The presumption of ownership under Section 42 (2) of the Punjab Land Revenue Act applies to minor minerals (sand, stones, and bajri) that are not expressly included in the record-of-rights as belonging to the Government.

ORDER :- These are three connected writ petitions in which the petitioners claim to be the owners of minor minerals namely sand, stones and bajri, which are found underneath the lands belonging to them and described in the three petitions. They have called in question the directions of the State of Himachal Pradesh and the Director of Industries which are two of the respondents, whereby the said minor minerals are being put to auctions under separate notifications and the petitioners pray that the said directions regarding auctions be set aside and that the respondents should not interfere with the petitioners right to extract these minor minerals from these lands.

2. C. W. P. No. 76 of 1971 pertains to village Surajpur, C. W. P. No. 77 of 1971 pertains to village Sirath and C. W. P. No. 78 of 1971 pertains to village Mohtli, all in Tehsil Nurpur, District Kangra.

3. The petitioners who are the owners of the disputed lands contend that sand, stones and Bajri have been excluded from the record of rights prepared in the settlement of 1918 and in view of Section 42 (2) of the Punjab Land Revenue Act the presumption of ownership arises in their favour. As such the respondents not being the owners of the minor minerals could not make any directions for public auctions in regard to the same. The petitioners who are landowners have executed registered leases in favour of other petitioners and according to them these leases are to be held valid and the lessees cannot be restrained from extracting the minor minerals.

4. According to the petitioners the respondents have issued directions for granting leases by public auctions under Section 15 (1) of the Minor Minerals (Regulations and Development) Act, 67 of 1957. The respondents in fact, have no jurisdiction according to them to grant such mining leases. In this manner, the petitioners have been deprived of their property without any payment of compensation and the action of the respondents is violative of Arts. 19 (f) and (g) and Art. 31 of the Constitution of India.

5. In the three writ petitions the prayer is that the respondents be restrained from auctioning the minor minerals and also from interfering with the petitioners in the exercise of their rights to extract, sell and otherwise dispose of minor minerals found underneath the lands.

6. Before adverting to the respective contentions of the parties, it appears appropriate to set out Sec. 42 (2) of the Punjab Land Revenue Act :-

"42 (2). When in any record-of-rights completed after that date it is not expressely provided that any forest or quarry or any such land or interest belongs to the Government it shall be presumed to belong to the landowner".

6-A. The Wajub-ul-arj entry which is a record-of-rights and pertains to the year 1918 stands in the following terms :-

"Copy of Wajub-ul-arj relating to the village Surajpur, Tikka Chhani, Tehsil Nurpur, District Kangra, Hadbast No.125 for the settlement to the year 1918. Section 15. Explanation :-In respect of the rights of the Government relating to the ownership in Nazul (Government property) or unclaimed property or unoccupied land or quarry of

The entire Nazul (Government lands and property) and quarries of lime, kanker, black stone (kalapather) slate of every kind whether these are found over or beneath the land and the ruinous property or ancient monuments or wild growth or other relative rights unclaimed property or unoccupied land or quarry of monuments or wild growth or other relative rights stones, ruined property or ancient monuments or wild growth of the land or other profits arising out of the land. belong to the Government No reservation has been made in the Settlement about this.

7. In the year 1935 a dispute arose for determination of ownership of these minor minerals with reference to the Wajub-ul-arj entry and the decision was made on 20th September, 1935 by the Financial Commissioner of Punjab. A copy of that decision is reproduced below:-

"Copy of letter No. 2153-R/