Holding

Brick‑earth, being a minor mineral not covered by Section 41, remains the property of the landowner under the presumption of Section 42(2), and the State cannot rebut this presumption to claim royalty or licences.

Summary

The State of Punjab sought royalty and mining licences for the removal of brick‑earth, classified as a minor mineral, from lands owned by private individuals in Gurdaspur. The brick‑manufacturers sued the State for perpetual injunctions, arguing that the State did not own the brick‑earth and therefore could not demand royalty or licences. The lower courts upheld the manufacturers' claim, finding that the brick‑earth belonged to the landowners based on entries in the Wajib‑ul‑arz records. On appeal, the State contended that the presumption of ownership in favour of landowners under Section 42(2) of the Punjab Land Revenue Act was rebuttable. The Supreme Court held that brick‑earth is not covered by Section 41, so it remains the property of the landowners, and the presumption under Section 42(2) cannot be rebutted by the State. Consequently, the State could not demand royalty or licences for its removal. The appeals were dismissed and each party was ordered to bear its own costs.

Issues considered

Whether brick‑earth, classified as a minor mineral, becomes property of the State under Section 41 of the Punjab Land Revenue Act, 1887, thereby attracting royalty and licensing requirements.
Whether the presumption under Section 42(2) of the Punjab Land Revenue Act that lands (including brick‑earth) belong to landowners can be rebutted by the State through evidence from Wajib‑ul‑arz records.
Whether the State of Punjab is entitled to demand royalty and mining permits for the removal of brick‑earth from private lands.

Legislation cited

Mines and Minerals (Regulation & Development) Act, 1957
Punjab Land Revenue Act, 1887s. 31, s. 41, s. 42

Subjects

brick‑earthminor mineralroyaltymining licencePunjab Land Revenue ActSection 42 presumptionWajib‑ul‑arzstate ownershipcivil injunctionrecord of rights

Judgment

STATE OF PUNJAB A
v.
VISHKARMA AND CO: ETC.

FEBRUARY 5, 1993
B
[L.M. SHARMA, CJ., S. MOHAN AND N. VENKATACHALA, JJ.)

Mines and Minerals (Regulation & Development) Act, 1957/The Punjab
Minor Mineral Concession Rules, 1964-Removal of brick earth by
briclc-Manufacturers from lands on leases or licences granted by land-
owners-Whether obtainment of permit/licence and payment of royalty are
c
necessary.

Punjab Land Revenue Ac4 1987: Sections 31, 41 and 42-Scope and
applicability of;. Wajib-ut-a~at is.
D
Respondent companies filed suits in Civil Courts for perpetual
injuctions restraining the Appellant State from demanding payment of
royalty for removal of brick-earth from owners' lands and insisting upon
obtaining of requisite mining licences or permits. They based their claim
on the premise that though the brick earth was classified as minor
mineral under the Rules, since the State of Punjab was not the owner of E
brick-earth in the lands concerned, no necessity arose for payment of
royalty and for obtainment of mining licences or permits. The Civil Courts
accepted the claim and decreed the suits, granting the reliefs prayed for.

The Appellant State carried the matter before the First Appellate F
Court in vain. Further Regular Second Appeals before the High Court
~ were also dismissed by a Common Judgment, impugned herein, by way of
Civil Appeals by Special Leave. The Appellant contended (i) that the
Courts below went wrong in holding that the brick-earth did not vest in
the State on the basis of entries in wajib-nl-arz pertaining to the lands of G
the estates of the land owners; (ii) that as the presumption, drawn from
the entries in wajib-ul-arz, to the effect that the brick earth in the lands
'concerned belonged to the lands' owners, was only rebuttable, the decrees
should have been set aside, remanding the suits to the courts of first
instance with a direction to them to afford an opportunity to the State to
adduce rebuttal evidence. H
761

...
762 SUPREME COURT REPORTS (1993) 1 S.C.R.

A Dismissing the Appeals, this Court,

HELD : 1. Although Brick-earth is indisputably a minor r..ineral, it
Is not any of the mines or minerals covered by section 41 of the Revenue
Act as would make it become the property of the State. If the owner of snch
brick-earth is the State of, Punjab, liability to pay royalty for removal of
B such brick-earth and to obtain permit or licence for such removal, would
necessarily arise because of the operation of the Act and the Rules. But
the courts below have concurrently found on their reading of the entires
in wajib-ul-arz pertaining to the estates concerned that the brick-earth
was in lands which formed the estates of the private owners and as such
c the same belonged to such land-owners. [766G]

2. Wazib-ul-arz document being record-of-rights of estates com-
pleted after 18th day of November 1871, and there being nothing expressly
stated in them that the forest or quarry or land or interest in the esta!es
belong to the Government, the lands in such estates including brick-earth
D in them shall be presumed to belong to the concerned land-owne<s as is
declared in sub-section (2) of Section 42 of the Revenue Act. (767A-BJ

3. The Courts have again pointed out that there being no provision
similar to the provision in sub-section (3) which permits adducing of
rebuttal evidence against the presumption that the lands belong to the
E State under Sub-Section (1) of Section 42 of the Revenue Act, the
presumption which arises under sub-section (2) of Section 42 of the
Revenue Act that the forest or quarry or land or interest belong to
land-owner, cannot at all.be rebutted by the State by adducing any con-
trary evidence. Even otherwise, when the State has not chosen to adduce
F any evidence to rebut the presumption arising from the entires in Wajib-
ul-arz documents-record-of-rights there can be no valid reason for the
Courts to hold that the brick-earth in the lands of the estates concerned
has become the property of the State, so as to require the brick-manufac-
turers to pay royalty for removal of such brick-earth and obtain permits
G or licences under the Rules. [767C-F]

4. When all the Courts below have concurrently recorded findings to
the effect that the ownership of the brick-earth belong to land-owners and·
not to the State on a correct appreciation of all evidence adduced in the
case and on a proper application of the law governing the same, there
H could be no justification to interfere with such findings in these appeds.
~

STATE OF PUNJAB v. VISHKARMA & CO. [VENKATACHALA, J.] 763

So also no valid reason has been shown to set aside the lower courts' A
judgments and decrees and send the matters to the Courts of first iu-
stance with a direction to permit the State to adduce rebuttal evidence as
regards entries in record-of-rights. [767G-H]

5. Wajib-ul-arz is a document included in the record-of- rights since
it contains the statements OD matters envisaged under clauses (a) and (b) B
of sub-section (2) of Section 31 of the Punjab Land Revenue Act, 1887.

--.,.. CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1458-
1469 of 1988.

From the Judgment and Order dated 16.9.82 of the Punjab & c
Haryana High Court in R.SA. Nos. 902-913 of 1973.

S.P. Goyal, Rajinder Sachar, Ms. Arnita Gupta, G.K. Bansal, P.C.
Dhiman, Ms. Prabha Jain, K.G. Bhagat, Ravindra Bana, K.H. Bhagat, Ms.
·---...r Kusum Choudhary, B.D. Sharma, Narottam Vyas, P.N. Puri, S.C. Khunger
and Ravi Khunger for the appearing Parties.
D

The Judgment of the Court was delivered by

VENKATACHALA, J. 1. In these Civil Appeals by Special Leave, of
the State of Punjab, correctness of the common judgment dated September
E
16, 1982 by which Regular Second Appeals Nos. 902-913 of 1973 were
,.-1_~
dismissed by the High Court of Punjab and Haryana, is questioned.

2.-Facts, giving rise to these Civil Appeals lie in a narrow compass.
In the District of Gurdaspur certain land-owners had permitted different
brick-manufacturers to remove brick-earth from lands in their respective F
estates on leases or licences granted by them. The Mines and Minerals
_,.___ (Regulation & Development) Act, 1957 (for short 'the Act') having come
into force in the State of Punjab, the Punjab Minor Mineral Concession
Rules, 1964 (for short 'the Rules') were also made and brought into force
with effect from April 25, 1964. With the coming into force of the
provisions of the Act and the Rules in the State of Punjab, its officers took G
steps to prevent the said brick-manufacturers from removing the brick-
earth from the lands in the estates on the strength of the leases and licences
.I- executed in their favour by the land-owners without obtaining the mining
licences and paying royalty, under the Rules. The said manufacturers of
bricks although removed brick-earth from the concerned lands by paying H
,
764 SUPREME COURT REPORTS (1993] 1 S.C.R.

A royalty and obtaining licences for some years, they filed suits in civil courts
of original jurisdiction to restrain by perpetual injunctions the State of
Punjab and its officers from demanding payment of royalty for removal of
brick-earth from o~ers' lands and insisting upon obtaining of 1nining
licences or permits for the purpose. The relief of injunctions sotJght in
those suits was b.ased on their claim that notwithstanding the fact that
B brick-earth was regarded as minor-mineral under the Rules, State of
Punjab not being the owner of brick-earth in the concerned lands, there
arose no need to p•y royalty to State for removal of such brick-earth and
~
to obtain mining licences or permits from the State. The claim so made,
having found favour with the Civil Courts of first instance, the suits were
c decreed and reliefs sought for therein were granted. The First Appeals
carried against such decrees by the State of Punjab before the First
Appellate Courts did not meet with success. Further Regular Second -
Appeals carried to the High Court met with the same fate when they were
dismissed by a learned single Judge of. that Court by a common j~.dgment
D
dated September 16, 1982. It is that common judgment, which has become -r·
the subject-matter of the Punjab State's present Civil Appeals by Special
Leave.
..
3. On behalf of the State it was contended firstly, that the courts
below should not have, on the basis of entries in Wajib-ul-arz pertaining
E to the la'lds of the. estates of the land-owners found that the brick-earth in
such lands' did not vest in the state and secondly, that the lower appellate ~
courts when were of the view that the entires in Wajib-ul-arz, required the
drawing of the presumption that the brick-earth in the concerned lands
belonged to the lands' owners, they should have seen that such presump-
tion was a rebuttable presumption and as such called for setting aside the
F
decrees of the Courts of first instance, and remittal of the suits to the
Courts of first instance with a direction to them to afford. an opportunity
to the State to adduce rebuttal evidence. Both these contentions cannot ,-----
merit our acceptance for the reasons which we shall presently state.

G 4. As some of the provisions of the Punjab Land Revenue Act, 1887
(for short 'the Revenue Act') which directly bear on the said contentions
would be helpful in appreciating the merit of those contentions, they are
set out at the outset. Section 31 which deals with record-of-rights re:ating -\.
to each estate comprised of the lands from where brick-earth is being
H removed by the brick-manufacturers reads: ~
""
i~

"
STATE OF PUNJAB v. VISHKARMA & CO. [VENKATACHALA, J.] 765

. "31. Record-of-rights and documents included therein-{1) A
Save as otherwise provided by this Chapter, there shall be
y record-of-rights for each estate.

"-~. 2. The record-of-rights for an estate shan include the
following documents, namely ~
B
(a) statements showing, so far as may be practicable-

the persons who are land-owners, tenants or assignees of
-J.- land revenue in the estate or who are entitled to receive
any of the rents profits or produce of the estate or to occupy
land therein; c
(ii) the nature and extent of the interests of those persons,
and the conditions and liabilities attaching thereto;

(iii) the rent, land revenue, rates, cesses or other payments
due from and to each of those persons and to the Govern- D
ment.

(b) a statement of customs respecting rights and liabilities
in the estate;

...................... E
....4..
Section 41 which refers to the right of the Government in mines and
minerals. reads thus :

"41. Rights of the Government in mines and minerals-All
mines of metal and coal, and all earth-oil and gold washings F
shall be deemed to be the property of the Government for
the purposes of the State and the State Government shall
have all powers necessary for the proper enjoyment of the
Government's rights thereto."
G
Section 42 which relates to presumption as to ownership of forests,
quarries and waste lands reads thus:-

~- '42. Presumption as to ownership of forests, quarries and
waste lands. - (1) When 10 any record-of-rights completed
1,, before the eighteenth day of November, 1871, it is not H
766 SUPREME COURT REPORTS [1993] 1 S.C.R.

A expressly provided that any forest, quarry, unclaimed, un-
occupied, deserted or waste land, spontaneous produce or
other accessary interest in land belongs to the landowners, '-7''
it shall be presumed to belong to the Government. ,.
(2) \Vhen in any record-of-rights completed after that date
B it is not expressly provided that any forest or quarry or any
such land or interest belongs to the Government, it shall
be·presumed to belong to the landowners.
_.,..
(3) The presumption created by sub-section (1) may
be rebutted by showing -
c
(a) from the records or report made by the assessing
officer at the time to assessment; or

(b) if the record or report, is silent, then from a
D comparison between the assessment of villages in which
they existed, and the assessment of villages of similar
character in which they did not exist, any forest or quarry,
or any such land or interest

that the forest, quarry land or interest was taken into account in the
E assessment of the land revenue.
~

(4) Until .the presumption is so rebutted, the forest,
quarry, land or interest shall be held to belong to the
Government."
F 5. Brick-earth with which we are concerned in the present appeals,
is a minor mineral was no! disputed, although it is not any of the mines or
minerals covered by section 41 of the Revenue Act as would make it
.....__
become the property of the State.. If the owner of such brick-earth is the
State of Punjab, liability to pay royalty for removal of such brick-earth and
G to obtain permit or licence for such removal, necessarily arises because of
the operation of the Act and the Rules. But the Courts below have concur-
rently found that the present appeals have arisen was in lands which
formed the estates of the private owners and as such the same belonged
. """
to such land-owners. It is so found on their reading of the entries in ~.
H Wajib-ul-arz pertaining to. the eoncerned estates. Wajib-ul-arz is a docu- .,_
STATE OF PUNJAB v. VISHKARMA & CO. [VENKATACHALA, J.] 767

ment included in the record-of-rights cannot be disputed since it contains A
the statements on matters envisaged under clauses (a) and (b) of sub-
section (2) of section 31 of the Act. According to the courts below
Wajib-ul-arz document being record-of-rights of estates completed after
18th day of November, 1871, an<l there being nothing expressly stated in
them that the forest or quarry or land or interest in the estates belong to B
the Government, the lands in such estates including brick-earth in them
shall be presumed to belong to the concerned land-owners as is declared
--+·· in sub-section (2) of section 42 of the R-,venue Act.

6. Again, it is pointed out by the courts that there being no provision C
similar to the provision in sub-section (3) which permits adducing of
rebuttal evidence against the presumption that the lands belong to the State
under sub-section (1) of section 42 of the Revenue Act, the presumption
whcih arises under sub-section (2) of section 42 of the Revenue Act that
the forest or quarry or land or interest belong to land-owner, cannot at all
be rebutted by the State by adducing any contrary evidence. Even other- D
wise, according to them, when the State has not chosen to adduce any
evidence to rebut the presumption arising from the entries in Wajib-ul-arz ,
document - record-of-rights relating to the estates of lands whose brick-
earth is allowed by the land-owners to be removed by the brick-manufac-
.. ~ turers who are the plaintiffs in the suits out of which the present Civil E
Appeals have arisen, there can be no valid reason for them to hold that
the brick-earth in the lands of the estates concerned has become the
,property of the State, so as to require the brick-manufacturers to pay
royalty for removal of such brick-earth and obtain permits or licences
under the Rules. F

7. In our view, when all the courts below have concurrently recorded
findings to the effect that the ownership of the brick-earth belong to
land-owners and not to the State on a correct appreciation of all evidence
adduced in the case and on a proper application of the law governing the G
same, there could be no justification to interfere with such findings in these
appeals. We are also not shown any valid reason as to why we should set
aside the lower courts' judgments and decrees and send the matters to the
Courts of first instance with a dirertion to permit the State to adduce
rebuttal evidence as regards entries in record-of-rights. H
768 SUPREME COURT REPORTS [1993) 1 S.C.R.

A 8. These appeals, therefore, fail and are dismissed. However, in the
facts and circumstances, parties are directed to bear their respective costs y
in these appeals.

G.N.R. · Appeals dismissed.

-