A.D. Koshal, J. - (1.) THE facts giving rise to this petition under Articles 226 and 227 of the Constitution of India are these. An area measuring 7110 bighas 1 biswa comprising more than 150 khasra numbers in part of the shamilat deh of the revenue estate of Arangpur (also called Anangpur) in Tahsil Ballabgarh, District Gurgaon. Except for 3 or 4 of the said khasra numbers, of which the total area works out to be less than 5 bighas, the description of the area first mentioned as given in the revenue records is "Ghair Mumkin Pahar''. Prior to the year 1953 the shamilat deh was owned by the proprietors of the estate who, in the year 1946, leased out the said are measuring 7110 bighas 1 biswa (hereinafter referred to as the disputed land) to the Arangpur Co -operative Society Limited for a period of 20 years against a rental of Rs. 1800/ - per annum. On the 26th of December, 1953, the Punjab Village Common Lands (Regulation) Act (Punjab Act No. 1 of 1954) came into force and under the provisions thereof the Panchayat of village Arangpur (hereinafter referred to as the Panchayat) became owner of the shamilat deh land including the disputed area. By then the Arangpur Co -operative Society Limited had fallen into arrears with regard to the payment of rent and had in fact been declared insolvent. In order to protect their interest, the Panchayat cancelled the lease above mentioned and granted a lease of the disputed land to two persons named Jagdish Parshad and Bahadur Singh for a period of 20 years through a registered deed of lease executed on the 3rd of May, 1954, the rental again being Rs. 1800/ - per annum. The terms of the lease in so far as they are relevant to the controversy before me were: (1) The period 20 years for which the lease was granted would commence from the date when the lessees obtained actual possession of the disputed land. (2) The lessees were entitled to exploit the disputed land for extraction of chalk, stone, rori and shisha and for that purpose to work mines, dig pits and carry out other necessary operations. (3) The lessees would be entitled to exploit the lease either by themselves or through their agents, servants, partners or sub -lessees. (4) The lessees would not be entitled to extract any Badarpur sand from the disputed land. Such right would vest only in the Panchayat. Punjab Act I of 1954 was replaced by the Punjab Village Common Lands (Regulation) Act (Punjab Act 18 of 1961 and hereinafter called the 1961 Act) under which the Panchayat continued to enjoy the ownership of the shamilat deh. Jagdish Parshad and Bahadur Singh bad to resort to litigation in order to obtain possession of the disputed land which they did through court on the 20th of February, 1963. Bahadur Singh transferred his share in the lease to others whose successors are Mam Chand petitioner No. 1 (to the extent of 40 per cent) and Brij Lal petitioner No. 2 (to the extent of 60 per cent). One -fifth of the half share of Jagdish Parshad in the lease was also purchased by Brij Lal in January, 1965. On the 22nd of February, 1966, the Collector, Gurgaon, cancelled the lease granted on the 3rd of May, 1964, by the Panchayat to Jagdish Parshad and Bahadur Singh, under section 10 -A of the 1961 Act and his decision was upheld in appeal on the 24th of January, 1967, by the Commissioner who however, allowed a sum of Rs. 5400/ - as compensation to Jagdish Parshad. To those proceedings the petitioners were not made parties and challenged the order of the Collector in a civil suit instituted by them against the Gram Sabha of village Arangpur on the 26th of February, 1966. The suit ended in a decree in favour of the petitioners which was maintained in appeal by the District Judge, Gurgaon, on the 14th of June, 1968, it being held that the petitioners had acquired the status of joint lessees with Jagdish Parshad and the proceedings before the Collector in so far as they affected the petitioners, were without jurisdiction for the reason that they were hell without notice to them. On the 19th of April, 1968, the Director of Industries, Haryana, issued a notice (Annexure "A" to the petition) declaring for the information of the general public that minor minerals consisting of road metal and building stones in various villages including Arangpur would be auctioned in the office of the Senior District Industries Officer, Gurgaon, on the 21st of May, 1968, at 11 A.M. This is the notice which is impugned in the petition on the ground that none of the minerals which the petitioners had the right extract from the disputed land under the terms of the lease created in their favour by the Panchayat, belonged to the Government. The prayer made by the petitioners is that that notice be quashed and that a writ in the nature of mandamus restraining the Government and its officers as well as the Panchayat from interfering with the rights of the petitioners in the disputed land be issued.
(2.) DURING the course of the pendency of the petition, the Government of Haryana, purporting to act as owner of minor minerals in the disputed land, granted certain rights in respect thereof to Cleamax (India) Pvt. Limited (whose Managing Director is respondent No. 16) and the Anangpur Sand Company, Anangpur, a partnership firm (respondent No. 17). Thereupon the petitioners put in applications stating that respondents Nos. 16 and 17 had started mining operation in the disputed land and had thus partially dispossessed the petitioners and praying that these respondents be made parties to the petition. The applications were accepted. Learned Counsel for the parties are agreed that the rights to minerals will have to be determined in accordance with the relevant short of the wajib -ul -arz prepared in relation to village Arangpur read with section 42 of the Punjab Land Revenue Act which runs thus: 42. (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 landowners, 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 landowners. (3) The presumption created by sub -section (1) may be rebutted by showing - (a) from the record 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 villages of similar character in which there did 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. In the present case copies of wajib -ul -arz prepared during three different settlements for village Arangpur have been produced by the petitioners. The first (Annexure "B/2" to the petition) relates to the year 1877 and states, inter alia: There is no mine having stone metal, coke or sand containing gold. However, there is a chalk mine and a billaur mine in this very village. The billaur mine is lying abandoned while the chalk mine is being worked. Till now the proprietors extract chalk from that mine and sell it and the resultant income is divided amongst them in proportion to the land possessed by them. In future if the Government needs it, it is authorised (to exploit the mine). Besides no kankar mine is known. However, kankar is available in the cultivated area of the village. If Government needs it, it is authorised to extract it. We shall not claim the price thereof but shall be entitled to compensation for any damage occasioned to the surface of the land by reason of the extraction of kankar. Further, when we need kankar for our use, we can also extract it after informing the Head of the District. The relevant shart wajib -ul -arz appearing in the settlement records prepared for the village in the years 1908 -1909 (Annexure 'B/1" to the petition) and 1940 -41 (Annexure "B" to the petition) is couched in identical language from a perusal of which it is quite clear that no mineral rights are expressly stated in the wajib -ul -arz prepared during any of the three settlements to belong to the Government On the other hand, the manner in which chalk and kankar are dealt with in the short which appears in all the three settlements negatives the ownership of the Government even to chalk and kankar both of which commodities are stated to be available for extraction either by the Government or by the proprietors according to their respective needs. There is the further fact that till the year 1939 -40 the proprietors were extracting the chalk to serve as a source of income for themselves which negatives any right of ownership of that mineral vesting in the Government. Although that was not the case in relation to kankar, the position of the Government in regard thereto is no better in view of the absence of any express statement in the wajib -ul -arz that it belonged to the Government. According to section 42 of the Punjab Land Revenue Act, the shart, if it appears is a wajib -ul -arz prepared after the 18th of November, 1871, has to be interpreted so as to raise a presumption that rights in minor minerals belong to the landowners unless the shart expressly provides that they belong to the Government. All the three settlements in which the relevant shart -wajib -ut -arz appears were carried out after the year 1871 and sub -section (2) of section 42 ibid is fully applicable to them. As the shart does not expressly provide that the minor minerals belong to the Government, a presumption must be raised that they belong the landowners. The Government and its officers (respondents Nos. 1 to 3) as well as respondents Nos. 16 and 17 (who seek interference with the exploitation of the disputed land by the petitioners under cover of title derived from the Government) have no legal right to the extraction of any mineral from the disputed land which the petitioners have shown to be in their possession under the lease created by the Panchayat in their favour. The Panchayat also cannot have any light to interfere with the possession of the petitioners over the disputed land so long as the lease subsists, as it is itself the author thereof.
(3.) ON behalf of respondents Nos. 16 and 17, the following four contentions have been raised: (a) It is Cleamax (India) Private Limited and not respondent No. 16 who is extracting sand from the disputed land under authority from the Government. It is that company, therefore, and not respondent No. 16 who should have been impleaded as a respondent. In the absence of that company from the array of parties the petition cannot proceed. (b) The petitioners had failed to prove their title as co -lessees and were, therefore, not entitled to any relief. Even if they had proved such title, they could not claim rights in the whole of the disputed land but only in respect of their 3/5th share in it. (c) The petitioners were not given any right under the lease executed by the Panchayat in their favour to extract sand. The extraction of sand by respondents Nos. 16 and 17, under authority from the Government cannot, therefore, be restrained at the instance of the petitioners. (d) Respondents Nos. 16 and 17 had admittedly taken possession of some portion of the land. A mere mandamus could not, therefore, be a sufficient remedy for the petitioners who must sue for possession of that part of the land which respondents Nos. 16 and 17 had taken possession of.;