JUDGEMENT
ABHAY S.OKA,J. -
(1.)The appellants are the original defendants, and the respondents are the original plaintiffs. The respondents filed
suits against the appellants for a permanent injunction
restraining them from assessing, levying or recovering any
amount as royalty from the respondents on account of the use
of earth by the respondents for making bricks. According to the
respondents who were operating brick kilns, they took different
lands (for short, 'the said lands') from private owners on lease.
The respondents used to excavate earth from the said lands to manufacture bricks in their brick kilns. The respondents' case was that no part of the land was vested in the Government and according to the Wajib-ul-arz, brick earth does not belong to the State Government. Reliance was placed on Sec. 42 of the Punjab Land Revenue Act, 1887 (for short, 'the Land Revenue Act') and, in particular, sub-sec. (2) thereof. It was further contended that under the Mines and Mineral (Regulations and Development) Act, 1957 (for short, 'the 1957 Act') or under the Punjab Minor Mineral Concession Rules, 1964 (for short, 'the Mineral Rules'), there was no provision entitling the first appellant - State Government to levy royalty on the use of brick earth. The respondents contended that the appellants' action of assessing royalty and sending notices for recovery was illegal.
(2.)The appellants resisted the suit by filing their written statements. It was contended that the Civil Court had no
jurisdiction to entertain the suit in view of Rule 54F of the
Mineral Rules, which provides a remedy of appeal against
orders of assessment of royalty. The appellants also raised
objections to the maintainability of suit on the ground of nonjoinder of necessary parties. It was contended that the
respondents had failed to implead the owners of the said lands.
The appellants further challenged the maintainability of the suit for want of a notice under Sec. 80 of the Civil Procedural Code, 1908. On merits, it was contended that according to Wajib-ul-arz of the village Jallalabad, every mineral, including brick earth, vests in the first appellant - State Government in accordance with Sec. 42 (2) of the Land Revenue Act. The appellants also contended that under Sec. 15 of the 1957 Act, the State Government was empowered to make Rules for making a provision for charging royalty. Accordingly, under the Mineral Rules framed by the State Government, the appellants were entitled to levy royalty.
(3.)The Trial Court dismissed the suit vide judgement dtd. 22/8/1983. The Trial Court rejected the appellants' preliminary objections regarding the bar of suit and nonmaintainability of the suit. The Trial Court held that on the
plain reading of Sec. 42 of the Land Revenue Act, in a case
where the record of rights was completed before November 18,
1871, and there is no express provision made therein that any forest or quarry belongs to the landowners, the same shall be
presumed to belong to the State. The Trial Court held that the
record of rights regarding the land in question was made before
18/11/1871, and since the Wajib-ul-arz did not specify that the quarries belonged to the land owners, it was held that
the subject quarry is vested in the State Government in terms
of Sec. 42 (1) of the Land Revenue Act. The Trial Court
further held that by a notification issued under Sec. 3(e) of
the 1957 Act, brick earth was declared a minor mineral. The
Trial Court held that even though the settlement in the years
1911-12 and 1962-63 did not show the subject land as a quarry, that was not significant as, at that time, brick earth
was not declared as a minor mineral.
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