Bharat Kiln vs Officer I/C DMO and Others

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.

DEPARTMENT OF GEOLOGY AND MINING. JAMMU,

No. DM/J&K-43/80-81/179

Dated 11-7-1980

Shri M/s. Bharat Brick Kiln

Digiana, Teh. Jammu. Jammu

SUBJECT: ILLEGAL EXTRACTION OF MINOR MINERALS

Dear Sir.

You have been found indulging in illegal extraction of Clay from Pithead (Digiana). As required under Rule No. 14 of Minor Minerals Concession

Rules, 1962, you were required to obtain Quarry, permit from the u/signed before extraction/collection of the material.

Your are, therefore, directed to stop the illegal extraction henceforth and obtain Quarry permit before you do further extraction/collection. As per

my assessment you have lifted 77000 Cft. clay so far illegally for use in your work for which you are required to pay cast plus royalty, amounting

to Rs. 6980. If you have any objection on my assessment, the exact quantity consumed by you be intimated to me within seven days i.e. up to 17-

7-1980 along with documentary proof or the amount as assessed by me may be deposited into the Govt. Try under A/c head ""128-Mines and

Minerals"" and the Try challan be submitted to me within the stipulated period.

Yours faithfully.

Sd/- Officer Incharge,

District Mineral Officer.

Geology & Mining Deptt. Jammu"".

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.

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:--

Exemption. -- No certificate of approval, prospecting license and mining lease will be necessary in the case of--(a) Extraction of minor minerals

by a lessee from the private land of another person by mutual agreement: provided that royalty shall be paid in accordance with these rules:

provided further that the copy of the said agreement will be supplied to the Director within one month of the date of its signing.

There is nothing an this rule to show that the State can recover cost plus royalty' in respect of the brick clay removed from the private lands by

leaseholder. Consequently this rule also cannot be invoked to justify the demand for the recovery of 'cost plus royalty' in the impugned notices. The

argument must therefore fail.

The result therefore is that these writ petitions succeed and must be al-lowed. We hereby do so and quash the Impugned notice and the

subsequent notices based thereon in each of these cases. This order shall not however, prevent the department from taking steps for the recovery

of the royalty under Rule 3 (a), if so advised. There shall be no order as to costs.

Before concluding we are constrained to observe that the impugned notices constitute a mindless exercise in law. The departmental officers have

never actually cared to apply their mind and satisfy themselves about the true position of law before issuing the impugned notices. We hope that in

future they will not indulge in similar exercises in law to embarrass the citizens.