Navaniti Prasad Singh, J.

1. In both these writ applications a common question arise as such they have been heard together.

2. The petitioner is a company engaged in large scale civil construction work. As a part of its business, it had undertaken certain work from National Highway Authority of India (NHAI) for repairing and strengthening the road of National Highway. In both these cases, the agreement as entered into between the parties, that is the petitioner and the National Highway Authority of India, were admittedly entered into prior to 19.4.2006, which date is a material date and of some significance as would be seen later.

3. In course of executing their work agreement petitioner was required to strengthen the embankments of the National Highway. For this purpose, they were required to use substantial quantity of earth. The petitioner entered into agreement with nearby raiyats, who permitted petitioner to remove earth from their raiyati lands. Some wanted irrigation ditch to be created, some wanted ponds to be created and some wanted some embankments to be created, but the common underlying fact was that petitioner was permitted by the raiyats to remove earth on payment for facilitating the contract, which petitioner had taken from the National Highway Authority of India Limited. The Officers of the Mining Department of the State, on finding that the petitioner was removing earth from various fields nearby and using it, demanded royalty on the ground that petitioner was extracting minor mineral and was as such liable to pay royalty. Initially, petitioner paid but thereafter made a representation for refund pleading that it had paid under mistaken notion of law, whereas in fact, there was no liability. That having not been done and being pressed for further payment these two writ applications were filed in which initially interim stay was granted but later on vacated. The writ applications have now been listed for final disposal after hearing.

4. On the facts aforesaid, learned counsel for the petitioner submits firstly that the petitioner as per agreement with the raiyat had used their earth and paid price thereof to the raiyat, petitioner cannot now be made liable to pay royalty is to the State. Secondly, it was submitted that removing earth with permission of raiyat is not a mining activity, and petitioner not being a lessee or a permit holder, cannot be made to. pay royalty, as royalty is a charge for removing minerals payable by a lessee. It was thirdly submitted that by virtue of Section 3A of the Bihar Lands Reforms Act all rights in land vested in the raiyat and, therefore, a raiyat could validly permit removal of earth from his land and royalty, if any, has to be discharged by the raiyat not the petitioner. It was lastly submitted that agreements with NHAI being of a date prior to the liability being created for the first time, petitioner should not put to loss because of this unanticipated liability, which was not provided for in the agreement under which he was required to use the earth.

5. On the other hand, learned counsel for the State of Bihar relies on the Division Bench judgment of this Court in the case of Hindustan Steel Works Construction Limited & Anr. vs. The State of Bihar & Ors. since reported in 2007(2) PLJR 849 to submit that it is no more open to the petitioner to urge that he is not liable to pay royalty on earth removed for use in his construction activity. It is further pointed out that the raiyati interest of a raiyat in land is limited to tilling the earth for agricultural purposes. So far as minerals are concerned, raiyat has no right in the minerals, which vests in the State. They may be above the ground or below, for example sand or coal, as the case may be. The two rights being distinct by virtue of Bihar Land Reforms Act, the raiyati interest of raiyat has remained intact and specifically all mineral rights and interest therein being vested in the State and, as such, any min