R.S.A. No.1409 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1409 of 1987 Date of Decision:14.7.2010 The State of Punjab and others .....Appellants Vs. M/s the Bhaini Kamboan Gram Udyog Samity Regd. .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.C. Goyal, Additional Advocate General, Punjab for the appellants. None for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 13.11.1986 passed by the Court of learned Additional District Judge, Sangrur whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/ decree dated 27.8.1985 rendered by the Court of learned Sub Judge First Class, Malerkotla vide which he decreed the suit of the plaintiff for declaration to the effect that the land measuring 7 bighas 3 biswas bearing Khasra Nos.4 min/3-3 and 5/4-0 situated in Village Sarwarpur does not vest in the Punjab State and the notice in form `R' sent by defendant No.3 to the plaintiff is illegal, void and arbitrary with consequential relief of permanent injunction restraining the defendants from compelling the payment of any amount for use of earth for brick making from the suit land. The facts which led to the filing of the suit are that the plaintiff R.S.A. No.1409 of 1987 -2- is running a brick kiln under the name and style of “Bhaini Kamboan Gram Udyog Samiti Regd.” under liecnece No.201. He had taken on lease the land in dispute from Balbir Singh son and Gurdev Kaur widow of Bachan Singh for the said purpose. He had also procured a sales tax number 0279/S-9416 dated 26.2.1979. The Mining Officer Mubarakpur, Patiala sent a notice dated 6.6.1980 for the period from 14.9.1977 to 29.2.1989 demanding royalty by treating the earth being used by the plaintiff as a minor mineral. The amount of Rs.4559.68 has been sought to be recovered as royalty for the period from 14.9.77 to 31.3.79. The order of March, 1979 which was conveyed to the plaintiff vide notice dated 6.6.1980 is illegal and void being against the entry recorded in the “Wazib-Ul-Arz” of the village. In the written statement, it has been inter-alia pleaded that the brick earth has been declared as minor mineral under Section 3(e) of the Mines and Mineral (Regulation and Development) Act and that being so, the demand of the said amount has been genuinely raised on account of royalty. On pleadings of the parties, the following issues were framed by the learned trial Court. 1. Whether the plaintiff is entitled to declaration and injunction prayed for? OPP 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the suit is bad for non-issuance of notice u/s 80 C.P.C.? OPD 4. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit in the terms noticed at R.S.A. No.1409 of 1987 -3- the outset. Feeling aggrieved therewith, the State of Punjab and others went up in appeal, which was dismissed by the Court of learned Additional District Judge, Sangrur. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the State of Punjab and others have preferred this appeal. This case was adjourned from time to time for arguments, but none had been putting in appearance on behalf of the respondent despite the fact that this matter for hearing was also displayed on the net. However, I have heard the learned State Counsel appearing for the appellants, besides perusing the record with due care and circumspection. On behalf of the appellants, it has been sought to be argued by Mr. P.C. Goyal, Additional Advocate General, Punjab, that both the Courts below have gravely erred in holding that since it has not been expressly provided in the “Wazib-Ul-Arz” of Village that earth belonged to the Government, so it belongs to the land owners. These observations being contrary to the rules laid down by the Hon'ble Supreme Court in M/s Banarsi Dass Chadha and Brothers v. Lt. Governor, Delhi Administration and others, AIR 1978 Supreme Court 1587, are liable to be reversed. I have given a deep and thoughtful consideration to this submission. In M/s Banarsi Dass Chadha and Brothers (supra), it has been held as under: “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 S.3(e) of the Act. If the expression “minor mineral” as defined in S.3(e) R.S.A. No.1409 of 1987 -4- includes “ordinary clay” and “ordinary sand”, there is no reason why earth used for the purpose of making bricks should not be comprehended within the meaning of the word “any mineral” which may be declared as a “minor mineral” by the Government. The word “mineral” is not a term of art. It is a word of common parlance, capable of a multiplicity of meanings depending upon the context. In the context of the Mines and Minerals (Regulation and Development) Act the word “mineral” is of sufficient amplitude to include “brickearth.” It can be reasonably and legitimately culled out from the afore- quoted observations that before declaring the brick earth to be minor mineral, it ought to be a mineral. This could be done only by way of issuance of a notification by the Government. Arguendo, Mr. Goyal admitted that the appellants have not placed on record any such notification declaring the brick earth to be a minor mineral. In the absence thereof, it is very difficult to say that the earth being dug out from the land in dispute by the plaintiff for the purpose of moulding and making bricks is a minor mineral. Consequently, Mr. Goyal cannot derive any mileage from the observations rendered in M/s Banarsi Dass Chadha and Brothers (supra). In the Wazib-Ul-Arz Ex.D3, it is recorded that there is no mine of coal or kankar in that village and if any mine of any coal or kankar is found in future that would be considered the ownership of the government. Section 42(2) of the Punjab Land Revenue Act envisages that when any record of rights completed after 18.11.1871 does not expressly provide that any forest, quarry or any such land or interest belongs to the government, it R.S.A. No.1409 of 1987 -5- shall be presumed to belong to the landowners. Ex.D3 was prepared in the year 1892. However, the presumption arising under Section 42(2) ibid can be rebutted by the State. But to their utter consternation, they have not produced any evidence operating as rebuttal to this presumption arising under this Section. Furthermore Ex.D3 is absolutely silent about the brickearth. It is not the case of the appellants that the suit land is the ownership of the State Government rather as is borne out from the record it is owned by private landowner. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. July 14, 2010 ( HARBANS LAL ) renu JUDGE