BHARAT KILN Vs. OFFICER I/C DMO

JUDGEMENT

(1.) The petitioners are engaged in the business of manufacture and sale of bricks. They have obtained on lease private land for extraction of brick clay to be used by them for the manufacture of bricks in their respective brick kilns. They have in fact already extracted brick clay from such lands. Brick clay has been declared to be a minor mineral under the Mines and Minerals (Development and Regulation) Act, 1957. The Geology and Mining Department has issued notice to the petitioners asking them to stop the extraction of brick clay from the aforementioned lands and also to pay cost and royalty for the brick clay already extracted by them. The pattern of the notice in each case is the same. By way of specimen we reproduce here the notice impugned in Writ Petition No. 391/80.

(2.) The respective petitioners have challenged the validity of the notice on the ground that it is ultra vires Rule 44 of the Jammu and Kashmir Minor Mineral Concession Rules, 1962. Rule 44 reads thus: "Grant of quarrying permits. -- Notwithstanding anything contained in these rules the Director may grant and remove from any specified land not leased out to anybody within the limits of the State any minor minerals mot exceeding in quantity 5,000 tons under any one permit, on payment of such royalty shown in the First schedule to these Rules: Provided that the Director may refuse to grant such permits for reasons to be recorded in writing."

(3.) Clearly Rule 44 does not cast any obligation on the leaseholder of private land to obtain a quarry permit before extracting the brick clay from such land. The rule does not also fast any obligation on him to pay cost or royalty to the State in respect of the clay removed by him from such land. This is what the counsel for the respondents could not also help concede before us. They have, however, tried to justify the second part of the notice regarding recovery on the basis of Clause (a) of Rule 3, Rule 3 (a) reads as under:--