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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: VISHKARMA AND CO.  ETC.

DATE OF JUDGMENT05/02/1993

BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) SHARMA, L.M. (CJ) MOHAN, S. (J)

CITATION:  1993 SCR  (1) 761        1993 SCC  Supl.  (3)  62  JT 1993 (1)   448        1993 SCALE  (1)417

ACT: Mines and Minerals (Regulation & Development) Act,  1957/The Punjab Minor Mineral Concession Rules, 1964-Removal of brick earth  by  brick-Manufacturers  from  lands  on  leases   or licences  granted  by  landowners--  Whether  obtainment  of permit/licence and payment of royalty are necessary. Punjab  Land Revenue Act 1987: Sections 31, 41 and  42-Scope and applicability of: Wajib-ul-arz--What is.

HEADNOTE: Respondent  companies  flied  suits  in  Civil  Courts   for perpetual  injuctions restraining the Appellant  State  from demanding payment of royalty for removal of brick-earth from owners’  lands  and insisting upon  obtaining  of  requisite mining  licences or permits.  They based their claim on  the premise that though the brick earth was classified as  minor mineral  under the Rules, since the State of Punjab was  not the  owner  of  brick-earth  in  the  lands  concerned,   no necessity arose for payment of royalty and for obtainment of mining  licences  or permits.The Civil Courts  accepted  the claim  and  decreed the suits, granting the  reliefs  prayed for.. The  Appellant  State carried the matter  before  the  First Appellate  Court  in vain.  Further Regular  Second  Appeals before  the  High  Court were also  dismissed  by  a  Common Judgment,  impugned  herein,  by way  of  Civil  Appeals  by Special Leave.  The Appellant contended (i) that the  Courts below  went  wrong in holding that the brick-earth  did  not vest  in the State on the basis of entries  in  wajib-ul-arz pertaining  to the lands of the estates of the land  owners; (ii)  that  as the presumption, drawn from  the  entries  in wajib-ul-arz,  to  the effect that the brick  earth  in  the lands  ’concerned  belonged to the lands’ owners,  was  only rebuttable,   the  decrees  should  have  been  set   aside, remanding  the suits to the courts of first instance with  a direction  to them to afford an opportunity to the State  to adduce rebuttal evidence. 762 Dismissing the Appeals, this Court, HELD:1.   Although  Brick-earth  is  indisputably  a   minor mineral,  it is not any of the mines or minerals covered  by

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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, would necessarily arise because of the operation of the   Act  and  the  Rules.   But  the  courts  below   have concurrently found on their reading of the entires in wajib- ul-arz  pertaining to the estates concerned that the  brick- earth  was in lands which formed the estates of the  private owners  and  as such the same belonged to  such  landowners. [766G] 2.  Wazib-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. [767A.B] 3.The  Courts  have again pointed out 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  Sub- Section   (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 her, cannot at all be  rebutted  by the   State  by  adducing  any  contrary   evidence.    Even otherwise,  when  the  State has not chosen  to  adduce  any evidence  to rebut the presumption arising from the  entires in  Wajibul-arz  documents-record-of-rights there cm  be  no valid reason for the Courts 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. [767C-F] 4.  When  all the Courts below  have  concurrently  recorded findings to the effect that the ownership of the brick-earth 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.  763 So  also  no valid reason has been shown to  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. [767G-H] 5.Wajib-ul-arz  is  a document included  in  the  record-of- rights since it contains the statements on matters envisaged under  clauses (a) and (b) of sub-section (2) of Section  31 of the Punjab Land Revenue Act, 1887.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 14581469 of 1988. From  the Judgment and Order dated 16.9.82 of the  Punjab  & Haryana High Court in R.S.A. Nos. 902-913 of 1973. S.P.  Goyal, Rajinder Sachar, Ms. Amita Gupta, G.K.  Bansal, P.C.  Dhiman, Ms. Prabha Jain, K.G. Bhagat,  Ravindra  Bana, K.H.  Bhagat,  Ms. Kusum Choudhary,  B.D.  Sharma,  Narottam Vyas,  P.N.  Puri,  S.C. Khunger and Ravi  Khunger  for  the

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appearing Parties. The Judgment of the Court was delivered by VENATACHALA, J. 1. In these Civil Appeals by Special  Leave, of  the State of Punjab, correctness of the common  judgment dated  September  16, 1982 by which Regular  Second  Appeals Nos.  902-913  of 1973 were dismissed by the High  Court  of Punjab and Haryana, is questioned. 2.Facts, giving rise to these Civil Appeals lie in a  narrow compass.   In the District of Gurdaspur certain  land-owners had permitted different brick-manufacturers to remove brick- earth  from lands in their respective estates on  leases  or licences   granted   by  them.   The  Mines   and   Minerals (Regulation  & Development) Act, 1957 (for short ’the  Act’) having  come into force in the State of Punjab,  the  Punjab Minor Mineral Concession Rules, 1964 (for short ’the Rules’) were also made and brought into force with effect from April 25,  1964.  With the coming into force of the provisions  of the  Act and the Rules in the State of Punjab, its  officers took  steps  to prevent the  said  brick-manufacturers  from removing the brickearth from the lands in the estates on the strength of the leases and licences executed in their favour by the land-owners without obtaining the mining licences and paying royalty, under the Rules.  The said manufacturers  of bricks although removed brick-earth from the concerned lands by paying 764 royalty  and obtaining licences for some years,  they  filed suits  in civil courts of original jurisdiction to  restrain by  perpetual  injunctions  the  State  of  Punjab  and  its officers  from demanding payment of royalty for  removal  of brick-earth from owners’ lands and insisting upon  obtaining of minimum licences or permits for the purpose.  The  relief of  injunctions  sought in those suits was  based  on  their claim  that  notwithstanding the fact that  brick-earth  was regarded  as minor-mineral under the Rules, State of  Punjab not  being the owner of brick-earth in the concerned  lands, there  arose no need to pay royalty to State for removal  of such  brick-earth and to obtain mining licences  or  permits from the State.  The claim so made, having found favour with the  Civil Courts of first instance, the suits were  decreed and  reliefs  sought for therein were  granted.   The  First Appeals carried against such decrees by the State of  Punjab before the First Appellate Courts did not meet with success. Further Regular Second Appeals carried to the High Court met with  the  same fate when they were dismissed by  a  learned single  Judge  of  that Court by  a  common  judgment  dated September  16, 1982. it is that common judgment,  which  has become  the  subject-matter of the  Punjab  State’s  present Civil Appeals by Special Leave. 3. On behalf of the State it was contended firstly, that the courts  below  should not have, on the basis of  entries  in Wajib-ul-arz  pertaining to the lands of the estates of  the land-owners  found that the brick-earth in such  lands’  did not vest in the state and secondly, that the lower appellate courts  when were of the view that the entires in  Wajib-ul- are, required the drawing of the presumption that the brick- earth in the concerned lands belonged to the lands’  owners, they should have seen that such presumption was a rebuttable presumption and as such called for setting aside the decrees of  the Courts of first instance, and remittal of the  suits to the Courts of first instance with a direction to them  to afford  an  opportunity  to. the State  to  adduce  rebuttal evidence.    Both   these  contentions  cannot   merit   our acceptance for the reasons which we shall presently state. 4. As some of the provisions of the Punjab Land Revenue Act,

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1887  (for short ’the Revenue Act’) which directly  bear  on the  said contentions would be helpful in  appreciating  the merit of those contentions, they are set out at the  outset. Section  31  which deals with record-of-rights  relating  to each estate comprised of the lands from where brick-earth is being removed by the brick-manufacturers reads:  765               "31.  Record-of-rights and documents  included               therein-(1)                        Save     as               otherwise  provided  by  this  Chapter,  there               shall be record-of-rights for each estate.               2.    The record-of-rights for an estate shall               include the following documents, namely               (a)  statements  showing,  so far  as  may  be               practicable-               the  persons who are land-owners,  tenants  or               assignees of land revenue in the estate or who               are  entitled  to  receive any  of  the  rents               profits or produce of the estate or to  occupy               land therein;               (ii)the nature and extent of the interests  of               those   persons,   and  the   conditions   and               liabilities attaching thereto;               (iii)the rent, land revenue, rates, cesses  or               other  payments due from and to each of  those               persons and to the Government.                (b)a  statement of customs respecting  rights               and liabilities in the estate;                ......................"               Section  41 which refers to the right  of  the               Government in mines and minerals reads thus               "41.   Rights of the Government in  mines  and               minerals-All  mines of metal and coal and  all               earth-oil and gold washings shall be deemed to               be  the  property of the  Government  for  the               purposes   of   the  State   and   the   State               Government shall have all powers necessary for               the  proper  enjoyment  of  the   Government’s               rights thereto.’               Section 42 which relates to presumption as  to               ownership of forests, quarries and waste lands               reads thus:-               "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               766               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 records or report made  by  the               assessing  officer at the time to  assessment;               or                (b) if the record or report, is silent,  then               from  a comparison between the  assessment  of               villages  in  which  they  existed,  and   the

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             assessment of villages of similar character in               which  they  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. 5.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  land-owners.  It is so  found  on  their reading  of  the  entries  in  Wajib-ul-arz  pending  to,the concerned estates.  Wajib-ul-arz is a docu-  767 ment  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 Rs,-venue Act. 6.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  sub- section   (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  other- wise,  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. 7. In our view, when all the courts below have  concurrently recorded  findings to the effect that the ownership  of  the brick-earth 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

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with  a  direction to permit the State  to  adduce  rebuttal evidence as regards entries in record-of-rights. 768 8.   These  appeals  therefore,  fail  and  are   dismissed. However,  in  the  facts  and  circumstances,  parties   are directed to bear their respective costs in these appeals. G.N.R. Appeals dismissed. 769