RSA No.202 of 1990 (O & M) ::1:: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.202 of 1990 (O & M) Date of Decision: December 16, 2011. State of Punjab and another .... Petitioners Versus Charanji Lal .... Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. Suvir Sehgal, Additional Advocate General, Punjab. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest ? M.M. KUMAR, J. 1. This order shall dispose of a bunch of three regular second appeals* whereby the State of Punjab, raises the similar question of law. The question of law raised by the appellant-State is as under:- 'Whether brick earth which belongs to the private owners, which is a minor mineral would vest in the appellant-State. If so, whether the appellant-State could demand royalty from the plaintiff- respondent'. 2. Brief facts may first be noticed. The plaintiff- RSA No.202 of 1990 (O & M) ::2:: respondent filed a suit for permanent injunction restraining the appellant-State from assessing, levying or recovering the royalty on the brick earth and a declaration was sought that the notice raising the demand as royalty on the brick earth be declared void and illegal. The plaintiff-respondents have been running brick kiln which has been installed either in their own land or the land taken by them on lease from private owners. The plea raised by the plaintiff- respondent before the Courts below was that the land which supply the brick earth was owned by them and did not belong to the appellant-State and, therefore, it had no jurisdiction to asses any royalty on the brick earth. Therefore, a prayer was made to restrain the appellant-State from effecting any recovery of the amount in lieu of digging brick earth from their own land or the leased land from the private owners. 3. The appellant-State contested the suit on two grounds. Firstly, it was urged that the jurisdiction of the Civil Court is barred by the provisions of Section 158 of the Punjab Land Revenue Act, 1887. It was also submitted that the brick earth is a minor mineral which vest in the appellant-State and it has every right to charge royalty from its user. 4. The trial Court as well as the Lower Appellate Court returned the finding that brick earth is a minor mineral as has been declared by Notification issued by the appellant-State on 01.06.1968 (Ex. D-1). The aforesaid Notification has been held to be invalid by Hon'ble the Supreme Court in the case of M/s Banarsi Dass Chadha and brothers v. Lt. Governor, Delhi RSA No.202 of 1990 (O & M) ::3:: Administration, 1978 (4) SCC 11. 5. The question then arose with regard to quarrying brick earth. The question has to be determined by making reference to Sections 41 and 42 of the Punjab Land Revenue Act, 1887. The aforesaid provision needs to be examined and the same reads as under:- “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 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 RSA No.202 of 1990 (O & M) ::4:: 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 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]. 6. A perusal of the aforesaid provisions would show that it deals with presumption concerning ownership of forests, quarries and waste lands. According to sub-Section (1) if in any record of rights completed before 18.11.1871, it is not expressly provided that any quarry or other accessory interest in land belongs to the land owner, then, it has to be presumed that it belonged to the Government. Sub-Section (2) further contemplates that if any record of rights completed before the aforesaid date, does not expressly provided that any quarry belongs to the Government, then, it must RSA No.202 of 1990 (O & M) ::5:: be presumed to belong to the land owners. However, the aforesaid presumptions have been made rebuttable by showing from the record/report made by the Assessing Officer at the time of assessment or from any other evidence. 7. In order to satisfy the requirement of aforesaid provisions, wajib ul arz (Ex.P-1) in respect of the year, 1911 B.K. was produced by the plaintiff-respondent (Ex.P-1) wazib ul arz had been prepared after 1871 and, therefore, by virtue of sub-Section (2) of Section 42 of the Act wazib ul arz (Ex.P-1) was held to be applicable. The entry in the wazib ul arz (Ex. P-1) when translated in English showed that there was no old building, nazul land, mine stone, coal, etc. in the village and in future, any such thing is discovered then, it would be owned by the Government. There is no mention of brick earth so as to vest in the Government. Accordingly, the Courts below have rightly raised the presumption under sub-Section (2) of Section 42 of the Act in favour of the land owners and concluded that the brick earth would vest in the land owners and not in the State Government. 8. The matter is, in fact, no longer res integra. In State of Punjab v. M/s Vishkarma and companies and others, 1993 Supp. (3) SCC 62, the question arose before their Lordships of the Supreme Court. A reference was made to provisions of sub- Section 41 and 42 of the Revenue Act and the opinion of the Supreme Court is discernible from Para 7 and 8 of the judgment which reads as under:- RSA No.202 of 1990 (O & M) ::6:: “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 belong 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 or land or interest in the estates RSA No.202 of 1990 (O & M) ::7:: belong to the Government, the lands 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 on interest belong to the 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 estate 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, RSA No.202 of 1990 (O & M) ::8:: so as to require the brick manufacturers to pay royalty for removal of such brick-earth and obtain permits or licence under the Rules”. (Empasis added) 9. The aforesaid view has also been taken in a score of judgments delivered by this Court including State of Punjab and another v. Mohan Lal, 2009 (4) RCR (Civil) 841 and the State of Punjab and others v. M/s Ved Parkash and Co., 2011 (2) PLR 767. 10. In view of the aforesaid settled principles, there is no escape from the conclusion that brick earth is a minor mineral and until the presumption is rebutted in respect of record prepared after 18.11.1871 by the appellant-State, the brick earth would be presumed to belong to the land owners. By virtue of wazib ul arz (Ex.P-1), the plaintiff-respondent have proved the fact that the brick earth has not been named in the record of rights prepared after 1871 and accordingly, presumption has been rightly raised in favour of the plaintiff-respondent and, therefore, it would not vest in the appellant- State as no evidence to the contrary has been produced. Accordingly, the question posed in Para I has to be answered against the appellant-State and in favour of the plaintiff-respondent. 11. The next issue raised by learned Additional Advocate General, is that in view of specific bar created by Section 158 of the Revenue Act, the jurisdiction of the Civil Court is barred to try the suit. However, the aforesaid issue would not survive for any serious consideration because once the notice has been found to be RSA No.202 of 1990 (O & M) ::9:: beyond the four corners of the Land Revenue Act then the suit would be maintainable. Therefore, the existence of remedy under the Revenue Record would not bar the remedy of the suit if it was otherwise was available. The jurisdiction of the Civil Court to try the suits would not be barred. In that regard we place reliance on the authoritative pronouncement rendered by Five-Judge Bench in the case of State of Haryana v. Vinod Kumar (1986) 1 PLR 222. 12. The Question posed in para no.1, therefore, is decided against the appellant-State and all the appeals are dismissed. 13. A copy of this order be placed in the files of each connected case. (M.M. KUMAR) JUDGE December 16, 2011 sukhpreet * Sr. No. Party Name Writ Petition 1. State of Punjab and another Vs. Charanji Lal RSA No.202 of 1990 2. The State of Punjab and others Vs. Smt. Pushpa Watti alias Pushpa Wanti RSA No.205 of 1990 3. State of Punjab and another Vs. M/s Manjit Singh and Co. RSA No.530 of 1990 M.M.KUMAR) JUDGE December 16, 2011 sukhpreet