Present: Mr. Alok JaIn Additional Advocate General Punjab, Vs. State of Punjab and Others .... Appellants - Court Judgment

SooperKanoon Citationsooperkanoon.com/1049999
CourtPunjab and Haryana High Court
Decided OnAug-21-2013
AppellantPresent: Mr. Alok JaIn Additional Advocate General Punjab,
RespondentState of Punjab and Others .... Appellants
Excerpt:
r.s.a.no.409 of 1988 -1- in the high court of punjab and haryana at chandigarh ***** r.s.a.no.409 of 1988 date of decision:21. 08.2013 state of punjab and others ...appellants versus amar nath ...respondent coram: hon’ble mr.justice mahavir s. chauhan. present: mr.alok jain, additional advocate general, punjab, for the appellants. none for the respondent. ***** mahavir s. chauhan, j. plaintiff-respondent, amar nath took on lease a piece of land and set up a brick kiln thereon. on receipt of a notice dated 24.01.1985, exhibit p1, from mining officer, defendant-appellant no.2, thereby demanding royalty amounting to rs.11,587.20 on the brick earth, he brought civil suit no.411 of 19.07.1986/r.t.no.74 dated 11.02.1987 before the learned additional senior sub judge, bathinda (hereinafter referred to as 'the trial court') to seek a declaration that the notice was illegal and inoperative as the land, from which excavation was done, belonged to private persons and not to the state government; and a decree of perpetual prohibitory injunction to restrain defendants- appellants from assessing, levying or recovering from him the amount of royalty. defendants-appellants contested the suit saying that demand of royalty was justified as the brick earth was a minot mineral and vested in the government, besides raising objections to jurisdiction of the civil court, maintainability of the suit and non-compliance of section 80 of the virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -2- code of civil procedure (for short, the code).the learned trial court on the basis of pleadings of the parties formulated issues as under:-“1. whether impugned notice dated 24.1.85 calling upon the plaintiff to make payment as royalty on brick earth is void illegal and on the grounds mentioned in the plaint?. opp. 2) whether the plaintiff is entitled to injunction prayed for?. opp. 3) whether the civil court jurisdiction is barred under section 158 of the punjab land revenue act?. opd. 4) whether the suit is barred under section 41(4) of the specific relief act?. opd. 5) whether the jurisdiction of the civil court is barred under the punjab minot minerals (concession) rules?. opd. 6) relief.” parties adduced evidence and were heard by the learned trial court. learned trial court returned findings on all the issues in favour of the respondent and, vide judgment and decree dated 11.03.1987, decreed his suit of the declaring notice of demand dated 24.01.1985, exhibit p1, as null and void and restraining the appellants from making recovery from him of the amount of rs.11,587.20 as royalty on the brick earth. however, no order as to costs was passed. civil appeal no.79 of 04.05.1987 brought by the defendant-appellants was also dismissed by the learned additional district judge, bathinda (hereinafter referred to as 'the appellate court').vide judgment and decree dated 29.09.1987. to assail the findings recorded by the courts virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -3- below, appellants are before this court by way of the instant regular second appeal. nobody appears on behalf of the respondent. i have heard shri alok jain, learned additional advocate general, punjab, and have perused the record. learned additional advocate general, representing the appellants, relies upon sub-section (2) of section 42 of the punjab land revenue act, 1887, (hereinafter referred to as 'the act').to impress that the record of rights, i.e.wajib-ul-arz (ex.p-2) has been completed after 18th day of november, 1871, and it is expressly provided therein that, if any mine, kankar over or under the earth is discovered the same shall be owned by the government”., and that being so findings with regard to brick earth recorded by the courts below cannot be sustained. very true, the wajib-ul-arz (ex.p-2) was prepared in the year 1958,or say after eighteenth day of november, 1871, and it is found recorded therein that: “at present there is no forest, nazual, unclaimed land in the village. however, if any mine, kankar over or under the earth section 42(2) of the act reads as under:- “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. virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -4- (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 landowners.” as wajib-ul-arz (ex.p-2).as aforesaid, was prepared in the year 1958 or say after 18th day of november, 1871, provisions of sub- section (2) of section 42 of the act would apply. the learned trial court, while dealing with the question- whether the brick earth vested in the state, very lucidly interpreted the meaning of contents of wajib-ul-arz as regards the reference to 'mine' appearing therein, by holding: “brick earth is not specifically mentioned therein which would vest in the government. the argument of the learned g.p.for the defendants that brick earth is included in the word 'mine' and as such vests in the state, cannot at all be accepted. the brick earth is admittedly a separate minot miner and by no stretc.of imagination it can be included in the word mine. 'mine' is a place from which minerals are dug. if the brick earth was taken to have been included in the word 'mine', there was no necessity for declaring it separately as minot mineral by the government subsequently through notification in june, 1958. brick earth was also well known at the time when wajib-ul-arz of the village in 1958, was prepared. it could be easily mentioned in the wajib-ul-arz that brick earth would also vest in the government. the fact that it had not been so mentioned in the wajib-ul-arz, amply shows that it was not intended to vest in the government. therefore, the presumption under sub-section 2 of section 42 of the punjab land revenue act, referred above, has to be virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -5- drawn that the brick earth vests in the land owners and not in the government.” the learned firs.appellate court, while relying upon a judgment of this court rendered in the case of m/s.subhash chander versus state of punjab, reported as 1986 slj 354.affirmed the findings so recorded by the learned trial court. indisputably, the brick earth was in existence and was in the knowledge of the appellants when wajib-ul-arz (ex.p-2) was prepared in the year 1958, in spite of that it was not specifically mentioned to vest in the government. learned additional advocate general would argue that the brick earth undoubtedly is a mineral and in the wajib-ul-arz (ex.p-2) it is specifically mentioned that mine or kankar, if any, would vest in the government. he also relies upon a judgment of the hon'ble supreme court of india rendered in the case titled 'b.d.chadha and brothers versus lt. governor, delhi administration', reported as air 197.supreme court 1587, to show that the hon'ble supreme court has held that the government is competent to notify brick earth as minot mineral and, as such, the demand of royalty for excavation of the brick earth cannot be held to be illegal or unreasonable. in 'b.d.chadha and brothers versus lt. governor, delhi administration' (supra) the hon'ble supreme court was examining validity of a notification issued under not mii-ii-159(18)-54-a-ii dated 01.06.1958 (exhibit d1) whereby brick earth was declared to be a minot mineral. in this case power of the government to recover royalty on brick earth was not in issue and, as such, the hon'ble supreme court did not pronounce upon the same. the question that survives in the case on hand virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -6- is with regard to entitlement of the government to claim royalty on excavation of brick earth. it may be added here that in the wajib-ul-arz (ex.p-2).which was prepared in the year 1958, the brick earth, as such, is not mentioned. the brick earth, in fact was declared as a minot mineral vide notification dated 01.06.1958, exhibit d1. if the brick earth is taken to have been included in the word 'mine', as sought to be projected by the learned additional advocate general, there was no necessity for declaring it as minot mineral separately vide notification, exhibit d1, in june, 1958. it is not that brick earth was a hidden thing, rather, it was well known when wajib-ul-arz (exhibit p1) was prepared in 1958 and, thus, it could be easily mentioned in the wajib-ul-arz(exhibit p1) that brick earth would also vest in the government. it, however, was not done. the only inference that can be drawn from the omission to make a mention of brick earth in the wajib-ul-arz(exhibit p1) is that it was not intended to vest in the government. therefore, the presumption that the brick earth belongs to the land owners would arise in terms of sub-section (2) of section 42 of the act. it would be relevant to refer here to a judgment of this court rendered in the case state of punjab versus om parkash, 1985(1) all india land law reporter, 341 (p&h).wherein this court was seized of the question-whether such royalty can be imposed on excavation of brick earth and it was held as under: “in view of the concurrent findings to the two courts below that the minot mineral of brick earth does not vest in the state government, it could not be disputed that the state government could not impose the royalty. moreover, the matter stands covered by virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -7- the judgment of this court reported as punjab state through the collector, hoshiarpur versus jagdish chander and another, (1983) 85 plr 695. it was held therein that the question whether right to a particular mineral vests in the state government or in the owner of the land has to be decided in terms of the wajib-ul-arz of the village in which the brick kilns are situated. in the present case, in the sharat-wajib-ul- arz, it is mentioned that in future any such minot minerals such as kankar, black-stone or other kind of stones are found above or below the soil shall belong to the government. with respect to brick earth, which has been included within the definition of a minot mineral cannot be said to have been found after the aforesaid sharat-wajib-ul-arz was completed. thus, the brick earth all along with remained on the earth. it was, therefore, held by the courts below that the earth which is not included within the definition of minot mineral vested in the owners and not in the state government.” the position of law as adumbrated in om parkash's case (supra) has been reiterated by this court in the case state of punjab and others versus m/s ved parkash and co., air 201.punjab & haryana, 113, m/s.subhash chander versus state of punjab (supra) and a very recent judgment rendered in the state of punjab and others versus pawan kumar and others.(r.s.a.no.1224 of 1987).decided on 08.07.2013. nothing to the contrary could be shown during the cours.of arguments. the question of law 'whether the government is entitled to recover royalty on brick earth' has already been answered in the negative in the cited judgments and no other question of law, much less a virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh r.s.a.no.409 of 1988 -8- substantial question of law, is shown to be involved in this case. therefore, concurrent findings of fact recorded by the courts below cannot be interfered with. in the consequence, findings recorded by the courts below are maintained and affirmed and the present appeal, being without merit, is dismissed. however, in the facts and circumstances of the case, the parties are left to bear their own costs. (mahavir s. chauhan) judge 21 08.2013 adhikari virender singh adhikari 2013.08.30 10:10 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

R.S.A.No.409 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** R.S.A.No.409 of 1988 Date of Decision:

21. 08.2013 State of Punjab and others ...Appellants Versus Amar Nath ...Respondent CORAM: HON’BLE Mr.JUSTICE MAHAVIR S.

CHAUHAN.

Present: Mr.Alok Jain, Additional Advocate General, Punjab, for the appellants.

None for the respondent.

***** MAHAVIR S.

CHAUHAN, J.

Plaintiff-respondent, Amar Nath took on lease a piece of land and set up a brick kiln thereon.

On receipt of a notice dated 24.01.1985, Exhibit P1, from Mining Officer, defendant-appellant No.2, thereby demanding royalty amounting to Rs.11,587.20 on the brick earth, he brought Civil Suit No.411 of 19.07.1986/R.T.No.74 dated 11.02.1987 before the learned Additional Senior Sub Judge, Bathinda (hereinafter referred to as 'the trial Court') to seek a declaration that the notice was illegal and inoperative as the land, from which excavation was done, belonged to private persons and not to the State Government; and a decree of perpetual prohibitory injunction to restrain defendants- appellants from assessing, levying or recovering from him the amount of royalty.

Defendants-appellants contested the suit saying that demand of royalty was justified as the brick earth was a minot mineral and vested in the Government, besides raising objections to jurisdiction of the civil Court, maintainability of the suit and non-compliance of Section 80 of the Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -2- Code of Civil Procedure (for short, the Code).The learned Trial Court on the basis of pleadings of the parties formulated issues as under:-

“1. Whether impugned notice dated 24.1.85 calling upon the plaintiff to make payment as royalty on brick earth is void illegal and on the grounds mentioned in the plaint?.

OPP.

2) Whether the plaintiff is entitled to injunction prayed for?.

OPP.

3) Whether the Civil Court jurisdiction is barred under Section 158 of the Punjab Land Revenue Act?.

OPD.

4) Whether the suit is barred under Section 41(4) of the Specific Relief Act?.

OPD.

5) Whether the jurisdiction of the Civil Court is barred under the Punjab Minot Minerals (Concession) Rules?.

OPD.

6) Relief.”

Parties adduced evidence and were heard by the learned trial Court.

Learned trial Court returned findings on all the issues in favour of the respondent and, vide judgment and decree dated 11.03.1987, decreed his suit of the declaring notice of demand dated 24.01.1985, Exhibit P1, as null and void and restraining the appellants from making recovery from him of the amount of Rs.11,587.20 as royalty on the brick earth.

However, no order as to costs was passed.

Civil Appeal No.79 of 04.05.1987 brought by the defendant-appellants was also dismissed by the learned Additional District Judge, Bathinda (hereinafter referred to as 'the Appellate Court').vide judgment and decree dated 29.09.1987.

To assail the findings recorded by the Courts Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -3- below, appellants are before this Court by way of the instant Regular Second Appeal.

Nobody appears on behalf of the respondent.

I have heard Shri Alok Jain, learned Additional Advocate General, Punjab, and have perused the record.

Learned Additional Advocate General, representing the appellants, relies upon sub-Section (2) of Section 42 of the Punjab Land Revenue Act, 1887, (hereinafter referred to as 'the Act').to impress that the record of rights, i.e.wajib-ul-arz (Ex.P-2) has been completed after 18th day of November, 1871, and it is expressly provided therein that, if any mine, kankar over or under the earth is discovered the same shall be owned by the Government”., and that being so findings with regard to brick earth recorded by the Courts below cannot be sustained.

Very true, the wajib-ul-arz (Ex.P-2) was prepared in the year 1958,or say after eighteenth day of November, 1871, and it is found recorded therein that: “At present there is no forest, nazual, unclaimed land in the village.

However, if any mine, kankar over or under the earth Section 42(2) of the Act reads as under:- “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.

Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -4- (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 landowners.”

As wajib-ul-arz (Ex.P-2).as aforesaid, was prepared in the year 1958 or say after 18th day of November, 1871, provisions of sub- section (2) of Section 42 of the Act would apply.

The learned trial Court, while dealing with the question- whether the brick earth vested in the State, very lucidly interpreted the meaning of contents of wajib-ul-arz as regards the reference to 'mine' appearing therein, by holding: “Brick earth is not specifically mentioned therein which would vest in the Government.

The argument of the learned G.P.for the defendants that brick earth is included in the word 'mine' and as such vests in the State, cannot at all be accepted.

The brick earth is admittedly a separate minot miner and by no stretc.of imagination it can be included in the word mine.

'Mine' is a place from which minerals are dug.

If the brick earth was taken to have been included in the word 'mine', there was no necessity for declaring it separately as minot mineral by the Government subsequently through notification in June, 1958.

Brick earth was also well known at the time when wajib-ul-arz of the village in 1958, was prepared.

It could be easily mentioned in the wajib-ul-arz that brick earth would also vest in the Government.

The fact that it had not been so mentioned in the wajib-ul-arz, amply shows that it was not intended to vest in the Government.

Therefore, the presumption under sub-section 2 of Section 42 of the Punjab Land Revenue Act, referred above, has to be Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -5- drawn that the brick earth vests in the land owners and not in the Government.”

The learned FiRs.Appellate Court, while relying upon a judgment of this Court rendered in the case of M/S.Subhash Chander versus State of Punjab, reported as 1986 SLJ 354.affirmed the findings so recorded by the learned trial Court.

Indisputably, the brick earth was in existence and was in the knowledge of the appellants when wajib-ul-arz (Ex.P-2) was prepared in the year 1958, in spite of that it was not specifically mentioned to vest in the Government.

Learned Additional Advocate General would argue that the brick earth undoubtedly is a mineral and in the wajib-ul-arz (Ex.P-2) it is specifically mentioned that mine or kankar, if any, would vest in the government.

He also relies upon a judgment of the Hon'ble Supreme Court of India rendered in the case titled 'B.D.Chadha and brothers versus Lt.

Governor, Delhi Administration', reported as AIR 197.Supreme Court 1587, to show that the Hon'ble Supreme Court has held that the Government is competent to notify brick earth as minot mineral and, as such, the demand of royalty for excavation of the brick earth cannot be held to be illegal or unreasonable.

In 'B.D.Chadha and brothers versus Lt.

Governor, Delhi Administration' (supra) the Hon'ble Supreme Court was examining validity of a notification issued under not MII-II-159(18)-54-A-II dated 01.06.1958 (Exhibit D1) whereby brick earth was declared to be a minot mineral.

In this case power of the Government to recover royalty on brick earth was not in issue and, as such, the Hon'ble Supreme Court did not pronounce upon the same.

The question that survives in the case on hand Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -6- is with regard to entitlement of the Government to claim royalty on excavation of brick earth.

It may be added here that in the wajib-ul-arz (Ex.P-2).which was prepared in the year 1958, the brick earth, as such, is not mentioned.

The brick earth, in fact was declared as a minot mineral vide notification dated 01.06.1958, Exhibit D1.

If the brick earth is taken to have been included in the word 'mine', as sought to be projected by the learned Additional Advocate General, there was no necessity for declaring it as minot mineral separately vide notification, Exhibit D1, in June, 1958.

It is not that brick earth was a hidden thing, rather, it was well known when wajib-ul-arz (Exhibit P1) was prepared in 1958 and, thus, it could be easily mentioned in the wajib-ul-arz(Exhibit P1) that brick earth would also vest in the Government.

It, however, was not done.

The only inference that can be drawn from the omission to make a mention of brick earth in the wajib-ul-arz(Exhibit P1) is that it was not intended to vest in the Government.

Therefore, the presumption that the brick earth belongs to the land owners would arise in terms of sub-section (2) of Section 42 of the Act.

It would be relevant to refer here to a judgment of this Court rendered in the case State of Punjab versus Om Parkash, 1985(1) All India Land Law Reporter, 341 (P&H).wherein this Court was seized of the question-whether such royalty can be imposed on excavation of brick earth and it was held as under: “In view of the concurrent findings to the two Courts below that the minot mineral of brick earth does not vest in the State Government, it could not be disputed that the State Government could not impose the royalty.

Moreover, the matter stands covered by Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -7- the judgment of this Court reported as Punjab State through the Collector, Hoshiarpur versus Jagdish Chander and another, (1983) 85 PLR 695.

It was held therein that the question whether right to a particular mineral vests in the State Government or in the owner of the land has to be decided in terms of the Wajib-ul-Arz of the village in which the brick kilns are situated.

In the present case, in the Sharat-Wajib-ul- Arz, it is mentioned that in future any such minot minerals such as Kankar, black-stone or other kind of stones are found above or below the soil shall belong to the Government.

With respect to brick earth, which has been included within the definition of a minot mineral cannot be said to have been found after the aforesaid Sharat-Wajib-ul-Arz was completed.

Thus, the brick earth all along with remained on the earth.

It was, therefore, held by the Courts below that the earth which is not included within the definition of minot mineral vested in the owners and not in the State Government.”

The position of law as adumbrated in Om Parkash's case (supra) has been reiterated by this Court in the case State of Punjab and others versus M/s Ved Parkash and Co., AIR 201.Punjab & Haryana, 113, M/S.Subhash Chander versus State of Punjab (supra) and a very recent judgment rendered in The State of Punjab and others versus Pawan Kumar and OtheRs.(R.S.A.No.1224 of 1987).decided on 08.07.2013.

Nothing to the contrary could be shown during the couRs.of arguments.

The question of law 'whether the Government is entitled to recover royalty on brick earth' has already been answered in the negative in the cited judgments and no other question of law, much less a Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A.No.409 of 1988 -8- substantial question of law, is shown to be involved in this case.

Therefore, concurrent findings of fact recorded by the Courts below cannot be interfered with.

In the consequence, findings recorded by the Courts below are maintained and affirmed and the present appeal, being without merit, is dismissed.

However, in the facts and circumstances of the case, the parties are left to bear their own costs.

(MAHAVIR S.

CHAUHAN) JUDGE 21 08.2013 adhikari Virender Singh Adhikari 2013.08.30 10:10 I attest to the accuracy and integrity of this document High Court Chandigarh