STATE OF PUNJAB Vs. RAMESHWAR DASS LAHHMAN DASS

JUDGEMENT

(1.) THIS regular second appeal arises out of the suit for permanent injunction filed by respondent/plaintiff against the State of Punjab. The Court of first instance vide judgment and decree dated 10.06.1985 decreed the suit of the plaintiff. Against the judgment and decree passed by the Court of first instance, appeal preferred by appellants/defendants has been dismissed vide judgment and decree dated 28.03.1987.

(2.) THE detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this second appeal are to the effect that respondent/plaintiff filed a suit for permanent injunction restraining the appellants/defendants from recovering any royalty from the plaintiff for having excavated brick earth from the land measuring 155 kanals 3 marlas fully described in the headnote of the plaint situated in village Natt, Had Bast No.247, Tehsil and District Ludhiana. It is averred that plaintiff firm is a licencee under the Punjab Control of Brick Supply Order, 1956 and carries on the business of manufacturing the bricks and sale thereof at village Natt. The plaintiff firm took on lease the suit land for excavating the brick earth on 24.06.1975. Defendant No.2 issued demand notice dated 16.05.1980 for the recovery of royalty from the plaintiff firm for excavating the brick earth. The demand notice dated 16.05.1980 is illegal and ultra vires. It is further averred that defendants No.1 and 2 are not entitled to recover any royalty as they have got no right to do so. Defendants No.1 and 2 are not the owners of the brick earth. According to Sharayat wajib -ul -arz pertaining to village Natt prepared in settlement of 1909 -1910, defendants No.1 and 2 have no right to brick earth. The brick earth clearly vests in the land owner and not in the State Government. The brick earth is not a minor mineral within the purview of the Punjab Minor Mineral Concession Rules, 1964. The plaintiff prayed that defendants No.1 and 2 be restrained from recovering the royalty from plaintiff firm for excavating the brick earth from the suit land. Upon notice, appellants/defendants No.1 and 2 resisted the suit and raised various preliminary objections. It is averred that demand notice has been issued by the Mining Officer, Ludhiana, under the provisions of Punjab Minor Mineral Concession Rules, 1964 as the plaintiff was found engaged in illegal extraction of the brick earth at village Natt. The plaintiff is liable to pay the sum of Rs.10,884/ - on account of the royalty on brick earth excavated and dug by the plaintiff firm from the land in suit from 14.09.1977 to 31.03.1979. The amount is recoverable from the plaintiff as arrears of land revenue as the plaintiff has not deposited the same. Remaining allegations of the plaint were denied and prayer for dismissal of suit was made.

(3.) ON the pleadings of the parties, the Court of first instance framed the following issues: -