State of Punjab and another vs Mohan Lal

Mrs. Sabina, J.

Plaintiff Mohan Lal filed a suit for declaration, which was decreed by the Sub Judge III Class (A), Bathinda vide judgment and decree dated 29.5.1984. In appeal, the said judgment and decree were upheld by the Additional District Judge, Bathinda vide judgment and decree dated 7.9.2007. Hence, the present appeal by the defendants.

Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under :

"2. The brief facts of the case of plaintiff are that plaintiff has been manufacturing bricks, by taking the land on lease therefore from private owners. That the defendants made the assessment, vide impugned notice dated 28.12.1982, which is illegal, null and void. That no part of the land vests in the State Government. That according to the entries in the Sharait WajibUl Arz, the brick earth or minerals do not belong to the Government and Section 42 (2) of the Punjab Lal Revenue Act, 1887 vests the same in the land owners. That the defendants are not entitled to raise the demand of royalty from the plaintiff. The plaintiff has prayed for a decree for permanent injunction against the defendants.

Notice of this suit was served upon the defendants appeared and filed the written statement, vide which, they contested the suit of the plaintiff. It was averred in the preliminary objections that the jurisdiction of the civil court is barred under Section 158 of the Punjab Land Revenue Act, 1887 and under Section 25 of the Mines and Mineral (Regulation and Development) Act, 1957. That notice under Section 80 CPC has not been served upon the defendants in this case before filing this suit and suit is not maintainable. That suit is bad for nonjoinder of necessary parties. That brick earth is included in the definition of minerals and is vested in the State Government. The defendants further averred in the written statement on merits, that a notice in formR under Rule 54(c) of the Punjab Minor Minerals Concession Rules, 1964 has been correctly served upon the plaintiff. That the demand of Rs. 11,48096 has been correctly raised by the defendants from the plaintiff. The defendants prayed for dismissal of the suit of the plaintiff."

On the pleadings of the parties, following issues were framed by the trial Court :

"1. Whether the assessment made by defendant No. 2 vide notice dated 28.12.1982 is illegal, void ultra vires etc. ? OPP

Whether the plaintiff is entitled to injunction prayed for ? OPP

Whether the suit is not maintainable in the present form ? OPD

Whether the Court has no jurisdiction ? OPD

Whether the suit is liable to be dismissed for want of notice under Section 80 CPC ? OPD

Whether the suit is bad for nonjoinder of necessary parties ? OPD

Relief. "

After hearing learned State counsel, I am of the opinion that the present appeal is devoid of any merits and deserves to be dismissed.

Plaintiff Mohan Lal had filed a suit challenging notice dated 28.12.1982 issued by defendant No. 2. Reliance was placed on entry in the Sharait Wajib UlArz Ex.P4, wherein it was not mentioned that brick earth was owned by the Government. On the other hand, the case of the appellants was that the brick earth had been declared as minerals by the State Government vide notification Ex.D1 and hence, the demand of royalty from the plaintiff had been rightly raised.

Section 42, Sub Section 1 and 2 of the Punjab Land Revenue Act, 1887 reads as under :

"1. When in any recordofrights completed before the eighteenth day of November, 1871, it is not expressly provided that any forest, quary, unclaimed, unoccupied, deserted or waste land, spontaneous produce or other accessory interest in land belongs to the landowners, it shall be presumed to belong to the Government.

When in any recordofrights 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 landowners."

Thus, as per the said provision, wherein any recordofrights completed after 18.11.71, it 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 owners. Both the Courts below, after appreciating the entries in the WajibUlArz Ex.P 4, have given a finding of fact that the same did not provide that the brick earth belonged to the Government.

Reliance was placed by both the Courts below on a Full Bench decision of this Court in M/s Subhash Chander v. State of Punjab and others, reported in 1982 (84) PLR page 729, wherein it was held as under :

"To conclude on this aspect, it must be held that the rival claims of the parties over the vesting of brickearth are not constricted to adjudication only on the basis of the entries in the wajibularz of the revenue estate and the claim to rebut the presumptions raised in Section 42 of the Punjab Land Revenue Act, 1887 by evidence in a Court of law cannot be summarily ousted. The answer to the first question posed at the very outset has, therefore, to be rendered in the negative."

It was also held that each disputed case of the vesting of minor minerals has, therefore, to be decided on the basis of the evidence led by the parties including, of course, the relevant entries in the revenue record.

The Apex Court in State of Punjab v. M/s Vishkarma and Co. and others, 1993(2) RRR 38 : 1993 Supp (3) SCC 62, has held as under :

"7. Brickearth 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 brickearth is the State of Punjab, liability to pay royalty for removal of such brickearth 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 brickearth 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 landowners. It is so found on their reading of the entries in Wajibularz pertaining to the concerned estates. That Wajibularz is a document included in the recordofrights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of subsection (2) of Section 31 of the Act. According to the Courts below Wajibularz document being recordofrights 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 belong to the Government, the land in such estates including brickearth in them shall be presumed to belong to the concerned landowners as is declared in subsection (2) of Section 42 of the Revenue Act.

Again, it is pointed out by the courts that there being no provision similar to the provision in subsection (3) which permits adducing of rebuttal evidence against the presumption that the lands belong to the State under subsection (1) of Section 42 of the Revenue Act, the presumption which arises under subsection (2) of Section 42 of the Revenue Act that the forest or quarry or land or interest belong to 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 Wajibularz document recordof rights relating to the estates of lands whose brickearth 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 brickearth in the lands of the estates concerned has become the property of the State, so as to require the brick manufacturers to pay royalty for removal of such brickearth and obtain permits or licence under the Rules"

In these circumstances, the Courts below had rightly decreed the suit of the plaintiff.

No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed.