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1971 (3) TMI 122

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..... brick kiln on the land which it took on lease from the Gram Panchayat of village Chhapra Tehsil and District Ambala for production of bricks at the rate of 15000 bricks per year. It is averred that the petitioner-firm is neither a mining lessee not has entered into any agreement with the Government in that regard nor does it hold any short term permit under the Punjab Minor Minerals Concession Rules, 1964, (hereinafter referred to as the Rules). The District Industries Officer Ambala, however, issued a demand notice vide Annexure 'A' demanding ₹ 4152.86 P. as royalty from the petitioner-firm on pain of issuing warrants of arrest and attachment in default of payment. This demand notice is impugned by way of writ petition and has been challenged as null and void and the constitutionality of the various provisions of the Mines and Minerals (Regulation Development) Act, 1957, (hereinafter called as the Act) and the validity of the notifications and the rules framed thereunder have been assailed on a variety of grounds which would be noticed in detail hereafter. 3. In the return filed on behalf of the respondent State of Haryana, three preliminary objections have been .....

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..... t that the matter be decided by a larger Bench. That is how these writ petitions are before us. 6. Ere I consider the main point at issue between the parties I deem it best to clear the ground of a contention, which though in the beginning was in the fore-front of the argument on behalf of the petitioners, it subsequently was relegated entirely to the background and to insignificance. The relevant part of the impugned notification are published in the gazette read as under:-- G. S. R. 436--In exercise of the powers conferred by clause (e) of the Mines and Minerals (Regulation Development) Act, 1957 (67 of 1957), the Central Government hereby declares the following minerals to be minor minerals namely:-- boulder, shingle, Chalcedony pebbles used for ball mill purpose only, lime shell, kankar and lime stone used for lime burning, murrum brick earth, fuller's earth, bentonite road metal, reh-matti, slate and shale when used for building material. Taking advantage of a, between the words murrum and brick-earth , an argument was sought to be raised that when the notification was declared to be a minor material is the peculiar substance called murrum-earth when .....

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..... of the relevant portion of the above shows that the a comma existed between the word murrum and brick-earth . A comparison of the notification G. S. R. 436 and the above-quoted R. 3 (ii) would show that the latter notification merely adopted and substantially copied the above-said provision in the Rules without any significant change. It is of equal significance that the provisions of Rule 3(ii) above-said of the Rules continued to be of validity till the time of its substitution by the impugned notification of 1958. There is, therefore, substance in the contention of the learned counsel for the respondents that the Legislature in issuing the latter notification was not making any policy decision nor making any substantial change in the prior provisions regarding minor minerals and the absence of the comma between the words murrum and brick-earth was in fact no more than a printer's devil. The omission was characterised as entirely accidental. That this was so is further evident from the fact that subsequently on discovering the error in 1969, a notification G. S. R. 901, dated the 22nd March, with reference to the impugned notification was issued in the following terms: .....

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..... ion seems to be no more then a error of omission on the part of the printers. 12. I now come to the crucial issue which falls for determination in the present case regarding which the parties are arrayed on opposite sides and on which they have expressly invited a decision on merits. The broad argument on behalf of the petitioners on this main issue runs thus. The power of Parliament to legislate in connection with mines and minerals is governed by Entry 54, List 1 in the Seventh Schedule which is in the following terms:-- Entry 54 Regulation of mines and mineral development to the extent to such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. It is argued that neither in the Constitution nor in the Mines and Minerals (Regulation and Development) Act of 1957, (hereinafter referred to as the Act) has the word 'mineral' been comprehensively defined. That being so, it was contended that the power of Parliament to legislate in this connection is confined to such substances which either in a popular sense or in scientific terminology or minerals and to no others. Parliament hence, it is .....

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..... and Carpalla cases (1910 AC 116 and 1910 AC 83) seems to me to have been this; the Court has to find what the parties must be taken to have brought and sold respectively, remembering that no definition of 'minerals' is attainable, the variety of meanings which the use of the word 'minerals' admits of being itself the source of all the difficulty. It is unnecessary to multiply further English authorities as the view above said seems to have been consistently adhered to in the highest English Court. 14. An identical view has received ready acceptance in the American Courts as well. The Supreme Court of North Dakota in Adams County v. Smith, 23 NWR, (2nd Series) 873(ND) on a consideration of the case law observed as follows:-- These cases disclose that the word 'mineral' is not a definite term susceptible to a rigid definition applicable in all instances. It is a term susceptible of limitations or extensions according to the intention with which it is used. A similar view has been expressed in Kalberer v. Grassham, by the Court of Appeals of Kentucky in 138 SWR and series 900 and also in Holloway Gravel Co. v. Mckowen by the Supreme Court of Lou .....

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..... attributed to the word mineral had this to say:-- The conclusion at which we have therefore, arrived is that the term 'mineral' is not as inflexible in its meaning as one ought at first sight suppose and is not necessarily connected with a mine, although it ordinarily is, and its precise meaning in a given case will have to be fixed with reference to the particular context, and in relation to the surrounding circumstances of the particular case. 16. It is in this context of the nebulousness and the ambiguity of the word mineral that the validity or otherwise of the impugned legislation has to be viewed. Did Parliament transcend the bounds of constitutionality and the limits of its own powers in specifying the substances which were to fall in the category of minor mineral and to which consequently the legislation was to be made applicable? I would forthwith answer this issue firmly in the negative and would proceed to give my reasons hereafter. It is axiomatic that certainty is a necessary attribute of the law and particularly of the statutory legislation. Parliament or the Central Government as its delegate were, therefore, indeed duty bound to lay down with .....

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..... that in no precedent such a definition or limitation has even been attempted. In fact the unanimous view of authoritative pronouncement on the point would show the large and the unconfined sense in which the word mineral has always been accepted and used. I would hence advert briefly to the leading English and American cases on the point in their chronological sequence. As early as 1867 Lord Romilly in Midland Railway Co. v. Checkley, (1867) 4 Eq 19, observed:-- Upon the first point I think there is no question. Stone is, in my opinion, clearly a mineral, and in fact everything except the mere surface, which is used for agricultural purposes; anything beyond that which is useful for any purpose whatever, whether it is gravel, marble, fire-clay, or the like, comes within the word mineral, when there is a reservation of the mines and minerals from a grant of land; every species of stone, whether marble, lime-stone, or ironstone, comes, in my opinion, within the same category. In Hext v. Gill, (1872) 7 Ch App 699 at p 712; Lord Justice Mellish laid down as follows:-- Many authorities, some at law and some in equity, have been brought before us to shew what is the meaning .....

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..... tional Dictionary which is as follows:-- Anything which is neither animal nor vegetable, as in the old general classification of things into three kingdoms (animal, vegetable, and mineral). Again in the Random House Dictionary of the English language, one of the meanings given is as follows:-- Any substance that is neither animal nor vegetable. A reference to the other works which were relied upon on behalf of the petitioners yields also a similar result, I am hence of the opinion that a detailed perusal of these dictionaries, whether scientific or otherwise on this point is wasteful because a reference to them only reiterates the wide divergence of meanings attributable to the word mineral rather than any precise concept of the same. 22. Reliance was placed by the learned Counsel for the parties on the evidence of two experts examined in the case in support of the view canvassed by either of them. I am, however, of the view that in so far as this evidence is relied upon or is directed to define or attribute a precise meaning of the word mineral , it is both inadmissible and irrelevant to the issue. What we have to determine in the present case is the mea .....

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..... eworthy that the decision above-said was affirmed by the House of Lords on appeal in 1910 AC 83. 23. Assuming, however, for a moment's sake that the expert testimony is either admissible or relevant, I find the same to be of no aid whatsoever in either construing the precise meaning to be attributed to the word mineral or on the point whether brick-earth would come within that ambit. This is evident from the fact that the learned counsel on either side vied with each other to rely on the testimony of the expert produced by the other side for supporting the argument advanced by each one of them. Professor A. G. Jhingran, who was examined on behalf of the petitioners in his cross-examination abandoned the very concept of brick-earth as such and stated as follows:-- As scientists we say bricks are made from clays and not earth. Earth is a very loose term. It has no scientific meaning. In geology, we do not talk of earth unless it is a reference to fuller's earth and diatomaceous earth. Earth contains clays to make bricks. This witness was also very guarded in his testimony as to when brick-earth or earth itself can be a mineral. For instance he deposed-- earth .....

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..... not include brick-earth within its ambit. It is first to be kept in mind that herein we are not construing a private deed or grant or a contract but a statutory provision. Therefore the short answer to the above argument is that in the present case we are construing statutory legislation and the words and language used therein have to be taken in their legal acceptation. This is too settled a canon of interpretation to be deviated from Lord Macnaghten in the Commr. for Special Purposes of the Income Tax v. John Frederick Pemsel, 1891 AC 531, had laid down as follows:-- In construing Acts of Parliament, it is a general rule, not without authority in this House (Stephenson v. Higginson, (1851) 3 HLC 638), that words must be taken in their legal sense unless a contrary intention appears. In Chesterman v. Federal Commissioner of Taxation, 1926 AC 128; Lord Wrenbury expressly reaffirmed the above dictum. Yet again in Laurence Arthur Adamson v. Melbourne and Metropolitan Board of Works, AIR 1929 PC 181, following the above said two decisions it has again been held that whilst construing Parliamentary statutes it is the general rule that words must be taken in their technical leg .....

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..... ctrinaire approach to the legislative entries which has been repeatedly deprecated by the Supreme Court in Navinchandra Mafatlal v. Commr. of Income Tax, Bombay City, AIR 1955 SC 58, it has been laid down as follows in this context:-- As pointed out by Gwyer C. J. in United Provinces v. Mt. Atiqua Begum', AIR 1941 FC 16 at p 25 none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. x x x x x x The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude. 28. Reiterating the above rule and relying on British Coal Corporation v. The King, 1935 AC 500=(AIR 1935 PC 158), their Lordships again held as follows in Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459:-- It is well settled that these h .....

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..... seem to have been departed from in the subsequent cases and in fact has found a ready acceptance in the American Courts. In U. S. S. C. R., (1903) 47 L Ed 575, United States Supreme Court held that granite recovered from quarries was a mineral and as such granite quarries were covered by the word mineral lands. 30. As regards sand and gravel again Lord Romilly in Earl Cowley v. Wellesley, (1866) 1 Eq 656, laid down as follows:-- The whole of the gravel or sand on the waste land must be treated as a mine, and each gravel pit as if it were a fresh pit in the mine. This view was followed and reiterated in (1901) 1 QB 317, where it is laid down as follows:-- The question is whether gravel and sand come within the term 'other minerals'. That 'minerals' in an Act of Parliament or in a legal document prima facie includes such a thing as gravel or sand is now clearly settled by the decided cases. And I can see nothing in the nature of the Act or in the context to qualify this wide prima facie meaning of the term. 31. As regards clays Sir George Mellish, in the leading case of (1872) 7 Ch App 699, while answering the question whether china clay was reser .....

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..... ined as follows:-- As scientists we say bricks are made from clays and not earth. Earth is a very loose term. It has no scientific meaning........... Earth contains clays to make bricks. The term brick-earth will only be used when that particular earth can make bricks. 35. Again it was conceded before us by the learned counsel for the petitioners that every type of earth is not suitable for brick making. Admittedly if the earth has a large sandy content it is useless for brick making. Equally so if the earth contains a substantive content of gravel no bricks can be made therefrom. Also if there is a rocky base the soil would be unfit for brick manufacture. Speaking positively it was further conceded that the earth to be usable for brick manufacture must have adhesive properties which in turn must be provided by the presence of clay therein. In other words a clayey content is essential in the earth which can be used for the properties of brick making. 36. Mr. I. M. Aga gave the approximate chemical composition of the brick-earth which would be suitable for specific properties of brick manufacture. Therefore, it is inapt to confuse brick-earth with any and every kind of .....

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..... narrow issue as was noticed in the following terms by the Bench itself:-- However, as stated above, we are by agreement of parties called upon to deal with one point only, namely as to whether Rule 17(1)(i) read with the relevant entry in Schedule 1 is ultra vires or not. If his point succeeds this appeal will succeed, but all other points will be kept open. We now proceed to deal with this point. Confining themselves to the above point their Lordships held that the word 'clay' is not identical with 'earth' and 'ordinary clay' is not the same thing as 'ordinary earth'. Obviously there can be no quarrel with this proposition. But what is equally obvious is that this is not even remotely the issue before this Bench. The question whether brick earth is a mineral and whether it has been validly declared to be a minor mineral by virtue of notification G. S. R. 436 was not even remotely canvassed, agitated or pronounced upon in the above said Calcutta decision. I fail to see how it can aid the argument on behalf of the petitioners in the present case. 43. Mr. Malik repeatedly sought some support from Waring v. Booth Crushed Gravel Co. Ltd., (193 .....

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..... orked out by delegating them to a subordinate authority within the framework of that policy. Similarly whilst upholding the vires of Section 4, aforesaid which authorizes the delegate to further delegate its power to its subordinates the Supreme Court, approvingly referred to the observations of the Privy Council in Shannon v. Lower Mainland Dairy Products Board, 1938 AC 708=(AIR 1939 PC 36):-- The third objection is that it is not within the powers of the Provincial Legislature to delegate so-called legislative powers to the Lt. Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers. The above observations, in my view, apply equally well to the present situation. A reference to the Mines and Minerals (Regulation Development) Act, 1957, the preamble and the detailed provisions provided in the thirty-three sections and the schedule thereof leave no manner of doubt that the legislature has in terms laid down the principle .....

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..... ng the session in which they are so laid. This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate. Therefore, reading Section 4 along with Section 3(2) of the Act it cannot be said in the special circumstances of this case that there was excessive delegation to the Central Government by Section 3(1). We are, therefore, of opinion that the Act cannot be struck down on the ground of excessive delegation. On behalf of the petitioners the above noticed legal position could not be seriously controverted and no authority to the contrary was cited. I am hence of the view that Section 3(e) and the impugned notification issued thereunder does not suffer from any vice of excessive delegation. 48. I have deemed it necessary to notice in detail and repel the many pronged attack upon the impugned provisions. However, the variety of the arguments and the welter of case law should not deflect us from the Central issue-Has Parliament in enacting Section 3(e) of the Act crossed the bounds of its power in adopting the legal acceptation of the word mineral in its larger signification? Is the declaratio .....

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..... e of limitation or expansion according to the intention in which it is used and its primary signification can always be enlarged if that is the intention of the contracting parties or the legislature. 49. In the Punjab Minor Minerals Rules, promulgated in 1934, the extended meaning of the word minerals was given as follows in the definition:-- 'Mineral' includes all kanker (calcareous carbonate of lime), stone, marble, gypsum, fire-clay, china-clay, lime-stone, slate, boulders, shingle, gravel, rori and bajri, but excludes coal, the ores of metal, earth, oil, gold and salt and all minerals the extraction of which is governed by the Punjab Mining Manual; and it also includes sand in any area or locality which the Local Government may by notification direct. The Mines and Minerals (Regulation Development) Act, 1948, is the immediate predecessor of the present statute. It deserves notice that this Act was enacted by virtue of Entry No. 36 in List I of the Seventh Schedule of the Government of India Act, 1935, which is in the following terms:-- Regulation of mines and oil fields and mineral development to the extent to which such regulation and development .....

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..... oils are continued to be dealt with by 1948 Act by virtue of the amendments made therein by Section 32 read with the Third Schedule to this Act. The present Act also did not attempt any definition of minerals in Section 3(a) which is in the following terms:-- 3 (a) 'Minerals' include all minerals except mineral oils. In enacting Section 3(e) of the present Act declaring stone, gravel, ordinary clay and ordinary sands as minor minerals , Parliament was doing no more than continuing the earlier legislation on the subject with the accepted meaning attached thereto whereby 'minor minerals' already included these substances. Equally significant is the fact that Section 29 continued the existing rules i.e. including the Mineral Concession Rules, 1949 and is in the following terms:-- Existing rules to continue--All rules made or purporting to have been made under the Mines and Minerals (Regulation Development) Act, 1948 (53 of 1948), shall, in so far as they relate to matters for which provision is made in this Act and are not inconsistent therewith, be deemed to have been made under this Act as if this Act had been in force on the date on which such rules w .....

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..... inition of minor minerals included brick-earth. The Constitution makers should be taken to have been aware of that legal concept, when they mentioned 'minerals' in the Lists in the Seventh Schedule, yet the inclusion of brick-earth in the definition of minor minerals in a statutory Rule in our country should raise an inference that our Constitution makers and legislators understood and used the expression in that meaning. In the ultimate analysis, therefore, I am of the view that no taint of unconstitutionality attaches to either Section 3(e) of the Act or to the impugned notification G.S.R. 436 in so far it has declared brick-earth to be a minor mineral . 52. Learned counsel for the petitioners is again on an equally tenuous ground when he contents that because of Section 14 of the Act, the State Government is precluded from levying royalty in respect of minor minerals and to frame rules in regard thereto. It is contended that as the provisions of Section 9 have been made inapplicable in the context of minor minerals no royalty can be levied. The above said contention appears to stem from some misapprehension regarding the provisions of Section 14 when read i .....

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..... be on a firm and unassailable ground on another point. It is contended on behalf of the petitioners that they neither held a prospecting license nor are they mining licenses or holders of a short term permit for the purpose of exploiting minor minerals . It is argued that under Rule 20 of the Punjab Minor Mineral Concession Rules, 1964, the royalty can be levied only in connection with a mining lease. In substance the argument is that unless there is a subsisting contract between the petitioners and the State Government, no question of levying royalty under the Rules can arise. Reference is made to Rules 28, 37 and 44 in this regard which regulate the grant of contract by auction or tender or provide for the conditions of mining lease and the grant of short term permit. It is plausibly argued that as the petitioners have not executed any contract or agreement of the nature above said they are not liable for the payment of any royalty. 54. With disarming fairness Mr. J. N. Kaushal on behalf of the respondent-State concedes that he has no answer to this contention raised on behalf of the petitioners. It is admitted that no agreement or contract is subsisting between the responde .....

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..... oners. In the above context, a further argument vehemently pressed by Mr. R. N. Mittal on behalf of the petitioners is that in case we do not deem it necessary to determine finally as to in whom the minor minerals vest then at least a writ in favour of the petitioners be issued prima facie prohibiting the respondents from interfering in the minor minerals in these estates and the State be directed to establish their claim to the minor minerals in a Civil Court and secure its verdict in its favour. Reliance for this contention is placed on Gram Sabha and Gram Panchayat, Kiratpur v. State of Punjab, Civil Writ No. 2146 of 1969 decided by Tuli J., on 2-2-1970 (Punj Har) wherein a direction of the nature prayed for was issued. 57. I am unable to appreciate the unusual prayer that a writ may issue prima facie subject to the decision of a Civil Court or other proper forum on merits subsequently. The claim of title to the minor minerals and the evidence upon which it is based is categorically controverted on behalf of the respondents, not only that they wished further to rebut the same by leading evidence. There is thus a clear dispute in facts. It appears axiomatic to me that .....

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..... an appropriate action in an ordinary civil or Revenue Court as the case may be, and none of these things can be decided in our writ jurisdiction. In the Punjab and Haryana Shora Factory, Gohana v. State of Haryana, C. W. No. 3405 of 1968 decided on 6-2-1969 (Punj Har), both the writ petitions were dismissed on the preliminary objection without determining the merits thereof. Neither of the above authorities, therefore, are a warrant for the contention that a writ of prohibition to interfere may be issued with the direction that one of the parties should establish its right in a proper forum. The learned Single Judge has observed that such a course had been adopted by some other Single Benches though they were not expressly referred to. We had pointedly asked Mr. R. N. Mittal, learned counsel for the petitioner but he was unable to bring to our notice any other decision. With greatest deference to Tuli, J., if the decision in the Gram Sabha and Gram Panchayat, Kiratpur's case, Civil Writ No. 2146 of 1969, D/- 2-2-1970 (Punj Har), seeks to lay down that a writ may issue without resolving disputed questions of fact and subject to a subsequent decision on merits by the Civ .....

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..... al composition. 61. It will thus appear that according to the experts, at best, brick-earth is an aggregate of minerals. A mineral has a specific characteristic which distinguishes one mineral from another. See in this connection Thorpe's Dictionary of Applied Chemistry (fourth edition), Volume VIII, where at page 143 it is stated thus:-- No two substances possess the same crystal structure, so that a metrical definition of the unit of pattern of a given mineral is unique for that mineral. It is to be expected therefore that the photographic records of diffraction spectra upon which the X-ray analysis is based should themselves constitute precise identifications. The unit cell dimensions are diagnostic, and a rotation photograph of a crystal of a known mineral about a known axis gives a two-dimensional array of spots of varying intensities, forming a standard for identification. Bricks are made from soil which has a larger proportion of clay. The composition of soil varies from place to place. That is why it is aptly stated that it is an aggregate of minerals. But then the human body is also an aggregate of minerals. But, on one can say that it is a mineral. Si .....

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..... nt before us that the entries in wajib-ul-arz are rebuttable and, therefore, he should have the opportunity to rebut them. We asked the learned counsel to tell us with what evidence the entries could be rebutted and the learned Advocate-General was unable to give any satisfactory reply on this matter. An offer was also made to him that we would be prepared to examine any evidence indicated by him for the purpose of rebutting the wajib-ul-arz entry. It is well known that the wajib-ul-arz are made at the time of settlement and after due enquiry, and a presumption of correctness attaches to them. 66. It will be proper at this stage to examine the stand taken by the petitioner and the State. The case of the petitioner and the reply to it by the State are to be found in paragraphs 10(0) and (p) of both the petition and the written statement. The same are set down below:-- Averment Reply 10. That the order of recovery made by respondent No. 2 is illegal, without jurisdiction on the following grounds:-- (o) That it is well settled proposition of law that in cases where the Sharayat Wajib-ul-arz had been completed after 18-11-1871, and it had not been specifically mentioned in the .....

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..... eous growth over the land and other additional benefits accruing therefrom situate within the Muhal. In our village there is no jungle unclaimed or Banjar or unpossessed land, over which the Government may have rights. But the entire Nazul property or quarries of stone, lime-stone kankar, black-stone of every kind, which may be found above or below the soil, together with the ruins, old buildings spontaneous growth over the land and other agricultural rights pertaining to the land are owned by the Government. No regard was paid to them in this settlement at the time of assessment, with the exception, the Government has got a right to use our land for purposes of excavation or storage or carriage of the above articles. But if by doing so, some loss is caused to us in our cultivation, the Government shall give compensation to the extent of the loss or damage caused to us. 68. It will be clear from the plain reading of the Wajib-ul-arz that only the nazul land vests in the State, or quarries of stone, limestone, kankar and black stone of every kind which may be found above or below the soil vest in the Government. The land in question is not nazul land. There is no mention of brick .....

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