RSA No. 3684 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3684 of 1987 Date of Decision: 06.07.2010 M/s Chaman Lal, Brick Kiln Owner, Mohalla Jagatpura, Hoshiarpur, Tehsil and District Hoshiarpur. ... Appellant Versus 1. The State of Punjab, through the Secretary, Government of Punjab, Department of Industries, Chandigarh. 2. The Mining Officer, Department of Industries, Punjab, Hoshiarpur, Jalandhar and Kapurthala, Districts at Garhshankar, Hoshiarpur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ravi Kapoor, Advocate, for the appellant. Mr. N.S. Pawar, Additional Advocate General, Punjab, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 02.09.87, rendered by the Court of Senior Sub Judge, Hoshiarpur, vide which, it dismissed the suit of the plaintiff (now appellant), and, the judgement and decree dated 02.11.87, rendered by the Court of Additional District Judge, Hoshiarpur, vide which, it dismissed the appeal. RSA No. 3684 of 1987 2 2. The facts, in brief, are that, the plaintiff, was in possession of a land, situated at village Kotla Gaunspur, wherefrom, it has been excavating the earth, for manufacturing bricks. It was also holding a valid licence, issued by the District Food and Supplies Controller, Jalandhar, for doing so. However, a demand notice, was issued, by the Mining Officer, defendant No. 2, to the owner of the plaintiff concern, to appear before him, for the purpose of assessing the royalty for the earth, being excavated, for the purpose of manufacturing bricks, as the same was minor mineral and vested in the State. It was stated that, since the earth, which was being excavated, by the plaintiff, was not a minor mineral, the demand notice, issued for the recovery of royalty, was arbitrary, illegal and void. It was further stated that the demand notice, issued by defendant No. 2, was also against the entries, recorded in Shariat-Wajib-Ul-Arj of the village. It was further stated that, since the plaintiff, was neither holding any mining lease nor licence of the State Government, nor there is privity of contract, between the owner of the land and the State Government, no royalty, could be assessed or demanded. The defendants, were many a time asked, to treat the said demand notice, as illegal, null and void, but to no avail. Ultimately, a suit for permanent injunction was filed. 3. The defendants put, in appearance, and filed a written statement, wherein, they took up various objections, and contested the suit. It was stated that vide notification dated 01.06.58, the Government of India declared brick earth as minor mineral. It was RSA No. 3684 of 1987 3 further stated that, the entries, in the Shariat-Wajib-Ul-Arz of village Kotla Gaunspur, for the year 1852 read with Section 42(1) of the Punjab Land Revenue Act, 1887, made it clear, that rights to all minerals, including brick earth without any exception, vested in the government. It was further stated that, the plaintiff concern, was liable to pay the royalty, to the government, even in the absence of any licence, permit, contract or lease, issued by it. It was admitted, that the plaintiff, did not hold any licence, permit or lease, issued by the government, for the excavation of earth for manufacturing bricks. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether brick earth is not a minor mineral vested in the State? OPP (ii) Whether defendant No. 2 is not competent and authorized to assess, demand and recover royalty? OPP (iii) Whether the suit is not maintainable in view of provisions of Section 78 of the Punjab Land Revenue Act, 1887? OPD (iv) Whether the suit in the present form is not maintainable? OPD (v) Whether the plaintiff is entitled to the grant of perpetual injunction as prayed for? OPP (vi) Relief. 5. After hearing the Counsel for the parties, and, on going RSA No. 3684 of 1987 4 through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the plaintiff (now appellant), which was also dismissed, by the Court of Additional District Judge, Hoshiarpur, vide judgement and decree dated 02.11.87. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, that the State Government, was entitled, to claim royalty, vide Demand Notice (Annexure C)? 10. The Counsel for the appellant, submitted that, the land, in dispute, belonged to the private persons, from whom, the same, was taken, on lease, by the appellant, for the purpose of excavating earth for manufacturing bricks. He further submitted that, there was no privity of contract, between the appellant, and the State Government, for the payment of royalty. He further submitted that, the minor minerals, on the land of a private person, did not vest, in the State Government, and, as such, the appellant, was under no obligation, to make payment of royalty, demanded from it, vide notice Annexure C. He further RSA No. 3684 of 1987 5 submitted that, the Courts below, fell into a grave error, in holding, that the presumption, operating in favour of the owner of the property, wherefrom, the earth, was being excavated for manufacturing bricks, stood rebutted. He further submitted that, the notice, issued for the payment of royalty, thus, being illegal, was liable to be set aside. He further submitted that, the concurrent findings of fact, recorded by the Courts below, holding that, the State Government, was entitled to royalty, being perverse and illegal, on account of misreading and misappreciation of evidence, as also law, on the point, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that, as per notification dated 01.06.58, exhibit D1, brick earth falls within the definition of minor mineral. He further submitted that, since in exhibit D2 Wazib-Ul-Arz, forming part of record-of- rights, which was prepared, in 1852, i.e. before the eighteenth day of November, 1871, it was not specifically mentioned, that the said earth, falling within the definition of minor mineral, shall belong to the land owner, it was presumed to be vested, in the government. He further submitted that, even in exhibit P1 Wajib-Ul-Arj, for the year 1911-12, it was, in clear-cut terms, recited that the minor mineral, if any, discovered later on, on the land, in dispute, that will vest, in the State Government. He further submitted that, under these circumstances, the State Government, was entitled to royalty, for excavating brick earth, from the land, though belonging to the private persons, from whom, the RSA No. 3684 of 1987 6 appellant, had taken the same. He further submitted that, the notice, thus, could not be said to be illegal, nor the concurrent findings of fact, recorded by the Courts below, can be said to be, in any way perverse or illegal, warranting the interference of this Court. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, in the Regular Second Appeal, cannot interfere with the concurrent findings of fact, recorded by the Courts below, until and unless, it comes to the conclusion, that the same were the result of misreading or misappreciation of evidence or law on the point. There is, no dispute, between the parties, that the land, in dispute, belongs to the private owners, from whom, the appellant, took the same, for the purpose of excavating the brick earth for manufacturing the bricks. It is evident, from the notification, exhibit D1, dated 01.06.58, that brick earth falls within the definition of minor minerals. Not only this, in M/s Amar Singh Modi Lal Vs. State of Haryana and others, AIR 1972, Punjab and Haryana, 356, a case, decided by a Full Bench of this Court, it was laid down, that the brick earth, is a minor mineral. Now the main question, that arises for consideration, is, as to whether, the private owner of the land, is entitled to royalty, regarding the minor mineral, or the State Government, under the Mines Act, is entitled to realize the royalty. With a view to determine the controversy effectively, the RSA No. 3684 of 1987 7 relevant provisions of Sections 31, 41 and 42 of the Punjab Land Revenue Act, 1887, are reproduced hereunder:- “31 Record-of-rights and documents included therein: - (1) Save as otherwise provided by this Chapter, there shall be record-of-rights for each estate. (2) The record-of-rights for an estate shall include the following documents, namely:- (a) statements showing, so far as many be practicable:- (i) the persons who are land-owners, tenants or assignees of land-revenue in the estate or who are entitled to receive any of the rents, profits, or produce of the estate or to occupy land therein; (ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto; (iii) the rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to the Government; (b) a statement of customs respecting rights and liabilities in the estate; (c) a map of the estate; and (d) such other documents as the Financial Commissioner may, with the pervious sanction of the [State Government] prescribe. 41 Right of the Government in mines and minerals : - All mines of metal and coal, and all earth-oil and gold washings shall be deemed to be the property of the Government for the purposes of the {State} and the [State] Government shall have all powers necessary for the proper RSA No. 3684 of 1987 8 enjoyment of [the Government's right thereto]. 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 land-owners, 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 land owners. (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].” 13. The first relevant document, in this case, is Wazib-Ul-Arj of 1852, exhibit D2. In this document, there is no mention, whatsoever, RSA No. 3684 of 1987 9 expressly or impliedly, that the brick earth belongs to the land owner. Under these circumstances, in view of the provisions of Section 42(1) of the Punjab Land Revenue Act, 1887, extracted above, in such a situation, said brick earth, shall be presumed to belong to the Government. The appellant, placed reliance, on Wazib-Ul-Arz, for the year 1911-12, exhibit P1. The perusal thereof, clearly goes, to show, that it does not make mention, that any minor mineral, was available, in the village. It was, however, recorded, in this document, that if, in future, any minor mineral, was discovered, it shall vest, in the Government. The conjoint reading of exhibits D2 and P1 Wazib-Ul- Arz, for the years 1852 and 1911-12 respectively, clearly goes, to show, that the brick earth belongs, to the State Government. Wazib-Ul- Arz, for the year 1911-12, forming part of record-of rights, was completed after eighteenth day of November, 1871, and, therein, it was expressly provided, that brick earth, if any, discovered later on, shall vest, in the Government. Had it not been mentioned therein, that brick earth, is discovered later on, shall belong to the Government, it would have been said, that the presumption, operated under Section 42(2) of the Punjab Land Revenue Act, in favour of the land owner. Since the brick earth, being minor mineral, as stated above, belonged to the State Government, the appellant, could only obtain licence, from it, for the purpose of excavating the same. The appellant, had taken the lease of the property, for excavating the brick earth, from the land of the private owners, knowing fully well, that the same (brick earth), did not belong, RSA No. 3684 of 1987 10 to them, but, to the State Government. The State Government, was, thus, right in issuing the demand notice, annexure C, for the recovery of the amount of royalty of the brick earth, being excavated, by the appellant, from the land, in dispute. Similar principle of law, was laid down, in LPA No. 416 of 1974, The State of Haryana and others Vs. Mangat Ram and another, decided on 12.07.76, and LPA No. 264 of 1974, titled as The State of Haryana and others Vs. K.N. Kohli and another, decided, on 05.04.77. The concurrent findings, recorded by the Courts below, that the notice Annexure C, demanding the royalty, was not illegal and the plaintiff/appellant, was not entitled to the declaration and injunction, cannot be said to be perverse or illegal. The same, are, thus, liable to be upheld. 14. Reliance, was placed, by the Counsel for the appellant, on State of Punjab Vs. M/s Vishkarma and Co., 1993(2), RRR, 38 (SC), and, M/s Janta Brick Kiln Co., Sardulgarh Vs. State of Punjab, 1997 (2), PLR, 624, decided by this Court. The facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. In State of Punjab's case (supra), from the evidence, on record, Wazib-Ul-Arz document, forming part of record-of-rights, was completed after 18th day of November, 1871. It was not expressly stated, in that document, that the forest or quarry or land or interest, in the estates, belonged to the Government. In these circumstances, the Apex Court, held that, the lands, in such estates, including brick-earth, in them, shall be presumed to belong to the concerned land owners, as was envisaged by sub- RSA No. 3684 of 1987 11 section (2) of Section 42 of the Land Revenue Act. In the instant case, as stated above, Wazib-Ul-Arz, the document, forming part of the record-of-rights, was completed, in 1852, i.e. before eighteenth day of November, 1871, wherein, it was not expressly recorded, that the forest or quarry or land or interest, in the estates or brick earth, belonged to the land owners. In these circumstances, according to Section 42(1) of the Punjab Land Revenue Act, 1887, the statutory presumption, operated, in favour of the State Government, that the forest or quarry or brick earth belonged to it. Not only this, as stated above, in Wazib-Ul- Arz, exhibit P1, for the year 1911-12, produced by the appellant, it was, in clear-cut terms, recited that, the minor minerals, if discovered later on, on the land, in dispute, shall vest, in the State Government. So, from both these documents, as stated above, the presumption did not operate, in favour of the land owners, but, in favour of the State Government. In M/s Janta Brick Kiln Co., Sardulgarh's (case) supra, the respondents, had not been able to place, on record any document, to show, that the brick earth belonged to them. In these circumstances, no help, can be drawn, by the Counsel for the appellants, from the ratio of law, laid down, in the aforesaid cases, the facts whereof, are distinguishable, from the facts of the instant case. The submission of the Counsel for the appellant, therefore, being without merit, must fail, and, the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. The substantial question of law, depicted above, is RSA No. 3684 of 1987 12 answered against the appellant. 17. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 06.07.2010 (SHAM SUNDER) Amodh JUDGE