IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CIVIL WRIT PETITION 1736 OF 1986
DATE OF DECISION : August 12,2008
M/S Vijay Watta Brick Kiln Company
....Petitioner
Versus
State of Punjab & others
....Respondents
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
Present: Mr.Akshay Bhan, Advocate, for the petitioner
Mr.K.D.Sachdeva, DAG, Punjab
Ajay Tewari, J
The petitioner who is a lessee of private land and is running a brick
kiln, has challenged notice under Rule 54-C(5) and 54-C(6) of the Punjab Minor
Minerals Concession Rules, 1964 (hereinafter referred to as the Rules) published
in the newspaper dated 21-10-1985 requiring him to appear before the Assessing
Authority with the record of sale of bricks for the periods 1977-1978 and 1984-
1985.
The said notice has been challenged on the ground that the
respondents did not have the right to claim royalty for the bricks extracted by the
petitioner in view of Sharit -Wajib-Ul-Arz prepared in the year 1971-1972 as per
which the said bricks have not been shown to be belonging to the Government. In
reply the respondent-State has relied upon the original Sharit -Wajib-Ul-Arz of
1852-53 wherein brick was not reserved specifically for the land owners thereby
implying that it would vest in the Government as per Section 42 of the Punjab
Land Revenue Act (for short the Act). It is further stated that presumption which
had arisen in favour of the State by virtue of earlier state of right would not be
affected by any subsequent record of right.
At this stage, it would be apposite to quote section 42 of the Act
CWP 1736 of 1986 –2–
before proceeding further to decide this matter:-
“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 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
CWP 1736 of 1986 –3–Learned counsel for the petitioner has relied upon State of Punjab
versus M/S Subhash Chander AIR 1991 (Punjab) 134 and a decision of the
Hon’ble Supreme Court in State of Punjab versus M/S Vishkarma and Co.
reported as 1993(2) RRR 38. In Subhash Chander’s case (supra), it was held
as follows :-
“There is nothing on the record to show that the record-of-rights
including the Wajib-ul-arz which was made after 18th November,
1871, was the one which was prepared under Section 32 of the Act.
Section 32(1) o f the Act requires a Commissioner to issue a
notification directing that a record-of-rights be made or that record-
of-rights be specially revised. That being the position the question of
invocation of section 32(3) of the Act by the State Government does
not arise. Moreover, we find that Section 42 is a section specifically
dealing with the presumption of the vesting of ownership of forest,
quarries and waste land. This section provides as to how the
presumptions are raised and to what extent these are rebutted. To
our mind, since this section 42 has a special provision dealing with
the ownership of forests, quarries etc. the presumption raised
thereunder would not be covered by section 32(3) of the Act. Section
44 of the Act also indicates that an entry made in record-of-rights in
accordance with law for the time being in force shall be presumed to
be correct until the contrary is proved. Since by virtue of the latest
entry in the Wajib-ul-arz prepared after 18th day of November, 1871,
the presumption is in favour of the landowners, that will be taken to
be correct till the contrary is proved. For the view we are taking, we
hold that in these appeals where there was a record-of-rights earlier
to 18th day of November, 1871, as well as a later record-of-rights
after 18th November, 1871, it will be the later record-of-rights that
CWP 1736 of 1986 –4–would prevail and accordingly since there is no specific vesting of brick
earth in the State Government, the brick-earth would vest in the
landowners.”
In M/S Vishkarma’s case (supra), the Hon’ble Supreme court held
as follows:-
“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 amend was in lands which
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. Wazib-ul-arz is a document included in
the record-of-rights cannot be disputed since it contains the
statements on matters envisaged under clauses (a) and (b) of
sub-section (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
` –5–-owners as is declared in sub-section (2) of section 42 of the
Revenue Act.”
A perusal of the impugned order Annexure P-1 reveals that the same
is merely show-cause notice and no order of recovery of any royalty has been
passed therein. The apprehension of the learned counsel for the petitioner that the
very issuance of the notice under Rule 54(c) reveals that the Assessing Officer has
made up his mind that the petitioner is liable to pay royalty, is not well founded.
There is no reason to come to the conclusion that the Assessing Authority would
ignore the enunciation of law made in this judgement, as it is based on binding
precedent of this Court as well as of the Hon’ble Supreme Court.
In this view of the matter, this petition is disposed of by giving
opportunity to the petitioner to appear before respondent No.3 who is directed to
first form an opinion on the question whether the petitioner is liable to pay royalty
to the State in the light of this judgement by passing a speaking order before
initiating any further action in the matter.
No order as to costs.
Sd/-
[Ajay Tewari]
Judge
August 12,2008
MandeepKaur