R.S.A. No. 498 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 498 of 1988 Date of decision: 20-7-2010 State of Punjab and Others ......... Appellants Vs Jawahar Lal .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Advocate General Punjab, for the appellants Mr. D.D.Bansal, Advocate, for the respondent HARBANS LAL, J. This appeal is directed against the judgment/decree dated 1.10.1987 passed by the court of learned Additional District Judge, Bathinda whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/decree dated 8.12.1986 rendered by the court of learned Additional Senior Sub Judge, Bathinda vide which he decreed the suit of the plaintiff Jawahar Lal for permanent injunction restraining the defendants from making the recovery of Rs.5720.94 as royalty on the brick earth and further held that the notice dated 8.8.1984 demanding the amount is void and illegal. The factual matrix is that the plaintiff has installed a brick-kiln in the land of village Bhagwangarh after he took the same on lease from its landowner. The assessment made by the defendant Mining Officer, Department of Industries Punjab to the tune of Rs.5720.94 is void, ultra R.S.A. No. 498 of 1988 2 vires, inoperative on the grounds detailed in the plaint. On these allegations, the suit has been filed for permanent injunction restraining the defendants from assessing, levying or recovering any royalty from the plaintiff for brick earth utilized by him for bricks and the notice dated 8.8.1984 issued by the defendant Mining Officer, Department of Industries Punjab for payment of royalty of Rs.5720.94 is void and illegal. In their joint written statement, the defendants have inter alia, pleaded that the brick earth being minor mineral vests in the Government and that being so, the assessment impugned is perfectly valid. On the pleadings of the parties, the following issues were framed:- 1. Whether the notice issued by the defendants to the plaintiff for payment of the royalty of the brick earth is void, illegal?OPP 2. Whether the plaintiff is entitled to the injunction prayed for?OPP 3. Whether the Civil Court has no jurisdiction to try this suit under Section 158 of the Land Revenue Act?OPD 4. Whether the suit is not maintainable under Section 41(4) of the Specific Relief Act?OPD 5. Whether the suit is barred on the grounds mentioned in para 4 of the preliminary objections in the written statement?OPD 6. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court partly decreed the suit as noticed at the outset. Feeling aggrieved therewith, the defendants went up in appeal, R.S.A. No. 498 of 1988 3 which was dismissed by the learned Additional District Judge, Bathinda. Being dissatisfied with the judgments recorded by both the courts below, the defendants have preferred this appeal. The following substantial question of law arises for determination:- “Whether the brick earth in village Bhagwangarh is a minor mineral and the State of Punjab has right/authority to charge royalty in relation thereto?” I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C.Goyal learned Additional Advocate General Punjab on behalf of the appellants strenuously urged that the brick earth falls within the definition of minor Mineral. As per entries in the Wazib-ul-Arz Ex.P-2, the right to all the minerals vest in the State Government. Thus, the Courts below have gravely erred in decreeing the suit of the plaintiff-respondent. To controvert these submissions Mr. D.D.Bansal, Advocate appearing for the respondent maintained that in Ex.P-2 Wazib-ul-Arz, brick earth is not specifically mentioned. As such, it does not lie in the mouth of Mr. Goyal to contend that the brick earth is included in the minor mineral and thus, vests in the State. This contention merits acceptance for the reasons to be recorded hereinafter. Of course, vide Ex.D-1 the copy of the notification dated 1.6.1958 brick earth has been declared to be a minor mineral by the Central Government and this notification has been held to be valid by the Apex R.S.A. No. 498 of 1988 4 Court in M/s Banarsi Dass Chadha and Bros. Vs. Lt. Governor, Delhi Admn. and others AIR 1978 Supreme Court 1587. Section 42 of the Punjab Land Revenue Act, 1887 in so far as is relevant for 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.” The Wazib-ul-Arz Ex.P-2 reads as under:- “In our village there is no nazul land owned by the Government, nor there is any forest, coal mine. But, if in future, any such thing and any stone, mine etc. is discovered on the surface or /under the surface, it shall be owned by the Government.” Admittedly, this Wazib-ul-Arz was prepared during the consolidation after 18.11.1871. Ostensibly, there is no reference with regard to the brick earth in the afore referred entry existing in the Wazib-ul-Arz. It is, therefore, very R.S.A. No. 498 of 1988 5 difficult to say that the brick earth vests in the State Government. By no stretch of speculation, brick earth can be deemed to be included in the word mine, which is a place from which minerals are dug out. If the brick earth was to be included in the word “mine”, there was no necessity for declaring it separately as minor mineral by the Government by way of notification Ex.D-1. Had it been the intention to include the brick earth in Ex.P-2, in that eventuality, it would have been so mentioned therein with specificity. Furthermore, the presumption arising under Section 42(2) ibid being rebuttable the State could rebut it by adducing evidence, which is lacking. In The State of Punjab Vs. M/s Vishkarma and Co. etc. Judgments Today 1993(1)SC 448 Hon'ble Supreme Court has held as under:- “9. In our view, when all the courts below have concurrently recorded findings to the effect that the ownership of the brick- earth belong to land-owners and not the State on a correct appreciation of all evidence adduced in the case and on a proper application of law governing the same, there could be no justification to interfere with such findings in these appeals. We are also not shown any valid reason as to why we should set aside the lower courts judgments and decrees and send the matters to the Courts of first instance with a direction to permit the State to adduce rebuttal evidence as regards entries in the record-of-rights.” The contention raised on behalf of the appellants that vide Ex.D-1 brick earth has been declared to be minor mineral in itself is not R.S.A. No. 498 of 1988 6 enough to confer right upon the State to claim royalty on it, when the Wazib-ul-Arz Ex.P-2 is absolutely cryptic about the expression brick earth. Furthermore, in Subhash Chander Vs. State of Punjab 1982 Revenue Law Reporter 315 it has been held as under:- “Having held as above, it seems to be plain that in this set of 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.” It necessarily follows from the above observations that Full Bench of this Court has not held that by way of mere declaration of brick-earth as minor mineral, any right vests in the State Government. Here in the absence of any evidence on the record to show that brick earth vest in the State Government, it has to be held that the same vest in the ownership of the landowners, which does not give any right to the State Government to claim R.S.A. No. 498 of 1988 7 any royalty. The reference be also made to State of Punjab and another Vs. Mohan Lal 2009(4) Recent Civil Reporter(Civil) 841. In the ultimate analysis, it boils down that the findings returned by both the courts below warrant no interference. Accordingly, the substantial question of law stands answered in favour of the plaintiff- respondent and against the defendants-appellants. In the result, this appeal being devoid of any merit fails and is dismissed with no order as to costs. (HARBANS LAL) JUDGE July 20, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes