SHARMA AND CO Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a petition by 72 brick-kiln owners of Kanpur praying for a writ, order or direction in the nature of certiorari to quash the notification dated 31st August, 1970 (published in the U. P. Gazette dated 12th September, 1970) issued by the State Government purporting to be in pursuance of the provisions of sub-rule (4) of Rule 1 of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 - hereinafter referred to as the Rules - by means of which the said Rules, with effect from the date of the publication of the notification in the gazette, were made applicable to 'brick-earth' found anywhere in the State. The further prayer is for the issue of a writ, order or direction in the nature of mandamus directing the respondents not to implement the aforesaid notification dated 31st August, 1970. Apart from making some prayers of a general character, the petitioners also pray for issue of a writ, order or direction in the nature of mandamus directing the respondents not to collect, demand or realize any Royalty from them for using earth of their own land for manufacture of bricks under the impugned notice.

(2.) ADMITTEDLY the petitioners manufacture bricks by excavating earth from out of their own 'Bhumidhari' plots. One of the petitioners was served with a notice sometime in July, 1971, informing him that with effect from the 12th September, 1970, the State Government had declared that brick-earth was a 'minor mineral' and had fixed Royalty payable thereon at the rate of Rs. 1.50 per thousand of the bricks manufactured. The notice went on to state that the Kar Nirdharan Adhikari, Kanpur, had come to learn through reliable sources that from the 12th September, 1970, till the 31st March, 1971 the addressee of the notice had excavated brick-earth for the manufacture of 35,00,000.00 bricks and was liable to pay Royalty to the extent of Rupees 5,250.00. The notice stated further that if the addressee had any objection to the Royalty determined, he could file an objection within 15 days of the receipt of the notice before the Kar Nirdharan Adhikari. The notice went on to disclose that if no objection was filed within the time fixed, the Royalty payable shall be determined at Rs. 5,250.00. It appears that similar notices tentatively determining different amounts as Royalty payable by various petitioners were served on them.

(3.) THREE submissions have been made by the learned counsel for the petitioners in support of this petition. It was firstly contended that brick-earth is not a 'mineral' and consequently the petitioners could not be made liable to pay Royalty for excavating earth and manufacturing bricks therefrom. It was contended that the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules are applicable only to minerals' and the popular meaning as understood in common parlance of the word 'mineral' is 'any organic substance which is found in the earth and may be obtained by mining or other process for bringing it to the surface for manufacturing or mercantile purpose for profit'. Since brick- earth is nothing but ordinary earth, it was urged, it was not of organic origin solely and consequently could not be regarded either as a 'mineral' or 'minor mineral'. To appreciate this contention, reference may usefully be made to the relevant provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules and notifications issued thereunder.