R.S.A. No.2 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2 of 1987 Date of Decision:13.07.2010 The Secretary to Govt. Punjab, Chandigarh and others .....Appellants Vs. Smt. Koshalaya Devi .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.C. Goyal, Additional Advocate General, Punjab for the appellants. Mr. Rohit Verma, Advocate for Mr. Munishwar Puri, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 12.8.1986 passed by the Court of learned Additional District Judge, Rupnagar whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/ decree dated 21.2.1985 rendered by the Court of learned Senior Sub Judge, Ropar vide which he decreed the suit in favour of the plaintiff and against the defendants restraining the latters from recovering the suit amount. The factual matrix is that the plaintiff is engaged in the business of manufacturing bricks by running a brick kiln after having obtained lincence No.RPR/BRK/72 issued by the District Food and R.S.A. No.2 of 1987 -2- Supplies Controller. He had been excavating the brick earth from the land as delineated in the plaint by taking on lease or by purchasing the same. The defendant- State demanded a sum of Rs.6345.32 from the plaintiff by issuing a notice dated 5.4.1980 claiming it as royalty of excavation of brick earth from the said land for the period commencing from 14.9.1977 to 31.3.1979. That the defendant has no right to demand the said amount as royalty for the reason that the earth in question did not vest in the Punjab State. On these allegations, the suit has been filed for permanent injunction restraining the defendants from realising the afore-mentioned amount. The defendants in their joint written statement have inter-alia pleaded that according to the conditions as mentioned in Wazib-Ul-Arz, the State Government has got the right to every mineral without any concession. However, it has been admitted that the notice under the Punjab Minor Mineral Concession Rules, 1964 has been issued to the plaintiff demanding the payment of royalty. On the pleadings, the following issues were framed by the learned trial Court. 1. Whether the notice in form R dated 5.4.1980 and demand of Rs.6345.32 Ps. are illegal, void and without jurisdiction as alleged? OPP 2. Whether the suit is not maintainable under Sections 78 and 158 of the Land Revenue Act, 1885?OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Relief. R.S.A. No.2 of 1987 -3- After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit in the terms noticed supra. Feeling aggrieved therewith, the State of Punjab and others went up in appeal, which was dismissed by the Court of learned Additional District Judge, Rupnagar. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the State of Punjab and others have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C. Goyal, Additional Advocate General, Punjab on behalf of the appellants has urged with a good deal of force that the notice for the payment of royalty was perfectly legal and valid as it is well settled that brick earth is a minor mineral. The plaintiff- respondent is digging the earth from the land in dispute for moulding and making bricks and that being so, the State is entitled to claim royalty on this brick earth being a minor mineral. The learned Courts below have gravely erred in relying upon the entries in Wazib-Ul-Arz. In response, Mr. Rohit Verma, Advocate on behalf of the respondent canvassed at the bar that a meticulous perusal of the trial Court's record would reveal that the defendants did not have the courage to let in even an iota of evidence operating as rebuttal to the evidence adduced by the plaintiff- respondent. It implies that the defendants - appellants have no case. I have well considered the rival contentions. In Ex.P19, copy of Wazib-ul-arz, there is no entry to the effect that the brick earth vests in the Punjab State. So, it has to be presumed that the disputed land vested in R.S.A. No.2 of 1987 -4- the land owners giving no right of royalty to the State Government. In M/s Amar Singh Modi v. State of Haryana and others, AIR 1972 Punjab and Haryana 356, also relied upon by the learned lower Appellate Court, it has been held that “Wazib-Ul-Arz” of the village which was prepared after 18.11.1871 left no doubt that the brick earth did not vest with the Government and the State had no right to levy royalty thereon.” Further in the State of Punjab v. M/s Vishkarma and Co. etc. Judgments Today, 1993(1) Supreme Court 448, the Hon'ble Supreme Court has held as under: “9. In our view, when all the courts below have concurrently recorded findings to the effect that the ownership of the brick- earth belong to land-owners and not the State on a correct appreciation of all evidence adduced in the case and on a proper application of the law governing the same, there could be no justification to interfere with such findings in these appeals. We are also not shown any valid reason as to why we should set aside the lower courts judgments and decrees and send the matters to the Courts of first instance with a direction to permit the State to adduce rebuttal evidence as regards entries in record-of-rights.” Needless to say, the evidence produced by the plaintiff has gone unrebutted. To the utter dismay of the appellants, they have also not produced any notification declaring brick earth to be a minor mineral. There being no such notification, it would be going too far to say that the brick earth being dug out from the land in dispute for the purpose of moulding and making bricks for running the brick kiln falls within the R.S.A. No.2 of 1987 -5- definition of minor mineral. There being no evidence supportive of the demand raised in the impugned notice, it is held that this notice is illegal, null and void. Consequently, the contentions raised on behalf of the appellants are jettisoned. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. July 13, 2010 ( HARBANS LAL ) renu JUDGE