R.S.A. No. 3408 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3408 of 1985 Date of decision: 2-7-2010 Parkash Chand ......... Appellant Vs Punjab State and others .........Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. Kishmir Singh, Advocate, for the appellant Mr. P.C.Goyal, Additional Advocate General Punjab for the respondents HARBANS LAL, J. This appeal is directed against the judgment/decree dated 4.9.1985 passed by the court of learned Additional District Judge(II), Bathinda whereby he accepted the appeal filed by the State of Punjab and others against the judgment and decree dated 22.2.1984 rendered by the court of learned Sub Judge Ist Class, Bathinda vide which he decreed the suit for permanent injunction restraining the defendants from assessing/levying or recovering the sum of Rs.9507.74 as royalty from the plaintiff for the earth of the land owned by the private landowner(Gram Panchayat) and used by the plaintiff for making bricks at his brick-kiln situated at Bhagi Bandar. The facts which led to the filing of the suit are that the plaintiff is running a brick-kiln in the aforesaid village on land, which he had obtained on lease from the local Gram Panchayat. The defendants have no R.S.A. No. 3408 of 1985 2 right or interest therein, but nonetheless, have issued a notice calling upon him to deposit the aforementioned amount as royalty for using clay/earth as raw material for moulding and making of bricks. Their demand being illegal, they be restrained from recovering the said amount. In their joint written statement, the defendants have traversed the averments embodied in the plaint with the assertion that they had the right to recover the suit amount from the plaintiff and that since the said amount has been sought to be recovered as arrears of land revenue, the suit is barred by the provisions of Section 158 of the Punjab Land Revenue Act and Rule 53 of the Punjab Mineral Concession Rules, 1964. On the pleadings, the following issues were framed:- 1. Whether the plaintiff is entitled to the injunction prayed for?OPP 2. Whether the suit in the present form is not maintainable?OPD 3. Whether this court has no jurisdiction to try this suit as alleged in para No.2 of the preliminary objections of the written statement?OPD 4. What is the effect of non-service of notice as required under Section 80 CPC before the filing of this suit?OPP 5. Whether the suit is bad for non-joinder of necessary parties?OPD 6. Relief After examining the evidence on record and hearing the learned counsel for the parties, the learned trial Court decreed the suit as noticed at the outset. Feeling aggrieved therewith, the State of Punjab and others went up in appeal, which was accepted by the court of learned Additional District Judge(II), Bathinda setting aside the judgment/decree R.S.A. No. 3408 of 1985 3 passed by the learned trial court and dismissed the suit of the plaintiff. Feeling aggrieved therewith, the plaintiff has filed this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The following substantial question of law arises for determination by this Court:- “Whether the brick earth in village Bhagi Bandar is a minor mineral and the State of Punjab has right/authority to charge royalty in relation thereto?” On behalf of the appellant, it has been argued that the defendant-respondents being unconcerned with the land in question, they have no right to claim any royalty over the same as its ownership vests in the individual landowners. He further emphasized that the question whether the right to a particular mineral vests with the State Government or owner of the land has to be decided in terms of Wajib-ul-Arz Ex.P-3 read with Section 42 of the Punjab Land Revenue Act, 1887 and as per the entries in the Wajib-ul-Arz, the State Government is disentitled to claim royalty on the land in dispute. Mr. P.C.Goyal, Additional Advocate General countered these arguments by urging with great eloquence that a close examination of the terms enshrined in Ex.D-1, copy of the Wajib-ul-Arz would reveal that the suit land being ownership of the village Gram Panchayat, the State is entitled to recover royalty on the brick earth. This contention merits acceptance for the reasons to be recorded hereinafter:- Ex.D-1 the notification dated 1.6.1958 purportedly issued by R.S.A. No. 3408 of 1985 4 the Government of India Ministry of Steel Mines and Fuel reads as under:- “No. MII-II-159 (18)-54-A-II, exercise of the power conferred by clause ( ) of Section 3 of the Mines & Minerals (Regulation and Development) Act, 1957 (67 of 1957) the Central Government hereby declares the following minerals to be minor minerals namely:- “Boulder, Shingle, chalcedony, pebbles used for ball mill purpose only, lime shall, kanker and limestone used for lime burning, murrum, brick-earth, fuller's earth, bentenit, road, mital, RH-matti, Slata and shala when used for building material.” It has been manifested in plain words in the language of this notification that brick earth when used for building material is minor minerals. A glance through Ex.D-2 copy of letter No. IS-78/59898 dated 12.12.1978 from the Director Food and Supplies and Joint Secretary to Government Punjab, Chandigarh to all the District Food and Supplies Controllers in the State would reveal the price of bricks which was fixed by the State Government. It is the specific case of the plaintiff that he owns brick-kiln at Bhagi Bandar District Bathinda and for making bricks he had taken land from the Gram Panchayat on lease and that he digs the earth from the said land for making bricks therefrom. Section 42 of the Punjab Land Revenue Act, 1887 reads as under:- “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 R.S.A. No. 3408 of 1985 5 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 of 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.” The documents Ex.P-3/Ex.D-10 Wazib-ul-Arz are required to be adverted to at this juncture. As noted supra, as per the entries made in these documents, whatever products the earth would yield either from the above or beneath its surface in any form would be taken to be owned by the Government. Section 25 of the Mines & Minerals (R&D) Act, 1957 runs as R.S.A. No. 3408 of 1985 6 under:- “25.Recovery of certain sums as arrears of land revenue-(1) Any rent, royalty, tax, fee or other sums due to the Government under this Act or the rules made thereunder or under the terms and conditions of any prospecting licence or mining lease may, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as an arrears of land revenue. (2) Any rent, royalty, tax fee or other sum due to the Government either under this Act or any rule made thereunder or under the terms and conditions of any prospecting licence or mining lease may, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as if it were an arrears of land revenue and every such sum becomes due to the Government after the commencement of the Mines and Minerals(Regulations and Development) Amendment Act, 1972, together with the interest due thereon, shall be a first charge on the assets of the holder of the prospecting licence or mining lease, as the case may be. The plaintiff moulds and make the bricks being used as building material from the earth being dug from the land owned by the Gram Panchayat. So in view of Ex.D-1 this brick earth is squarely covered by the definition of minor minerals and sequelly the State Government is well within its rights to claim royalty on the bricks. The plaintiff cannot run R.S.A. No. 3408 of 1985 7 brick-kiln without being issued a licence by the concerned authority. In view of the afore quoted provisions of Section 25 of the Mines & Minerals (R &D) Act, 1957 the royalty due to the Government either under the said Act or any rule made thereunder or under the terms and conditions of any prospecting licence or mining lease may, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as if it were an arrears of land revenue. As is borne out from the record, the plaintiff was directed to appear before the Minning Officer, Ludhiana, but he did not turn his deaf ear towards the notices being issued to him from time to time and ultimately, the said officer was constrained to pass the assessment order and had asked the Collector Ludhiana to recover the amount in question being royalty of bricks as arrears of land revenue. Thus, ostensibly, in the light of Section 25 ibid, there is nothing wrong with the impugned order to recover the disputed amount as arrears of land revenue. In M/s Banarsi Dass Chadha and Bros. Vs. Lt. Governor, Delhi Admn. and others AIR 1978 SUPREME COURT 1587 it has been held by the Hon'ble Supreme Court as under:- “A substance must first be a mineral before it can be notified as a minor mineral pursuant to the power vested in the Central Government under S. 3(e) of the Act. If the expression “minor mineral” as defined 3(e) includes “ordinary clay” and “ordinary sand”, there is no reason why earth used for the purpose of making bricks should not be comprehended within the meaning of the word “any mineral” R.S.A. No. 3408 of 1985 8 which may be declared as a “minor mineral” by the Government. The word “mineral” is not a term of art. It is a word of common parlance, capable of multiplicity of meanings depending upon the context. In the context of the Mines and Minerals (Regulation and Development) Act the word “mineral” is of sufficient amplitude to include “brick-earth.” To cap it all, the suit land being ownership of the Gram Panchayat the State if entitled to levy/recover royalty over the brick earth as the land in question is not owned by private persons. In view of the above discussion, the substantial question of law stands answered in favour of the defendants-respondent and against the plaintiff-appellant. Sequelly, this appeal fails and is dismissed with no order as to costs. (HARBANS LAL) JUDGE July 2, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No