RSA No.1714 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1714 of 1989 Date of Decision: November 23, 2011 The State of Punjab & others .......Appellants Versus M/s Ram Dass Bhagwan Dass .......Respondent RSA No.1956 of 1989 State of Punjab etc. .......Appellants Versus M/s Hukam Chand Kewal Krishan Brick Kiln .......Respondent CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Mr.Vijay Kumar, Assistant Advocate General, Punjab for the appellants in RSA No.1714 of 1989. Mr.Vivek Chauhan, Assistant Advocate General, Punjab for the appellants in RSA No.1956 of 1989. Mr.Sushant Batis, Advocate for Mr.RK Battas, Advocate for the respondent in RSA No.1956 of 1989.. <><><> TEJINDER SINGH DHINDSA, J. This judgment shall decide two regular second appeals i.e. RSA Nos.1714 and 1956 of 1989 as the issue involved in both the appeals is identical. 2. The State of Punjab is in second appeal in both the RSAs RSA No.1714 of 1989 2 against the judgment and decree of the Courts below by which the suits filed by the plaintiff for permanent injunction to restrain the defendants from recovering the sums of money towards royalty on brick earth, and the notices demanding the impugned amount as illegal, null and void have been decreed. 3. To be brief, the plaintiff filed the suit for permanent injunction taking the plea that the land in question belonged to a private land owner, and as per entries in the Sharait-Wazib-ul-arz, the brick earth (a minor mineral) does not belong to the Government and therefore, no provision of the Mines and Mineral (Regulation and Development) Act, 1957 (hereinafter referred to as '1957 Act') or the Punjab Minor Mineral Concession Rules, 1964 empowers the Government to levy royalty on the use of such brick earth. The stand of the State was to the effect that by virtue of a notification of the Central Government dated 1.6.1958 in terms of clause (e) of Section 3 of the 1957 Act, brick earth had been duly notified as a minor mineral and on the basis of such notification, royalty could be charged. That apart, a preliminary objection was also raised with regard to the jurisdiction of the Civil Court in terms of Section 158 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as '1887 Act') and it was claimed that the amount towards royalty could be recovered as arrears of land revenue. 4. I have heard counsel for the parties and perused the available record. 5. The question whether the right to a particular mineral comes to vest in the State Government, or in the owner of the land, has to be decided in terms of the Wazib-ul-arz read with Section 42 of the 1887 Act. Section RSA No.1714 of 1989 3 42 of the 1887 Act is as follows: “42. Presumption as to ownership of forests, quarries and waste lands – (1) When in any record-of-rights completed before the eighteenth day of November, 1871, it is not expressly provided that any forest, quarry, unclaimed, unoccupied, deserted or waste-land, spontaneous produce or other accessory interest in land belongs to the landowners, it shall be presumed to belong to the Government. (2) When in any record-of-rights completed after that date it is not expressly provided that any forest or quarry or any such land or interest belongs to the Government, it shall be presumed to belong to the landowners. (3) The presumption created by sub-section (1) may be rebutted by showing :- (a) from the records or report made by the assessing officer at the time of assessment; or (b) if the record or report, is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land or interest. That the forest, quarry, land or interest was taken into account in the assessment of the land-revenue. (4) Until the presumption is so rebutted, the forest, quarry, land or interest shall be held to belong to the Government.” 6. In the present case, the Wazib-ul-arz relied upon by both the parties (Exhibit D5 in RSA No.1714 of 1989 and Exhibit P2 in RSA 1956 of 1989) does not contain any entry to show that the brick earth belongs to the Government. The Courts below have given a concurrent finding that the Wazib-ul-arz relating to the lands in question does not provide the brick earth to be belonging to the Government. The question as to whether RSA No.1714 of 1989 4 royalty on the brick earth can be charged if it belongs to the private land owners and not the State, came up for consideration before the Hon'ble Supreme court in State of Punjab v. M/s Vishkarma and Co., 1993(2) Recent Revenue Reports 38. It was held by Hon'ble the Supreme Court that if the brick earth (a minor mineral) is found in the land of the private owner and the land owner has permitted removal of the brick earth by brick manufacturers, there would be no requirement to pay royalty to the State. The relevant observations made in the judgment are as under: “7. Brick-earth with which we are concerned in the present appeals, is a minor mineral was not disputed, although it is not any of the mines or minerals corned by Section 41 of the Revenue Act as would make it become the property of the State, if the owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick-earth and to obtain permit or licence for such removal necessarily arises because of the operation of the Act and the Rules. But the courts below have concurrently found that the present appeals have amen was in lands which formed the estates of the private owners and as such the same belonged to such landowners. It is so found on their reading of the entries in Wajib-ul-arz pending to the concerned estates. Wajib-ul-arz is a document included in the record-of-rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of sub-section (2) of section 31 of the Act. According to the courts below Wajib-ul-arz document being record-of- rights of estates completed after 18th day of November, 1871, and there being nothing expressly stated in them that the forest or quarry or land or interest in the estates belong to the Government, the lands in such estates including brick-earth in them shall be presumed to belong to the concerned land-owners as is declared in sub-section (2) of section 42 of the Revenue Act.” RSA No.1714 of 1989 5 7. The next question which would require consideration is as to whether the declaration of brick earth as a minor mineral by way of notification dated 1.6.1958 would, in itself, vest any right in the State Government to claim royalty on the brick earth. This issue also stands decided by this Court in M/s Om Parkash Brick Kiln owner v. State of Punjab and others, 2008(1) RCR (Civil) 447, and it was held as under: “15. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the State. The Hon'ble Full Bench of this Court while deciding the case of Subhash Chander (supra) has been pleased to lay down as under: “Having held as above, it seems to be plain that in this set of writ petitions, a tangled dispute on facts is sought to be raised on behalf of the respondents. The claim to lead evidence to rebut the presumption, if any, under Section 42 has not only been raised, but strenuously pressed. I am unable to deny this right to the respondents and even otherwise find it inapt to enter the thicket of controversial facts and the evidence that may have to be led by the parties. Respectfully following the settled line of precedent in this Court in Khushal Singh and others' case and Dr.Shanti Saroop Sharma and another's case and M/s Amar Singh Modi Lal's case (supra) I would dismiss the writ petitions and relegate the petitioners to the remedy of establishing their claims in appropriate proceedings in a revenue or civil Court as they may be advised.” Thus, it would be seen that the Full Bench of this Court did not hold that by way of mere declaration of brick earth as a minor mineral, any right vests in the State Government. The evidence brought on record in the present case clearly showed that the brick earth did not vest in the State Government though it was RSA No.1714 of 1989 6 declared to be a minor mineral. Therefore, the same vested in the ownership of landowners which did not give any right to the State Government to claim royalty. Thus, in view of the authoritative pronouncements by the Division Bench of this Court in Subhash Chander's case and the Hon'ble Supreme Court in M/s Vishkarma and Co.'s case (supra), the substantial questions of law are answered in favour of the appellant. The entries in Sharait Wazib-ul-arz being entries on record, the brick earth though declared to be a minor mineral would vest in the owner of the land. 16. As the State Government is not held to be owner of the brick earth, it cannot claim any royalty from the plaintiff- appellant. In view of the findings recorded above, the said question is also answered in favour of the appellant and it is held that the findings recorded by the learned Courts below on issue No.4 are outcome of misreading of the provisions of the Act and the documents brought on record. Therefore, the same cannot be sustained.” As such, it stands settled that mere declaration of brick earth as minor mineral by way of notification, in itself, will not vest any right in the State Government to claim royalty because of the reason that ownership of the same will still continue to be vested in the land owners if there was no entry in the Sharait-wajib-ul-arz to the contrary. 8. Learned counsel appearing for the appellant has also raised the question of the jurisdiction of the Civil Court being barred in terms of Section 158 of the 1887 Act. The submission is wholly mis-conceived. The question as to whether the State is competent in law to assess and recover the royalty from the plaintiff-respondent has to be determined by the Civil Court and not under any provision of the 1887 Act by the revenue authority. 9. I do not find any substantial question of law involved in both RSA No.1714 of 1989 7 the second appeals. The issues raised by the learned counsel for the appellants already stand decided by this Court and the Apex Court. 10. In view of the reasons recorded hereinabove, there is no merit in the present appeals and the same are hereby dismissed. 11. Appeals dismissed. ( TEJINDER SINGH DHINDSA ) NOVEMBER 23, 2011 JUDGE SRM Note: Whether to be referred to Reporter? Yes/No