Janta Brick Kiln Co. and Another vs The State of Punjab and Others

N.K. Agrawal, J.—This writ petition has been filed by two brick-kiln companies under Articles 226/227 of the Constitution seeking a direction that the respondents had no jurisdiction and power to issue notice for assessment and to recover royalty on brick-earth as a minor mineral. Demand notice dated 21.5.1981 issued to the petitioners to deposit royalty amounting to Rs. 7611/- for the period 14.9.1977 to 31.3.1979, is sought to be quashed.

The petitioners in the present petition were running brick-kilns at village Sardulgarh, Tehsil Mansa, District Bhatinda, and extracted brick-earth from the land taken on lease from private land-owners. The Mining Officer of the Department of Industries, Government of Punjab, made assessment of royalty at Rs. 7611/- and issued the demand notice.

The petitioners'' case is that the State was not the owner of brick-earth of the land on which the petitioners carried on work of brick-kiln. The land vested in the land-owners and so did the brick-earth. The State had no right to recover any royalty from the petitioners on the brick-earth. It is pointed out that there was no provision for recovering royalty on brick-earth in the Mines and Minerals (Regulation and Development) Act, 1957, or in the Punjab Minor Mineral Concession Rules, 1964, Brick-earth, as a minor mineral, does not vest in the State.

The question about the leviability of royalty was earlier examined by a Full Bench of this Court in Civil Writ Petition No. 894 of 1981 and several other petitions and, vide judgment dated 3.6.1982, it was held that the claim in respect of the vesting of brick-earth is to be established on the basis of evidence in a Court of law and not merely on the basis of entries in the Sharait-wajib-ul-arz of the revenue estate. The aforesaid decision was challenged before the Supreme Court. The cases were remanded by the Supreme Court to the High Court to adjudicate upon the question of proper interpretation of the relevant entries in Wajib-ul-arz on the basis of evidence of the parties. Matters were, therefore, decided afresh by learned Single Judge of this High Court after considering the evidence of the rival parties. Against the decision of the Single Judge, letters patent appeals were filed. A Division Bench of this Court heard Letter Patent Appeal No. 622 of 1986 (The State of Punjab and Ors. v. Subhash Chander) and several other Letters Patent Appeals and, after examining various provisions of the Punjab Land Revenue Act, 1887, observed that Sharait-wajib-ul-arz was included in the record of rights of an estate. The Division Bench, vide judgment dated 24.8.1990, then took the view that brick-earth belonged to and vested in the land-owners and proprietors of the land. Reliance was placed on Amar Singh Modi Lal Vs. State of Haryana and Others, ; State of Punjab through the Collector, Hoshiarpur v. Shadi Lal and Ors. 1985(1) LLR 265; and Punjab State through the Collector, Hoshiarpur v. Jagdish Chander and Anr. (1983)85 PLR 695. It was held that, according to sharait-wajib-ul-arz, the brick-earth did not vest in the State and vested in the land-owners. It was further held that State Government would be only entitled to charge revenue under the Punjab Land Revenue (Special Assessment) Act, 1955, but would not be entitled to charge any royalty.

The question about the right of Government in the mines and minerals and about the levy of royalty off brick-earth came to be examined by the Supreme Court in State of Punjab Vs. Vishkarma and Co. and Others, It was observed in paragraph 7 of the judgment as under;-

"Brick-earth with which we are concerned in the present appeals, is a minor mineral and 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 land-owners. It is so found on their reading of the entries in Wajib-ul-arz pertaining to the concerned estates. 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 subjection (2) of Section 31 of the Act. According to the Courts below, Wajib-ul-arz document being record-of-rights of estates completed after 18th day of November, 1871, and there being nothing expressly stated in them that forest or quarry or land or interest in the estates belong to the Government, the lands in such estates including brick-earth in them shall be presumed to belong to the concerned land-owners as is declared in Sub-section (2) of Section 42 of the Revenue Act."

The respondents have not been able to place on record any document to show that the land in question, from which brick-earth has been lifted or extracted by the petitioners for the purpose of manufacturing bricks, did not belong to land-owners but to the State. In such a situation, the Full Bench decision of this Court as well as the decision of the Supreme Court are found to be applicable in favour of the petitioners. The mere plea raised in the joint reply, filed by the respondents, that all rights in the quarries on or beneath the land vested in the State would not enable this Court to take a different view than what has been decided earlier. If the respondents want to distinguish this case, it would be necessary to put on record the documents of the Revenue Department which establish that the land in dispute vested in the State and was outside the purview of the Wajib-ul-arz.

In the result, the writ petition is allowed and the order, demanding royalty on the brick-earth from the petitioners, is quashed. No order as to costs.