Read why SC held that State Government can levy royalty on production and disposal of brick earth being a minor mineral

Supreme Court: In a batch of civil appeals, against Punjab and Haryana High Court’s decision, allowing the appeal of the present respondents, holding that mere declaration of brick earth as a minor mineral, no rights were vested in the State Government to levy royalty, the Division Bench of Abhay S. Oka* and Ujjal Bhuyan, JJ. allowed the appeal and set aside the High Court’s decision and restored the Trial Court’s decree dismissing the respondents’ suit. The Court held that once it was accepted that brick earth was a minor mineral under the Mineral Rules, the State Government had the right to levy royalty on the production and disposal of minor minerals.

Background

The present respondents/ original plaintiffs filed suits against the appellants herein/ original defendants for a permanent injunction restraining them from assessing, levying, or recovering any amount as royalty from the respondents on account of the use of earth by the respondents for making bricks. According to the respondents who were operating brick kilns, they took different lands (‘the said lands’) from private owners on lease. The respondents used to excavate earth from the said lands to manufacture bricks in their brick kilns. The respondents’ case was that no part of the land was vested in the Government and according to the Wajib-ul-arz, brick earth does not belong to the State Government. Reliance was placed on Section 42 of the Punjab Land Revenue Act, 1887 (‘the Land Revenue Act’) and, in particular, sub-section (2) thereof. It was further contended that under the Mines and Mineral (Regulations and Development) Act, 1957 (‘the 1957 Act’) or under the Punjab Minor Mineral Concession Rules, 1964 (‘the Mineral Rules’), there was no provision entitling the first appellant — State Government to levy royalty on the use of brick earth. The respondents contended that the appellants’ action of assessing royalty and sending notices for recovery was illegal.

The Trial Court held that the record of rights regarding the land in question was made before 18-11-1871, and since the Wajib-ul-arz did not specify that the quarries belonged to the land owners, it was held that the subject quarry was vested in the State Government in terms of Section 42(1) of the Land Revenue Act. The Trial Court further held that by a notification issued under Section 3(e) of the 1957 Act, brick earth was declared a minor mineral. The Trial Court held that even though the settlement in the years 1911-12 and 1962-63 did not show the subject land as a quarry, that was not significant as, at that time, brick earth was not declared as a minor mineral. The first appellate Court also confirmed the Trial Court’s decree.

Vide the impugned decision, the High Court concluded that by way of mere declaration of brick earth as a minor mineral, no rights can vest in the State Government to levy royalty. It was held that since the appellants failed to prove that they are owners of brick earth, they were not entitled to claim any royalty from the respondents.

Analysis and Decision

The Court noted that on 01-06-1958, the Government of India published a notification in the exercise of powers conferred under Section 3(e) of the 1957 Act by which brick earth was declared a minor mineral within the meaning of the 1957 Act. Perusing the Trial Court’s decision, the Court noted that the respondents did not claim to be the owners of the said lands from which they were excavating brick earth. According to the respondents, the said lands were owned by someone else and were taken on lease by the respondents, and the said lands were vested in private persons. The Court stated that in such case, the persons claiming to be the land owners ought to have been made a party to the suit to enable the Court to decide the issue of title. The Court pointed out that Section 41 of the Land Revenue Act provides that all mines of metal and coal and all earth oil and gold shall be deemed to be the property of the State; and Section 42 provides for- Presumption as to ownership of forests, quarries and waste lands.— (1) When in any record-of-rights completed before the eighteenth day of November, 1871, it is no expressly provided that any forest quarry, unclaimed unoccupied, deserted or waste-land, spontaneous produce or other accessary interest in land belongs to the land-owners, it shall be presumed to belong to the Government. (2) When in any record-of-rights completed after that date 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 land-owners.

Noting that the High Court held that the presumption under Section 42(2) of the Land Revenue Act would not apply, the Court said that the High Court missed the real issue, as far as the ownership of the said lands was concerned, admittedly, respondents were not the owners. The respondents claimed that they had taken the said lands on lease from the real owners. The persons claiming to be the real owners were not parties to the suit. Most importantly, the Trial Court did not frame any issue on the ownership of the land in question. Further, the Court added that the Rule 3 of the Mineral Rules provides for exemptions from payment of royalty and does not provide for an exemption in respect of the excavation of brick earth for manufacturing bricks. The Court said that even if it is assumed that the lands on which the respondents carried out excavation were private lands, the question was whether the State Government was powerless to levy royalty.

To decide, whether royalty could be levied, the Court perused Rules 54A, 54B and 54C. The Court noted that Section 54B provides that- No person shall undertake quarrying or mining operation unless and until he holds a certificate of approval in Form “B”: Provided that no such certificate shall be necessary for undertaking quarrying or mining operation by a person exempted under rule 3. The Court also said that the person to whom the certificate is issued is required to file returns showing the production and disposal of mines or minerals. The royalty is determined as provided in Rule 54C (1).

Therefore, the Court held that once it was accepted that brick earth was a minor mineral under the Mineral Rules, the State Government had the right to levy royalty on the production and disposal of minor minerals. Further, the Court clarified when it was decided that the State Government was entitled to levy royalty on the activity of mining of brick earth, the issue of ownership of the said lands was irrelevant, as the owners of the said lands in which the excavation was made were not in the exempted category specified in Rule 3 of the Mineral Rules.

Hence, the Court quashed the impugned decision, and the Trial Court’s decree of dismissing the respondents’ suit was restored.