R.S.A. No. 1669 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1669 of 1987 Date of decision: 16-7-2010 The State of Punjab and Another ......... Appellants Vs M/s Halwara Brick Works and others .........Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate Punjab, for the appellants Mr. S.C.Sibal, Senior Advocate with Mr. V.S.Rana, Advocate, for the respondents. HARBANS LAL, J. This appeal is directed against the judgment/decree dated 20.12.1986 passed by the court of learned Additional District Judge, Ludhiana whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/decree dated 11.12.1984 rendered by the court of learned Senior Sub Judge, Ludhiana vide which he decreed the suit of the plaintiffs for permanent injunction restraining the defendant No.1 Punjab State and defendant No.2 Mining Officer, Department of Industries Punjab, Clock Tower, Ludhiana from demanding or recovering any royalty from the plaintiff firm for having excavated brick earth from the suit land. The factual matrix is that Puran Chand one of the partners of the registered plaintiff firm M/s Halwara Brick Works alleged that he is licensee under the Punjab Controller of Bricks Supplies Order, 1956 and R.S.A. No. 1669 of 1987 2 carries on business of manufacturing bricks and sale of the same at village Halwara. He is excavating the earth from the land measuring 22 Kanals 5 Marlas comprised in Khewat No. 436, Khatauni No. 490, Rectangle No. 200, Killa No. 23, Rectangle No. 208, Killa No. 2 and 3 as entered in the jamabandi for the year 1978-79 situated at village Halwara, Hadbast No. 95 after taking land on oral lease from Puran Chand and Gurdev Singh co- owners. He is also using the land measuring 20Kanals 7 Marlas as delineated in the plaint, which has been purchased from Karnail Singh. The Mining Officer issued a wrong and illegal notice calling upon the plaintiff to pay royalty on the brick earth used by the plaintiff firm and sent a demand notice dated 15.9.1982 for Rs.17,727-75. The plaintiff firm requested the defendants to withdraw the notice, but to no avail. On these allegations, the suit has been filed for permanent injunction restraining defendants No. 1 and 2 from demanding/recovering any royalty from the plaintiff firm for excavating brick earth from the suit land. In their joint written statement, the defendants have inter-alia pleaded that the excavated earth for preparing bricks being a minor mineral, the defendants are entitled to demand royalty. On the pleadings of the parties, the following issues were framed:- 1. Whether the excavated earth for preparing brick is a minor mineral and the defendant State is entitled to demand royalty?OPD 2. Whether the plaintiff is entitled to the injunction prayed for?OPP 3. Whether this Court has no jurisdiction to try this suit?OPD 4. Whether the suit not maintainable?OPD R.S.A. No. 1669 of 1987 3 5. Whether the plaintiff has served notice u/s 80 CPC?OPD 6. Whether the suit is bad for not giving notice u/s 15 of the Mines and Mineral (Regulation and Development) Act, 1957?OPD 7. Whether the suit is bad for non-joinder of necessary party?OPD 8. Relief After examining the evidence and hearing the learned counsel for the parties, the above mentioned issues No.1 to 7 were decided by the learned trial Court against the defendants. Feeling aggrieved therewith, the defendants went up in appeal, which was dismissed by the court of learned Additional District Judge, Ludhiana as noticed at the outset. Being undaunted and dissatisfied with the judgments recorded by both the courts below, the State of Punjab alongwith others has filed this appeal. The following substantial questions of law arise for determination in this appeal:- 1. Whether the brick earth in view of the entries in Shariat Wajib-ul- Arz would vest in the State or the land owner? 2. Whether in view of the entries in the Shariat Wajib-ul-Arz not showing the vesting of brick earth as minor mineral, the State could claim royalty for the use of said minor mineral, which belongs to the land owners? 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 eloquently urged that as is well settled the brick earth is a minor mineral and sequelly, the State can charge royalty on that. Mr. R.S.A. No. 1669 of 1987 4 S.C.Sibal, Senior Advocate on behalf of the respondents countered this argument by strenuously urging that the land from which the brick earth is being excavated belongs to the private owners and as such, the defendants- appellants have no right to demand or recover royalty on the bricks being moulded and made by the plaintiff firm from the said land. This contention merits acceptance for the reasons to be recorded hereinafter:- Section 42 (2) of the Punjab Land Revenue Act, in so far as is relevant for the decision of this case 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 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.” It would be apparent on the face of Ex.D-6 the Wajib-ul-Arz, that it was prepared after 18.11.1871 and there is no entry to the effect that the brick earth vest in the State. Of course, as per Ex.D-1 the copy of the notification dated 1.6.1958 purportedly issued by the Government of India, Ministry of Steel Mines and Fuel, New Delhi, the brick earth has been declared as minor mineral. Mere this declaration does not confer any right R.S.A. No. 1669 of 1987 5 or title in relation to the brick earth on the State Government. In deed, the entries recorded in the 'Wazib-ul-Arz' after 18.11.1871 or the 'Wazib-ul-Arz' prepared after this date would be decisive and determinative of such rights of the State Government or the private owners as the case may be, within the contemplation of Section 42(2) ibid. In Ex.P-2 Regular First Appeal No. 214 of 1972 bearing caption State of Punjab Vs. Shadi Lal and another decided by the Division Bench of this Court on March 11, 1983 it has been held as under:- “Brick earth is a separate mineral and cannot be included in the words 'stone or kankar'. They are entirely different marketable commodity as compared to brick earth. The Wazib-ul-Arz of 1884 was repeated from time to time, right upto 1960-61, with regard to one village and upto 1968-69 with regard to other two villages, and in all these, there was no mention of brick earth which was to belong to the State Government. By 1960-61 or 1968-69, the brick earth was well known and by no stretch of imagination, it could be included in the terms, 'Stone or Kankar'. Therefore, the Court below was perfectly justified in raising the presumption that brick earth, although a minor mineral, did not vest in the State by virtue of Section 42(2) of the Act, and presumption was rightly raised that it belonged to the land owners. The State could rebut the presumption raised under Section 42(2) of the Act, but they led no evidence in this behalf. Therefore, the presumption, which has been raised R.S.A. No. 1669 of 1987 6 under Section 42(2) of the Act remained un-rebutted. Similar view has been taken by C.S.Tiwana, J. in Punjab State Vs. M/s Vishkarama and Co. Kiln Contractor and others (RSA No. 902 of 1973) decided on 16th September, 1982.” In the language of Section 42(2) ibid the Legislature has made use of the expression “presumed to belong to the landowners.” It imports that this presumption arising under this section is rebuttable. But to the utter dismay of the appellants/defendants, they have not adduced even a scintilla of evidence operating as rebuttal to the presumption arising under the said Section. In Union of India Vs. Pramod Gupta (dead) by L.Rs and Others (2005) 12 Supreme Court Cases 1 it has been held that the expression “shall presume” cannot be held to be synonymous with “conclusive proof”. Herein to succeed in their claim, the onus heavily lay upon the appellants/defendants to rebut the presumption arising under the said Section in favour of the landowners. There being no evidence, in this behalf, it has to be concluded that this preumption has gone unrebutted. Sequelly, the brick earth does not vest in the State. An identical view has been taken by the Supreme Court in The State of Punjab Vs. M/s Vishkarma & Co. Judgements Today 1993(1) Supreme Court 448. In M/s Om Parkash Brick Kiln owner Vs. State of Punjab and others RSA No. 2376 of 1984 decided on 19.9.2007 it has been held by this court as under:- “The Hon'ble Full Bench of this Court while deciding the case of Subhash Chander Vs. State of Punjab 1982 Punjab Law Reporter 315 has been pleased to lay down as under:- Having held as above, it seems to be plain that in this set of R.S.A. No. 1669 of 1987 7 writ petitions, a tangled dispute on facts is sought to be raised on behalf of the respondents. The claim to lead evidence to rebut the presumption, if any, under Section 42 has not only been raised, but strenuously pressed, I am unable to deny this right to the respondents and even otherwise find it inapt to enter the thicket of controversial facts and the evidence that may have to be led by the parties. Respectfully following the settled line of precedent in this Court in Khushal Singh and other's case and Dr. Shanti Saroop Sharma and another's case and M/s Amar Singh Modi Lal's case(supra) I would dismiss the writ petitions and relegate the petitioners to the remedy of establishing their claims in appropriate proceedings in a revenue or civil Court as they may be advised. Thus, it would be seen that the Full Bench of this Court did not hold that by way of mere declaration of brick earth as a minor mineral, any right vests in the State Government. The evidence brought on record in the present case clearly showed that the brick earth did not best in the State Government though it was declared to be a minor mineral. Therefore, the same vested in the ownership of land owners which did not give any right to the State Government to claim royalty.” In State of Punjab and another Vs. Mohan Lal 2009(4) Recent Civil Reports(Civil) 841 it has been observed by this Court that “entries in Wajib-Ul-Arz did not provide that brick earth belonged to Government. Where in any record-of-rights completed after 18.11.1871, it R.S.A. No. 1669 of 1987 8 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 owner, who is not liable to pay royalty for removal of brick earth.” As noticed earlier, in the instant one, in Ex.D-6, it has no where been mentioned that the brick earth vests in the State Government. Therefore, the presumption arises that the same belongs to the land owners. This presumption having not been rebutted by the State Government, it has to be held that the State Government being not the owner of the brick earth cannot claim any royalty over the brick earth from the plaintiff-respondent. In view of the preceding discussion, the substantial questions of law stand answered in favour of the plaintiff-respondent and against the appellants-defendants. Consequently, this appeal fails and is dismissed. (HARBANS LAL) JUDGE July 16, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes