State
of Punjab Vs. Vishkarma and Co [1993] INSC 71
(5 February 1993)
Venkatachala
N. (J) 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.
HEAD NOTE:
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 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.
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 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, 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 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 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.
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