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Civil Appeals Nos. 976 and 977 of 1964.
Appeals from the judgment and decree dated March 26, 1964 of the Patna High Court in Election Appeals Nos. 8 and 10 of 1963.
C.B. Agarwala, Jagdish Panday, Chinta Subbarao, M. Rajagopalan and B.P. Jha, for the appellant, (In both the appeals).
K.P. Varma and D. Goburdhun, for the respondent (In both the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
Both these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna dated March 26, 1964, pronounced in Election Appeals Nos. 8 and 10 of 1963.
The appellant Kedar Pandey and the respondent Narain Bikram Sah '(hereinafter called Narain Raja) were the contesting candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran.
The nomination papers of the appellant and the respondent and two others Parmeshwar Prasad Roy and Suleman Khan were accepted by the Returning Officer without any objection on January 22, 1962.
Later on the two candidates Parmeshwar Prasad Roy and Suleman Khan withdrew their candidatures.
After the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes.
On April 11, 1962 Kedar Pandey filed an election petition challenging the election of the respondent.
It was alleged by Kedar Pandey that the respondent was not duly qualified under article 173 of the Constitution of India to be a candidate for election as he was not a citizen of India.
According to Kedar Pandey the respondent, his parents and grand parents were all born in Nepal and, therefore, on the date of the election, the respondent Narain Raja was not qualified to be chosen to fill the Assembly seat for which he had been declared to have been elected.
According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent Rama Raja owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent had a share along with his three other brothers.
The election petition was contested by the respondent who said that he was an Indian citizen and there was no disqualification incurred under article 173 of the Constitution.
The further case of the respondent was that he had lived in India since his birth and that he was a resident of Ramnagar in the district of Champaran and not of Barewa in Nepal.
The respondent claimed that he was born in Banaras and not at Barewa.
795 Upon these rival contentions it was held by the Tribunal that the respondent Narain Raja was not a citizen of India and, therefore, was not qualified under article 173 of the Constitution for being chosen to fill a seat in the Bihar Legislative Assembly.
The Tribunal, therefore, declared that the election of the respondent was void.
But the Tribunal refused to make a declaration that Kedar Pandey was entitled to be elected to Bihar Legislative Assembly for that Constituency.
Both the appellant and the respondent preferred separate appeals against the judgment of the Election Tribunal to the High Court of Judicature at Patna.
The High Court in appeal set aside the judgment of the Tribunal and upheld the election of the respondent Narain Raja.
The High Court found, on examination of the evidence, that Narain Raja, the respondent before us, was born in Banaras on October 10, 1918 and that the respondent was living in India from 1939 right upto 1949 and even thereafter.
The High Court further found that long before the year 1949 Narain Raja had acquired a domicile of choice, in Indian territory and, therefore, acquired the status of a citizen of India both under article 5(a) and (c) of the Constitution.
On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant Kedar Pandey should be dismissed.
The main question arising for decision in this case is whether the High Court was right in its conclusion that the respondent Narain Raja was a citizen of India under article 5 of the Constitution of India on the material date.
The history of the family of Narain Raja is closely connected with the history of Ramnagar estate.
It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to.
Shri Prahlad Sen after whose death the estate came into the possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja.
After the death of Mohan Raja the estate came into the possession of Rani Chhatra Kumari Devi, the vidow of Mohan Raja, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram Sah, the father of the respondent Narain Raja.
It is in evidence that the daughter of Prahlad Sen was married to Shri Birendra Vikram Sah, the father of Mobart Raja.
Mohan Raja died without any male issue but during his lifetime he had adopted Rama Raja, the father of the respondent and by virtue of a will executed by Mohan Raja in the year 1904 in favour of his wife Rani Chhatra Kumari Devi the Rani became entitled to the Ramnagar estate on the death of Mohan Raja (which took place in 1912), in preference to the adopted son Rama Raja since the properties belonged to Mohan Raja in his absolute right and not as ancestral properties.
After the death of Rani L/P(D)5SCI 12 796 Chhatra Kumari Devi in 1937 Rama Raja came into the possession of the Ramnagar estate.
In the year 1923, Rani Chhatra Kumari Devi had filed R.S. No. 4 of 1923 against Rama Raja the Court of Sub Judge, Motihari with regard to a village which Rama Raja held in Ramnagar estate on the basis of a Sadhwa Patwa lease.
Rama Raja in turn filed T.S. No. 34 of 1924 in the Court of Subordinate Judge of Motihari against Rani Chhatra Kumari Devi and others claiming title to Ramnagar estate and for possession of the same on the basis of his adoption by Mohan Raja.
The Title Suit and the Rent Suit were heard together by the Additional Sub Judge, Motihari who, by his judgment dated August 18, 1927 decreed the Title Suit filed by Rama Raja and dismissed the Rent Suit filed by Rani Chhatra Kumari Devi.
There was an appeal to the High Court of Patna which dismissed the appeal.
Against the judgment of the High Court appeals were taken to the Judicial Committee of the Privy Council.
The appeal was decided in favour of Rani Chhatra Kumari Devi and the result was that the Title Suit filed by Rama Raja was dismissed and Rent Suit filed by Rani Chhatra Kumari Devi was decreed.
In the course of judgment the Judicial Committee did not disturb the finding of the trial Court that Rama Raja was an adopted son of Shri Mohan Vikiram Sah alias Mohan Raja and accepted that finding as correct; but the Judicial Committee held that Ramnagar estate was not the ancestral property of Mohan Raja, but he got that property by inheritance, he being the daughter 's son of Prahlad Sen, the original proprietor of that estate.
In view of this circumstance, the Judicial Committee held that though Rama Raja was the adopted son of Mohan Raja, Rama Raja was not entitled to the estate in view of the will executed by Mohan Raja in favour of Rani Chhatra Kumari Devi in the year 1904.
It appears that in the year 1927 Rama Raja had taken possession of Ramnagar estate and got his name registered in Register D and remained in possession till the year 1931 when he lost the suit in Privy Council.
After the decision of Privy Council, Rani Chhatra Kumari Devi again came into possession of Ramnagar estate and continued to remain in possession till she died in 1937.
It is in evidence that after the death of Rani Chhatra Kumari Devi, Rama Raja obtained possession of Ramnagar estate and continued to remain in possession thereof from 1937 till 1947, the year of his death.
There is evidence that Rama Raja died in Bombay and his dead body was cremated in Banaras.
It is also in evidence that during the lifetime of Rama Raja there was a partition suit in the year 1942 No.
40 of 1942 for the partition of the properties of the Ramnagar estate among Rama Raja and his sons including the respondent.
This suit was filed on September 29, 1942 in the Court of the Subordinate Judge at Motihari.
A preliminary decree exhibit
1(2) was passed on April 16, 1943 on compromise and the final decree Ex 1(1) in the suit 797 was passed on May 22, 1944.
From the two decrees it appears that Ramnagar.
estate was comprised of extensive properties including zamindariinterest in a large number of villages and the.
estate 'had an extensive area of Bakasht lands.
By the said partition the estate was divided among the co sharers but certain properties including forests in the estate were left joint.
On behalf of the appellant Mr. Aggarwala put forward the argument that the High Court was not justified in holding that Narain Raja was born in Banaras in the year 1918.
According the case of the appellant Narain Raja was born at a place called Barewa in Nepal.
In order to prove his case the appellant examined two witnesses Sheonath Tewari (P.W. 18) and N.D. Pathak (P.W. 15).
The High Court held that their evidence was acceptable.
There was also a plaint (exhibit 8) produced on behalf the appellant to show that Narain Raja was born at Barewa.
This plaint was apparently filed in a suit brought by the respondent for the realisation of money advanced by the respondent 's mother to one Babulal Sah.
The place of birth of the respondent is mentioned in this plaint as Barewa Durbar.
The High Court did not attach importance to exhibit 8 because it took the view that the des cription of the place of birth given in the document was only for the purpose of litigation.
It further appears from exhibit 8 that it was not signed by the respondent but by one Subhan Mian Joiaha described as 'Agent '.
On behalf of the respondent R.W. 9 G. section Prasad was examined to prove that Narain Raja was born at Banaras.
The High Court accepted the evidence of this witness and also of the respondent himself on this point.
It was submitted by Mr. Aggarwala that there were two circumstances which indicate that the respondent could not have been born at Banaras: In the first place, it was pointed out, the municipal registers of Banaras for the year 1918 exhibit
2 series did not mention the birth of the respondent.
It was explained on behalf of the respondent that house at Mamurganj in which the respondent was born was not included within the limits of the municipality in the year 1918, and that the omission of the birth of the respondent in the municipal registers was therefore, of no significance.
It was contended behalf of the appellant that there was litigation with regard to properties of Ramnagar estate between the respondent 's father Rani Chhatra Kumari Devi and therefore the evidence of P.W. G.S. Prasad that Rama Raja was living with Rani Chhatra Kurnari Devi at Ramnagar even during her lifetime cannot be accepted as true.
It was, therefore, suggested that it was highly improbable that Narain Raja should have been born at Banaras in the year 1918, as alleged, in the house belonging to Ramnagar estate.
We do not, however, think it necessary to express any concluded opinion on this question of fact but proceed to decide the case the assumption that Narain Raja was not born in the territory ,of India, in the year 1918.
The reason is that the place of birth 798 of Narain Raja has lost its importance in this case in view of the concurrent findings of both the High Court and the Tribunal that for a period of 5 years preceding the commencement of the Constitution Narain Raja was ordinarily resident in the territory of India.
Therefore the requirement of article 5(c) of the Constitution is fulfilled.
Mr. Aggarwala on behalf of the appellant did not challenge this finding of the High Court.
It is.
therefore, manifest that the requirement of article 5(c) of the Constitution has been established and the only question remaining for consideration is the question whether Narain Raja had his domicil in the territory of India at the material time.
Upon this question it was argued before the High Court on behalf of the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen.
It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar.
It was argued, therefore, that at the time when Mohan Raja had adopted Rama Raja in 1903 Mohan Raja 's domicil of choice was India.
It was said that by adoption in 1903 Rama Raja became Mohan Raja 's son and by fiction it must be taken that Rama Raja 's domicil was india as if he was Mohan Raja 's son.
It was contended in the alternative that whatever may have been Rama Raja 's domicil before 1937 when Rani Chhatra Kumari Devi died, Rama Raja acquired a domicil of choice in India when he came to India on the death of Rani Chhatra Kumari Devi.
It was also stated on behalf of the respondent that Rama Raja remained in possession of the Ramnagar estate until his death in 1947.
The High Court, however.
held, upon examination of the evidence, that there was no material on the record to decide the question of Mohan Raja 's domicil.
It was also held by the High Court that it was not possible to ascertain from the evidence whether there was any intention of Rama Raja to settle down in India and make it his permanent home.
In any event.
Narain Raja was born in the year 1918 and unIess the domicil of Rama Raja in 1918 was ascertained the domicil of origin of Narain Raja will remain unknown.
The High Court therefore, proceeded upon the assumption that Narain Raja had his domicil of origin in Nepal: and examined the evidence to find out whether Narain Raja had deliberately chosen the domicil of choice in India in substitution for the domicil of origin.
The crucial question for determination in this case, therefore.
is whether Narain Raja had acquired the domicil of choice in India.
The law on the topic is well established but the difficulty is found in its application to varying combination of circumstances in each case.
The law attributes to every person at birth a domicil 799 which is called a domicil of origin.
This domicil may be changed and a new domicil, which is called a domicil of choice, acquired; but the two kinds of domicil differ in one respect.
The domicil of origin is received by operation of law at birth; the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi.
The domicil of origin is determined by the domicil, at the time of the child 's birth, of that person upon whom he is legally dependent.
A legitimate child born in a wedlock to a living father receives the domicil of the father at the time of the birth; a posthumous legitimate child receives that of the mother at that time.
As regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for himself a domicil of choice by the fact of residing in a country other than that of his domicil of origin with the intention of continuing tO reside there indefinitely.
For this purpose residence is a mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending it.
If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material.
The state of mind, or animus manendi, which is required demands that the person whose domicil is the object of the inquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or, in effect, he should have formed a deliberate intention to settle there.
It is also well established that the onus of proving that a domicil has been chosen in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost.
The domicil of origin continues unless a fixed and settled intention of abandoning the first domicil and aquiring another as the sole domicil is clearly shown (see Winarts vs Attorney General.
(1) In Munro vs Munro(2) Lord Cottonham states the rule as follows: "The domicil of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and acquiring another as his sole domicil.
To effect this abandonment of the domicil of origin, and substitute another in its place, it required animo et facto, that is, the choice of a place, actual residence in the place then chosen and that it Should be the principal and permanent residence, the spot where he had placed larem rerumque ac fortunarum suarum summam.
In fact, there must be both residence and intention.
Residence alone has no effect, per so, though it may be most important as a ground from which to infer intention.
" (1) (2) 7 C.I. & Fin .
876. 800 In Aikman vs Aikman(1), Lord Campbell has discussed the question of the effect on domicil of an intention to return to the native country, where such intention is attributable to an undefined and remote contingency.
He said: "If a man is settled in a foreign country, engaged in some permanent pursuit requiring his residence there, a mere intention to return to his native country on a doubtful contingency, will not prevent such a residence in a foreign country from putting an end to his domicil of origin.
But a residence in a foreign country for pleasure, lawful or illicit, which residence may be changed at any moment, without the violation of any contract or any duty, and is accompanied by an intention of going back to reside in the place of birth, or the happening of an event which in the course of nature must speedily happen, cannot be considered as indicating the purpose to live and die abroad.
" On behalf of the appellant Mr. Aggarwala relied on the decision.
of the House of Lords in Moorhouse vs Lord(2) in which it was held that in order to lose a domicil of origin, and to acquire a new domicil, a man must intend quatenus in illo exuere patriam and there must be a change of nationality, that is natural allegiance R is not enough for him to take a house in the new country, even with the probability and the belief that he may remain there all the days of his life.
But the principle laid down in this case was discussed in Udny vs Udny(3) which decision is the leading authority on what constitute a domicil of choice taking the place of a domicil of origin.
It is there pointed out by Lord Westbury that the expressions used in Moorhouse vs Lord(2), as to the intent exuere patriam, are calculated to mislead, and go beyond the question of domicil.
At page 458 Lord Westbury states: "Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the intention of continuing to reside there for an unlimited time.
This is description of the circumstances which create or constitute a domicil and not a definition of the term.
There must be residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness, and it must be a residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation.
It is true that residence, originally temporary or intended for a limited (1) 3 Mac Q., H.L.C. 854.
(2) 10 H.L. Cas. 272.
(3) L.R. 1 H.L. Sc.
801 period, may, afterwards become general and unlimited; and in such a case, so soon as the change of purpose, or animus manendi, can be inferred, the fact of domicil is established .
" In the next case Doucet vs Geoghegan (1) the Court of Appeal decided that the testator had acquired an English domicil; and one of the main facts relied on was that he had twice married in England in a manner not conforming to the formalities which are required by the French Law for the legalisation of marriages of Frenchmen in a foreign country.
James L. J. stated as follows: "Both his marriages were acts of unmitigated scoundrelism, if he was not a domiciled Englishman.
He brought up his children in this country; he made his will in this country, professing to exercise testamentary rights which he would not have if he had not been an Englishman.
Then with respect to his declarations, what do they amount to? He is reported to have said that when he had made his fortune he would go back to France.
A man who says that, is like a man who expects to reach the horizon and finds it at last no nearer than it was at the beginning of his journey.
Nothing can be imagined more indefinite than such declarations.
They cannot outweigh the facts of the testator 's life.
" In our opinion, the decisions of the English Courts in Udny vs Undy(3) and Doucet vs Geoghegan(1) represent the correct law with regard to change of domicil of origin.
We are of the view that the, only intention required for a proof of a change of domicil is an intention of permanent residence.
In other words, what is required to be established is that the person who is alleged to have changed his domicil of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special of temporary purpose, but with a present intention of making it his permanent home.
Against this background of law we have to consider the facts in the present case for deciding whether Narain Raja had adopted India as his permanent residence with the intention of making a domicil of choice there.
In other words, the test is whether Narain Raja had formed the fixed and settled purpose of making his home in India with the intention of establishing himself and his family in India.
(1) 9 Ch.
(2) L.R. 1 H.L. So.
802 The following facts have been either admitted by the parties found to be established in this case.
Narain Raja was educated in Calcutta from 1934 to 1938.
From the year 1938 onwards Narain Raja lived in Ramnagar.
After Rama Raja 's death in 1947 Narain Raja continued to live in Ramnagar, being in possession of properties obtained by him under compromise in 1944.
In the course of his statement Narain Raja deposed that his father had built a palace in Ramnagar between 1934 and 1941 and thereafter Narain Raja himself built a house at Ramnagar.
Before he had built his house, Narain Raja lived in his father 's palace.
There is the partition suit between Narain Raja and his brothers in the year 1942.
Exhibits 1(2) and 1(1) are the preliminary and final decrees granted in that suit.
After the partition Narain Raja was looking after the properties which were left joint and was the manager thereof.
The extensive forests of Ramnagar estate were not partitioned and they had been left joint.
Narain Raja used to make settlement of the forests on behalf of the Raj and pattas used to be executed by him.
After partition, he and his wife acquired properties in the district of Champaran, in Patna and in other places.
Narain Raja and his wife and children possessed 500 or 600 acres of land in the district of Champaran.
Narain Raja managed these properties from Ramnagar.
He had also his houses in Bettiah, Chapra, Patna and Benaras.
The forest settlements are supported by Exhibits X series, commencing from 1943, and by exhibit W of the year 1947.
Then, there are registered pattas excluded by Narain Raja of the year 1945, which are Exs.
W/3, W/4, and W/5.
There are documents which prove acquisition of properties in the name of Narain Raja 's wife F(D, F(2).
F(3) and F(5).
Exhibit F(4) shows the purchase of 11 bighas and odd land at Patna by Narain Raja.
It is also important to notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Governor General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district.
In the course of his evidence Narain Raja said that he had been to Barewa for the first time with his father when he was 10 or 12 years old.
He also said that he had not gone to Barewa for ten years before 1963.
The High Court considered that for the determination of the question of domicil of a person at a particular time, the course of his conduct and the facts and circumstances before and after that time are relevant.
We consider that the view taken by the High Court on this point is correct and for considering the domicil of Narain Raja on the date of coming into force of the Constitution of India his conduct and facts and circumstances subsequent to the time should also be taken into account. 'This view is borne 803 out by the decision of the Chancery Court in In re Grove Vaucher vs The Solicitor to the Treasury(1) in which the domicil of one Marc Thomegay in 1744 was at issue and various facts and circumstances after 1744 were considered to be relevant.
At page 242 of the report Lopes, L.J. has stated: "The domicil of an independent person is constituted by the factum of residence in a country, and the animus manendi, that is, the intention to reside in that country for an indefinite period.
During the argument it was con,ended that the conduct and acts of Marc Thomegay subsequently to February, 1744, at the time of the birth of Sarah were inadmissible as evidence of Marc Thomegay 's intention to permanently reside in this country at that time.
It was said that we must not regard such conduct and acts in determining what the state of Marc Thomegay 's mind was in February, 1744.
For myself I do not hesitate to say I was surprised at such a contention; it is opposed to all the rules of evidence, and all the authorities with which I am acquainted.
I have always understood the law to be, that in order to determine a person 's intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight of cogency.
The law, I thought, was so well established on that subject that I should not have thought it necessary to allude to this contention, unless I had understood that the propriety of admitting this evidence was somewhat questioned by Lord Justice Fry, a view which I rather now gather from his judgment he has relinquished.
" We are, therefore, of opinion that.
the conduct and activities of Narain Raja subsequent to the year 1949 are relevant but we shall decide the question of his domicil in this case mainly in the light of his conduct and activities prior to the year 1949.
Reverting to the history of Narain Raja 's life from 1950 onwards, it appears that he had married his wife in 1950.
His wife belonged to Darkoti in Himachal Pradesh near Patiala.
The marriage had taken place at Banaras.
Narain Raja had a son and a daughter by that marriage and according to his evidence the daughter was born in Banaras and the son was born in Bettiah.
The daughter prosecutes her studies in Dehradun.
In 1950 or 1951 Narain Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem Jananl Sanskrit Vidyalaya.
The story of Narain Raja 's political activities is as follows: There was a Union Board in Ramnagar before Gram Panchayats had come into existence, of which Narain Raja was the Chairman or President.
(1) (1889) 40 Oh. D. 216.
804 After Gram Panchayats were established, the Union Board was abolished.
Narain Raja was a voter in the Gram Panchayat and he was elected as the Vice President of the Union called C.D.C.M. Union of Ramnagar.
For the General Elections held in 1952 Narain Raja was a voter from Ramnagar Constituency.
In the General Election of 1957 he stood as a candidate opposing Kedar Pandey.
Thereafter, he became the President of the Bettiah Sub divisional Swatantra Party and then Vice President of Champaran District Swatantra Party.
Taking all the events and circumstances of Narain Raja 's life into account we are satisfied that long before the end of 1949 which is the material time under article 5 of the Constitution, Narain Raja had acquired a domicil of choice in India.
In other words, Narain Raja had formed the deliberate intention of making his home with the intention of permanently establishing himself his family in India.
In our opinion, the requisite animus manendi has been proved and the finding of the High Court is correct.
On behalf of the appellant Mr. Aggarwala suggested that there were two reasons to show that Narain Raja had no intention of making his domicil of choice in India.
Reference was made, in this context, to exhibit 10(c) which is a khatian prepared in 1960.
showing certain properties standing in the name of Narain Raja and his brothers in Nepal.
It was argued that Narain Raja had property in Nepal and so he could not have any intention of living in India permanently.
It is said by the respondent that the total area of land mentioned in the khatian was about 43 bighas.
The case of Narain Raja is that the property had belonged to his natural grandmother named Kanchhi Maiya who had gifted the land to Rama Raja.
The land was the exclusive property of Rama Raja, and after his death, the property devolved upon his sons.
The case of Narain Raja on this point is proved by a Sanad (exhibit AA).
In any event, we are not satisfied that the circumstance of Narain Raja owning the property covered by exhibit 10(c) can outweigh the fact that Narain Raja alone had extensive properties in India after the partition decree of the year 1944.
It was also pointed out on behalf of the appellant that Narain Raja, and before him Rama Raja, had insisted upon designating themselves "Sri 5, ' indicating that they belonged to the royal family of Nepal It was argued on behalf of the appellant that Narain Raja had clung tenaciously to the title of "Sri 5", thereby indicating the intention of not relinquishing the claim to the throne of Nepal if at any future date succession to the throne falls to a junior member of the family of the King of Nepal.
We do not think there is any substance in this argument.
It is likely that Narain Raja and his father Rama Raja had prefixed the title of "Sri 5" to their names owing to the pride of their ancestry and sentimental 805 attachment to the traditional title and this circumstance has no bearing on the question of domicil.
Succession to throne of Nepal is governed by the rule of primogeniture and it cannot be believed that as the second son of his father, Narain Raja could ever hope to ascend to the throne of Nepal, and we think it is unreasonable to suggest that he described himself as "Sri 5" with the intention of keeping alive his ties with Nepal.
There was evidence in this ease that Narain Raja 's eider brother Shiv Bikram Sah has left male issues.
For the reasons expressed, we hold that Narain Raja had acquired domicil of choice in India when article 5 of the Constitution came into force.
We have already referred to the finding of the High Court that Narain Raja was ordinarily resident in India for 5 years immediately preceding the time when article 5 of the Constitution came into force.
It is manifest that the requirements of article 5(c) of the Constitution are satisfied in this case and the High Court rightly reached the conclusion that Narain Raja was a citizen of India at the relevant time.
We accordingly dismiss both these appeals with costs.
One set Appeals dismissed.

Output:
The appellant and respondent were contesting candidates for election to the State Legislative Assembly.
The respondent was declared elected, and the appellant filed an election petition challenging the election on the ground that the respondent was not duly qualified under article 173 of the Constitution as he was a citizen of Nepal and not a citizen of India.
The Tribunal held that the respondent was not a citizen of India, but the High Court in appeal set aside that order and upheld the election of the respondent.
On the question whether the respondent was a citizen of India under article 5 of the Constitution, 0n the material date, HELD: Assuming that the respondent was not born in the territory of India, on a consideration of all the events and circumstances of his life, he had acquired a domicile of choice in India long before the end of 1949 which is the material time under article 5 of the Constitution.
He had formed the deliberate intention of making India his home with the intention of permanently establishing himself and his family in India and therefore had the requisite animus manendi.
He was ordinarily resident in India for 5 years immediately preceding the time when article 5 came into force.
Since the requirements of article 5(c) were satisfied, the High Court rightly reached the conclusion, that he was a citizen of India at the relevant time.
[805 C D] The only intention required for a proof of a change of domicile is an intention of permanent residence.
What is required to be established is that the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in, the, new country, not for a mere special.
or temporary purpose, but with a present intention of making it his permanent home, On the question of domicile at a particular time the course of his conduct and the facts and.
circumstances before and after that time are relevant.
[801 F G; 803 F] Udny vs Udny,L.R. 1 H.L. Sc.
441 and, Doucet vs Geoghegan, 9Ch.
441, applied. 794


Input:
ON: Criminal Appeal No. 137 of 1957.
Appeal from the judgment and order dated October 31, 1956, of the Madras High Court in Criminal Appeal No. 20/1956.
B. Dadachanji, C. B. Aggarwala , section N. Andley, J., Rameshwar Nath and P. L. Vohra, for the appellant.
R. Ganapathy Iyer and T. M. Sen, for the respondent.
C. K. Daphtary, Solicitor General of India, H. J. Umrigar_ and T. M. Sen, for the Intervener (Union of India).
1960, February, 26.
The Judgment of the Court was delivered by IMAM, J.
This is an appeal on a certificate granted by the High Court of Madras.
The appellant was tried by the Special Judge of Tiruchirappalli under section 165A of the Indian Penal Code for attempting to bribe Mr. Kaliyappan, Deputy Superintendent of Police of Ramanathapuram.
The Special Judge came to the conclusion that the charge framed against the accused had not been established.
He accordingly, acquitted the appellant.
Against the order of acquittal the State of Madras appealed to the High Court of Madras under section 417 of the Code of Criminal Procedure.
The High Court came to the conclusion that the evidence established that the appellant had attempted to bribe the aforesaid Deputy Superintendent of Police.
It accordingly convicted the appellant under section 165A, Indian Penal Code and sentenced him to 6 month 's rigorous imprisonment and a fine of Rs. 1,000, in default, to undergo further rigorous imprisonment for 6 months.
According to the prosecution case, the appellant attempted to bribe Mr. Kaliyappan, the Deputy Superintendent of Police, by offering him a Bum of money contained in an envelope at his bungalow in the morning of June 14, 1954.
In order to appreciate the circumstances in which the bribe was offered, reference to certain events which led to the incident 118 on June 14 at the bungalow of the Deputy Superintendent of Police becomes necessary.
In village Irwadi there are two factions one headed by the appellant and his brother and the other headed by the village munsif.
On June 3, 1954, two complaints reached the Keelakarai Police Station, one by the appellant against the village munsif and the other by the village munsif against the appellant.
According to the appellant on June 3, 1954 after prayers in the mosque the village munsif had abused him and had attempted to murder him with a knife.
Some persons intervened but he managed to escape but was chased by the village munsif to his house.
The version of the village munsif was that he was busy that day preparing the receipt for the release of the appellant 's impounded cattle when the latter abused him, beat him with his shoe and kicked him in the stomach causing minor injuries.
On June 5, 1954, the appellant met Mr. Kaliyappan at the Central Bus stand at Madurai and handed over to him a petition, Ext.
P 1 in which he complained against the village munsif.
Mr. Kalivappan made ail endorsement on this petition directing the Inspector of Ramanathapuram Circle to send for both the parties and warn them against doing acts which would create a breach of the peace in the village and that this petition was not to be sent to the Sub Inspector (P.W. 8) as it was alleged that he was siding against the appellant.
On June 12, 1954, Mr. Kaliyappan sent a memo (Ext.
P 2) to the Inspector of Ramanathapuram Circle directing him to take steps to see that peace was preserved in the village.
This Police Officer 'Was also asked to take action against the offenders with respect to whom there was evidence in connection with the occurrence of June 3, 1954.
Mr. Kaliyappan also, in view of the situation, had directed this Police Officer to see whether steps should not be taken to seize the revolver of the appellant 's brother Rashid for which he had a licence.
The Inspector of Ramanathapuram Circle thereafter prepared a detailed report (Ext.
P 7) of the result of his enquiry and handed it over to Mr. Kali yappan on June 13, 1954.
On the night of June 13, 1954, at about 10 p.m. the appellant went to the 119 bungalow of Mr. Kaliyappan, the Deputy Superintendent of Police, at Ramanathapuram and complained against the Inspector of Police of Ramanathapuram Circle and the Sub Inspector requesting the s Deputy Superintendent of Police to look into the matter personally and not to leave the investigation exclusively in the hands of the Inspector.
Mr. Kaliyappan told the appellant that he knew nothing about the case and could not say or do anything off hand and that the appellant should see him about a week later by which time he would have perused the record and would be in a position to look into his grievances.
According to the appellant, however, the Deputy Superintendent of Police had asked him to come to him next morning.
On June 14, 1954, according to the prosecution, the appellant went to Mr. Kaliyappan 's bungalow at about 7 15 a.m. who was at that time looking into certain papers.
He was informed that a visitor bad come to see him.
The appellant accordingly entered his office room when he again complained to the Deputy Superintendent of Police against the village munsif.
At the same time he presented to this Police Officer a closed envelope.
Mr. Kaliyappan thought that the envelope contained a petition but on opening it he found that it contained currency notes.
He was annoyed at the conduct of the appellant.
He threw the envelope at the appellant 's face, but the envelope fell down on the floor and the appellant picked it up.
The Deputy Superintendent of Police called his office orderly but as there was no response he went out of the office room and told his milk maid to get the camp clerk.
By that time the orderly turned up.
The appellant had in the meantime remained in the office room and on the appearance of the orderly Mr. Kaliyappan asked the appellant to produce the envelope which he had thrown down and which the appellant had picked up.
The appellant after taking out of his pocket some currency notes placed them on the table without the envelope.
Subsequently, during the police investigation, torn bits of paper were collected from near the office window and it is alleged that those torn bits of paper 120 were the pieces of the envelope in which the currency notes were presented to Mr. Kaliyappan.
Thereafter, Mr. Kaliyappan asked his orderly to put office rubber stamp date seal on the notes and the same was done.
By that time the camp clerk, P.W. 2 had arrived.
Mr. Kaliyappan asked the camp clerk to note down the numbers of the currency notes which he did.
The list so prepared is Ext.
Mr. Kaliappan then dictated the memo.
P 5 to the local Sub Magistrate informing the latter that the appellant bad offered him Rs. 500 in currency notes requesting him to "drop action" registered against the appellant at Keelakarai Police Station.
Mr. Kaliyappan informed the Magistrate in this connection that he had seized the currency notes and his office rubber stamp seal had been placed on them and that he would be grateful to the Magistrate if he would come to his office and record the statement of the appellant whom he had detained in his office.
The case of the appellant, as would appear from his statement to the Special Judge, was that he had been to Mr. Kaliyappan, the Deputy Superintendent of Police, in the night of June 13, 1954, and in the morning at 7 15 a.m. on June 14,1954.
He had gone to Mr. Kaliyappan 's bungalow in the morning of June 14 as he bad been requested to do so.
He had told the Deputy Superintendent of Police that he had been humiliated by his Police Officers who had arrested him and had searched his house and that Mr. Kaliyappan should redress his grievances.
Mr. Kaliyappan showed him scant courtesy and insulted him upon which the appellant told Mr. Kaliyappan not to insult him and that he should tell the appellant whether he would redress the grievances of the appellant or not and that if he was not prepared to redress the grievances, the appellant would take the matter to the higher authorities.
On this Mr. Kaliyappan got up from his chair and enquired of the appellant what could he do by going to the higher authorities and threatened to beat the appellant.
The appellant also got up and said something to him upon which Mr. Kaliyappan called out for his orderly.
The orderly came and was told by Mr. Kaliyappan 121 that he was going to be beaten by the appellant and therefore he should catch hold of the appellant which the orderly did.
Then Mr. Kaliyappan told the orderly ' that there was money in the appellant 's pocket and that he should remove it.
The orderly accordingly removed the money from the appellant 's pocket and gave it to Mr. Kaliyappan.
The money in his pocket was Rs. 500.
Mr. Kaliyappan then directed his orderly to put his seal on the notes.
The Special Judge gave various reasons for not accepting the uncorroborated testimony of Mr. Kaliyappan and held that 'the presumption of the innocence of the accused had not been displaced by his solitary testimony.
The High Court did not consider the grounds given by the Special Judge for discarding the testimony of Mr. Kaliyappan as at all justified and was of the opinion that the Special Judge had taken a perverse view of his evidence and of the other evidence in the case.
In the main three points were urged in support of the plea that the conviction of the appellant should be set aside.
The first point urged was that the provisions of section 422 of the Code of Criminal Procedure had riot been complied with.
Accordingly the High Court judgment setting aside the acquittal of the appellant was vitiated.
The second point urged was that, there had been violation of the provisions of article 20(3) of the Constitution which vitiated the conviction.
The third point urged was that the appellant having been acquitted by the Special Judge the High Court should not have set aside the acquittal unless there were compelling reasons.
The several grounds stated by the Special Judge in distrusting the evidence of Mr. Kaliyappan had not been specifically considered by the High Court and without those grounds being displaced the High Court erred in setting aside the order of acquittal passed by the Special Judge.
Lastly, it was urged that in the circum stances of the present case the sentence passed by the High Court was severe.
The circumstances relied upon in this connection will be stated in due course.
Regarding the first point a few facts have to be stated.
The State 's appeal against the acquittal of 122 the appellant was admitted by the High Court on February 22, 1956.
Appearince.
on behalf of the appellant was filed on February 24, 1956.
The advocates for the appellant ere M/s. V. L. Ethiraj and section M. Cassim.
One Mr. R., Santanamn an 'advocate who worked in the office of the partnership of M/s. V. L. Ethiraj & V. T. Rangaswami Ayyangar, wrote to the High Court office on February 27, 1956, requesting that summons need not be issued and compliance with rule 240 A, Criminal Rules of Practice, might be dispensed with, in view of the appearance for the appellant having been filed on February 24, 1956.
As appearance had been entered on behalf of the appellant even before the issue of notice to him, notice under section 422 of the Code of Criminal Procedure was issued by the Court on March 5, 1956, to M/s Ethiraj and Cassim, advocates for the appellant on the records of the High Court.
After the appeal was ready for hearing the usual intimation under rule 240A was also sent on September 4, 1956, to the Special Judge, Tiruchirappalli for being communicated to the appellant as it was the practice of the High Court not to dispense with altogether the issue of such intimation under any circumstance.
Mr. Ethiraj appeared for the appellant at the hearing of the appeal and made submissions on questions of fact as well as on questions of law before the learned Judge of the High Court who heard the appeal.
It was contended for the appellant that the of the appeal filed by the State against his acquittal because if the acquittal was set aside and the appellant was sentenced serious consequences would arise.
As to the second submission, article 20 (3) of the Constitution states : "No person accused of any offence shall be compelled to be a witness against himself ".
Before this provision of the Constitution comes into play two facts have to be established (1) that the individual concerned was a person accused of an offence and (2) that he was compelled to be a witness against himself.
If only one of these facts and not the other is established, the requirements of article 20(3) will not be fulfilled.
It was, however, urged that on the facts the appellant must be regarded as a person who was accused of an offence at the time that Mr. Kaliyappan asked him to produce the money.
The circumstances also showed that the appellant did so on compulsion.
He was at the time within the power of the Deputy Superintendent of Police and was compelled to comply with his direction.
Mr. Kaliyappan being of the rank of a Deputy Superintendent of Police could himself make the investigation.
The offence had been committed in his presence and the appellant was in the situation of an arrested person, Reliance was placed upon the decision of this Court in M. P. Sharma vs Satish Chandra and Others (1) in support of the proposition that a compelled production of incriminating document by a person during police investigation is testimonial compulsion within the meaning of article 20 (3) of the Constitution.
In that case, this Court had observed at p. 1088; " Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial (1) (1954] S.C.R. 1077.
126 compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part.
Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room.
The phrase used in article 20 (3) is to be a witness " and not to " appear as a witness It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness " is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him.
It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.
Whether it is available to other persons in other situations does not call for decision in this case.
Considered in this light, the guarantee under article 20(3) would be available in the present cases these petitioners against whom a First Information Report has been recorded as accused therein.
It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.
" These observations were unnecessary in Sharma 's case, having regard to the fact that this Court held that the seizure of documents on a search warrant was not unconstitutional as that would not amount to a compulsory production of incriminating evidence.
In the present case, even on what was stated in Sharma 's case there was no formal accusation against the appellant relating to the commission of an offence.
Mr. Kaliyappan had clearly stated that he was not doing any investigation.
It does not appear from his evidence that he had even accused the appellant of having committed any offence.
Even if it were to be assumed that the appellant was a person accused of an offence the circumstances do not establish that he was compelled to produce the money which he had on his person.
No doubt he was asked to do so.
It 127 was, however, within his power to refuse to comply with Mr. Kaliyappan 's request.
In our opinion, the facts established in the present case show that the appellant was not compelled to produce the currency notes and therefore do not attract the provisions of article 20(3) of the Constitution.
As to the 3rd point, we have read the evidence in the case, the judgments of the Special Judge and of the High Court and have no hesitation in saying that the High Court 's view that the judgment of the Special Judge was perverse is correct.
This is an appeal on a certificate and the findings on questions of fact are not concurrent.
Accordingly, we can form our own conclusions irrespective of the grounds given by the High Court for believing that the grounds given by the Special Judge for distrusting Kaliyappan 's evidence were perverse.
Those grounds have, however, been placed before us and after a careful examination of them we have come to the conclusion that the grounds given by the Special Judge for distrusting Mr. Kaliyappan 's evidence are perverse.
It was suggested that the documentary evidence and the manner in which Mr. Kaliyappan gave his evidence indicated that in the quarrel between the village munsif and the appellant he was siding with the village munsif.
Assuming that to be so, though we make it quite clear that we do not hold it to be so, it is impossible to believe that Mr. Kaliyappan would have concocted a false case of an attempt made by the appellant to bribe him if he had not (lone so.
He could have quite easily told the appellant to leave his bungalow without concocting a false case against him.
If he was siding with the village munsif he could have as easily got his subordinate Police Officers to report that the village munsif 's story was true and that the appellant should be prosecuted.
There seems to be no occasion for him to have made an elaborate story of an attempt on the part of the appellant to bribe him when, in fact, the appellant had done nothing of the kind.
A great deal ' of emphasis was laid on the fact that in the information which Mr. Kaliyappan sent to the Magistrate he had made no mention of money being offered to him in an 128 envelope and that the torn bits of paper found outside the window of Mr. Kaliyappan 's office were not proved to be part of the envelope in which the bribe had been offered and that it was also not at all clear that the Rs. 500 found on the person of the appellant were actually the currency notes offered to Mr. Kaliyappan as bribe.
It seems to us, however, that too much emphasis has been laid on all this.
Mr. Kaliyappan had certainly alleged in his information to the Magistrate that the appellant had offered him a bribe of Rs. 500.
Whether that was the sum in the envelope or whether it had been offered in an envelope was beside the point.
The important question for consideration was whether Mr. Kaliyappan had been offered a bribe by the appellant.
For that purpose it was a relevant circumstance that in fact on his person the appellant had a sum of Rs. 500 and that if Mr. Kaliyappan 's story was true that it was offered in an envelope, no envelope was produced with the currency notes of Rs. 500 which were placed on the table.
On the other hand, torn bits of paper which could form an envelope were found outside the Window of the room where the bribe had been offered.
It seems to us on a careful reading of Mr. Kaliyappan 's evidence that he had substantially told the truth and that there was no real reason for him to concoct a false case against the appellant, Having regard to the circumstances.
in which the bribe was offered, corroboration of his evidence in that respect could hardly be expected.
His conduct, however, throughout showed that he had acted in a bona fide manner.
After a careful consideration of his evidence and of the circumstances established in the case we entirely agree with the High Court that there was no real ground upon which his evidencc, could be disbelieved.
In the circumstances, the High Court was entirely justified in acting upon it and setting aside the order of acquittal made by the Special Judge.
Lastly, on the question of sentence, it may be mentioned at once that on the second day of the hearing of this appeal, learned Advocate for the appellant stated that his client threw himself at the mercy of Court and apologized for what had happened.
The 129 learned Advocate further urged that the appellant, though an Indian citizen, was carrying on business in Burma and had a visa from the Burmese Government for permanent residence and that unless he returned to Burma by the 2nd of March by would lose the benefit of the visa and would no longer be allowed to reside in Burma as a permanent resident.
Conse quently, he would lose his entire business and property in that country which 'Would be a severe penalty if his sentence of imprisonment was upheld.
It is also pointed out that on two occasions this Court on this very ground, on the appellant furnishing security and giving an undertaking to return to this country, had allowed him to go to Burma in order that he might not contravene the conditions of 'his visa.
It was further pointed out that the incident took place in June, 1954, some 5 years and eight months ago.
Even a substantial fine in lieu of the sentence of imprisonment would be sufficient punishment and a deterrent to the appellant.
We have given the matter of sentence our anxious consideration.
It seems, prima facie, that a sentence of 6 months ' imprisonment and fine of Rs. 1,000 could not be said to be severe for an offence of the kind established against the appellant.
The circumstances mentioned above, if correct, in plea of mitigation of sentence may attract attention but so far as a court of law is concerned, judicially, it is impossible to say that the sentence imposed by the High Court is severe in a case where there had been an attempt to corrupt a responsible public servant.
The appeal is accordingly dismissed.
Appeal dismissed.

Output:
The appellant was tried by the Special judge Tiruchirappalli under section 165A of Indian Penal Code for attempting to bribe K, a Deputy Superintendent of Police.
The prosecution case was that in connection with the.investigation by the Inspector of Police of a case involving the appellant, the latter went to K 's bungalow and presented to him a closed envelope, that when K found that it contained currency notes he threw it away which the appellant picked up, that thereupon K asked the appellant to produce the currency notes and the appellant complied with the demand that K then gave information to a Magistrate about the attempt made by the appellant to offer him a bribe.
The Special judge acquitted the appellant.
On appeal, the High Court accepted the prosecution case and convicted the accused.
In the High Court Counsel for the appellant entered appearance before notice of appeal under section 422 of the Code of Criminal Procedure was issued to the appellant and when the appeal was ready for hearing intimation was given under the rules to the Special judge to communicate to the appellant about the appeal filed against him.
The questions for determination were (1) whether the protection under article 20(3) of the Constitution of India had been violated by ask ing the accused to produce the currency notes, and (2) whether the provisions of section 422 of the Code of Criminal Procedure, had not been complied with because notice of the appeal had not been served on the appellant.
Held, (i) that there was no contravention of article 20(3) as the appellant was not in the position of a person accused of an offence when he was asked to produce the currency notes and that, in any case, on the facts proved the appellant was not compelled to be a witness against him.
M. P. Sharma vs Satish Chandra and others, [1954] S.C.R. 1077.
considered.
(2) that in an appeal under section 4I7 Of the Code of Criminal Procedure under section 422 notice of the appeal has to be given to the accused, but where, as in the present case, the High Court found on the facts that the appellant was fully apprised of the time and place at which the appeal would be heard, and counsel 117 appeared on his behalf and argued the appeal the fact that a formal notice of the appeal was not served on him would not vitiate the conviction.


Input:
ivil Appeal No. 1 278 of 1978.
Appeal by special leave from the Judgment and Order 15 11 1976 of the Delhi High Court in Civil Writ No. 96 of 1971.
B. Dutta for the Appellant.
Soli J. Sorabjee, Addl.
General and R. N. Sachthey for Respondents 1 and 2.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
We granted special leave and heard arguments on the limited question whether "brick earth" is a 'minor mineral ' within the meaning of that expression as defined in Section 3 (e) of the .
The definition is as follows: "Minor mineral ' means building stones, gravel? ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by Notification in the official Gazette declare to be minor mineral ;" In exercise of the power conferred by Section 3(e) of the Act, the Central Government declared the following minerals to be minor minerals "Boulder, Shingle, Chalcedony pebbles used for ball mill purposes only, limeshell kanker and limestone used for lime burning, murrum, brick earth, fuller 's earth, bentonite road metal, reh matti, slate and shale when used for building material;" The submission of the learned Counsel for the appellant was that a substance had to be a mineral before it could be notified as a minor mineral pursuant to the power under Section 3(e) of the .
He urged that brick earth was not a mineral and, therefore, it could not be notified a minor mineral.
We agree with the learned Counsel that a substance must first be a mineral before it can be notified as a minor mineral pursuant to the power vested in the Central Government under Section 3(e) of the Act.
The question, therefore, is whether brick earth is a mineral.
The expression "Minor Mineral" as defined in Section 3(e) includes 'ordinary clay ' and 'ordinary sand '.
If the expression "minor mineral" as defined in Section 3(e) of the Act includes 'ordinary clay ' and 273 `ordinary sand ', there is no reason why earth used for the purpose A of making bricks should not be comprehended within the meaning of the word "any other mineral" which may be declared as a "minor mineral" by the Government.
The word "mineral" is not a term of article It is a word of common parlance, capable of a multiplicity of meaning depending upon the context.
For example the word is occasionally used in a very wide sense to denote any substance that is neither animal nor vegetable.
Sometimes it is used in a narrow sense to mean no more than precious metalls like gold and silver.
Again, the word "minerals" is often used to indicate substances obtain .
ed from underneath the surface of the earth by digging or quarrying.
But this is not always so as pointed out by Chandrachud, J (as he then was) in Bhagwan Dass vs State of Uttar Pradesh,(1) where the learned judge said (at p. 874): 'It was urged that the sand and gravel are deposited on the surface of the land and not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a minerals operation.
It is in the first place wrong to assume that mines and minerals must always be sub soil and that there can be no minerals on the surface of the earth.
Such an assumption is contrary to informed experience.
In any case, the definition of mining operations and minor minerals in section 3(d) and (e) of the Act of 1957 and Rule 2(S) and (7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of "Winning" any minor mineral.
"Winning" does not imply a hazardous or perilous activity.
The word simply means extracting a mineral" and is used generally to indicate, any activity by which a mineral is secured.
"Extracting" in turn means drawing out or obtaining.
A tooth is 'extracted ' as much as the fruit juice and as much as a mineral.
Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral".
We may also refer to Northern Pacific Railway Company vs John A. Sodrberg(2) where the Supreme Court of United States observed as follows (at page 581): "The word 'mineral ' is used in so many senses, dependant upon the context, that the ordinary definitions of the dictionary throw but little light upon its significance in a (1) ; (2) 47 L. Fd.575 274 given case.
Thus, the scientific division of all matter into the animal, vegetable, or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore, could not be excepted from the grant without being destructive of it.
Upon the other hand, a definition which would confine it to the precious metals gold and silver would so limit its application as to destroy at once half the value of the exception.
Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as "any constituent of the earth 's crust" ; and that of Beinbridge on Mines: "All the Sub stances stances that now form, or which once formed, a part of the solid body of the earth".
Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are ""mined"" as distinguished from those are "quarried", since many valuable deposits of gold, copper, iron, and coal lie upon or near the surface of the earth, and some of the most valuable building stone, such for instance, as the Caen stone in France, is excavated from mines running far beneath the surface.
This distinction between under ground mines and open workings was expressly repudiated in Midland C. vs Haunchwood Brick & Tile Co. (L.R 20 Ch.
552) and in Hext vs Gill (L.R. 7 Ch.
699)" The Supreme Court of United States also referred to several English cases where stone for road making or paving was held to be 'minerals ' as also granite, sandstone, flint stone, gravel, marble, fire clay, brick clay, and the like.
It is clear that the word 'mineral ' has no fixed but a contextual connotation.
The learned Counsel for the appellant invited our attention to the decision of the Court of Appeal in Todd Birleston and Co. vs The North Eastern Railway Co.(l) and to Stoud 's Judicial Dictionary to urge that clay, brick earth and the like have sometimes been held not to be minerals by English Courts.
As we said earlier the word mineral is an elastic word whose meaning depends upon the setting in which it is used.
For instance, in the case cited, the question was whether clay forming the surface or subsoil, and constituting the "land" compulsorily taken for the purposes of a railway, was not a mineral WITH the meaning of Sections 77, 78 or 79 of the Railway Clauses Consolidation Act.
The answer was that 'clay ' was not a mineral for the purposes of the Railway Clauses Consolidation Act.
Any other conclusion, in the context of the Act, would have led to the absurd (1) [1903] I K.B. 603 .
275 result that the original owner whose land had been taken would be entitled to dig and take away the clay from the land on which the Railway was constructed, thus defeating the very object of the compulsory taking.
On the other hand, as noticed by the Supreme Court of the United States, in several English cases clay, gravel, sand, stone etc. has been held to be minerals.
That is why we say the word mineral has no definite meaning but has a variety of meanings, depending on the context of its use.
In the context of the Mines and Minerals (Regulation & Development) Act, we have no` doubt that the word 'mineral ' is of sufficient amplitude to include 'brick earth '.
As already observed y us, if the expression 'minor mineral ' as defined in the Act includes 'ordinary clay ' and 'ordinary sand '.
there is no earthly reason why 'brick earth ' should not be held to be 'any other mineral ' which may be declared as 'minor mineral.
We do not think it necessary to pursue the matter further except to say that this was The view taken in Laddu Mal vs State of Bihar(l) Amar Singh Modilal vs State of Haryana(2) and Sharma & Co. vs State of U.P.(3).
We do not agree with the view of the Calcutta High Court in State of West Bengal vs Jagadamba Prasad (4) that because speaks of 'ordinary earth ' as a mineral it is not a minor mineral as defined in the Mines and Minerals (Regulation & Development) Act.
The appeal is accordingly dismissed with costs.
S.R. Appeal dismissed (1) A.I.R 1965 Patna 491 (2) A.I.R 1972 Punj.
& Har. 356 (3) A.I.R. 1975 All. 86.
(4) A.I.R. 1969 Cal.

Output:
section 3(e) of the Mines and Mineral (Regulation and Development) Act, 1957 defines " 'Minor Mineral ' as meaning building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by Notification in the official Gazette declare to be a minor mineral".
In exercise of the power conferred by section 3(e) of the Act the Central Government declared inter alia brick earth as a 'minor mineral '.
Dismissing the appeal by special leave the Court ^ HELD: ( I ) The word 'mineral ' has no fixed but a contextual connotation.
If 'mineral ' is not a term of art it is a word of common parlance, capable of multiplicity of meanings depending upon the context.
The word is occasionally used in a very wide sense to denote any substance that neither animal nor vegetable Sometimes it is used in a narrow sense to mean no more than precious metals like gold and silver.
Again the word 'minerals ' is often used to indicate substances obtained from underneath the surface of the earth by digging or quarrying.
though it is not always so.
[273 A C, 274 F] In the context of the ', the word Mineral is of sufficient amplitude to include brick earth.
If the expression 'minor mineral ' as defined in the Act, includes 'ordinary clay` and 'ordinary sand '.
there is no earthly reason why brick earth should not be held to be 'any other mineral ' which may, be declared as a 'minor mineral '.
[1275 B C] Bhagwan Das vs State.
Of U.P., ; , applied Laddu Mal vs State of Bihar, AIR 1965 Pat. 491; Amar Modilal Singh vs State of Haryana, AIR 1972 Punjab and Haryana 356; Sharma & Co. vs State of U.P., AIR 1975 All. 386 approved.
State of West Bengal vs Jagdamba Prasad, AIR 1969 Cal.
281; overruled.
Todd Birleston & Co. vs The North Eastern Railway Co., [1903] I K.B. 603; quoted with approval.
(2) A substance must first be a mineral before it can be notified as a minor mineral pursuant to the power vested in the Central Government under section 3(e) of the Act.
Brick earth being a mineral.
the Central Government has correctly notified it as a 'minor mineral '.
[272 G H] 272