Surinder Singh vs State of Punjab and Others

Dr. Shekher Dhawan, J.—The present Regular Second Appeal is against the judgment and decree dated 15.06.1988 by the learned Additional District Judge, Hoshiarpur whereby the appeal filed by the plaintiff-appellant was dismissed. For convenience sake, hereinafter parties will be referred to as they were arrayed in the trial court i.e. appellant as plaintiff and respondents as defendants.

Brief facts of this case are that the plaintiff filed a suit for declaration that right to assess and demand royalty on manufacturing and sales of bricks did not vest in the State and defendant No. 2 i.e. the Mining Officer, Department of Industries, Punjab is not competent to issue notice. As per plaintiff, he was having a license for sale of bricks. The land from where the bricks were being excavated was owned by Charan Singh and was with him on leave. Defendant No. 2 issued notice for assessing royalty treating the brick earth having been vested in the State. However, the defendant is not competent to demand and recover the royalty. The excavation of earth being used by the plaintiff for manufacturing the bricks is not a minor mineral. More so, the action of defendant No. 2 is against the entry recorded in wajab-ul-arz of the village.

The defendants contested the suit taking the preliminary objections that the brick earth has been declared as minor mineral vide Government of India notification dated 01.06.1958. The said notification has been upheld by the Supreme Court and, as such, the Punjab Government is competent to charge royalty on all the minerals including brick earth. As per the entries of the Sharait-Wajab-Ul-Arz of village Bullewal Rathan, Tehsil Garhshankar, District Hoshiarpur of the year 1852 read with Section 42(1) of the Punjab Land Revenue Act, 1887, the right to all the minerals without any exception vest with the Government. The plea was also taken that the suit was not maintainable as the same was not in proper form.

The learned trial Court framed the following issues:

"1. Whether the quarry right of brick kiln lies with the plaintiff? OPP

Whether brick kiln is a minor mineral? OPP

Whether the defendant is not competent to issue notice to assess to recover royalty? OPP

Whether the civil court has no jurisdiction to entertain the suit? OPD

Whether the suit is bad for non-joinder of the necessary parties? OPP

Relief."

The parties led their respective evidence. However, issues No. 1, 2 and 3 were decided against the plaintiff whereas issue No. 4 was decided in favor of the defendants and against the plaintiff and issue No. 5 was not pressed before the learned trial Court and, consequently, the suit of the plaintiff was dismissed.

The plaintiff remained un-successful as his first appeal was dismissed by the learned Additional District Judge. Hoshiarpur on 07.03.1989. Hence this Regular Second Appeal.

I have heard learned counsel for the parties and perused the record of the case.

When appeal was admitted, no substantial questions of law were framed. However, during the course of arguments, the following substantial question of law arises for consideration:

"1. Whether brick earth excavated from private land would vest in State by virtue of notification dated 01.06.1958?

Whether the State is entitled to claim royalty on the brick earth extracted by brick kiln owner?"

The learned counsel for the plaintiff-appellant took the plea that the matter in controversy has been recently decided as per judgment from Hon''ble the Supreme Court in case of State of Punjab Vs. Vishkarma and Co. and Others, and it was held as under:

"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 corned 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 present appeals have amen 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 pending 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 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 18th day of November, 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 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."

Learned State counsel has not disputed the fact that after passing the judgment by the learned Appellate Court, the controversy has been set at rest as per judgment from Hon''ble Supreme Court.

I have considered the arguments raised by learned counsel for the parties.

Admittedly, the brick earth has been declared as minor mineral vide notification dated 01.06.1958. It is also an admitted fact that the land from which brick earth has been excavated belongs to private owner and plaintiff is lessee thereon. In such circumstances, provisions of Section 42 of the Land Revenue Act become relevant to determine whether brick earth vests in State or landowner. Section 42 of the Punjab Land Revenue Act is reproduced below:

"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.

(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 in which there existed, and the assessment of village 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."

Further, in the State of Punjab and others v. M/s. Ram Dass Bhagwan Dass, (2012-1) 165 P.L.R. 399 while referring to the notification dated 01.06.1958, this Court has categorically held that mere declaration of brick earth as minor mineral by way of notification in itself shall not create any right with the State Government to claim royalty because of the reason that ownership of the same will be vested in the landowners if there was no entry in the shariat-wajib-ul-arz to the contrary.

The law laid down in aforesaid thus provides clear answer to the question of law raised in this case. Brick earth excavated from private land would not vest in State. Mere entry that all types of minerals discovered in future shall vest in State is just a vague entry and cannot be used to defeat the non-rebuttable presumption of law created in favor of landowner under Section 42(2) of the Punjab Land Revenue Act, 1887. In view of the above, the findings recorded by the learned trial Court on issues No. 1 to 3 and remaining issues, are hereby set aside. Resultantly, the present Regular Second Appeal is accepted and the judgment and decree passed by the learned Senior Sub Judge, Hoshiarpur dated 25.05.1988 and judgment and decree passed by learned Additional District Judge, Hoshiarpur dated 07.03.1989 are set aside and the suit filed by the plaintiff for declaration that the State of Punjab has no right to assess and demand royalty on manufacturing and sales of bricks did not vest in the State and defendant No. 2 is not to competent to issue notice is hereby decreed.