TYAGI, J.—M/s. Brimco Bricks, Bharatpur, has filed this writ petition under Art. 226 of the Constitution The main business of this firm is to manufacture bricks from brick earth. It is said that the petitioner firm has agricultural lands in its Khatedari bearing Khasra Nos. 891, 892, 893 and 907 to 916 in the town of Bharatpur. Since 1958 this firm is manufacturing bricks and the brick earth is taken out from its agricultural fields. According to the petitioners contention, the Government of Rajasthan in the beginning used to collect royalty on the brick manufactured by the petitioner firm through one Hardwarilal Thekedar, but this practice was given up by the Mining Department after 1965 and thereafter the Department itself started raising demands for the payment of royalty from the petitioner. From the correspondence exchanged between the petitioner firm and the department, it transpires that the petitioner firm was prepared to pay the royalty but it objected to the quantum of the demands raised by the department. Since the amount of royalty could not be settled between the parties, the petitioner has challenged the authority of the department to realise the royalty from the petitioner, inter alia, on the grounds [1] that the petitioner firm is not holding any lease from the department and, therefore, the department is not entitled under the Rajasthan Minor Mineral Concession Rules, 1959, to realise royalty from it; (2) that the rates of royalty as fixed by the Rajasthan Minor Mineral Concession Rules, 1959, cannot be applied to the petitioner firm as the State Government was not competent to prescribe the rate of royalty under sec. 15 of the Mines and Minerals [Regulation and Development] Act, 1957 [hereinafter called the Act] under which the said Rules were framed ; and [3] that brick-earth is not a mineral as is clear from the 1959 Rules issued by the State Government. According to the petitioner, it is murrum brick earth which is described as a mineral and not brick-earth simpli-citer and since the petitioner is using only brick earth for the manufacture of the bricks the department cannot demand any royalty under the provisions of Minor Mineral Concession Rules.

2. It is, therefore, prayed that the Rajasthan Minor Mineral Concession Rules, 1959, in so far as they relate to the grant of leases for the manufacture of brick earth and imposition of royalty thereon be declared ultra vires sec. 15 of the Act and are invalid. It is also prayed that by issuing a writ of prohibition the respondents may be restrained from making any demand for the payment of royalty on the manufacture of bricks by the petitioner.

3. The department, while filing a reply to this petition, has denied the Khatedari rights of the firm in the lands from where it takes brick-earth for the manufacture of bricks. This ground of the petitioner also has been vehemently challenged by the department that the petitioner has no obligation under the Rajasthan Minor Mineral Concession Rules to pay royalty to the department for the use of the brick-earth which is undoubtedly a mineral under the definition given both by the Mineral Concession Rules, 1949 and the Rajasthan Minor Mineral Concession Rules, 1959. It is also contended that sec. 15 of the Act empowers the State Governments to regulate the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith by issuing notification and it is under this power that the Rajasthan Government has framed the Rajasthan Minor Mineral Concession Rules, 1959, regulating the grant of prospecting licences and mining leases and the payment of royalty is intimately connected with regulating the grant of licences and leases.

4. This is a common ground that the petitioner has been regularly manufacturing bricks without obtaining a valid licence under the Rules of 1959 and it used to pay royalty to the State through Hardwarilal who was appointed by the Mining Department to realise

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