D.B. Lal, J.
1. These are three connected writ petitions in which the petitioners claim to be the owners of minor minerals namely sand, stones and bajri. which are found underneath the lands belonging to them and described in the three petitions. They have called in question the directions of the State of Himachal Pradesh and the Director of Industries which are two of the respondents, whereby the said minor minerals are being put to auctions under separate notifications and the petitioners pray that the said directions regarding auctions be set aside and that the respondents should not interfere with the petitioners right to extract these minor minerals from these lands.
2. C. W. P. No. 76 of 1971 pertains to village Sura.ipur. C. W. P. No. 77 of 1971 pertains to village Sirath and C. W. P. No. 78 of 1971 pertains to village Mohtli, all in Tehsil Nurpur, District Kangra.
3. The petitioners who are the owners of the disputed lands contend that sand stones and Bajri have been excluded from the record of rights prepared in the settlement of 1918 end in view of Section 42 (2) of the Punjab Land Revenue Act the presumption of ownership arises in their favour. As such the respondents not being the owners of the minor minerals could not make any directions for public auctions in regard to the same. The petitioners who are landowners have executed registered leases in favour of other petitioners and according to them these leases are to be held valid and the lessees cannot be restrained from extracting the minor minerals.
4. According to the petitioners the respondents have issued directions for granting leases by public auctions under Section 15 (1) of the Minor Minerals (Regulations and Development) Act, 67 of 1957. The respondents in fact, have no jurisdiction according to them to grant such mining leases. In this manner the petitioners have been deprived of their property without any payment of compensation and the action of the respondents is violative of Arts. 19 (f) and (g) and Art 31 of the Constitution of India.
5. In the three writ petitions the prayer is that the respondents be restrained from auctioning the minor minerals and also from interfering with the petitioners in the exercise of their rights to extract, sell and otherwise dispose of minor minerals found underneath the lands.
6. Before adverting to the respective contentions of the parties, it appears appropriate to set out Section 42 (2) of the Puniab Land Revenue Act-
'42 (2). When in any record-of-rights completed after that date it is not expressed provided that any forest or quarry or any such land or interest belongs to the Government it shall be presumed to belong to the landowner'.
6-A. The Wajub-ul-arj entry which is a record-of-rights and pertains to the year 1918 stands in the following terms:--
'Copy of Wajub-ul-arj relating to the village Surajpur. Tikka Chhani, Tehsil Nurpur, District Kangra. Hadbast No. (sic) for the settlement to the year 1918.
In respect of the rights of the Government relating to the ownership in Nazul (Government property) or unclaimed property or unoccupied land or quarry of stones, ruined property or ancient monuments or wild growth of the land or other profits arising out of the land.
The entire Nazul (Government lands and property) and quarries of lime, kankar. black stone (kalapather) slate of every kind whether these are found over or beneath the land and the ruinous property or ancient monuments or wild growth or other relative rights belong to the Government No reservation has been made in the Settlement about this.
7. In the year 1935 a dispute arose for determination of ownership of theseminor minerals with reference to the Wajub-ul-arj entry and the decision was made on 30th September, 1935 by the Financial Commissioner of Punjab, A copy of that decision is reproduced below.-
'Copy of letter No. 2153-R/(S). dated the 20th September, 1935 from the Junior Secretary to the Financial Commissioner Punjab to the Commissioner, Juilundur Division.
Subjects Royalty on minor minerals inthe Kangra District.
With reference to the correspondence ending with this officeendorsementNo.1337-E. dated the 27th to June.1035, I am directed t say Siat as in She record of rights of the marginal-ly noted estatesm the Nurrjug Tehsil, Kanera District, it is nowhere expressly provided thatownership in iron, bairi and stone (other than Kala Pathar) belongs toGovernment, The minr-rals in Question must be pre-sinned to belong to thelandowners end the Government is not entitled to levy any royalty on them underthe Minor Minerals Rules'.
8. It may be noted that one parcel of land which is in dispute is situate in village Mohtli and a reference to that village is made in the above noted decision.
9. The learned counsel for the petitioner vehemently relied on Section 42 (2) (supra) and submitted that the Wajub-ul-arj entry did not exclude sand, stones end Bajri. The said Wajub-ul-arj entry, which is obviously of a later date than November. 1971 for which Sub-section (2) of Section 42 applies, refers to quarries of lime, black stone and state. Only such quarries belong to the Government. The quarries of sand, stones and Bajri are not includedand the presumption of ownership would be in the favour of the land owners. The presumption of the ownership that has been made under Sub-section (2) of Section 42 is not a rebuttable presumption. It is rather conclusive in favour of the landowners. This is so clear from the reading of Section 42. When the landowner was assessed to land revenue, regard was presumably made for the income derived by him for sand, stones and Bajri. In this manner the Government has been paid for the extraction of these minor minerals, as enhanced rate of land revenue has been fixed.
10. There was an Interesting controversy regarding the mineral 'kankar', and it was stated by the learned counsel for the State that 'Bajri' and 'stones' are included in 'kankar'. This seems to be prima facie wrong. In the definition of minor minerals provided in the Hima-chal Pradesh Minor Minerals (Concession) Revised Rules 1971, 'kankar' has been used as a mineral distinguished from building stones, gravel or sand. The inference is that 'kankar' belongs to a separate category of mineral and according to this definition 'kankar' is ordinarily used in kilns for manufacture of lime used as building material. In the Punjab Settlement Manual (fourth Edi-tion). Para. 192 specifically deals with Kankar. This also indicates that Kankar is a separate mineral and cannot be classified with alike minerals bajri or stone, It is, therefore, abundantly clear that stone, (other than black stone) Bairi and sand have been excluded from the record-of rights and the presumption under Section 42 (2) is tfcat the ownership vests in the landowner.
11. As observed by their Lordships in the State of Madhya Pradesh v. Vishnu Prasad Sharma. (AIR 1966 SC 1593). the provisions of a statute must be strictly construed where these lead to the acquisition of land belonging to a private person without his consent. The provisions contained in the Mines and Minerals (Regulation and Development) Act, 1957 and the entries made in the Wajib-ul-arj. no doubt lead to compulsory acquisition of minerals belonging to private persons. Hence these provisions and entries are to be strictly construed. What has not been included expressly or impliedly in the Wajib-ul-arj should not be construed as included in it. If a strict construction is given to the language of the Wajib-ul-arj as it should be given, Kankar must be interpreted as meaning a mineral different from Bajri or stones and as such the latter two minerals are not to be included in the Wajib-ul-arj as belonging to Government I am, therefore, of the opinion that stone (other than Black stone), Bajri end sand have been excluded from the Wailb-ul-arj and the presumption of ownership which is unrebutted. is in favour of the landowners Who are the petitioners.
12. It follows logically that the Government could not order for publicauction of these minor minerals. It has been held in Mam Chand v. State of Harvana, (1972 Cur U 307). that minor, minerals not provided fqr in Section 42 (2) read with relevant entry of Waiib-ul-4 arj, do not belong to the Government and as such the Government is not competent to auction leases for such minor minerals.
13. The decision of the Punjab Government arrived at in 1935 (supra) may not be binding on the parties or on the Court. Nevertheless, that decision is to be considered as an instance wherein a question arose for the ownership of these minor minerals and the ownership was decided in favour of the landowners. I must, therefore, hold that the minor; minerals, namely, sand, bajri and stone (other than black stone) which are the subject-matter of dispute in these petitions belong to the landowners. The respondents could not give directions for holding public auctions of mining leases of such minerals. The petitioners are being deprived of their properties without payment of compensation and in this manner their fundamental rights are being violated.
14. In the result the three Petitions are allowed and the respondents are restrained from making public auctions of mining leases in respect of the disputed minor minerals for the three parcels of lands described in the writ petitions. The respondents are further restrained from interfering with the rights of the petitioners who are landowners of extracting these minor minerals and disposing them of in any manner they liked.
15. In each petition the counsel's fee shall be assessed at Rs. 100/-.