STATE OF PUNJAB Vs. VED PARKASH

JUDGEMENT

(1.) The defendants are in sec-ond appeal against the judgment and decree of the Courts below by which suit filed by the plaintiff for permanent injunction to re-strain the defendants from recovering a sum of Rs.21,332/-as royalty on brick-earth and the notice dated 07.03.1986 demanding the im-pugned amount is illegal, null and void, has been decreed.

(2.) In brief, the plaintiff filed the suit for permanent injunction that it is running a brick-kiln in the name of M/s. Ved Parkash & Co. after taking the land on lease from a private landowner at village Sivian and as per entries in Sharait Wajib-ul-arz, the brick earth (a minor mineral) does not belong to the Government, therefore, no provision of the Mines and Minerals (Development and Regulation) Act, 1957 [for short "the Act"] or the Punjab Minor Mineral Concession Rules, 1964 [for short "the Rules"] empow-ers the Government to levy royalty on the use of such brick earth. It was also alleged that the plaintiff has not charged any royalty from the consumers, so he cannot be sub-jected to pay the same to the defendants. In the written statement, preliminary objection was raised with regard to the jurisdiction of the Civil Court in terms of Section 158 of the Punjab Land Revenue Act, 1887 [for short "the Act of 1887"] and it was claimed that as per Section 25 of the Act and Rule 53 of the Rules, the amount can be recovered as arrears of land revenue. It was also alleged that under Section 41(4) of the Specific Re-lief Act, 1963 [for short "the Act of 1963"], injunction cannot be granted if there is an equal efficacious remedy available which is provided under Section 78 of the Act of 1887, therefore, the amount of royalty was to be deposited by the plaintiff before filing of the suit. Besides other preliminary objections, it was alleged that the plaintiff is liable to pay the royalty for extracting brick earth which is a minor mineral and vests in the Govern-ment. On the pleadings of the parties, fol-lowing issues were framed by the learned Trial Court:

(3.) Both the parties led their respective evi-dence. Issue Nos.l and 2 were decided in favour of the plaintiff and issue Nos.3, 4 and 5 were against the defendants and the suit was decreed while deciding issue No.6. The first appeal filed by the defendants was also dismissed in which findings on issue Nos.l, 4 and 5 were not assailed and findings on issue Nos.2 and 3 were upheld after lengthy discussion. It was categorically recorded by the First Appellate Court that as per Sharait Wajib-ul-arz (Ex.P2) of village Sivian as per Bandobasat 1958-59, brick earth does not vest in the Government, therefore, the pre-sumption was that it vests in the land owners which was not rebutted by the defendants/ appellants by leading any cogent evidence. The learned First Appellate Court relied upon a decision of this Court in the case of M/s. Subhash Chander v. State of Punjab, 1982 AIR(P&H) 397 to hold that the brick-kiln in the land of the landowners does not belong to the Government for which the brick-kiln owner is liable to pay royalty.