ABDUL GANI NATH Vs. STATE OF J&K

JUDGEMENT

(1.) THESE two appeals* under Clause 12 of the Letters Patent are directed against common judgment and order dated 16.09.2009 rendered by the learned Single Judge in OWP No 898/2007. While partially allowing the claim of the writ petitioners-appellants, the learned Single Judge has held that respondent-State was not competent to recover any royalty from the writ petitioners-appellants in respect of the brick clay removed from their private lands. However, the learned Single Judge left it open to respondent-State to take steps for recovering the royalty as permitted by Rule 3(a) of the Minor Minerals Concession Rules., 1962 ( for brevity 'the Rules').

(2.) THE controversy revolves around the issue concerning payment of royalty to the State in lieu of the brick clay removed from the private lands by the licence holders of the Brick Kiln.

(3.) MR. N. A. Kuchay, learned counsel for the writ petitioners-appellant, has made an attempt to argue that even royalty under Rule 3 (a) of the Rules would not be recoverable. However, such an argument militates against the view taken by the Division Bench in case of Bharat Kiln (supra). Even otherwise, the judicial discipline would bind us by the view taken by the Division Bench. It could have been reopened on the principle of per in curiam. In other words a judgment could be validly reopened on the ground that the provisions of a Statute, Rule or Regulations have not been considered which would have led to entirely a different conclusion. There is no such situation available in the present case.