R.S.A.No. 380 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 380 of 2008 (O&M) Date of decision: 26.8.2009 State of Punjab and another ......Appellants Versus Mohan Lal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Sandhu, AAG, Punjab for the appellants **** SABINA, J. Plaintiff Mohan Lal filed a suit for declaration, which was decreed by the Sub Judge III Class (A), Bathinda vide judgment and decree dated 29.5.1984. In appeal, the said judgment and decree were upheld by the Additional District Judge, Bathinda vide judgment and decree dated 7.9.2007. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 380 of 2008 (O&M) 2 “2. The brief facts of the case of plaintiff are that plaintiff has been manufacturing bricks, by taking the land on lease therefore from private owners. That the defendants made the assessment, vide impugned notice dated 28.12.1982, which is illegal, null and void. That no part of the land vests in the State Governnment. That according to the entries in the Sharait Wajib-Ul-Arz, the brick earth or minerals do not belong to the Government and Section 42 (2) of the Punjab Lal Revenue Act, 1887 vests the same in the land owners. That the defendants are not entitled to raise the demand of royalty from the plaintiff. The plaintiff has prayed for a decree for permanent injunction against the defendants. 3. Notice of this suit was served upon the defendants appeared and filed the written statement, vide which, they contested the suit of the plaintiff. It was averred in the preliminary objections that the jurisdiction of the civil court is barred under Section 158 of the Punjab Land Revenue Act, 1887 and under Section 25 of the Mines and Mineral (Regulation and Development) Act, 1957. That notice under Section 80 CPC has not been served upon the defendants in this case before filing this suit and suit is not maintainable. That suit is bad for non- joinder of necessary parties. That brick earth is included R.S.A.No. 380 of 2008 (O&M) 3 in the definition of minerals and is vested in the State Government. The defendants further averred in the written statement on merits, that a notice in form-R under Rule 54(c) of the Punjab Minor Minerals Concession Rules, 1964 has been correctly served upon the plaintiff. That the demand of Rs.11,480-96 has been correctly raised by the defendants from the plaintiff. The defendants prayed for dismissal of the suit of the plaintiff.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the assessment made by defendant No.2 vide notice dated 28.12.1982 is illegal, void ultra vires etc.? OPP 2. Whether the plaintiff is entitled to injunction prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the Court has no jurisdiction? OPD 5. Whether the suit is liable to be dismissed for want of notice under Section 80 CPC? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Relief. ” After hearing learned State counsel, I am of the opinion R.S.A.No. 380 of 2008 (O&M) 4 that the present appeal is devoid of any merits and deserves to be dismissed. Plaintiff Mohan Lal had filed a suit challenging notice dated 28.12.1982 issued by defendant No.2. Reliance was placed on entry in the Sharait Wajib-Ul-Arz Ex.P-4, wherein it was not mentioned that brick earth was owned by the Government. On the other hand, the case of the appellants was that the brick earth had been declared as minerals by the State Government vide notification Ex.D-1 and hence, the demand of royalty from the plaintiff had been rightly raised. Section 42, Sub Section 1 and 2 of the Punjab Land Revenue Act, 1887 reads as under:- “1. When in any record-of-rights completed before the eighteenth day of November, 1871, it is not expressly provided that any forest, quary, 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. Thus, as per the said provision, wherein any record-of- R.S.A.No. 380 of 2008 (O&M) 5 rights completed after 18.11.71, it was not expressly provided that any forest, quarry or any land or interest belongs to the Government, it shall be presumed to be belonging to the land owners. Both the Courts below, after appreciating the entries in the Wajib-Ul-Arz Ex.P- 4, have given a finding of fact that the same did not provide that the brick earth belonged to the Government. Reliance was placed by both the Courts below on a Full Bench decision of this Court in M/s Subhash Chander v. State of Punjab and others, reported in 1982 (84) PLR page 729, wherein it was held as under:- “To conclude on this aspect, it must be held that the rival claims of the parties over the vesting of brick-earth are not constricted to adjudication only on the basis of the entries in the wajib-ul-arz of the revenue estate and the claim to rebut the presumptions raised in Section 42 of the Punjab Land Revenue Act, 1887 by evidence in a Court of law cannot be summarily ousted. The answer to the first question posed at the very outset has, therefore, to be rendered in the negative.” It was also held that each disputed case of the vesting of minor minerals has, therefore, to be decided on the basis of the evidence led by the parties including, of course, the relevant entries in the revenue record. R.S.A.No. 380 of 2008 (O&M) 6 The Apex Court in State of Punjab v. M/s Vishkarma and Co. and others 1993 Supp (3) SCC 62, has held 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 covered 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 brick-earth concerned in the suits out of which the present appeals have arisen 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 pertaining to the concerned estates. That 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 November 18, 1871, and there being nothing expressly stated in them that the forest or quarry R.S.A.No. 380 of 2008 (O&M) 7 or land or interest in the estates belong to the Government, the land in such estates including brick- earth in them shall be presumed to belong to the concerned landowners as is declared in sub-section (2) of Section 42 of the Revenue Act. 8. Again, it is pointed out by the courts that there being no provision similar to the provision in sub-section (3) which permits adducing of rebuttal evidence against the presumption that the lands belong to the State under sub-section (1) of Section 42 of the Revenue Act, the presumption which arises under sub-section (2) of Section 42 of the Revenue Act that the forest or quarry or land or interest belong to landowner, cannot at all be rebutted by the State by adducing any contrary evidence. Even otherwise, according to them, when the State has not chosen to adduce any evidence to rebut the presumption arising from the entries in Wajib-ul-arz document---- record-of rights relating to the estates of lands whose brick-earth is allowed by the landowners to be removed by the brick manufacturers who are the plaintiffs in the suits out of which the present civil appeals have arisen, there can be no valid reason for them to hold that the brick-earth in the lands of the estates concerned has become the property of the State, so as to require the R.S.A.No. 380 of 2008 (O&M) 8 brick manufacturers to pay royalty for removal of such brick-earth and obtain permits or licence under the Rules” In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 26, 2009 anita