entire tyre industry is interested in the matter.

6. Prior to the 1st March, 1970, the First Schedule to the Indian Tariff Act, 1934, contained, inter alia, the following dutiable items :

Item No. 39-Ruber, raw, Item No. 87-All other articles, not otherwise specified.

In addition to the above, the following item was introduced in the Tariff Act by the Finance Act , 1970 :

Item No. 82(3)(a).-Artificial or synthetic resins and plastic materials in any form, whether solid, liquid or pasty, or as powder, granules or flakes, or in the form of moulding powders.

7. Under Section 2A of the Tariff Act any article which is imported into India shall be liable to customs duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. Such customs duty in addition to the duty under the Tariff Act is known as countervailing duty.

8. Item 15A of the First Schedule to the Central Excises and Salt Act , 1944 (briefly C.E.T.) reads as follows :

15A. Artificial or synthetic resins and plastic materials and articles thereof (1) Artificial or synthetic resins and plastic materials in any form, whether solid, liquid or pasty, or as powder, granules or flakes, or in the form of moulding powders, the following, namely

9. An additional item being item No. 16AA was introduced in the C.E.T. for the first time by the Finance Act , 1970, which reads as follows :

Item No. 16AA.-Synthetic rubber, including butadiene acrylonitrile rubber, styrene butadiene rubber and butyl rubber, synthetic rubber latex, including prevulcanised synthetic rubber latex.

The quantity of V.P. Latex consumed by the tyre industry in India as a whole is said to be about 1000 tonnes per year and the value thereof is Rs. 40,33,000/- approximately. The appellant, <ORG>, consumes about 300 tonnes per year. The controversy between the parties centers round the real meaning of V.P. Latex, while the appellants submit that V.P. Latex is synthetic rubber in the latex form, according to the respondents it is not so, but on the other hand, it is what may be described as 'resin'.

10. In order that the <ORG> is able to appreciate the rival contentions, both sides addressed us referring to several standard authorities and treatises.

11. Before we proceed further it may be appropriate to see how rubber is described in the Encyclopaedia Britannica, Volume 19, 1965 Edition :

Rubber is the substance caoutchouc (q.v.), a milk like fluid that is obtained from certain tropical shrubs or tyres and then subjected to various processes of manufacture; or it may be a product of chemical synthesis.

* * * * The uniqueness of rubber lies in its physical properties of extensibility and toughness. In its natural state, it is greatly affected by temperature, becoming harder when cooled (at 0°-10°C it is opaque) and softer when heated (above 50°C, it becomes tackier and less elastic, decomposing into liquid form at 190°-200°C). When vulcanized (i.e. heated with sulphur at 120°-160°C.) it loses its thermoplasticity and becomes stronger and more elastic ....

Chemically, rubber is a polymer of isoprene....

* * * * The term synthetic rubber is used to describe an ever growing number of elastic materials, some of which closely resemble natural rubber while others have completely different physical properties, Since World War II, precise terminology has not kept pace with the rapid developments in the synthetic and plastics industries.

The copolymerization of the butadiene and the styrene takes place in an emulsion in the presence of an active initiator, such as cumene hydroperoxide and p-menthane hydroperoxide, which allows the conversion to occur at a low temperature (5°C). SBR is usually prepared with 75% butadiene and 25% styrene; the proportion will, however, vary according to the desired degree of elasticity....

12. Let us consider the appellants' case to treat the V.P. Latex as rubber raw. In this attempt the appellants rely upon several authorities from the rubber world pronouncing upon the chemical properties as well as various uses and potentialities. Their contention is that V.P. Latex is a synthetic rubber Latex and can never be taken for synthetic resin. The principal point to distinguish V.P. Latex from synthetic resin is, while synthetic resin cannot be vulcanised, V.P. Latex, being rubber can be vulcanised. According to <ORG>, (A.S.T.M.) raw rubber is defined as crude or uncompounded rubber, either natural or synthetic. <ORG> (I.S.I.) defines rubber as follows :

Rubber in its modified state free of all diluents, retracts within one minute to less than 1.5 times its original length after being stretched at normal room temperature to twice its length and held for one minute before release.

13. It also defines raw rubber as 'vulcanised rubber'. According to <NAME> in his book "Rubber-Natural and Synthetic", V.P. Latex is composed of butadiene styrene and vinyl pyridine in the ratio of 70 : 15 : 15 respectively. A synthetic latex is produced as the first stage in the manufacture of most synthetic rubbers. V.P. Latex is one such synthetic rubber latex. An affidavit sworn by Mr. <NAME>, Manager, <ORG>, <ORG>, <ORG>, states that V.P. Latex is a terpolyer rubber as defined in A.S.T.M. Specification DI-566-60T and that there is no measurable resin content in this product. It is claimed by the appellants that pyratex which is the commercial name for V.P. Latex, imported by them, is exactly similar to the V.P. Latex referred to in Mr. <NAME>'s affidavit, since it also contains butadiene styrene and vinyl pyridine in the same proportion of 70 : 15 : 15 with no measurable resin content. It is claimed that V.P. Latex is an emulsion of synthetic rubber and it is borne out by its chemical composition and by the physical properties. In the case of V.P. Latex when coagulated, the coagulum answers fully the A.S.T.M. standards and tests prescribed for rubber. Its use in liquid state is commercially more expedient than its use in dry state. V.P. Latex has been designed as a special synthetic rubber latex to be suitable for its use at the fabric cross-linking stage with rubber compound. It is claimed that in its application it is in no way different from any other natural rubber or synthetic rubber latices. The advantage gained in the case of V.P. Latex is that it is more stable and is not whimsical with reference to manufacturing conditions. According to <ORG>, the additions of vinyl pyridine in such terpolymers of butadiene, styrene and vinyl pyridine have been found to improve the characteristics and properties with the increase of vinyl pyridine content and it is known to reach optimum at about 15 parts i.e. at a charge of 75 : 10 : 15. It is further said that vinyl pyridine copolymers suffer from the drawback of extremely high rate of cure, scorching and incompatibility with other rubbers and hence do not find use in the dry state in spite of their certain superior properties. According to the appellants, V.P. Latex, when coagulated just like any other rubber latex satisfies the elongation tests prescribed for rubber. It is also claimed that in the international field of rubber manufacture, all over the world, V.P. Latex is fully recognised as a synthetic rubber latex and not as a synthetic resin.

14. The Condensed Chemical Dictionary, 8th edition, 1971, defines latex as a white free-flowing liquid obtained from some species of shrubs or trees in which microscopically small particles or globules of natural rubber are suspended in a watery serum. Natural rubber latex, obtained from the tree Heve a Braziliensis, contains about 60% water, 35% rubber hydrocarbon, and 5% proteins and other substances. Coagulation is prevented by protective colloids, but can be induced by addition of acetic or formic acid. Synthetic latices include polystyrene, SBR rubber, neoprene, polyvinyl chloride etc. Both natural and synthetic latices are available in vulcanised form. It describes their uses for thin rubber products (surgeons' gloves, drug, sundries); girdles, pillows, etc.; emulsion paints; adhesives; tire cord coating; rubber, natural.

15. In the same Dictionary, rubber synthetic is described as follows :

Any of a group of manmade elastomers which approximate one or more of the properties of natural rubber. Some of these are : sodium polysulfide ('Thiokol'); polychloroprene (neoprene); butadiene-styrene copolymers (SBR) ; acrylonitrile-butadiene copolymers (nitrile rubber); ethylene-propylene-diene (EPDM) rubbers; synthetic polyisoprene ('Coral', 'Natsyn'); butyl rubber (copolymer of isobutylene and isoprene); poly acryloni-trile ('Hycar'); silicone (polysiloxane); epichlorohydrin; polyurethane ('Vulkollan').

Styrene-butadiene rubber (SBR, s. type elastomer)-is the most common type of synthetic rubber. Manufacture involves copolymerization of about 3 parts butadiene with 1 part styrene. Its uses are for tires, footwear, mechanical goods coatings; adhesives; etc.

16. The appellants have also produced the Import Trade Control Policy, Volume I, for the year 1975-76 described during the arguments as the 'Red Book' of <ORG> of <ORG>. It may be useful to quote the entire entry 150 at page 58 :

Section II : Policy for individual items and the detailed policy for Actual Users : ____________________________________________________________________________________________________________ Part & SI. No. Description Established IMPORT POLICY of I.T.C. Importers Actual User Schedule _____________________________________________________________________________________________________________ (1) (2) (3) (4) _____________________________________________________________________________________________________________ 150 Rubber, raw and Nil (1) A.U. for import of Gutta gutta percha, raw. percha, raw. (2) Requirements of actual users for the following items will be met by imports through public-sector agency : (i) Synthetic rubber namely, Butyl rubber Acrylonitrile Butadiene Copolymer, Poly Chloroprene, Thikol, Polyisoprene, Poly butadiene, Hypalon, Viton Polyarcylic EPDM, Chlonobutyl and Bromobutyl Silicone rubber and Silicone rubber master batches and Silicone rubber master batches and Synthetic latex including Vinyl pyridine latex and copolyme of 'styrene butadiene latex, Nitrilre latex and poly chloroprene latex. (ii) Hot type special grades of SBR for manufacture of high impact polystyrene only. Please see Section III to this Red Book. (3) Import of SBR and/or Alkyl substituted Styrene Butadiene Elastometric Copolymers will not be allowed. (4) Import of natural rubber and reclaimed rubber will not be allowed.

(emphasis added) ________________________________________________________________________________________________________________________

17. In the earlier Volume of the Import Trade Control Policy, for the year 1969-70, this item 150-Rubber, raw-shows under the fourth column "Actual Users for Synthetic rubber", the following :

(i) Import of natural rubber will normally be arranged through STC for meeting the requirements of actual users.

(ii) A.U. for Synthetic Rubber, namely, Butyl rubber, Acrylonitrile Butadiene Copolymer, Poly chloroprene, Thikol, Poly isoprene and Polybutadiene and Synthetic latex.

* * * * In the Import Trade Control Policy in Volume No. I for the year 1970-71 against Serial No. 150, rubber, raw, under column 4 Actual Users for Synthetic rubber", actual users are shown as (ii) "A.U. (Actual User) for Synthetic Rubber, namely, Butyl Rubber, Acrylon-trile Butadiene Copolymer, Poly Chloroprene, Thikol, Poly Isoprene and Poly-butadiene Hypalon, Silicone rubber and Synthetic latex including Vinyl Pyridine latexand copolymer of styrene butadiene latex" (emphasis added). Again the Condensed Chemical Dictionary at page 741 describes "Pyratex" the trade name under which V.P. Latex has been imported as follows :

Pyratex, 248 Trademark for a vinylpyridine Latex.

Properties : Total solids 40-42% PH 10, 5-11, 5 : sp. gr. 0.96.

Uses : To promote adhesion between rayon or nylon fibres and rubber, as in tire cord, belting, hose, etc.

18. The British Standard specification is as follows :

<ORG> gives the specification of PSBR 41 latex as "(Vinyl) pyridine-styrene-butadiene rubber latex with a nominal total solids content within the range 40.0% to 49.9% and a nominal bound styrene content of less than 20.0% of the total polymer". In <ORG>, under Table XI, <ORG> enumerates "GENTAC" and "PYRATEX" as Emulsion Styrene-Butadiene and Butadiene Rubber Latices of Section 41 P Class. The classification "Section 41 P" properly decoded means as belonging to the Chemical Family of Styrene-Butadiene Rubber (SBR) having total solid contents of 40 to 49% and Styrene Co-monomer content of less than 20% wherein Vinyl Pyridine is present in the Polymer.

19. Although the controversy between the parties was placed before us in an exhaustively enlarged form going into the Chemistry of V.P. Latex, it is not necessary to go into all the complexities of chemical formulate and properties. The impugned order itself takes note of all the contentions raised before the <ORG> and also pressed before us.

20. This approach is also convenient and unobjectionable, since it is urged on behalf of the respondents that we should not entertain fresh materials which were not available before the authority. We may, therefore, briefly note the claim of the appellants to V.P. Latex being classified as raw rubber under item 39, I.C.T. on the grounds advanced before the <ORG> which the authority took note of:

(1) V.P. Latex is a synthetic rubber latex which satisfies wholly each and every test prescribed by the authority in India as well as abroad for classification of rubber.

(2) According to the A.S.T.M. definition, rubber means "an elastomer that can be or already is vulcanised. Collectively the rubber constitutes the definite raw material of the rubber industry. They may be of vegetable origin or synthetic". Synthetic resin cannot be vulcanised whereas V.P. Latex, being rubber, can be vulcanised.

(3) A.S.T.M. further defines raw rubber as crude or uncompounded rubber, either natural or synthetic.

(4) According to I.S.I. definition, rubber is defined as follows :

<ORG>, also defines raw rubber as unvulcanised rubber.

(5) V.P. Latex is composed of butadiene styrene and vinyl pyridine in the ratio of 70 : 15 : 15 respectively. According to <NAME> (author of 'Rubber-Natural and Synthetic'), a synthetic latex is produced at the first stage in the manufacture of most synthetic rubbers V.P. Latex is one such synthetic rubber latex.

(6) V.P. Latex is very much similar to other synthetic rubber latices. V.P. Latex cannot be regarded as an aqueous dispersion of synthetic resin since it has no measurable resin at all. On the contrary the proper description of V.P. Latex would be to call it an emulsion of synthetic rubber and this is borne out by its chemical composition and by its physical properties.

(7) The question of classifying a substance rests primarily on its chemical properties as borne out by technical tests. In the case of V.P. Latex, when coagulated, the coagulum answers fully the A.S.T.M. standards and tests prescribed for rubber. Its use in liquid state is commercially more expedient than its use in dry state but this should not be factor in classifying a product according to its technical and chemical composition.

(8) V.P. Latex has been designed as a special synthetic rubber latex to be suitable for its use at the fabric cross-linking stage with rubber compound. In its application it is in no way different from any other natural rubber or synthetic rubber latices. V.P. Latex should, therefore, properly be regarded as a synthetic rubber latex.

(9) It is not correct to say that all rubber latices when coagulated should have an absolute commercial dry rubber usage in order to be classified under raw rubber. Quoting from <NAME> "the addition of vinyl pyridine in such terpolymers of butadiene, styrene and vinyl pyridine has been found to improve the characteristics and properties with the increase of vinyl pyridine content and it is known to reach optimum at about 15 parts, i.e. at a charge of 75 : 10 : 15 (Synthetic rubber by <NAME>). It was admitted that vinyl pyridine copolymers do not find use in the dry state as they suffer from the drawback of extremely high rate of cure, scorching and incompatibility with other rubbers.

(10) V.P. Latex has to be assessed in the form in which it is imported. In this view, V.P. Latex is nothing but a synthetic rubber latex.

(11) In the International field of rubber manufacture all over the world V.P. Latex is fully recognised as a synthetic rubber latex and not as a synthetic resin. While V.P. Latex can be coagulated and vulcanised, a synthetic rubber cannot be vulcanised.

21. The appellants submitted before the revisional authority letter dated 26th November, 1970, written by <ORG> on V.P. Latex; extracts from Elastomers Manual published by <ORG>; Articles written by <NAME> of <ORG> (PBR) published Rubber Chemistry and Technology; A.S.T.M. Glossary of Terms relating to Rubber and Rubber like materials; and the books by <NAME> and <NAME>. It was pointed out before the authority by the appellants that rubber was always obtained first in a latex form and latex was nothing but an aqueous state of rubber, that V.P. Latex is a liquid rubber designed for use in tyre manufacture as a bonding agent by cross linking with fabrics. It was also pointed out with reference to the classification of synthetic rubber latices that <ORG> itself had ruled in several cases that these were to be regarded as coming under I.C.T. 39.

22. The conclusion of the revisional authority, after considering the above submissions, may be quoted in its own words :

V.P. Latex is a synthetic latex designed to be used in the manufacture of tyres as a bonding agent by cross linking with fabric. It has bee admitted by the importers that the product is not used in the dry state V.P. Latex is a liquid latex used as such and the question boils down to consider whether synthetic rubber latex could be classified as 'raw rubber' assessable under item 39 I.C.T. irrespective of its usage known commercially or in the industry.

23. Then after nothing the definition of latex in the Chemical Dictionary and in the "Materials Hand Book" by <NAME>, the authority observed as follows :

These definitions imply that latex is a material from which rubber is obtained and not rubber itself.

Latex, according to the authority, is milk juice of the rubber tree which is source of rubber and is in common parlance referred to as rubber. The authority then refers to Chapter 40 of the Brussels Tariff Nomenclature (B.T.N.) dealing with natural rubber latex (40.01) and synthetic rubber latex (40.02).

40.1. : "Natural rubber latex, whether or not with added synthetic rubber latex; pre-vulcanised natural rubber latex; natural rubber; balata, gutta-percha and similar natural gums.

40.2. "Synthetic rubber latex; pre-vulcanised synthetic rubber latex; synthetic rubber; factice derived from oils.

The authority then observed as follows :

Chapter 40 of the B.T.N. covers raw rubber, Heading No. 40.01 refers to 'natural Rubber Latex whether or not with added synthetic rubber latex, pre-vulcanised natural rubber latex, natural rubber but natural rubber latex has been defined under 40.01 as containing in suspension 30% to 40% of rubber. Rubber Latex therefore appears to fall under 40.01 by specific inclusion only. So also synthetic rubber latex is specifically mentioned in heading 40.02. Had they not been so specified, latex may have been excluded from the scope of the heading 'rubber'.

24. To say the least, it is difficult to appreciate the strained meaning given by the authority in the above extract. At any rate the authority concludes "hence it appears that rubber latex is not rubber as such but merely a source of rubber.... In this view, latex and rubber will have to be distinguished from each other.

25. It appears from the order itself that <ORG> was not treating rubber latex as raw rubber assessable under item 39 I.C.T. till 1935, and a decision was taken in that year to accord the same tariff treatment to rubber latex as to rubber raw, because it was found that latex had to be imported for various specific uses which required a liquid form. According to the authority, the use of rubber latex was as rubber and therefore on the same principle, synthetic rubber latex was also treated as synthetic rubber for assessment purposes. Then comes the crucial conclusion of the authority.

If V.P. Latex was designed for or intended to be used as rubber, there would have been no difficulty in classifying it under item 39 I.C.T. In fact synthetic rubber itself has been classified as raw rubber only because synthetic rubber serves exactly the same purpose as crude rubber in all its industrial uses and has no practical difference from the latter. Pyratex V.P. Latex is designed for use as an adhesive in the manufacture of tyres. It is seldom put to any of the other uses to which rubber, natural or synthetic is ordinarily put. In composition, it is similar to rubber latex and it may also well answer the tests for rubber such as elongation etc. When reduced to dry state but its use is not the same as that of rubber. It could theoretically be converted into a substance which is akin to rubber but it has been admitted that due to high rate of cure, scorching and incompatibility with other rubbers. It does not find use in a dry state. In fact it does not replace rubber in use though it has similar properties.

[Emphasis added]

26. The last point considered by the authority was with regard to the resin content in V.P. Latex. The appellants claimed that V.P. Latex had no resin content. The authority repelled the contention in the following words :

It appears that there is no accepted definition of the term 'resin' in trade usage or technical literature and resins are identified by their use as resins and in this view V.P. Latex may well be considered as a resin latex.

27. Mr. <NAME> for the respondents has made a strenuous plea that V.P. Latex is not rubber raw and is synthetic resin. If it is correct that V.P. Latex is synthetic resin, it would come under item 87 I.C.T. the residuary entry covering "all other articles not otherwise specified".

28. To revert to the order of the authority, it is clear that the authority would be have found no difficulty in coming to the conclusion that V.P. Latex in view of chemical composition and physical properties is rubber raw, if the same were commercially used as rubber. The authority, therefore, was principally influenced to come to its decision on the sole basis of the ultimate use of the imported article in the trade.

29. Section 12 of the Customs Act, 1962, is the charging section. That section reads (1) "Except as otherwise provided in this Act or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Indian Tariff Act, 1934, or any other law for the time being in force, on goods imported into, or exported from, India.

30. The relevant taxing event is the importing into or exporting from India. Condition of the article at the time of importing is a material factor for the purpose of classification as to under what head, duty will be leviable. The reason given by the authority that V.P. Latex when coagulated as solid rubber cannot be commercially used as an economic proposition, as even admitted by the appellants, is an extraneous consideration in dealing with the matter. We are, therefore, not required to consider the history and chemistry of synthetic rubber and V.P. Latex as a component of SBR with regard to which extensive arguments were addressed by both sides by quoting from different texts and authorities.

31. It is well established that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the <ORG> and its popular meaning should commend itself to the authority.

32. Dealing with the meaning of the term "vegetables" in the Excise Tax Act in King v. <ORG>, 1951 CLR 122, <ORG> observed as follows :

Now the statute affects nearly everyone, the producer or manufacturer, the importer, wholesaler and retailer, and finally the consumer who, in the last analysis, pays the tax. <ORG> would not suppose in an Act of this character that manufacturers, producers, importers, consumers, and others who would be effected by the Act, would be botanists. The object of Excise Tax Act is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. In my view, therefore, it is not the botanist's conception as to what constitutes a 'fruit' or 'vegetable' which must govern the interpretation to be placed on the words, but, rather what would ordinarily in matters of commerce in Canada be included therein. Botanically, oranges, and lemons are berries, but otherwise no one would consider them as such.

<ORG> also referred to a pithy sentence from "200 chests of Tea", per story, J (1824) 9 Wheaton (US) 435 that "the <ORG> does not suppose our merchants to be naturalists, or geologists, or botanists".

33. The above Planters Nut case (supra) was referred to with approval by this Court in <CITATION> , (. In <NAME>'s case, this Court was concerned with the meaning of the word 'vegetables' occurring in C.P. and Berar Sales Tax Act, 1947. This Court held as follows :

But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning 'that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it'. It is to be construed as understood in common language.

34. Again in the <CITATION> , , this <ORG> had to deal with the word 'charcoal' used in Madhya Pradesh General Sales Tax Act. It was contended in that case that 'charcoal' would be covered under Entry I of Part III of Schedule II to that Act. This <ORG> while holding that charcoal would be included in coal, observed as follows :

Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well settled that while interpreting items in statutes like the Sales Tax Act s, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.

This Court again referred with approval to the decision in <ORG> case (supra) and followed the principle laid down in <NAME>'s case (supra). In <ORG>, etc. v. <ORG>, the question that was raised related to item 14-H in the Schedule I to the Central Excises and Salt Act , 1944, which contained compressed, liquefied or solidified gases, inter alia. Carbon acid (carbon dioxide). This Court observed as follows :

It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide.

This Court finally observed :

The Kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule.

Similarly in <CITATION> , this Court dealing with the meaning of the word 'Wolfram ore' again approvingly referred "not to the scientific or technical meaning but to the meaning attached to them by those dealing in them in their commercial sense".

35. Mr. <NAME> draws our attention to several authorities to impress upon us that butadiene styrene latices are compatible with many resins and modifiers. He also submits that the term vinyl pyridine has been used to include a variety of resins, plastics, elastomers, etc. and that V.P. Latex exhibits outstanding adhesive properties. His main object is to show that V.P. Latex is resin which is "an omnibus term for a variety of hard brittle, solid or semisolid organic substances". It is however, seen from an extract from the Dictionary of Rubber Technology, 1969 edition, by <NAME>, produced by Mr. <NAME> that "vinyl pyridine is one component of terpolymer of butadiene, styrene and vinyl pyridine used in latex form to promote good adhesion between rubber and textiles, particularly rayon and nylon". We find the same description reiterate in a book "Latex Natural and Synthetic" by <NAME> (a Reinhold Pilot Book) where at page 145 it is stated that 'there is one type of speciality rubber latex that deserves special notice. This is terpolymer of butadiene, styrene, and 2-vinyl pyridine. Under the trade names of "Gentac" and "Pyratex" it is extensively used in nylon tire cord saturation because it gives better adhesion between the cord and the rubber in which the cord is imbedded than do other latices'. Mr. <NAME>, however, emphasises that V.P. Latex is merely an adhesive and so is akin to resin and not to rubber.

36. We are however, unable to accept the submission. It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry.

37. It is good fiscal policy not to put people in doubt and quandary about their liability to duty, when a particular product like V.P. Latex known to trade and commerce in this country and abroad is imported, it would have been better if the article is eonomine, put under a proper classification to avoid controversy over the residuary clause. As a matter of fact in the Red Book (Import Trade Control Policy of the Ministry of Commerce) under Item 150, in Section II, which relates to "rubber, raw and gutta percha, raw", synthetic latex including vinyl pyridine latex and copolymer of styrene butadiene latex are specifically included under the sub-head "Synthetic Rubber". We do not see any reason why the same policy could not have been followed in the <ORG> book being complementary to each other. When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classifications will, however, stand on a different footing.

38. It is not for the <ORG> to determine for itself under article 136 of the Constitution under which item a particular artical falls. It is best left to the authorities entrusted with the subject. But where the very basis of the reason for including the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, this <ORG> will be loath to say that it will not interefere.

39. In this case there is rather voluminous evidence from the standard authorities in favour of V. P. Latex being a component of SBR which is admittedly classified under rubber raw. But assuming, and only assuming, that evidence is balanced, the best course in a fiscal measure is to decide and fix the entry under which the article comes, otherwise it will give rise to adoption of varying standards where uniformity should be the rule.

40. At one stage Mr. <NAME> pointed out that in certain Bills of Entry of Dunlop India Limited, their Agents, Messrs, <ORG>, Private Ltd., gave the I.C.T. Item No. 87 with regard to the imported V.P. Laitex. This, according to Mr. <NAME>, clearly shows how the appellants them selves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the customs, the appellants Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for. we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits.

41. Mr. <NAME> drew our attention to two decisions of this <ORG> in <CITATION> , and the <CITATION> , and submitted that this <ORG> should not interfere with the decision of the authority under Article 136 of the Constitution. These decisions are clearly distinguish able, as, in the view we have taken, the order is ex facie based on an irrelevant factor. Even in the <CITATION> , , this <ORG> refused to interfere only because it could not be persuaded to hold that the view taken by the High <ORG> was so grossly erroneous as to call for interference under Article 136 of the Constitution. The present is not such a case.

42. We are clearly of opinion that in the state of the evidence before the revisional authority no reasonable person could come to the conclusion that V.P. Latex would not come under rubber raw. The basis of the reason with regard to the end-use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article. The orders of the authority are, therefore, set aside. In the result the appeals are allowed with costs.

43. We should observe that we express no opinion with regard to the question relating to countervailing duty under Section 16AA of the First Schedule to the Central Excises and Salt Act , 1944, in these appeals.


PETITIONER: STATE OF RAJASTHAN & ORS. Vs. RESPONDENT: D.R. LAXMI & ORS. DATE OF JUDGMENT: 12/09/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J) G.B. PATTANAIK (J) ACT: HEADNOTE: JUDGMENT:

O R D E R This appeal by special leave arises from <ORG> Judgment of <ORG> made on September 2, 1985 in W.P. No.602/78. The admitted facts are that the notification under Section 4(1) of the Land Acquisition Act, 1894  (for short, the 'Act') was published in <ORG> on March 23, 1977 acquiring 31.28 acres of land for defence purpose. Enquiry under Section 5-A was dispensed with in exercise of the power under Section 17(4) of the Act and declaration under Section 6 was published on April 28, 1976. Possession was taken on May 19, 1977. The award was passed under Section 18 was sought and made in March 1978 to <ORG> for enhancement of the compensation. In September 1978, the respondent filed writ petition in <ORG> seeking to quash the notification under Section 4(1) and the declaration under Section 6 . The learned single Judge referred the matter to <ORG>. <ORG> has held that the acquired land is not an arable or waste land and, therefore, the exercise of the power under Section 17(4) of the Act was bad in law. Substance of the notification under Section 4(1) was not published in the locality. The notification under Section 4(1) did not mention that it was a waste of arable land. On these grounds, the learned Judges have quashed the notification. Thus, this appeal by special leave.

<NAME>, learned counsel for the appellants, has contended that the view of <ORG> is clearly erroneous. It is not necessary that notification under Section 4(1) should contain a declaration that the needed land is a waste or arable land. The finding that it is neither nor arable land is not correct so long as the land is capable of cultivation. If no cultivation was made it would still be arable land. Therefore, the view that it is neither waste nor arable land is not correct. It is difficult to accept the entire six acres of land which is now claimed by the respondents was within the compound wall as found by <ORG>. The view that substance of the notification was not published in locality was not correct in law without any further discussion on facts or legal principles. Even the finding cannot be well supported by any material on record; in law <ORG> was wrong in interfering under Article 226 of the Constitution. <NAME>, learned senior counsel for the respondents, contended that since the substance of the notification under Section 4(1) was not published which is mandatory, the notification under Section 4 (10, and declaration under Section 6 could be challenged at any time even after the award was made or possession was taken. Since publication of the notification under Section 4(1) is the foundation for taking further steps for the acquisition, procedural steps required under the Act should be followed. The substance of the notification under Section 4(1) was not published in the locality. So all the proceedings which had subsequently been taken place stand nullified. Therefore, the Court would in an appropriate case grant the declaration including to quash the award future steps. He also contended that it would be difficult to accept that the lands are arable lands, if not waste land. The finding that the land is arable land is based on consideration of the material on record. Therefore, it is not arable land. Further, it is contended that the respondent had stated in <ORG> that he was prepared to accept the compensation provided the date of notification under Section 4(1) was shifted to four five years later to the actual date of the notification under Section 4(1) published on March 23, 1977. He would stand by the same offer and, therefore, it is not a case warranting interference.

The questions, therefore are : (1) whether the notification under Section 4 (10 should contain the declaration that the lands are waste or arable lands; (20 whether the exercise of the power under Section 17(4) was vitiated by the finding that the lands were not capable of cultivation being situated in urban area; (3) whether the substance of the notification published under Section 4(1) was not published in the locality; if it not complied with, when the entire acquisition proceedings had become final, whether <ORG> was justified in exercising the power under Article 226? It is not necessary to recapitulate all the facts narrated above. Suffice it to state that after the reference was made to <ORG>, it passed an award under Section 26 which was challenged by the <ORG> by filing an appeal under Section 54 against the enhanced compensation. Thereby, the respondents had accepted the award. The <ORG> feeling aggrieved by the enhanced compensation, filed an appeal in <ORG>. <ORG>, by judgments dated May 5, 1982 and September 23, 1982, dismissed the appeals which became final. Thus, the acquisition proceedings became final.

The question, therefore, as said above, is : whether <ORG> is justified in interfering with these matters ? Section 4 (10 of the Act does not required to specify the nature of the land, i.e. whether it is arable or waste land. The object of the publication of the notification under Section 4(1) was that (1) the land is needed for a public purpose or is likely to be needed;(2) the officers of the <ORG> are authorised to enter upon the land and carry on measurement etc; and (3) the owner/interested person was put on notice that any encumbrance hereafter would not bind <ORG>. Therefore, Section 4(1) does not envisage specification of the nature of the land, i.e. whether it is waste or arable land, when the same was published. The view, therefore, of <ORG> that the notification under Section 4(1) should contain a declaration of the nature of the land is clearly erroneous.

Second question whether the land is waster or arable, is a mixed question of facts and law. It depends upon the facts in each case. In this case, it is seen that on their own showing, the land of an extent of 6 acres belonging to the respondents was sought to be acquired along with other vast extent of land. It consists of open land as well building and the servant quarters. The award of the Land Acquisition Officer has been placed before us. The building was not acquired for the public purpose but only servant quarters came to be acquired. From this background, the question arises : whether the land is arable land > This question was considered by a Bench of three Judges in <CITATION> [(1968) 2 SCR 267]. After elaborate consideration of the various judgments of <ORG> and dictionary meaning of the words "arable" in that behalf, this Court has relied thus :

"There is no definition of the word 'arable' in the original Land Acquisition Act . A local amendment includes garden lands in the expression. Now lands are of different kinds : there is waste- land desert-land, pasture-land, meadow land, grass-land, wood-land, marshy-land, hilly land, etc. and arable land. The Oxford Dictionary gives the meaning of 'arable' as capable of being ploughed; fit for tillage ; opposed to pasture-land or wood land and gives the root as arable is in Latin. The learned Judges have unfortunately not given sufficient attention to the kinds of land and the contrast mentioned with the meaning. Waste-land comes from the Latin vastitas or vastus (empty, buildings). It was always usual to contrast vastus within incultus (uncultivated) as in the phrase 'to lay waste' (agri vastate). A meadow or pasture-land is pratum and arable is arvum and Cicero spoke of prata et arva (meadow and arable lands). Grass- land is not meadow or pasture-land and in Latin in known as campus as for example the well-known Campus Martius at Rome, where the comitia (assembly of the Roman people) used to meet. Woodlands is silvae, nemora or saltus."

This was considered also be <ORG> in <CITATION> . [AIR 1967 SC 1801]. In that case, the acquired lands were mineral lands for mining purpose. Therefore, the question arose; whether they were arable lands ? On the facts of this case, <ORG> came to the conclusion that since they were not arable lands, the exercise of the power under Section 17(4) was not justified in law. In view of the fact that the Act itself has considered as to when the land could be considered to be arable land; as explained by this <ORG>, the interpretation put up in <NAME> case is in the correct perspective. The <ORG> has power t consider the question in that light. In considering the question whether the land is arable or waste, dictionary meaning does not help the <ORG> to solve the problem. Pragmatic approach is required to be adopted in considering the question on the facts in each case. Though the lands in this case situated in urban area, the Urban Land Ceiling Act itself recognises existence of the agricultural lands within the urban agglomeration and they are dealt with accordingly. When the lands were capable of the raising crops, they remained to be arable under Section 17(4) by the <ORG> was not bad in law. On facts, it is an arable land capable to cultivation. It is quarter as part of a large area, including six areas of respondent's lands, it cannot be said that the ret of the land is occupied by the buildings or is within the compound though situated in urban area. The view of the High <ORG>, therefore, was clearly erroneous.

The question is : whether the absence of the publication of the substance of the notification in locality renders the entire proceedings void? We need not dilate upon the question whether local publication of substance of Section 4(1) notification is mandatory or directory. Since this Court has consistently taken the view that compliance of the requirement of the publication of the notification under Section 4(1) in the <ORG> as well as publication of the substance of the notification in the locality now under the Amended Act in the newspaper, is mandatory requirement. As the facts are not in controversy, as mentioned in the judgment of <ORG>, the substance of the notification was not published in the locality; we proceed on the premise that second step, namely, publication of the substance of the notification in the locality, was not taken. The question then is : whether Section 4(1) notification and Section 6 declaration are required to be quashed ? In this regard, we have to consider the conduct of the parties and the effect thereof. Under the scheme of the Act, after the possession of the land was taken either under Section 17(2) or Section 16 , the land stands vested in <ORG> free from all encumbrances. Thereafter, there is no provision under the Act to divest the title which was validly vested in the <ORG>. Under Section 48(1) before the possession is taken, the <ORG> Government is empowered to withdraw from the acquisition by its publication in the <ORG>. In this regard, a three-Judge Bench of this Court has considered the question in <CITATION> . [] and held in paragraphs 12 thus :

"That apart, as facts disclose, the award was made on 24.11.1980 and the writ petition was filed on 9.8.1982. It is not in dispute that compensation was deposited in <ORG>. It is asserted by the appellant <ORG> that possession of the land was delivered to it and the land had been divided and allotted to its members for construction of houses and that construction of some houses had petition was filed. It would be obvious that the question of division of the properties among its members and allotment of the respective plots to them would arise only after the Land Acquisition Officer had taken possession of the acquired land and handed it over to appellant <ORG>. By operation of Section 16 , the land stood vested in the <ORG> free from all encumbrances.

<CITATION> .[], the question arose: whether notification under Section 4(1) and the declaration under Section 6 gets lapsed if the award is not made within two years as envisaged under Section 11-A ? A Bench of three Judges had held that once possession was taken and the land vested in the <ORG>, title to the land so vested in the State is subject only to determination of compensation and to pay the same to owner. Divesting the title to the land statutorily vested in the <ORG> and reverting the same to the owner is not Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the act to have the title of appellants divested except by exercise of the power under Section 48(1) , valid title cannot be defeated. The exercise of the power to quash the notification under Section 4(1) and the declaration under Section 6 would lead to incongruity. Therefore, <ORG> under those circumstances should not have interfered with the acquisition and quashed the notification and declaration under Section 4 and 6 respectively. Considered from either perspective, we are of the view that <ORG> was wrong in allowing the writ petition.

In <NAME> case, another Bench of three Judges had held that though award under Section 11-A was not within two years after the Amendment Act 68 of 1984 came into force, the title having been vested in the <ORG>, the notification under Section 4(1) and declaration under Section 6 do not get lapsed and non-compliance of statutory provisions does not have the effect of divesting the title of the land vested in the <ORG> free from all encumbrances.

Recently, another Bench of this <ORG> in <ORG> Vs. <ORG> [C.A. No. 282 of 1989] decided on September 6, 1996 reexamined the entire case law and held that once the land was vested in the State, the <ORG> was not justified in interfering with the notification published under appropriate provisions of the Act. Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of latches. It is thus, well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the <ORG> should be loathe to quash the notifications. The High <ORG> has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6 . But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the <ORG> should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party were created in the case, is hardly a ground for interference. <ORG> of the High <ORG> was not right in interfering with the discretion exercised by the learned single Judge dismissing the writ petition or the ground of latches. Reliance was placed by <NAME> on <CITATION> . [] in particular paragraphs 8, wherein it was held that compliance of the requirements is mandatory and non- compliance thereof renders all subsequent proceedings connected therewith unexceptionably illegal ; but the question is what will be its effect. That was not the question in that case, since no award had come to be passed in <CITATION> [] a two-Judge Bench of this <ORG> had held that if the requirements of Section 4 are not complied with, all proceedings had become invalid and possession was directed to be re-delivered to the appellant. We are of the view that the ratio therein is not correctly laid down. The question whether violation of the mandatory provisions renders the result of the action as void or voidable has been successfully considered in "Administrative Law" by <NAME> [7th Edition] at page 342-43 thus :

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result."

The order or action, if ultra vires the power, it becomes void and it does not confer any right. But the action need not necessarily set at naught in all events. Though the order may be void, if the party does not approach the <ORG> within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the <ORG> has to be exercised in a reasonable manner. When the discretion has been conferred on the <ORG>, the <ORG> may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the <ORG> may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for ; the award of the <ORG> under Section 26 enhancing the compensation was accepted. The order of the appellate court had also become final. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High <ORG> was highly unjustified in interfering with and in quashing the notification under Section 4  and declaration under Section 6 .

It is true that the respondent had offered to accept the compensation by shifting the date of the notification by 4 to 5 years from the date of the notification under Section 4(1) . For this view, reliance was placed by Shri Sachar on the judgment of this Court in <CITATION> . [] where this Court had allowed the shifting of the date for the determination of the compensation. In that case since the award had not been passed, this Court had given the direction but in this case award determining the compensation has attained finality. It is not a case to shift the date for the determination of the compensation. Thus considered, we are of the view that <ORG> was not justified in interfering with the notification and declaration under Section 4(1) and 6 .

The appeal is accordingly allowed. The judgment of <ORG> stands set aside. The writ petition stands dismissed but, in the circumstances, without costs.


JUDGMENT <NAME>, J.

1. This appeal is brought, by special leave, against the judgment of <ORG> dated November 2, 1962 dismissing the writ petition No. 454 of 1955 filed by the appellant - <NAME>.

2. The appellant was the Zamindar of Pargana Agori lying to the south of Kaimur Range in the district of Mirzapur. On October 4, 1950, a notification was issued by <ORG> under <CITATION> of the Land Acquisition Act (hereinafter referred to as the "Act") stating that the area of 409.6 acres in the village of Markundi Ghurma Pargana Agori was needed for a public purpose. The purpose specified in the notification was "for limestone quarry". The notification provided that the case being one of urgency, the provisions of sub-section (1) of s. 17 of the Act applied to the land and it was therefore directed under sub-s. (4) of s. 17 that the provisions of s. 5A of the Act would not apply to the land. On October 12, 1950, a further notification was issued under s. 6 of the Act declaring that the Governor was satisfied that the land mentioned in the notification was needed for public purposes and directing the Collector of Mirzapur to take order for acquisition of the land under s. 7 of the Act. The Collector of Mirzapur was further directed by the notification under s. 17(1) of the Act, the case being one of urgency, to take possession of any waste or arable land on the expiration of the notice mentioned in s. 9(1) , though no award under s. 11 had been made. On November 19, 1950, possession of the land was taken by the Collector of Mirzapur and the same was handed over to the Administrative Officer, <ORG>, Churk. An award was made by the Land Acquisition Officer on January 7, 1952 stating that the amount of compensation was Rs. 23,638/13/7. The appellant thereafter filed an application under s. 18 of the Act for a reference to <ORG> in regard to the amount of compensation payable. A reference to <ORG> was accordingly made and the matter is still pending in <ORG> as Land Acquisition Reference No. 4 of 1952. On May 2, 1955, the Writ Petition giving rise to this appeal was filed by the appellant in <ORG>. It is alleged by the appellant that the acquisition of the land was not for a public purpose and the acquisition proceedings were consequently without jurisdiction. It was also stated that <ORG> had no jurisdiction to apply the provisions of s. 17(1) of the Act to the land in dispute as it was neither waste nor arable land. It was further claimed that the mines and minerals in the land belonged to the appellant and as such he was entitled to compensation for the same. The appellant accordingly prayed for a writ in the nature of certiorari to quash the notifications of <ORG> under s. 4 and s. 6 of the Act and all further proceedings in pursuance of that notice in the land acquisition case. The appellant also prayed that <ORG> should be directed to pay compensation to the appellant for all the lime-stone removed from the land. By its judgment dated November 2, 1962 <ORG> dismissed the Writ Petition, holding (1) that the petitioner was not the owner of mines and minerals and was not entitled to compensation for them, (2) that the land had been acquired for a public purpose, and (3) that the provisions of s. 17 of the Act were applicable to the case and there was no illegality in the notifications of <ORG> under s. 4 and s. 6 of the Act.

3. The first question to be considered is whether the notification of <ORG> under s. 4 of the Act dated October 4, 1950 is liable to be quashed on the ground that the acquisition of the land was not for a public purpose. It was alleged for the appellant that the lime-stone extracted from quarries situated in the land was used by <ORG> for the manufacture of cement which was sold for profit in open market and was not used for any public work of construction. It was contended that the manufacture of cement for being sold for profit will not amount to a public purpose and the notification of <ORG> under s. 4 of the Act must therefore be held to be illegal. In our opinion, the argument put forward on behalf of the appellant cannot be accepted. It is manifest that the declaration made by <ORG> in the notification under s. 6(1) of the Act, that the land was required for a public purpose, is made conclusive by sub-s. (3) of s. 6 and it is, therefore, not open to a court to go behind it any try to satisfy itself whether in fact the acquisition was for a public purpose. It was pointed out by this Court in <CITATION> that it was for the <ORG> to be satisfied, in a particular case, that the purpose for which the land was needed was a public purpose and the declaration of the <ORG> under s. 6(1) of the Act will be final subject, however, to one exception, namely in the case of colourable exercise of the power, the declaration is open to challenge at the instance of the aggrieved party. The power conferred on the <ORG> by the Act is a limited power in the sense that it can be exercised only where it is for a public purpose (leaving aside, for the moment, where the acquisition is for a company under Part VII of the Act). If it appears that what the <ORG> is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the <ORG> would be colourable as being outside the power conferred upon it by the Act and its declaration under s. 6 of the Act will be a nullity. On behalf of the respondents the argument was stressed that the lime-stone was utilised for being used in the cement factory established in <ORG> at Churk. It was argued that the production of cement was important in national interest, particularly when the cement was used in the construction of the Rihand dam. It is conceded on behalf of the respondents that the allegation of the appellant that cement was being sold in market for profit was not clearly controverted by the counter-affidavit by the <ORG> but it was said that even on the assumption that the cement was sold for profit the use of the lime-stone in the production of the cement was in public interest, because the profit from the sale of cement benefited the General Revenues of the <ORG>. It is not necessary for us to express any concluded opinion as to whether the production of cement as a commercial enterprise is a public purpose within the meaning of the Act for we consider that the principle of the decision of this Court in <CITATION> applies to this case and the argument of the appellant must be rejected because he has not been able to show that the action of the <ORG> in issuing the notification under s. 6 of the Act is a colourable exercise of power.

4. We then proceed to consider the argument of the appellant that the notification under s. 4 of the Act is illegal since the land in dispute is neither waste nor arable land and the jurisdiction of <ORG> to act under s. 17(1) and s. 17(4) of the Act depends upon the preliminary condition that the land to be acquired is waste or arable land. The argument was stressed that since the jurisdiction of <ORG> depends upon the preliminary finding of fact that the land is waste or arable, <ORG> is entitled, in a proceeding for a writ of certiorari, to determine, upon its independent judgment, whether or not that finding of fact is correct. It is necessary, at this stage, to set out the relevant provisions of the Act. Section 4(1) of the Act states :

"4.(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality."

5. Section 5A provides for the hearing of objections and reads :

"5A.(1) Any person interested in any land which has been notified under section 4 , sub-section (1), as being needed or likely to be needed for a public purpose or for a <ORG> may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision, of the appropriate <ORG>, together with the record of the proceedings held by him and a report containing his recommendations on the objections, The decision of the appropriate <ORG> on the objections shall be final.

. . . . . . . 6. Section 6 provides : "6. (1) Subject to the provisions of Part VII of this Act when the appropriate <ORG> is satisfied, after considering the report, if any, made under section 5A , sub-section (2), that any particular land is needed for a public purpose, or for a <ORG>, a declaration shall be made to that effect under the signature of a Secretary to such <ORG> or of some officer duly authorised to certify its orders : Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a <ORG>, or wholly or party out of public revenues or some fund controlled or managed by a local authority. (2) The declaration shall be published in the Official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a <ORG>, as the case may be; and, after making such declaration the appropriate <ORG> may acquire the land in manner hereinafter appearing." 7. Section 16 relates to the power of the Collector to take possession of the land. It reads : "16. When the Collector has made an award under section 11 , he may take possession of the land, which shall thereupon vest absolutely in the <ORG>, free from all encumbrances." 8. Section 17 confers special powers in cases of urgency and reads as follows : "17 (1) In cases of urgency, whenever the appropriate <ORG> so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9 , sub-section (1), take possession of any waste or arable land needed for public purposes or for a <ORG>. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-said or ghat station, or of providing convenient connection with or access to any such station, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate <ORG>, enter upon and take possession of such land, which shall thereupon vest absolutely in the <ORG> free from all encumbrances :

(3) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4 , sub-section (1)."

9. On behalf of the appellant Mr. <NAME> referred to the Inspection Note of the Collector dated December, 15, 1951 at page 91 of the Paper Book. It was pointed out that the Collector noticed that there were one lac of trees in the acquired land and there were trees of "Tendu, Asan, Sidh, Bijaisal, Khair, bamboo clumps, Mahuwa and Kakora contained in the area." It was contended that the land in dispute was "forest land" covered by a large number of trees and cannot be treated as "waste land or arable land" within s. 17(1) or (4) of the Act. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct and in view of the facts mentioned in the affidavits and in the Inspection Note of the Collector dated December 15, 1961 we are of the opinion that the land sought to be acquired is not "waste land" or "arable land" within the meaning of s. 17(1) or (4) of the Act. According to <ORG> "arable land" is "land which is capable of being ploughed or fit for tillage." In the context of s. 17(1) of the Act the expression must be construed to mean "lands which are mainly used for ploughing and for raising crops" and therefore the land acquired in this case is not arable land. Similarly, the expression "waste land" also will not apply to 'forest land'. According to <ORG> the expression "waste" is defined as follows :

"Waste - (from Latin. vastus - waste, desert, unoccupied; Uncultivated, incapable of cultivation or habitation; producing little or no vegetation; barren, desert."

10. The expression "waste land" as contrasted to "arable land" would therefore mean "land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon." It follows therefore that s. 17(1) of the Act is not attracted to the present case and <ORG> had therefore no authority to give a direction to the Collector to take possession of the lands under s. 17(1) of the Act. In our opinion, the condition imposed by s. 17(1) is a condition upon which the jurisdiction of <ORG> depends and it is obvious that by wrongly deciding the question as to the character of the land <ORG> cannot give itself jurisdiction to give a direction to the Collector to take possession of the land under s. 17(1) of the Act. It is well-established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact <ORG> is entitled, in a proceeding of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct [See R.V. Shoreditch Assessment Committee ( 2 K.B. 859.) and <ORG> v. Minister of Health ( 2 K.B. 838.).]

11. We are accordingly of the opinion that the direction of <ORG> under s. 17(1) and the action of the Collector in taking possession of the land under that sub-section is ultra vires.

12. It was also contended for the appellant that the order of <ORG> under s. 17(4) of the Act that the provisions of s. 5A of the Act were not applicable to the land was illegal because the land was not waste or arable land to which the provisions of s. 17(1) were applicable. It was urged that by issuing the impugned notification <ORG> deprived the appellant of a valuable right i.e., of filing an objection under s. 5A of the Act and therefore the entire proceedings taken by the Land Acquisition Officer after the issue of the notification under s. 4 were defective in law. On behalf of the respondents the submission was made that the condition precedent for the application of s. 17(4) of the Act was the subjective opinion of <ORG> that the provisions of sub-s. (1) are applicable to the land in question. If therefore <ORG> had come to the conclusion that the provisions of sub-s. (1) were applicable to the land because the land was waste or arable land, the subjective opinion of <ORG> cannot be challenged in a court of law except on the ground of colourable exercise of power. It was also contended that the declaration of <ORG> in the impugned notification that in its opinion the provisions of sub-s. (1) are applicable, must be taken as normally conclusive.

13. It is true that the opinion of <ORG> which is a condition for the exercise of the power under s. 17(4) of the Act, is subjective and a <ORG> cannot normally enquire whether there were sufficient grounds or justification for the opinion formed by <ORG> under s. 17(4) . The legal position has been explained by <ORG> in King Emperor v. <NAME> (72 I.A. 241.) and by this <ORG> in a recent case - <NAME> v. State of West Bengal & Ors. (Criminal Appeal No. 110 of 1966 - decided on July 27, 1966.  Supp. S.C.R.) But even though the power of <ORG> has been formulated under s. 17(4) of the Act in subjective terms the expression of opinion of <ORG> can be challenged as ultra vires in a <ORG> of Law if it could be shown that <ORG> never applied its mind to the matter or that the action of <ORG> is mala fide. If therefore in a case the land under acquisition is not actually waste or arable land but <ORG> has formed the opinion that the provisions of sub-s. (1) of s. 17 are applicable, the <ORG> may legitimately draw an inference that <ORG> did not honestly form that opinion or that in forming that opinion <ORG> did not apply its mind to the relevant facts bearing on the question at issue. It follows therefore that the notification of <ORG> under s. 17(4) of the Act directing that the provisions of s. 5A shall not apply to the land is ultra vires. The view that we have expressed is borne out by the decision of <ORG> in Estate and Trust Agencies Ltd. v. <ORG> ( A.C. 898.) in which a declaration made by <ORG> under s. 57 of the Singapore Improvement Ordinance 1927 that the appellants' property was in an insanitary condition and therefore liable to be demolished was challenged. Section 57 of the Ordinance stated as follows :

"57. Whenever it appears to the <ORG> that within its administrative area any building which is used or is intended or is like to be used as a dwelling place is of such a construction or is in such a condition as to be unfit for human habitation, the <ORG> may be resolution declare such building to be insanitary".

14. <ORG> set aside the declaration of <ORG> on two grounds; (1) that though it was made in exercise of an administrative function and in good faith, the power was limited by the terms of the said Ordinance and therefore the declaration was liable to a challenge if the authority stepped beyond those terms and (2) that the ground on which it was made was other than the one set out in the Ordinance. In another case - <NAME> v. <NAME> ([1958] 1 W.L.R. 546.) - the appellant challenged an order of collective fine passed under Regulation 3 of the Cyprus Emergency Powers (Collective Punishment) Regulations, 1955 which provided that if an offence was committed within any area of the colony and the Commissioner "has reason to believe" that all or any of the inhabitants of that area failed to take reasonable steps to prevent it and to render assistance to discover the offender or offenders it would be lawful for the Commissioner with the approval of the Governor to levy a collective fine after holding an inquiry in such manner as he thinks proper subject to satisfying himself that the inhabitants of the area had been given an adequate opportunity of understanding the subject-matter of the inquiry and making representations thereon. It was contended on behalf of the appellant that the only duty case on the Commissioner was to satisfy himself of the facts set out in the Regulation, that the test was a subjective one and that the statement as to the satisfaction in his affidavit was a complete answer to the contention of the respondents. In rejecting the contention <ORG> observed as follows :

"Their Lordships feel the force of this argument, but they think that if it could be shown that there were no grounds upon which the Commissioner could be so satisfied, a court might infer either that he did not honestly form that view or that in forming it he could not have applied his mind to the relevant facts."

15. In another case - R.V. Australian Stevedoring Industry Board ((1952) 88 C.L.R. 100.) - <ORG> was called upon to review the conduct of a board empowered to cancel the registration of an employer of dock labour if "satisfied" that he was unfit to be registered or had so acted as to interfere with the proper performance of stevedoring work. It was held by <ORG> that it was entitled to award prohibition against the board if the board was acting without any evidence to support the facts upon which its jurisdiction depended, or if it was adopting an erroneous test of the employer's liability to cancellation of his registration, or if it appeared likely to go outside the scope of its statutory discretion.

16. We accordingly hold that the appellant has made good his submission on this aspect of the case and the notification of <ORG> under s. 6 of the Act dated October 12, 1950 is ultra vires and therefore all the proceedings taken by the Land Acquisition Officer subsequent to the issue of the notification under s. 6 must be held to be illegal and without jurisdiction.

17. We shall pass now to consider the question whether the appellant had sub-soil and mineral rights in the areas in dispute and whether the appellant was entitled to compensation for the minerals including lime-stone in that area.

18. It is necessary to set out at this stage the history of Agori Zamindari. The ancestors of <NAME> had owned the paraganas of Agori and Barhar since the 13th century. About the year 1744 A.D. <NAME> the then <NAME> was driven out of his domains by <NAME> of Banaras, but after about 30 years <NAME>, grandson of <NAME> was able to regain possession over the territories after driving out <NAME>, son of <NAME>, with the help of <ORG>. On October 9, 1781, <NAME> <NAME> was granted a Sanad by Mr. <NAME> the then Governor General of India restoring to him the Zamindari of <NAME> and <NAME> with all the rights which his ancestors had before <NAME> was driven out of his domains. By a second Sanad dated October 15, 1781 the <NAME> was granted a <NAME>ultamgha of certain <NAME>s including <NAME> in lieu of Rs. 8,001/- per annum. It was stated for the respondent-State that the second sanad was cancelled by a resolution of the Governor in <ORG> dated April, 1788. But a third sanad was executed in favour of the <NAME> on December 10, 1803 granting the whole <NAME> permanently and making the <NAME> "immovable <NAME>dar of <NAME> and everything appertaining thereto to belong to him."

19. On behalf of the appellant reference was made to the sanad granted by Mr. <NAME> dated October 9, 1781 by which the <NAME> of Agori was restored to <NAME> with all ancient and former rights in the <ORG>. The Sanad reads as follows :

"Know ye the present and future mutsuddies, Zamindars Chowdharies, canoogoes, Residents, Mahtees, ryots, cultivators and other inhabitants of pargunnah ageuree Burhas in the Sirkar of Chunnar, Soubah of Bihar, that in consequences of the service of <NAME> in favour of <ORG> three Lacs and forty thousand drums which amounts to eight thousand and one rupees per annum, is granted to him as an Ultumgah jagger from the Kharief 'Illegible' Fussley year 1189 together with the mohala, sayar rukbah, plains or meadows thereof and exclusive of the deotter, Bhrmotter, Krishuarpen lands, places of worship habitations of Brahmans, and faquire and the Aymah, Mauffy and nomooly free rent free lands that he the said <NAME> having the welfare of Government constantly in view, is to appropriate the produce thereof to his own use, year after year to be ever prompt to secure and promote the prosperity of <ORG> to attend and on no account be inattentive to the police, keep contented and satisfied all the Ryots, inhabitants and residents of the said Mahal to study and advance the welfare of the inhabitants to effect the Augmentation of cultivation of the whole Perganah.

20. Be it known to you <NAME> of Parganah Agori as it appears from your statement that the above Parganah is your ancient and hereditary estate and that some years ago <NAME> forcibly dispossessed you and took possession of it himself. On a view therefore of your ancient right the Purganah is restored to you and you are required to bring it into cultivation obeying the orders of the <ORG> and having the interest of <NAME> constantly in view. There in fail not dated 20th Shawaul 1195 Hidgree or the October 1781 E.E.".

21. The appellant further relied upon the Sanad dated December 10, 1803 which confirmed all the rights granted in the 1781 Sanad and made the grant in perpetuity. The Sanad appears on page 79 of the Paper Book and reads as follows :

"Know, ye, the present and future Mutsuddies in office; the zamindars, the Chowdhuries, the Residents, the Mahtoos, the Ryots, the cultivators, and the inhabitants of Agori Barhar of Sirkar Chunar in subah Allahabad, that in conformity to the orders of His Excellency the most Noble Richard Marquis Wellesley, Knight of the Illustrious order of Saint Patrick, Governor General in Council issued on the 4th November 1803 on a consideration of the good services rendered to the Hon'ble Company by <NAME>, and his consequent merits, lands in the above Purgunnah producing Rs. 4,000/- to form a Jagir of three lacs twenty thousands and forty dams which make eight thousand and one rupees per annum, as hereunder particularized of which a jagir of 4,001 rupees continues in the possession of the said <NAME> agreeably to sanad dated 7th October, 1789, English Era, have been given to him the said <NAME> as an ultumgah Jagger, from the Fussul Khareef of the fasli year 1211, corresponding with the English era 1803, together with the maul, Suyer, Ruchhah, plains or meadows thereof, and exclusive of Deuuttar, Burmotter and Krishnarpur lands places of worship, habitations of Brahmans and Faquirs, ayumah, maufy, mamully etc., rent free lands, that the said <NAME> is to appropriate the produce of the aforementioned jageer to his own use year after year, to be ever prompt to secure and promote the prosperity of the Hon'ble Company to attend strictly and conform to the rules and customs of Jagirs, to be on no account in-attentive to, or neglectful of the police, to keep content and satisfied by good treatment, all the Ryots inhabitants, and residents of the said mahals to study and advance that the welfare of the inhabitants of the place to exert effectually and argument the cultivation of the whole pergana.

22. That you are to consider him the Rajah, immovable jagerdar of the mahal and every thing appertaining thereto, to belong to him be interested in his welfare and not demand on new sanad annually herein fail not but conform to the injunctions above given within the 11th day of the month of Poos 1211 <NAME>; Corresponding with the English era 1803.

23. Endorsement Of the hereunder particularized <NAME>, perganah Agori Burhar, producing Three lacs, twenty thousand and forty which make eight thousand and one rupee annually. Without fluctuations, land producing four thousand one rupee is already in the possession of <NAME> agreeably to a <ORG> dated 7th October 1789 and the remaining jageer of 4 thousand rupees have been already given and granted to him from the year 1211 Fussly together with the Raqbah plains meadows, and jungles thereof as an ultamagh jageer. Total villages 209 producing 8001 rupees."

24. In our opinion, a reading of the two <NAME>s supports the case of the appellant that there is no reservation of mineral rights in favour of the Government. The expression used in the <NAME> of 1803 A.D. is "You ought to consider him the <NAME> of immovable <NAME> and of <NAME> and everything appertaining thereto belongs to him." In effect, the grant to the <NAME> in the two <NAME>s is a grant of the lands comprised in the <NAME> of Agori and everything appertaining thereto and as a matter of construction the grant must be taken to be not only of the land but also of everything beneath or within the land. Prima facie the owner of a surface of he land is entitled ex jure to everything beneath the land and in the absence of any reservation in the grant minerals necessarily pass with the rights to the surface (Halsbury's Laws of England, 3rd Edn., Vol. 26, p. 325). In other words, a transfer of the right to the surface conveys right to the minerals underneath unless there is an express or implied reservation in the grant. A contract therefore to sell or grant a lease of land will generally include mines, quarries and minerals beneath or within it (<NAME> v. <NAME> ([1914] 1 Ch. 438, 450.). It is manifest that when the sanad was executed in favour of the <NAME> the Government made over the land with all its capabilities to the <NAME> and merely imposed on him a fixed sum of revenue in lieu of all the rights the Government had as a proprietor of the soil. When neither of the parties knew undiscovered minerals underneath the land and the idea of reservation never entered their minds it cannot be held that there was any implied reservation in the grant. Nor can afterwards a distinction be drawn between the various rights that may exist on the land for the purpose of qualifying the original grant and importing into it what neither party could have imagined. It was argued on behalf of the respondents that the assessment was made on the agricultural income, but this circumstance cannot derogate from the rights conveyed to the <NAME> in the two <NAME>s because no restriction was placed on the use of the land and the use by the <NAME> was not limited to agriculture.

25. The view that we have expressed as to the interpretation and the legal effect of the Sanads is supported by Regulation VIII of 1793 which re-enacted with modifications and amendments the Rules for the Decennial Settlement of the public revenue payable from the lands of the zemindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and Orissa. Section IV of this Regulation provided that the settlement, under certain restrictions and exceptions specified in the Regulation, shall be concluded with the actual proprietors of the soil, of whatever denomination, whether zemindars, talukdars or chaudhris. It is clear that the zemindars with whom settlement took place, were recognised as the actual proprietors of the soil. The settlement of revenue so made was made permanent by s. IV of Regulation I of 1793. This Regulation enacted certain Articles of a Proclamation dated March 22, 1793. Section I of this Regulation states that the various articles of the Proclamation were enacted into a Regulation and that those articles related to the limitation of public demand upon the lands, addressed by the Governor-General in Council to the zemindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provinces of Bengal, Bihar and Orissa. By Section IV it was declared to the zemindars, independent talukdars and other actual proprietors of land, with or on behalf of whom a settlement had been concluded under the Regulations mentioned earlier, that at the expiration of the term of settlement no alteration would be made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.

26. The preamble to Regulation II of 1793, which abolished <ORG> or <ORG> and transferred the trial of suits cognizable in those Courts to <ORG>, stated, in connection with the proposed improvements in agriculture as follows :

"As being the two fundamental measures essential to the attainment of it, the property in the soil has been declared to be vested in the landholders, and the revenue payable to Government from each estate has been fixed for ever........ The property in the soil was never before formally declared to be vested in the landholders, nor were they allowed to transfer such rights as they did possess, or raise money upon the credit of their tenures, without the previous sanction of Government."

27. The preamble to Regulation I of 1795 which relates to the Province of Benares states that "the Governor-General in Council having determined, with the concurrence of the Rajah of Benares, to introduce into that province, as far as local circumstances will admit, the same system of interior administration as has been established in the provinces of Bengal, Bihar, and Orissa, and the limitation of the annual revenue payable from the lands forming an essential part of that system, as stated in the preamble to Regulation II, 1793."

28. It appears that Pargana Agori was permanently settled under the provisions of the Benares Regulation I of 1795 and there was no material difference between the permanent settlement of Benares province and that of the Provinces of Bengal, Bihar and Orissa.

29. It is thus clear from the above Regulations that the zemindars, the proprietors of estates, were recognized to be the "proprietors of the soil" and the permanent settlement of the zemindaris proceeded upon that basis. Such a view was also expressed by <ORG> in <CITATION> (44 I.A. 117.) at page 122;

"Passing to the settlement of 1793, it appears to their Lordships to be beyond controversy that whatever doubts be entertained as to whether before the British occupation the zamindars had any proprietary interest in the lands comprised within their respective districts, the settlement its recognizes and proceeds on the footing that they are the actual proprietors of the land for which they undertake to pay the Government revenue. The settlement is expressly made with the 'zemindars, independent talukdars and other actual proprietors of the soil', see Regulation I, s. 3 and Regulation VIII, s. 4 . It is clear that since the settlement the zamindars have had at least a prima facie title to all lands for which they pay revenue, such lands being commonly referred to as malguzari lands."

30. The rights of the zemindars to the sub-soil minerals under their land were derived from their being proprietors of the soil and has been recognised in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure holder under the terms of the tenure held by him, he does not get any right to them. <CITATION> (37 I.A. 136.) it has been held by <ORG> that where a village is shown to be a mal village of the plaintiff's zamindari estate, the plaintiff must be presumed to be the owner of the underground rights thereto appertaining in the absence of evidence that he ever parted with them. In the course of its judgment <ORG> quoted with approval the following passage from <NAME>'s "Introduction to the Bengal Regulations", p. 36 where he says :

"The zamindar can grant leases either for a term or in perpetuity. He is entitled to rent for all land lying within the limits of his zamindari, and the rights of mining, fishing, and other incorporeal rights are included in his proprietorship."

31. The same view has been expressed in <CITATION> (39 I.A. 133). <CITATION> (44 I.A. 46.) Lord Buckmaster stated with regard to the above two cases :

"Those decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect."

32. It is true that the Government was not a party to those decisions of <ORG> but the fact that the Government never asserted its claim to mineral rights possessed by the zemindars is a circumstance which supports the interpretation of the Sanads which we have already expressed.

33. There are other documents which support the view that the mineral rights and sub-soil rights in the area belonged to the appellant. Annexure H is a copy of the Wajibularz relating to Mauza Kota and Annexure I is a copy of the Wajibularz of other villages Sali, Dokhli, Kaira and Rajpur Pargana Singrauli, district Mirzapur in respect of the settlement of 1247 fasli and 1257 fasli respectively. In Annexure H there occurs the following passage :

"In this village there are Jungles and hills where all the said items such as dhup, shekae, catechu and coal are found. A sum of Rs. 1/4/- per tauga (ace) for producing dhup and shellac and Rs. 1/8/- per bhatti from catechu manufacturers is taken and one Mr. <NAME> has been given theka of coal by me at Rs. 20/- per annum for unlimited period."

34. In Annexure I the following passage is found :

"A coal mine situate in Mauza Kota, Pargana Singrauli, was given to Mr. <NAME> under a perpetual lease in this way that he should remain in possession thereon during his life time on payment of the amount of <ORG> and that Mr. <NAME> aforesaid should all along remain in possession thereon so long as he continued to pay Rs. 20/- the fixed amount of <ORG> annually in a lump sum either in the month of Aghan or in Jeth. In case he fails to pay the same, I have power to file a suit in <ORG> to realise the amount from Mr. <NAME> aforesaid. Mr. <NAME> aforesaid has not the right to transfer the same. He should remain in possession thereon as long as he wishes to on payment of fixed amount of <ORG>."

35. There are also subordinate leases produced on behalf of the appellant to show that the right to minerals was always enjoyed by the appellant and not by the lessees; for instance, Annexure A-5 at page 125 of the Paper Book is a deed of agreement executed by <NAME> on September 4, 1852. Para 4 of this agreement states :

"4. In this village, no <NAME> item is produced; but whatever little or more fish mangoes and Mauh are available we the occupants of the village enjoy and shall continue to enjoy the same. If something viz., iron ore, copper or treasure trove are discovered in this <NAME>, the <NAME> Saheb shall be entitled to it. No other person should plant a new grove without the written permission of the <NAME>. If any one does so he shall be liable to pay Rs. 10/- per bigha and shall continue to pay annual <NAME> as heretofore."

36. There are similar clauses in the agreements - Annexures A-1 to A-4 and A-6 to A-13. Reference was also made on behalf of the appellant to the letter of Mr. <NAME> dated October 5, 1850 to the Secretary to <ORG>, Annexure F wherein he states that "In the settled portion of the Mirzapur district, the <ORG> lays no claim to the soil which includes any mineral products that may be discovered". There is also a letter - Annexure G dated August 21, 1850 from Mr. <NAME>, Deputy Collector, Mirzapur to the Commissioner of <ORG>. In this letter, Mr. <NAME> expressed the view that the right to minerals was vested in the proprietary owner of the soil and that the sovereign was only entitled to a portion of the revenue thereon and that 'in Bengal' the proprietors of estates lease or assign the right of mining without any interference on the part of the <ORG>".

37. It is manifest that the view that we have expressed as to the interpretation of the two <ORG> dated October 9, 1781 - Annexure A - and December 10, 1803 - Annexure B is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of <ORG> and the view taken by <ORG> on this aspect of the case must be overruled.

38. On behalf of the respondents, reference was made to the Mirzapur Stone Mahal Act (U.P. Act V of 1886) and it was pointed out that under s. 5 of that Act "no proprietor was entitled to place any prohibition or restriction, or to demand or receive any sum by way of rent, premium, duty or price, in respect of the opening quarry, or the quarrying of stone, in the land, or in respect of the storing of stone at the quarry or the transport of stone over the land". But there is nothing in this statute which takes away the right of the zemindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.

39. For the reasons already expressed we hold that <ORG> has no jurisdiction to apply the provisions of s. 17(1) and (4) of the Act to the land in dispute and to order that the provisions of s. 5A of the Act will not apply to the land. We are further of the opinion that <ORG> had no jurisdiction to order the Collector of Mirzapur to take over possession of the land under s. 17(1) of the Act. The notification dated October 4, 1950 is therefore illegal. For the same reasons the notification of <ORG> under s. 6 of the Act, dated October 12, 1950 is ultra vires.

40. We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of <ORG> dated October 4, 1950 by which the Governor has applied s. 17(1) and (4) to the land in dispute and directed that the provisions of s. 5A of the Act should not apply to the land. We further order that the notification of <ORG> dated October 12, 1950 under s. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated January 7, 1952 and the reference made to civil <ORG> under s. 18 of the Act.

41. In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute, but in our judgment in <CITATION> and vice-versa pronounced today we have held that the intermediary interest of the appellant in respect of <NAME> had validly vested in the State of U.P. by notifications issued on June 30, 1953 and July 1, 1953 under the U.P. Zamindari Abolition and Land Reforms Act, 1951 (as subsequently amended by the U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 1963 - U.P. Act No. 1 of 1964). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected.

42. We accordingly allow this appeal to the extent indicated above and set aside the judgment of <ORG> dated November 2, 1962. We do not propose to make any order as to costs.

V.P.S.

43. Appeal allowed.