JUDGMENT

PARAMJEET SINGH, J. –

1. Instant regular second appeal has been filed by the State of Punjab challenging the judgment and decree dated 31.07.1986 passed by learned Additional District Judge, Ludhiana, whereby the appeal of respondent No.1/plaintiff has been allowed and suit of respondent No.1/plaintiff has been decreed, reversing the judgment and decree dated 18.05.1984 passed by learned Sub Judge Ist Class, Ludhiana.

2. For convenience sake, hereinafter parties will be referred to as they were arrayed in the trial court i.e. appellant as defendants and respondent No.1 as plaintiff.

3. Brief facts of the case are that plaintiff filed a suit for permanent injunction restraining the defendants from recovering or demanding any royalty on the excavation of brick earth from land situated in the area of village Dad for the manufacture of bricks. The plaintiff pleaded that he had taken on lease some land in the revenue estate of village Dad, Tehsil and District Ludhiana for excavation of brick earth for the manufacture of bricks. Defendant No.2 issued notice to the plaintiff for the payment of royalty on the excavation of bricks on the ground that the brick earth is a minor mineral and vests in the State of Punjab. It was further pleaded that demand is illegal as neither the brick earth is a minor mineral nor it vests in the State Government. In pursuance of notice, defendants filed written statement and contested the suit. They took up the preliminary objections that the jurisdiction of the civil court is barred under Section 158 of the Punjab Land Revenue Act and the suit is not maintainable in the present form as other equally efficacious remedies are available to the plaintiff and the suit was bad for non-joinder of necessary parties. On merits it was pleaded that brick earth has been declared to be a minor mineral by the Government of India vide notification dated 01.06.1958 issued in exercise of the powers vested in it under Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 and according to the entries of the wajib-ul-arz of village Dad, brick earth vests in the Government.

4. On the pleadings of the parties, learned trial court framed the following issues: -

“1.   Whether the plaintiff is not liable to pay the royalty assessed by the defendants? OPP

2.    Whether the suit in the present form is not maintainable? OPD

3.    Whether the jurisdiction of the civil court is barred under Section 158 of the Punjab Land Revenue Act? OPD

4.    Whether the suit is bad for non-joinder of necessary parties? OPD

5.    Relief.”

5. Parties led their evidence, on consideration of which issue No.1 was decided against the plaintiff and in favour of the defendants by the trial court while issues No.2 to 5 were decided against the defendants, as a result of which the suit was dismissed. Defendants preferred an appeal, which has been allowed, findings of the trial court have been reversed and the suit of the plaintiff has been decreed. The learned lower appellate Court while allowing the appeal has come to a conclusion that even if the brick earth has been declared to be a minor mineral vide notification Ex.D1, even then it does not vest in the State Government in view of the entries of the wajib-ul-arz Ex.P3 and as such the respondent cannot recover or demand any royalty on the excavation of the brick earth from the appellant in respect of the land of village Dad. Hence this regular second appeal.

6. I have heard learned counsel for the State and perused the record.

7. Learned State counsel contended that vide notification dated 01.06.1958 issued under Section 3 of the Mines and Minerals (Regulation & Development) Act, 1957 brick earth has been declared as minor mineral. He further contended that entries in wajib-ul-arz (Ex. P-3) clearly provide that all type of minerals discovered in future vest in the State. Learned State counsel further contended that presumption under Section 42(2) of the Punjab Land Revenue Act, which provides that interest in land shall belong to landowner unless expressly provided in revenue record prepared after 18.11.1971 to be belonging to State will not be applicable in instant case as concerned entry in wajib-ul-arz (Ex. P-3) was made after 18.11.1871 and it specifically provided that all types of minerals will vest in State. The learned trial Court rightly dismissed the suit of plaintiff/respondents.

8. When the appeal was admitted no substantial question of law was framed.

9. However, from the pleadings and arguments raised by learned State counsel, following substantial question of law arises for consideration: -

“Whether brick earth excavated from private land would vest in State by virtue of notification dated 01.06.1958 in absence of express entry in wajib-ul-arz?”

10. Admittedly, brick earth has been declared as minor mineral vide notification dated 01.06.1958. It is also admitted that land from which brick earth has been excavated belongs to private owner and respondent is lessee thereon. Also there is an entry in wajib-ul-arz which provides that all the minerals discovered in future will vest in State, however, 'brick earth' has not been expressly provided for in the said entry. In such circumstances provisions of Section 42 of the Land Revenue Act become relevant to determine whether 'brick earth' vests in State or landowner. Section 42 of the Punjab Land Revenue Act is reproduced below:

“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.

(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 land-owners.

(3) The presumption created by sub-section (1) may be rebutted by showing –

(a)    from the records or report made by the assessing officer at the time of assessment; or

(b)    if the record or report, is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of village of similar character in which there id not exist, any forest or quarry, or any such land or interest.

that the forest, quarry, land or interest was taken into account in the assessment of the land-revenue.

(4) Until the presumption is so rebutted, the forest, quarry, land or interest shall be held to belong to the Government.”

11. The issue of payment of royalty on excavation of brick earth from private land was considered by three Judges' Bench of the Hon'ble Supreme Court in State of Punjab vs. M/s Vishkarma and Co., 1993(2) R.R.R. 38, wherein the Hon'ble Supreme Court held as under: -

“7. Brick-earth with which we are concerned in the present appeals, is a minor mineral was not disputed, although it is not any of the mines or minerals corned by section 41 of the Revenue Act as would make it become the property of the State. if the owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick earth and to obtain permit or licence for such removal necessarily arises because of the operation of the Act and the Rules. But the courts below have concurrently found that the present appeals have amen was in lands winch formed the estates of the private owners and as such the same belonged to such landowners. It is so found on their reading of the entries in Wajib-ul-arz pending to, the concerned estates. Wajib-ul-arz is a document included in the record-of-rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of subsection (2) of section 31 of the Act. According to the courts below Wajib-ul-arz document being record-of-rights of estates completed after 18th day of November, 1871, and there being nothing expressly stated in them that the forest or quarry or land or interest in the estates belong to the Government, the lands in such estates including brick-earth in them shall be presumed to belong to the concerned land-owners as is declared in sub-section (2) of section 42 of the Revenue Act.

8. Again, it is pointed out by the courts that there being no provision similar to the provision in sub-section (3) which permits adducing of rebuttal evidence against the presumption that the lands belong to the State under subsection (1) of section 42 of the Revenue Act, the presumption which arises under sub-section (2) of section 42 of the Revenue Act that the forest or quarry or land or interest belong to land-owner, cannot at all be rebutted by the State by adducing any contrary evidence. Even otherwise, according to them, when the State has not chosen to adduce any evidence to rebut the presumption arising from the entries in Wajib-ul-arz document record-of-rights relating to the estates of lands whose brickearth is allowed by the land-owners to be removed by the brick-manufacturers who are the plaintiffs in the suits out of which the present Civil Appeals have arisen, there can be no valid reason for them to hold that the brick-earth in the lands of the estates concerned has become the ,property of the State, so as to require the brick-manufacturers to pay royalty for removal of such brick-earth and obtain permits or licences under the Rules.

9. In our view, when all the courts below have concurrently recorded findings to the effect that the ownership of the brickearth belong to land-owners and not to the State on a correct appreciation of all evidence adduced in the case and on a proper application of the law governing the same, there could be no justification to interfere with such findings in these appeals. We are also not shown any valid reason as to why we should set aside the lower courts judgments and decrees and send the matters to the Courts of first instance with a direction to permit the State to adduce rebuttal evidence as regards entries in record-of-rights.”

12. The observations made by Division Bench of this Court in State of Punjab vs. M/s Subhash Chander, AIR 1991 (Punjab) 134 are also relevant in this context, which read as under: -

“7. We will take up first the Letters Patent Appeals filed by the State Government. It is a concerned position that in these cases, there is no record-of-rights prior to 18th November, 1971, but there is record-of-rights, only after this date. That being so, we are to see whether in the Sharait-Wajib-ul-arz, it has been expressly provided under Section 42(2) of the Act. It shall be presumed to be belonging to the landowners and as stated above this presumption is not rebuttable. There is catena of authorities of this Court, wherein it has been held that unless there is a specific mention to the contrary in the record-of-rights completed after 18th November, 1871, the brick-earth belongs to the landowners. These are M/s. Amar Singh Modi Lal v. State of Haryana and others, AIR 1972 Punjab and Haryana 356; Punjab State vs. Shadi Lal and others, 1985 (1) Land Law Reports 265; Punjab State s. Jagdish Chander and another, 1983 PLR 695; (M/s Nanak Chand Ghasi Ram v. State of Punjab etc), R.S.A. 581 of 1983 decided on 3rd November, 1983 and Punjab State v. M/s Vishkarama and Co. and others, R.S.A. No.902 of 1973 decided on 16th September, 1982. The Sharait-Wajib-ul-arz, in all these cases are almost similar. The one in C.W.P. No.894 of 1981, which was as Annexure R-1 with the written statement, is reproduced below:

“In or village there exists no mines of stone or Kankar etc. and if in future it is found it shall be the property of the Government. In case any mine of lime, or Kankar, coal or stone etc. appear, it will be the property of the Government.”

8. It would be evident from the above mentioned Sharait-Wajib-ul-arz that there is no specific mention that the brickearth would vest in the Government. In view of sub-section (2) of Section 42 of the Act, the presumption is that it vests in the proprietors of the land. This presumption is not rebuttable under Section 42(3) of the Act.”

13. Further in The State of Punjab and others vs. M/s Ram Dass Bhagwan Dass, 2012(5) RCR (Civil) 280 while referring to the notification dated 01.06.1958, this Court has categorically held that mere declaration of brick earth as minor mineral by way of notification in itself will not vest any right in State Government to claim royalty because of the reason that ownership of the same will still continue to be vested in the landowners if there was no entry in the shariat-wajib-ul-arz to the contrary.

14. The law laid down in aforesaid pronouncements thus provides clear answer to the question of law raised herein before. Brick earth excavated from private land would not vest in State by virtue of notification dated 01.06.1958 in absence of express entry in wazib-ul-arz.

15. In the instant case the entry in wajib-ul-arz is to the effect that all types of minerals discovered in future will vest in State. Such a vague entry cannot be used to defeat the non-rebuttable presumption of law created in favour of landowner under Section 42(2) of the Punjab Land Revenue Act, 1887. After examining the record and concerned entry in wajib-ul-arz, learned lower appellate Court has recorded a categorical finding that on the basis of entries in wajib-ul-arz, State has no right to demand royalty on excavation of concerned land. These findings are based on settled proposition of law as discussed hereinabove.

16. Thus, in view of my findings on question raised in this appeal, there is no merit in the instant appeal.

17. Dismissed.

Appeal dismissed.

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