Full Judgment Text
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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.
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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.
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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
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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
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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