Civil Revision No. 3346 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3346 of 2008 Date of decision: 25.09.2009 Hardev Singh ....Petitioner Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sanjiv Gupta, Advocate, for the petitioner. Mr. R.L. Gupta, Addl. A.G., Punjab, for the respondents. ***** VINOD K. SHARMA, J The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order passed by the learned Courts below on an application moved by the petitioner under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The plaintiff/petitioner filed a suit for declaration to challenge the orders passed by the defendants, whereby the plaintiff/petitioner was asked to deposit an amount of Rs.1,57,82,596/- (Rupees one crore fifty Civil Revision No. 3346 of 2008 -2- seven lac eighty two thousand five hundred ninety six only) as price and royalty on alleged mining of earth/clay/sand to be illegal, unjust and in violation of the provisions of the Mines and Minerals Act and Punjab Minor Mineral Concession Rules, 1964 (hereinafter referred to as 'the Rules'). The plaintiff sought declaration that he was absolute owner of the property as per Wajib-Ul-Arz along with earth etc. The plaintiff further pleaded that the defendants had absolutely no right or concern whatsoever in the property belonging to the plaintiff/petitioner. Consequential relief of prohibitory injunction was sought, restraining the defendants from giving effect to the recovery or in pursuance to the afore-mentioned notices and staying the process of recovery in Form “M” vide letter dated 4.9.2006. The prayer was also made, that coercive method of recovery be not adopted under the Punjab Land Revenue Act 1887. The pleaded case of the plaintiff/petitioner was, that the provisions of the Mines and Minerals Act were not applicable to the land of the plaintiff/petitioner, as the area in question was not developed nor any reference has been made qua which land the royalty and price was claimed. The plaintiff/petitioner pleaded, that as per the requirement of law, statutory appeal under Section 54 (f) of the Rules was filed, and during the pendency of the appeal, a notice in Form “M” for recovery of alleged royalty, through process of the Punjab Land Revenue Act, was issued. It was also pleaded, that the defendants are adopting coercive method. It was further pleaded that, in case, petitioner is detained in civil imprisonment, he is likely to suffer great humiliation and harassment. It was pleaded, that the petitioner had prima facie case and Civil Revision No. 3346 of 2008 -3- the balance of convenience was also in favour of the petitioner, and further he was likely to suffer irreparable loss and injury, if the orders impugned are not stayed. The suit as well as the application was contested by the State, by taking a preliminary objection, that minor minerals rights vest with the State irrespective of the fact that the land belongs to private land owner or panchayat. It was pleaded that Shri Gurdev Singh Punnia, H. No. 433, Ghuman Nagar, Patiala, submitted a complaint in the office of the defendants, that a retired police official resident of Tafzalpura, was digging/removing the earth from his land, and had left no passage to their land. A similar complaint was also made by Sukhchain Singh S/o Jodh Singh alleging therein, that the petitioner and his two brothers, namely, Jagjit Singh and Satnam Singh were digging the earth/sand upto 60 feet illegally and have sold minor minerals. The case was examined and inspection was got conducted from Sh. Devi Dass, Mining Guard on 23.5.2006, and Sh. Harinder Singh, Block Level Extension Officer, Patiala, on 10.5.2006, who reported that the minor minerals had been extracted. It was the case of the defendant/respondents, that the petitioner extracted/removed the minor minerals i.e. clay/sand from the land without any lawful authority as provided under Rule 54 of the Rules, which provides that no person shall undertake any mining operation in any area except under and in accordance with the terms and conditions of the mining lease contract or permit granted under the Rules. The plaintiff along with others was given notices under Section 54 of the Rules, but the plaintiff/petitioner failed to appear Civil Revision No. 3346 of 2008 -4- before the Mining Officer on the stipulated date, nor submitted any representation, therefore, an order of assessment in Form “O” was issued by the Mining Officer on 1.6.2006. The action was initiated after inspection of the land in question on 23.5.2006 and 10.5.2006. Objection was also raised that the petitioner filed the present suit without awaiting the decision for his appeal dated 4.7.2006 and, therefore, the petitioner has no locus standi to file the suit. Action of the department to recover royalty on minor minerals was said to be legal and valid, as the minor minerals were extracted by the plaintiff/petitioner without any lawful authority. It was the contention of the plaintiff/petitioner before the learned Courts below, that the plaintiff/petitioner was the owner of the land along with his brothers and notice for deposit of Rs.1,57,82,596/- (Rupees one crore fifty seven lac eighty two thousand five hundred ninety six only) as price and royalty of mining of earth was received, but before assessment no opportunity of hearing was given to the petitioner. The appeal filed against said order was said to be still pending, but the alleged amount was ordered to be recovered from him as arrears of land revenue vide order dated 6.9.2006, which could not be said to be legal and valid for the reasons: - (i) That the property is private property of the plaintiff/petitioner. (ii) That the provisions of the Mines and Minerals (Development & Regulation) Act, 1957, and Section 15 of the Rules were not applicable to the case. (iii) That there was no contract between the petitioner and the Government regarding brick earth and, therefore, no royalty could be levied upon it. Furthermore, that Civil Revision No. 3346 of 2008 -5- ordinary clay did not fall within the definition of minor mineral as per Rule 3 of the Rules. The stand of the defendant-State was as under: - (i) That minor minerals rights vest in the State irrespective of the fact, whether the land is owned by the private owner or the panchayat. (ii) That the plaintiff/petitioner had no right to extract the minor minerals, and the extraction of the minor minerals from the land without lawful authority, as per Rule 54 of the Rules was not permissible, except on the terms and conditions of the mining lease. (iii) That the present suit was filed without awaiting the decision of his appeal, which was pending, therefore, the plaintiff/petitioner was not entitled to injunction. The learned trial Court on consideration of the matter, recorded a finding that as per the pleadings of the plaintiff/petitioner, he along with his brothers is the owner of the land and that mining of minor minerals i.e. clay/sand. The plea of the plaintiff/petitioner, that the simple clay did not fall within the definition of minor minerals, could only be decided after the evidence was led. The learned trial Court further held, that the plaintiff/petitioner was pursuing his remedy with the authorities by filing an appeal, and no decision thereon was taken. Furthermore, no document was placed on file to show, that the plaintiff/petitioner had brought it to the notice of the State Government, that the mining operation was going on over the land owned by him, nor any permission granted to him, was produced on record. The plaintiff/petitioner had not paid royalty to the State. The learned Court held, that the plea of the plaintiff/petitioner, that no royalty was payable, was again a matter of evidence, thus, held that no prima facie case was Civil Revision No. 3346 of 2008 -6- made out for grant of injunction, and dismissed the application. In appeal, reliance by the petitioner was placed on the judgment of this Court in civil writ petition No. 3483 of 1981. The learned lower appellate Court held it to be not applicable, as the earth was minor minerals as per notification dated 3.2.2000 issued by the Government of India. The learned lower appellate Court also prima facie held, that minor minerals right vests with the State irrespective of the fact, that the land belongs to the private owner or panchayat. The learned lower appellate Court was also of the view that minor minerals were regulated as per provisions contained in the Rules, after the judgment of the Hon'ble Supreme Court in State of Punjab Vs. M/s Vishkarma and Co., 1993(2) Recent Revenue Reports 38, and further that in the forest area, the auction of minor minerals is prohibited and held that the plaintiff/petitioner extracted minor minerals without any lawful authority. The plaintiff/petitioner had placed reliance on the judgment of the Hon'ble Supreme Court in State of Punjab Vs. M/s Vishkarma and Co., (supra), wherein the Hon'ble Supreme Court was pleased to lay down as under: - “Punjab Land Revenue Act, 1887, Section 41 and 42 – Mines and Minerals – Brick-earth (Minor Minerals) found in the land of private owners-Brick-earth would belong to land owner and not to State – Landowners allowing removal of brick-earth by brick manufacturers – Brick manufacturers not required to pay royalty and obtained permits or licence from the Government under the Rules.” Reliance was also placed on the judgment of this Court in Civil Revision No. 3346 of 2008 -7- Punjab State through the Collector, Hoshiarpur Vs. Jagdish Chander, 1983 PLR 695, wherein this Court was pleased to lay down as under: - “Punjab Land Revenue Act, Section 42(2) – Brick earth- Wajib-ul-Arz. Wajib-Ul-Arz not recording that the brick earth belongs to the Government Wajib-Ul-Arz prepared after 18th November, 1871 – Brick earth belongs to the landowners – Government cannot charge royalty.” “Punjab Minor Minerals Concession Rules, 1964 – Rule 20 and 21 – State Government can demand Royalty only in respect of minor minerals which actually vest in the State – Brick earth – No royalty can be claimed. Held that brick earth in Wajib-Ul-Arz not provided as belonging to Government does not vest in Government in view of Section 42(2) Punjab Land Revenue Act – Government not competent to demand royalty in respect of brick earth.” On the other hand, respondent-State placed reliance on the Punjab Minerals (Vesting of Rights) Act, 1994, which provided that the State Government may from time to time, by notification require the right to the minerals in any land notwithstanding anything contained in any law for the time being in force and from the date of publication of the notification the right to the minerals in the land specified in the notification shall vest absolutely in the State Government, and the State Government, shall subject to the provisions of the Mines and Minerals (Regulation and Development) Act 1957 have all the powers necessary for the proper enjoyment or disposal of such rights. The learned lower appellate Court held, that in view of the Punjab Minerals (Vesting of Rights) Act, 1994, the minor minerals vest in the State government and, therefore, in the changed circumstances, Civil Revision No. 3346 of 2008 -8- the judgment of the Hon'ble Supreme Court relied upon by the petitioner was not applicable. The learned Court also relied on the notification dated 3.2.2000 of the Ministry of Mines and Minerals, in which the ordinary earth used for filling or leveling purposes in construction of embankments, roads, railways, buildings to be minor minerals in addition to the minerals already declared as minor minerals. The authorities relied upon by the petitioner, therefore, were held to be not applicable to the facts of the case. The learned lower appellate Court also came to the conclusion, that as the appeal filed by the petitioner was still pending and further, that as the remedies have been provided under the Act and the petitioner was availing those remedies, therefore, he was not entitled to ad interim injunction. Mr. Sanjiv Gupta, learned counsel, appearing on behalf of the petitioner, contended that a person is liable to pay royalty under 20 of the Rules only, if he is holder of the mining lease, and in absence of the mining lease, there is no provision to impose the royalty. Rule 20 of the Rules reads as under: - “20. Royalties in respect of mining lease – (1) The holder of a mining lease granted before the commencement of these rules, shall notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the leased area after such commencement, at the rates for the time being specified in the First Schedule in respect of that minor mineral. Civil Revision No. 3346 of 2008 -9- (2) The Government may, by notification in the official Gazette, amend the First and Third Schedules so as to enhance or reduce the rate at which the royalty shall be payable in respect of any minor mineral with effect from such date as may be specified in the notification, either in respect of the whole State or any specified area.” The contention of the learned counsel for the petitioner was, that in absence of any lease or licence under the Rules, the remedy with the department is under Rule 54 of the Rules, if so applicable, which provides as under: - “54. Unauthorised working. - (1) No person shall undertake any mining operations in any area, except under and in accordance with the terms and conditions of the mining lease, contract or permit granted under these rules. (2) Any contravention of sub-rule (1) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both and in case of a continuing contravention, with an additional fine which may extend to one thousand rupees for every day during which the contravention continues after conviction for the first such contravention.” The contention of the learned counsel for the petitioner was, that the imposition of royalty was patently without jurisdiction and null and void. In order to appreciate the real controversy, the stand taken by the parties need to be noticed. Learned counsel for the petitioner contended, that notice under Civil Revision No. 3346 of 2008 -10- Rule 54-C(5) of the Rules was issued to the petitioner on 23.5.2006. Rule 54-C(5) of the Rules reads as under: - “54-C. Assessment of royalty. - (1) x x (2) x x x x (3) x x x x (4) x x x x (5) If upon information, which has come into his possession the Assessing Authority, is satisfied that any person has raised, without any lawful authority, any minor mineral from any land and has not paid the royalty due therein to the Government, the Assessing Authority shall within three years after the expiry of the period during which the land was occupied by such person serve on such person a notice in Form 'R' and after giving such person a reasonable opportunity of being heard, proceed to assess to the best of his judgment the amount of royalty due from him. The Assessing Authority may also pass an order for recovery from such person of the minor minerals so raised or where such minor mineral has already been disposed of the price thereof.” Assessment order was thereafter passed on 1.6.2006 in Form 'S', calling upon the petitioner to pay the royalty assessed. The petitioner immediately on coming to know about the assessment order filed a review petition on 4.7.2006. The review petition filed by the petitioner was dismissed as not competent by giving him liberty to file an appeal. This order was passed on 10.7.2006. On 2.8.2006, the petitioner filed an appeal against the order of assessment. Vide order dated 1.9.2006, petitioner was asked to deposit a sum of Civil Revision No. 3346 of 2008 -11- Rs.500/- (Rupees five hundred). Thereafter without waiting for the decision of the appeal on 4.9.2006 Form 'S' under Rule 53 was served upon the petitioner seeking recovery as arrears of land revenue. The petitioner thereafter filed the present suit on 17.10.2006, primarily on the ground that the authorities under the Act had no jurisdiction, as the petitioner was owner in possession of the property in dispute and the minor minerals did not vest in the State Government. In view of the filing of the suit, the appellate authority refused to proceed further with the appeal and adjourned it sine die vide order dated 29.11.2006, to await the decision of the civil suit. The learned counsel for the petitioner, on the facts stated above, contended that the land in dispute was under the ownership of the plaintiff/petitioner, and there was no contract or lease between the parties to attract Rule 20 of the Rules. The contention of the learned counsel for the petitioner was, that in absence of any contract, no royalty could be imposed. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Full Bench of this Court in M/s Amar Singh Modi Lal Vs. State of Haryana and others, AIR 1972 Punjab and Haryana 356, wherein the Hon'ble Full Bench was pleased to lay down as under: - “53. Though, I have held against the petitioners on the point of vires of the impugned provisions and the power to levy royalty, learned counsel for the petitioners, however, seems to be on a firm and unassailable ground on another point. It is contended on behalf of the petitioners that they neither held a prospecting licence Civil Revision No. 3346 of 2008 -12- nor are they mining licencees or holders of a short term permit for the purpose of exploiting “minor minerals”. It is argued that under Rule 20 of the Punjab Minor Mineral Concession Rules, 1964, the royalty can be levied only in connection with a mining lease. In substance the argument is that unless there is a subsisting contract between the petitioners and the State Government, no question of levying royalty under the Rules can arise. Reference is made to Rules 28, 37 and 44 in this regard which regulate the grant of contract by auction or tender or provide for the conditions of mining lease and the grant of short term permit. It is plausibly argued that as the petitioners have not executed any contract or agreement of the nature abovesaid they are not liable for the payment of any royalty. 54. With disarming fairness Mr. J.N. Kaushal on behalf of the respondent-State concedes that he has no answer to this contention raised on behalf of the petitioners. It is admitted that no agreement or contract is subsisting between the respondents and either of the petitioners. The legal position that unless there is such a subsisting contract no royalty can be levied is not controverted on behalf of the State. Consequently Mr. Kaushal fairly states that in the present two cases, he cannot support the levy of the royalty and also the validity of the notices issued against the petitioners for its recovery. In terms it has been stated that on this point the two petitions are entitled to succeed. In view of the abovesaid concession both, these petitions must succeed on this narrow point and have to be allowed. The impugned notices for the recovery and the levy of royalty are hereby quashed. However, in view of the intricate and difficult question which arose for determination I would make no order as to costs.” Civil Revision No. 3346 of 2008 -13- The learned counsel for the petitioner placed on record Wajib- Ul-Arz entry with respect to the village in dispute. The Wajib-Ul-Arz entry reads as under: - 10. Rights of the Government regarding ownership of Nazul and forests, or Gar-Maqbuza or Matruka, Non-populated land or Stones-mines, archaeological remains or Amrat Kadim or Self-grown produces of land and other necessary rights regarding that land situated within limits. For the time being any sort of mine or ownership Nazul or forest or possessed or Matruk or Gair Abad or Amrat Kadim or Jmin Khaki self grown land is not existing. In future if it will be, then under Section 41, Act 17, 1887 all the mines of stone or coal or metals etc., will be property of the Government and on its recovery if the agricultural land is caused any loss, the compensation of the same will be paid by the Government. In case if any owner is died, then his right first of all his close relatives will be owners and the land will be allotted amongst the legal heirs. If there is no successor of the deceased for taking the said land, then it will be deemed as property of the Government. The contention of the learned counsel for the petitioner, therefore, was that in view of the decision of the Hon'ble Full Bench of this Court, the order passed by the State Government prima facie was without jurisdiction. The learned counsel for the petitioner also referred to the provisions of the Punjab Minerals (Vesting of Rights) Act, 1994. Sections 3 and 4 of the Act read as under: - “3. Vesting of minerals in State Government. - (1) The State Government may from time to time, by notification, acquire the right to the minerals in any land notwithstanding anything contained in law for the time being in force, from the date in the notification shall vest absolutely in the State Government and the State Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 Civil Revision No. 3346 of 2008 -14- (Central Act No. 67 of 1957), have all the powers necessary for the enjoyment or disposal of such rights. (2) If the State Government has assigned to any person its right to the minerals in any land, and if for the proper enjoyment of such right, it is necessary that all or any of the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-section (1) should be exercised, the Collector may, by an order, in writing, subject to such conditions and reservations as he may specify, delegate such powers to the person to whom the right has been assigned. Explanation. - In this section and section 4, the expression “right to the minerals in any land” includes the right of access to the land for the purpose of prospecting and working mines and for the purposes subsidiary thereto including the sinking of pits and shafts, erection of plants and machinery, construction of roads, stacking of minerals, using water and taking timber and any other purpose which the Government may declare to be subsidiary to mining. 4. Payment of amount. - (1) On the vesting of the right to the minerals in any land under section 3, the person entitled to the right to the minerals in any land immediately before such vesting shall be paid annually, in the manner prescribed, an amount equal to ten per cent of the annual contract money or of royalty or dead rent, whichever is higher, payable to the State Government on minerals raised in a year, for a period of ten years with effect from such vesting: Provided that if no contract or lease is given or the lessee does not raise the minerals for any period, no amount shall be paid for that period and the aforesaid period of ten years shall be deemed to have been extended by that period: Civil Revision No. 3346 of 2008 -15- Provided further that the payment of the amount shall commence after the expiry of one year from the date of commencement of the period of contract or lease, as the case