TARKESHWAR SIO THAKUR JIU versus BAR DASS DEY & CO. AND ORS.

Citation: [1979] 3 S.C.R. 18 · Decided: 06-02-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A. 
c 
18 
TARKESHWAR SIO THAKUR JIU 
v. 
BAR DASS DEY & CO. AND ORS. 
February 6, 1979 
[R. S. SARKAitJA AND 0. C!i!NNAPFA REDDY, H.J 
Transfer of Property Act, 1882 (Act IV) Sections 105, !OS "ad withs. 3(:i6)' 
of the Gi!Hi!ral Ctlluses .A.ct-"Immovable Property" definitioh Of, explaiiled. 
Mines Act, 1952, s. 2(i) read with Cl. (c) and (d) of s. 3 of the Mines and 
Minerals (RegUlatfrh1 blid DevelbjJ1ne11tl Act, (NO. 67 of 1957), Scope of. 
West B'engal Estates Acquisit1~on A ct, 1953, Section 6 (1) (i), 27 and 28, 
si:ope df, 
Wortis ilnd Phrases ''Any" "direci!y worked by him" in s. 28 of ihe West 
Bihitil Estates Acqulsltion Act, 1953, meaning Df-lnli!r/}reration of a ddcu- · 
ni~ht=-~Riigatd Hu1st be had td the substance and nbi the words or Iha fdrJn. 
The #petlalit idol,. a juti<tic person. W"3 exetcising the righ!S, lhtbugh tlie 
· Shebait, Moha:nta Srimati Dlmdi Swami, of a Dalpatnidar iri the land iii suit. 
D 
By a leaoe-deed (Ex. A), dated July 10, 1941, tlie appellant granted to !lie 
respondents a lease of the suit land for the purpose of raising and 
tl.lking· 
sand out bf the Ia:nd for a period of nine years ending on 11.tly 13, '1949 .. 
Sub!equenlly, .on April 27, 1950, the appellant rilade a similar grant (Ex. I) 
for another nine ye~rs exp"it·ing on April 13, 1959, trot tliis grant was called• 
a "licence". The respondents did not pay the licence fee for the period 
1362 
(14-4-1955) to 1365 B.S. 
The appellant thereupon issued notice dated March' 
E 
31, 1966, terminating tlie 'licence' and then filed a suit No. 37 of 1960 for 
ejcctmen:t of the rCSpo"ndent in the Court of the MunSiff, Chandernagare. the 
trial cOU:rt h::ivi:dg disinissed the suit, the appeUant filed a fir5t 
~peai WIIich. 
was a1lowed. In second appeal the High Court restored the decree of the 
F 
G 
H 
trial court. 
Jn appeal by special leave to this Court, it '-"'as contended on behalf of 
the appellant : 
(a) The transaction evidenced by the document (Ex. I) dated April 27, 
1950 Was a 'IicCnsc' for taking away sand and not a 'lease' 
of 
immovable 
prtJi>erty. 
'flie-refbte, the appellant-intermediary Win be considerect to be in 
Khas possession of the holding on the date of vesting (April l, 1955) thfOuB;h 
the licensee and as such, entitled to reta:in it under Section 6 of the Bengal 
Rstates Acquisition Act, 1953~ 
(b) Seeticn 28 of the Bengal Estates ACquisition: Act, 1953 is :dot ~pptica· 
ble because there wa! no 'mine' in the suit land, es defirred- in the Central 
Act 61 of 1Q57; the sand deposits naturally exist on the surface _and 
not 
be10w it and inere coUection and removal of the sand from the wrfacc did 
not constitute mining operations. Therefore, it could not be said that the suit 
land was comprised in a mine or. appertained to a mine ~>ithin the meaning 
of the said Section 28; 
( c) Even if the land was a 'mine' or appertained to a mine, the mine 
w.:is being worked by the appellant through a licensee, and as such, was being 
"' • 
• 
• 
I , 
TARKESHWAR V. B. D. DEY & CO. 
19 
'directly worked' by the appellant-intermediary within the 
contemplation of 
A 
Section 28 o'f the ~engal Estates Acquisition Act, and therefore, 
the 
land 
would be deemed to have been leased to the appellant by the Government. 
Rejecting these contentions, and dismissing the appeal, 
1-lELD : A. Jn ascertaining whether a dbcument evide·n·ces a 
'Iea:se' 
or a 
'licence.', regard must be had to the substa•nce of the 
transaction 
and 
not 
B 
n1erely the words or the form in which it is dreSsed. 
[26F] 
The docunltnt (Ex. I the Agreen1ent), in tbe instant case 
t~veal' the 
followin:g characteristics, which show that in fact and substance, 
it 
is 
:i 
'lease' and not a 'licence' : 
[27E, 32C] 
(i) A right to "raise·' and "take out" and remove sand "lying inside" the 
Jand in dispute v.ras granted by the plaintiff to the defendant. 
The 
words 
C 
"raise" and "take out sand" from "inside" 1hc land are Wide enbugh to include 
not only the "right to carry oUt all the op-erations" neceisary for eXtractirig 
sand, but alSo to take it away and appropriate it. 
Coll'~troed in the cO'irtext 
of the dotument: as a Whole, these words put it beyond dOulJt th'at rigOts to 
carry out "rniniFlg operations" [Within the definition in Cl. (d) of s. 3 of the 
Central Act 67 of 1957] for 
winning sand 
and 
to 
rrppto}bri<tte 
it, 
V.:ete 
granted. 
[27F-G] 
I} 
(ii) The rights were granted for a period of 9 years, commencing from 
April 27, 19

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