JUDGMENT 1. The petitioners 1 and 2 and their deceased elder brother, Chintaharan Mukherjee, are alleged to be the owners of a brick-field situated at Village Krishnanagar, P.S. Maheshtala, Dist. 24-Parganas. In the record of rights the lands comprised in the said brick field were classified as ‘Itkhola' and the status of the tenants has been recorded as 'Dakhalkars'. According to the petitioners the said brick field is situated by the side of the river Hooghly and bricks are manufactured solely with the silt deposited on their lands by the water of the said adjoining river. The petitioners claim that they do not excavate or dig or use any earth or clay for the manufacture of bricks. 2. The Additional District Magistrate, Alipore, the respondent No.2 issued notices upon the petitioners dated 6th April, 1971 to show cause why actions should not be taken against them under sub-section (2B) of Section 4 of the West Bengal Land Reforms Act, 1955 for manufacturing bricks for the purpose of business without the previous permission in writing under sub-section (2A) of Section 4 of the West Bengal Land Reforms Act, 1955 (vide Annexure 'A' series to the writ petition). The petitioners had showed cause to the Additional District Magistrate (Estate Acquisition) against the same. They inter-alia stated that the lands in question were not agricultural lands and, therefore, the provisions of the West Bengal Land Reforms Act were not attracted to the facts of the case. The petitioners further stated that they had been recorded as "Dakhalkars' and the recorded purpose of the tenancy was ‘Itkhola' both in the C.S. and R.S. records. They also stated that they carried on business of brick making with the silt deposited by the river Hooghly and they did not quarry sand or dig or use earth or clay of their holding. They denied that they had committed any breach of sub-section (2A) of Section 4 of the West Bengal Land Reforms Act. The petitioners took several other points in their said show-cause petition. 3. The Additional District Magistrate (Estate Acquisition), 24 Parganas by his order dated 9th September, 1971 accepted the submission of the petitioners that the status of the tenants of the disputed lands had been recorded as 'Dakhalkars' and that the lands had been classified as 'Itkhola'. The petitioners took several other points in their said show-cause petition. 3. The Additional District Magistrate (Estate Acquisition), 24 Parganas by his order dated 9th September, 1971 accepted the submission of the petitioners that the status of the tenants of the disputed lands had been recorded as 'Dakhalkars' and that the lands had been classified as 'Itkhola'. Hence he ordered that petitioners were not guilty under Section 4(2A) of the West Bengal Land Reforms Act, but he further ordered "as per provision of Sub-Rule 4(A) of Rule 3(B) of the West Bengal Land Reforms Rules, 1965, the opposite party shall apply for mining lease under the West Bengal Minor Mineral Rules, 1959 within a period of 1½ months from the date of this order" (vide Annexure 'C' to the writ petition.). 4. The petitioners obtained this Rule against the aforesaid directions of the Additional District Magistrate that they should apply for mining lease under the West Bengal Minor Mineral Rules 1959 as per provisions of sub-rule 4(A) of Rule 3(B) of the West Bengal Land Reforms Rules. Mr. Pramatha Nath Mitra, learned Advocate for the petitioners, has submitted that after the Additional District Magistrate had found that the recorded tenants of the lands comprised in the brick field in question were non-agricultural tenants, he had no further jurisdiction to direct that the petitioners should apply for mining licence in terms of Rule 3(B) sub-rule 4(A) of the West Bengal Land Reforms Rules, 1965 because the West Bengal Land Reforms Rules were not applicable to non-agricultural tenants. 5. Section 4 of the West Bengal Land Reforms Act deals with the rights of a raiyat in respect of land. Under Section 2(10) of the West Bengal Land Reforms Act a raiyat means a person who holds land for purposes of agriculture. Rule 3(A) of the West Bengal Land Reforms Rules, 1965 also provides the terms and conditions for quarring sand etc. under sub-section 2A of Section 4 of the West Bengal Land Reforms Act by a raiyat. Therefore, these provisions do not govern rights of non-agricultural tenants in respect their holdings. Therefore, the Additional District Magistrate, (Estate Acquisition), 24-Parganas acted without lawful authority by applying the provisions of Rule 3B sub-rule 4(a) of the West Bengal Land Reforms Rules, 1965 in respect of the nonagricultural holdings of the petitioners. 6. Therefore, these provisions do not govern rights of non-agricultural tenants in respect their holdings. Therefore, the Additional District Magistrate, (Estate Acquisition), 24-Parganas acted without lawful authority by applying the provisions of Rule 3B sub-rule 4(a) of the West Bengal Land Reforms Rules, 1965 in respect of the nonagricultural holdings of the petitioners. 6. Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 declares that "It is expedient in the public interest that the Union shall take under its control the regulation of mines and the development of minerals to the extent provided in the said Act." Section 15(1) of the said Act has conferred powers upon State Governments to make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. 'Minor minerals' have been' defined in Section 3(e) of the Act. The Supreme Court in (1) Baijnath Kedia v. The State of Bihar & others, AIR 1970 SC 1436 has held that the entire legislative field in relation to minor minerals had been withdrawn from the State legislature by the enactment of the Mines and Minerals (Regulation and Development) Act, 1957. 7. The West Bengal Government in the exercise of the powers conferred by Section 15(1) of the Mines and Minerals (Regulation and Development) Act, 1957 previously made the West Bengal Minor Mineral Rules, 1959. The said Rules regulated the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals. Thereafter, the said rules of 1959 were replaced by the West Bengal Minor Mineral Rules, 1973. 8. The petitioners have contended that the silt deposited on their lands by the river Hooghly is not a minor mineral within the meaning of Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957. Therefore, they are not liable to take out any lease or licence under West Bengal Minor Mineral Rules or to pay any royalty in respect of the bricks manufactured by them out of the aforesaid river Hooghly silt. 9. Section 3(e) of the Mines and Minerals (Regulation & Development) Act, 1957 lays down that 'minor minerals' means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. 10. 9. Section 3(e) of the Mines and Minerals (Regulation & Development) Act, 1957 lays down that 'minor minerals' means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral. 10. Thus, the original Schedule-I of the West Bengal Minor Mineral Rules, 1959 specified rate of royalty for "ordinary earth for brick making". D.N. Sinha, C.J. and B.C. Mitra, J. in (2) State of West Bengal and others v. Jagadamba Prasad Singh and others, AIR 1969 Calcutta 281 held that the expression ordinary earth cannot be equated with ordinary clay and they were not inter-changeable expressions'. In the result, they held that when Section 3(e) of the Mines and Minerals (Regulation & Development) Act, 1957 mentions ordinary clay and not ordinary earth, the State Government under Section 15(1) had no right to make Rules in respect of ordinary earth and they had no right to insist upon the respondents for taking out permits for use of the ordinary earth for manufacture of bricks and to pay royalty thereon. The Division Bench in State of West Bengal v. Jagadamba Prosad Singh and others (supra), however, observed that all other grounds be kept open. 11. The Section 3(e) empowered the Central Government to issue notification in the Official Gazette for declaring other minerals to be minor minerals. The Central Government in the exercise of the said power under section 3(e) by Notification No. 436 dated 29.5.1958 declared the following minerals to be minor minerals : "boulder, shingle, chalcedony, pebbles used for ball mill purposes only, lime shell, kankar and lime stone for lime burning, murrum, brick-earth, fuller's earth, bentonite road metal, reh matti, slate and shale when used for building materials." 12. Presumably, the attention of the Division Bench in State of West Bengal v. Jagadamba Prasad Singh and others (supra) was not drawn to the aforesaid Notification under Section 3(e) of the Mines and Minerals (Regulation and Development) Act which inter-alia declare brick-earth to be a minor mineral. The said Division Bench only considered whether ordinary clay as specified in Section 3 (c) as identical with the ordinary earth mentioned in Schedule-I of the West Bengal Minor Mineral Rules, 1959. The said Division Bench only considered whether ordinary clay as specified in Section 3 (c) as identical with the ordinary earth mentioned in Schedule-I of the West Bengal Minor Mineral Rules, 1959. Further, the judgment of the Division Bench in The State of West Bengal v. Jagadamba Prasad Singh and others (supra) was delivered on 30th July, 1968. Thereafter, the State Government by Notification No.4695 Mine dated 30th September, 1969 amended the Schedule-I of the West Bengal Minor Mineral• Rules, 1959 by substituting the expression 'brick earth' in place of 'ordinary earth for brick making'. Thereafter, royalty became payable in respect of brick earth at the rates specified therein. Further, with effect from 30th January, 1974 the West Bengal Minor Mineral Rules, 1973 has come into force. The Rule 4 of the 1973 Rules prohibits mining operation without permit or mining lease. Rule 5 provides for application for mining lease. The Rules also contain detailed provisions for period of lease, renewal of mining lease, payment of royalty and rent etc. 13. The petitioners have relied upon the decision of D. Basu, J. in (3) Ajit Kumar Gurey v. State of West Bengal & ors. C.R. Nos. 433-434, and 436 (W) of 1963 disposed of on July 6, 1954. The said decision has now been reported in 80 CWN 981. The petitioners have also relied upon the decision of A.K. Mookerji, J. in (4) Mandal and Majumdar Construction Co. v. State of West Bengal & others, 80 CWN 991. 14. Both these decisions are distinguishable from the facts of the present case. Further, D. Basu, J. by his judgment reported in 80 CWN 981 had analogously disposed of the aforesaid four rules viz., Civil Rules Nos. 433 (W) of 1963 (Ajit Kumar Guery v. State of West Bengal), 434(W) of 1963 (Narendranath v. The State of West Bengal), 436(W) of 1963 (Panchanan & ors. v. The State of West Bengal) and also Civil Rule No.386(W) of 1963 (Jagadamba Prasad & others v. The State of West Bengal & others) D. Basu, J. decided these rules in the context of the provisions of the Mines and Minerals (Regulation & Development) Act, 1957 read with the West Bengal Minor Mineral Rules. 1959. D. Basu, J. did not consider the effect of the Notification No. GSR 436 dated 1st June, 1958 inter alia declaring brick-earth to be a minor mineral. 1959. D. Basu, J. did not consider the effect of the Notification No. GSR 436 dated 1st June, 1958 inter alia declaring brick-earth to be a minor mineral. The learned Judge found that the petitioners in Civil Rules Nos. 433(W), 434(W), and 436(W) of 1963 were taking ordinary earth for brick making. But D. Basu, J. held that the petitioners were not liable to be prosecuted for their failure to take out prospecting licences. D. Basu, J. also held that royalty claimed by the State was a tax without authority. 15. The State of West Bengal had preferred appeals under Clause 15 of the Letters Patent against the aforesaid decision of D. Basu, J. in Civil Rules Nos.368 (W) of 1962 and 433, 434 and 436(W) of 1963. The respondents had preferred cross-objections in those appeals. As already pointed out that the Division Bench in State of West Bengal v. Jagadamba Prasad and others (supra) dismissed the appeals preferred by the State of West Bengal and allowed the cross-objections solely on the ground that ordinary earth for brick making' was not ordinary clay within the meaning of Section 3(e) of the Mines and Minerals (Regulation and Development) Act, and therefore, the demand for payment of royalty was ultra vires. The Division Bench in the said decision expressed there inability to agree with the finding of D. Basu, J. that State Government might ultimately call upon the petitioners to apply for mining leases. Their Lordships of the Division Bench also made it clear that all other grounds to be kept open. 16. In view of the above decision in State of West Bengal v. Jagadamba Prasad Singh and others (supra), the judgment of D. Basu, J. in Ajit Kumar Gurey v. State of West Bengal (supra) can no longer be considered as a judicial precedent. A.K. Mookerji, J. in Mondal Majumdar Construction Co. v. State of West Bengal and others (supra) relied upon the said decision of D. Basu, J. in Ajit Kumar Gurey v. State of West Bengal (supra). Unfortunately, his Lordship's attention was not drawn to the decision of D.N. Sinha, CJ. and B.C. Mitra, J. in F.M.A. 90 to 93 of 1965 with cross-objections preferred against the decision of D. Basu, J. in Civil Rules Nos. 433, 434, 435 and 436(W) of 1963 (vide AIR 1968 Calcutta 281). Further A.K. Mookerji, J. in Mondal Majumdar Construction Co. Unfortunately, his Lordship's attention was not drawn to the decision of D.N. Sinha, CJ. and B.C. Mitra, J. in F.M.A. 90 to 93 of 1965 with cross-objections preferred against the decision of D. Basu, J. in Civil Rules Nos. 433, 434, 435 and 436(W) of 1963 (vide AIR 1968 Calcutta 281). Further A.K. Mookerji, J. in Mondal Majumdar Construction Co. v. State of West Bengal and others (supra) did not consider the effect of the aforesaid Notification No. GSR 436 dated 1st June, 1958 by which inter alia brick earth was declared as a minor mineral. Further A.K. Mookerji, J. in Mondal Majumdar Construction Co. v. State of West Bengal and others, (supra) observed that no materials had been placed before him to show that any Rule had been framed by the State Government for obtaining licence in respect of minor minerals. It is unfortunate that his Lordship's attention was not drawn to the West Bengal Minor Mineral Rules, 1959 or to the West Bengal Minor Mineral Rules, 1973. Therefore, A.K. Mookerji, J. in the aforesaid decision had no occasion to consider the scope and effect of the aforesaid Rules framed by the State Government in the exercise of its powers under Section 15(1) of the Mines and Minerals (Regulation and Development) Act. 17. Further, D. Pal, J. (as he then was) in (5) Haradhan Mondal v. State of West Bengal, 78 CWN 236 discharged a Rule obtained by a person who had been manufacturing bricks by silt deposited by the river Hoogly. His Lordship held that Section 3(e) of the Mines and Minerals (Regulation and Development) Act did not suffer from excessive delegation and, therefore, intra vires. The State of West Bengal under Section 15(1) of the Act had jurisdiction, competence and authority to insist on the compliance with the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the West Bengal Minor Mineral Rules framed thereunder for mining minor minerals. His Lordship further held that brick earth is a mineral although silt deposited by the river water may not be ordinary clay but if such silt is suitable for brick making and is used for such purposes it comes within the expression 'brick earth' which is minor mineral under the aforesaid Notification under Section 3 (e) of the Act. A.K. Mookerji J. in Mondal Majumdar Construction Co. A.K. Mookerji J. in Mondal Majumdar Construction Co. v. State of West Bengal and others (supra) did not refer to the aforesaid reported decision of D. Pal, J. (as he then was) in Haradhan Mondal v. State of West Bengal (supra). 18. I respectfully agree with the above views of D. Pal, J. in Haradhan Mondal v. State of West Bengal (supra) that silt, used for brick making is brick earth and, therefore, a minor mineral. D. Pal, J. has correctly pointed out that ordinary dictionary meaning of brick earth' is clay suitable' for making bricks. See Shorter Oxford English Dictionary, Vol. I (3rd Edition). A Division Bench of the Patna High Court in (6) Laddu Mal and others v. State of Bihar, AIR 1965 Patna 491 also held that brick earth is a minor mineral. See also the decision in (7) Amar Singh Modi Lal v. State of Haryana, ILR 1971 (2) Punjab 314 : AIR 1972 P & II 356 (FB). 19. D. Pal, J. in Haradhan Mondal's case (supra) also relied upon the dictionary meaning of 'silt' as fine sand, clay, and other soil carried by moving or running water and deposited as a sediment on the bottom or beach. Definition of 'earth' and 'clay' were also referred to. D. Pal, J. has correctly pointed out .that the Division Bench in State of West Bengal v. Jagadamba Prasad Singh and others (supra) did not agree with the decision of D. Basu, J. and kept the question open. 20. There is no substance in the submission of the learned Advocate for the petitioners that silt deposited by the river cannot be considered a mineral because the same does not involve any mining operation. "The word 'mine' is not a definite term, but is one susceptible of limitation or expression according to the intention with which it is used. The original or primary meaning of the word is an underground excavation made for the purpose of getting minerals. In particular contexts, however, the word has been given a number of differing secondary meanings......" (vide Halsbury's Laws of England, 3rd Edition, Volume 26, page 317, paragraph 668). The Section 3(e) not only specifies the materials which are to be considered as minor minerals but also confers power upon the Central Government to declare other substances as mineral. In particular contexts, however, the word has been given a number of differing secondary meanings......" (vide Halsbury's Laws of England, 3rd Edition, Volume 26, page 317, paragraph 668). The Section 3(e) not only specifies the materials which are to be considered as minor minerals but also confers power upon the Central Government to declare other substances as mineral. The petitioners, in fact, have not challenged the aforesaid Notification of the Central Government, declaring brick-earth to be a minor mineral. The only argument before me has been that river silt is not brick earth. It may be noted that in Halsbury's Laws of England, 3rd Edition, Volume 26, paragraph 675 the brick clay and brick earth have been mentioned as substances which have been held to be minerals. D. Pal, J. in his judgment in Haradhan Mandal's case (supra) has very correctly pointed out that the silt which is suitable for, brick making should be considered as brick earth although silt may not be identical with ordinary clay. The Division Bench in Jagadamba Prasad's case (supra) did not record any finding on the said point. I am •unable to agree with the learned Advocate for thee petitioners that it would not be correct to define brick earth as earth used in brick making and in fact, the learned Advocate for the petitioners was unable to suggest any other satisfactory definition of the expression 'brick earth'. 21. There is also no substance in the submission of the learned Advocate for the petitioners that no mining operation is involved in removing silt from the banks of the river. Silt is admittedly deposited by the river. The petitioners excavate or dig the said deposits and thereafter, remove the same. The Section 3(d) of the Mines and Minerals (Regulation & Development) Act, 1957 defines 'mining operation' as any operations undertaken for the purpose of wining any mineral. I have already found that river silt used for brick making is a kind of minor mineral, to win in the context of Section 3(d) means to get, obtain, acquire; especially to get at something profitable or desired. See Shoter Oxford English Dictionary, Volume II, page 2430. All mining need not involve underground operation. I have already found that river silt used for brick making is a kind of minor mineral, to win in the context of Section 3(d) means to get, obtain, acquire; especially to get at something profitable or desired. See Shoter Oxford English Dictionary, Volume II, page 2430. All mining need not involve underground operation. It is common knowledge that some kind of minerals may be found on the surface and, therefore, neither a pit nor a quarry need be made for winning• or getting such mineral deposited on the surface. 22. In the above view I conclude that the silt used for brick making is brick earth and therefore a minor mineral within the meaning of Section 3(e) of the Mines and Minerals (Regulation and Development) Act. 23. Recently the Supreme Court in (8) Bhagwan Dass v. State of U.P. & others, AIR 1976 S.C. 1393 has pronounced that deposits of sand, gravel, boulders etc. deposited by fluvial action of the river are minor minerals. The Supreme Court held that after the U.P. Zamindari Abolition and Land Reforms Act, 1951 came into force, the rights to mines and minerals which the erstwhile Zamindars possessed stood extinguished and became vested in the State Government. In the said case the Court considered the scope of Section 3(e) of the Mines and Minerals (Regulation & Development) Act, 1957 and also of the different provisions of U.P. Mines and Minerals (Concession) Rules, 1963 framed under Section 15 of the aforesaid Act. The Supreme Court held that the appellant in the said case even though he was the owner of the land on which the deposits had been made by flood waters of the river was not entitled to the said deposits except under a lease or permit granted by the State Government. The said deposits were minor minerals and vested in the State Government. The Supreme Court in Bhagwan Dass v. State of U.P. & others (supra) rejected the argument that the sand and gravel were deposited on the surface and not under the soil and, therefore, they could not be called minerals and any operation by which they were collected or recovered cannot be properly called mining operations. The Supreme Court in Bhagwan Dass v. State of U.P. & others (supra) rejected the argument that the sand and gravel were deposited on the surface and not under the soil and, therefore, they could not be called minerals and any operation by which they were collected or recovered cannot be properly called mining operations. Chandrachud, J. who delivered the judgment of the Court at page 1397 of the reports observed that :- It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of the mining operations and minor minerals in Section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the Rules of 1963 shows that minerals need not be sub-terranean and that mining operations cover every operation undertaken for the purposes of "winning" any minor mineral. "Winning" does not imply a hazardous or perilous activity. The word simply means "extracting a mineral" and is used generally to indicate any activity by which a mineral is secured. "Extracting" in turn means drawing out or obtaining. A tooth is 'extracted' as much as is fruit juice and as much as mineral. Only, that the effort varies from tooth to tooth, from fruit to fruit and' from mineral to mineral. 24. In my view, the above decision of the Supreme Court in Bhagwan Dass v. State of U.P. & others (supra) concludes the point that substance deposited on the banks of the river by the river if declared as minor mineral would vest in the State and extraction of such minor mineral from the surface would be mining operation. 25. I accordingly dispose of the Rule in following terms : The petitioners are not raiyats and therefore, the respondents are commanded to forbear from giving effect to the provisions of the West Bengal Land Reforms Act and the West Bengal Land Reforms Rules in respect of the lands in question. Liberty is, however, given to the respondents to proceed in accordance with the provisions of the Mines and Minerals (Regulation and Development) Act and the Rules framed thereunder regarding silt used by the petitioners for brick making. There will be no order as to costs.