PUNJAB STATE Vs. SUNIL KUMAR BANSAL

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 14.05.1985 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 24.01.1987. 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 assessing and recovering any amount by way of royalty on the brick-earth extracted by the plaintiff from his land taken on lease from private persons for preparation of bricks at his brick kiln in Village Dudhike, Tehsil Moga. For the manufacturing of bricks, earth is extracted by the plaintiff from his own land which has been taken on lease for which the plaintiff pays compensation to the private landowners. No part of the land belongs to the State. As per the entries in the wazib-ul-arz, nothing belongs to the Government but if kankaf is found, Government shall have a right to take it. Brick earth vests in the private landowners under Section 42(2) of the Punjab Land Revenue At, 1887 and there is no provision in the Minor Minerals (Regulation and Development) Act, 1957 and the Rules to charge royalty on brick earth. The proceedings for assessment and recovery of royalty are without jurisdiction.

(2.) Upon notice, appellants/defendants resisted the suit on the ground that plaintiff is engaged in illegal extraction of brick earth and the Government is entitled to charge royalty as well as the price of minerals, even if the Government did not own the land plaintiff is bound to pay said amount of royalty to the Government. As per entry in the wazib-ul-arz, the rights to all minerals without exception vest with the Government. Notice was issued to the plaintiff for recovery of royalty on the brick-earth. Since the proceedings are being taken in accordance with law, present proceedings are without jurisdiction. Objection with regard to maintainability of the suit has also been taken on the ground that respondent/plaintiff had equally efficacious remedy under Section 78 of the Punjab Land Revenue Act and no notice under Section 80 CPC has been served. It is also alleged that no cause of action arises as the notices in form 'R' and form 'S' cannot be the basis for filing the present suit. Plaintiff/respondent was required to file an appeal before filing of the suit and the jurisdiction of the civil Court is barred under Section 158 of the Punjab Land Revenue Act as the amount in question is recoverable as arrears of land revenue. Suit is bad for non-joinder of necessary parties. Objection has also been taken that plaintiff does not have any certificate form the Government in form 'B'.

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