The State Government cannot levy royalty on brick earth unless ownership is established, despite its classification as a minor mineral under the relevant laws.

JUDGMENT :

(Abhay S. Oka, J.)

FACTUAL ASPECT

1. The appellants are the original defendants, and the respondents are the original plaintiffs. The respondents filed suits against the appellants for a permanent injunction restraining them from assessing, levying or recovering any amount as royalty from the respondents on account of the use of earth by the respondents for making bricks. According to the respondents who were operating brick kilns, they took different lands (for short, ‘the said lands’) from private owners on lease. The respondents used to excavate earth from the said lands to manufacture bricks in their brick kilns. The respondents' case was that no part of the land was vested in the Government and according to the Wajib-ul-arz, brick earth does not belong to the State Government. Reliance was placed on Section 42 of the Punjab Land Revenue Act, 1887 (for short, ‘the Land Revenue Act’) and, in particular, sub-section (2) thereof. It was further contended that under the Mines and Mineral (Regulations and Development) Act, 1957 (for short, ‘the 1957 Act’) or under the Punjab Minor Mineral Concession Rules, 1964 (for short, ‘the Mineral Rules’), there was no provision entitling the first appellant – State Government to levy royalty on the use of brick earth. The respondents contended that the appellants' action of assessing royalty and sending notices for recovery was illegal.

2. The appellants resisted the suit by filing their written statements. It was contended that the Civil Court had no jurisdiction to entertain the suit in view of Rule 54F of the Mineral Rules, which provides a remedy of appeal against orders of assessment of royalty. The appellants also raised objections to the maintainability of suit on the ground of non-joinder of necessary parties. It was contended that the respondents had failed to implead the owners of the said lands. The appellants further challenged the maintainability of the suit for want of a notice under Section 80 of the Civil Procedural Code, 1908. On merits, it was contended that according to Wajib-ul-arz of the village Jallalabad, every mineral, including brick earth, vests in the first appellant – State Government in accordance with Section 42 (2) of the Land Revenue Act. The appellants also contended that under Section 15 of the 1957 Act, the State Government was empowered to make Rules for making a provision for charging royalty. Accordingly, under the Mineral Rules framed by the State Government, the appellants were entitled to levy royalty.

3. The Trial Court dismissed the suit vide judgement dated 22nd August 1983. The Trial Court rejected the appellants' preliminary objections regarding the bar of suit and non- maintainability of the suit. The Trial Court held that on the plain reading of Section 42 of the Land Revenue Act, in a case where the record of rights was completed before November 18, 1871, and there is no express provision made therein that any forest or quarry belongs to the landowners, the same shall be presumed to belong to the State. The Trial Court held that the record of rights regarding the land in question was made before 18th November 1871, and since the Wajib-ul-arz did not specify that the quarries belonged to the land owners, it was held that the subject quarry is vested in the State Government in terms of Section 42 (1) of the Land Revenue Act. The Trial Court further held that by a notification issued under Section 3(e) of the 1957 Act, brick earth was declared a minor mineral. The Trial Court held that even though the settlement in the years 1911-12 and 1962-63 did not show the subject land as a quarry, that was not significant as, at that time, brick earth was not declared as a minor mineral.

4. The decree passed by the Trial Court was confirmed in the appeal preferred by the respondents by the learned Additional District Judge vide judgement dated 18th April 1984. The First Appellate Court observed that both the appellants and respondents had produced