JUDGMENT : H.N. Seth and N.N. Mittal, JJ. By his judgment dated 16-4-1975 a learned single Judge of the Court allowed a petition under Article 226 of the Constitution of India filed by 72 Kiln owners of Kanpur, in part. While refusing to grant Petitioner's prayer for quashing the notification dated 31-8-1970 issued by the State Government under Rule 1(4) of the U.P. Minor Mineral (Concession) Rules, making, with effect from date of publication of the notification, the provisions of the said rule applicable also to brick earth. He restrained the State of U.P. and Collector, Kanpur, from recovering the royalty said to be due on the brick earth excavated by the Petitioners between 12-9-1970 and 31-3-1971. Being aggrieved both the brick kiln owners and the State of Uttar Pradesh have come up in appeal before us. Whereas Special Appeal No. 179 of 1975 is by the Brick Kiln owners, the State of Uttar Pradesh is the Appellant in Special Appeal No. 231 of 1975. 2. The Petitioners manufactured bricks by excavating earth from their own Bhumidhari plots. In July 1971, one of the Petitioners was served with a notice informing him that the State Government had with effect from 12-3-1970 declared the brick earth to be a minor mineral and for its excavation royalty at the rate of Re. 1.50 per thousand bricks manufactured was payable to the State. The notice further stated that the noticee had between 12-9-1970 and 31-3-1971 excavated earth for manufacturing 35,00,000 bricks and was liable to pay royalty to the extent of Rs. 5250, Similar notice was issued to other Petitioners as well. 3. The Central Government enacted Mines and Mineral (Regulation and Development) Act, 1957, Section 3(a) whereof defined minerals as including all minerals except mineral oil. Section 3(i) defined minor mineral as meaning building stones, gravel, ordinal 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 decide to be minor mineral. 4. By means of a notification No. G.S.R. 436 dated 1-6-1968, the Central Government declared brick earth to be a minor mineral. 5. 4. By means of a notification No. G.S.R. 436 dated 1-6-1968, the Central Government declared brick earth to be a minor mineral. 5. Relevant portion of Section 15 of the Mines and Mineral (Regulation and Development) Act, 1957, runs thus: Power of State Governments to make rules in respect of minor minerals: (1) The State Government may, by notification in the official Gazette, make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. (2) .... 6. In exercise of the power conferred by the above section, the State of U.P. framed rules entitled Minor Mineral (Concession) Rules, 1963, providing for the grant of prospecting licences, mining leases and recovery of royalty etc. in respect of minor minerals which came within the purview of its rule making power, and ultimately on 12-9-1970 it issued a notification making the provision of the aforesaid rule applicable also to brick earth. 7. The Petitioner questioned the validity of the notification dated 12-9-1970 mainly on following three grounds: (1) The provision contained in the Mines and Mineral (Regulation and Development) Act, 1957, enables the Central Government to declare only some thing that is a mineral iteming mineral. Brick earth is not a mineral and as such the Central Government had no power to declare it to be a minor mineral nor could the rules framed by the State Government u/s 15 of the Act be made applicable to it, and (2) As held by a Division Bench of this Court in the case of Mahant Ashok Prapann Sharma v. State of U.P., Special Appeal No. 967 of 1969 decided on 9-7-1969 the rules framed by the State Government could apply only to the minerals owned by the Government and the same could not be made applicable to minerals belonging to private parties. The Petitioners claimed that the earth excavated from the Bhumidhari plots belonged to them and therefore fell outside the rule making power of the State Government. The Petitioners claimed that the earth excavated from the Bhumidhari plots belonged to them and therefore fell outside the rule making power of the State Government. (3) In any case royalty could be recovered from the Petitioner as arrears of land revenue only under the provision of Rule 21 of the U.P. Minor Mineral (Concession) Rules, 1963, and as the case of the Petitioner did not fall Within the purview of that rule, the State had no jurisdiction to recover any royalty from the Petitioner in the manner provided for recovery of arrears of land revenue. 8. Learned single Judge repelled the first two submissions made on behalf of the Petitioners but accepted the third submission made by them. He relied upon a Full Bench decision of Punjab and Haryana High Court in the case of M/s. Amar Singh v. State of Haryana 356 (sic) as also a decision of the Patna High Court in the case of Laddu Mal v. State of Bihur 1956 Pat 491, and held that the expression 'mineral' occurring in the Mines and Mineral (Regulation and Development) Act was not to be construed in a narrow scientific sense and that it included brick earth as well Within its ambit. He, therefore, held that the notification dated 31-8-1970 issued by the State Government and published in the Gazette dated 12-9-1970 was quite valid. So far as the second submission was concerned the learned Judge felt that in view of the various provisions of the U.P. Zamindari Abolition and Land Reforms Act even the minerals found on Bhumidhari land vested in the State Government and the right of a Bhumidhar to use the land for any purpose whatsoever does not derogate from the proprietorship of the State and the mineral lying on such land. Appellants in Special Appeal No. 179 of 1975 are aggrieved by this part of the judgment of the learned single Judge. 9. Appellants in Special Appeal No. 179 of 1975 are aggrieved by this part of the judgment of the learned single Judge. 9. Learned Counsel for the Appellant could not advance any argument to show either that the learned single Judge erred in following the two decisions of the Punjab Haryana and Patna High Courts (mentioned above) or that the provisions contained in the U.P. Zamindari Abolition and Land Reforms Act do not lead to a conclusion that the mineral lying on Bhumidhari land as well belong to the State and as such it has ample jurisdiction to deal with it under the provisions of U.P. Minor Mineral (Concession) Rules, 1963. We respectfully agree with the reasons given by the learned single Judge for coming to the conclusion to which he has arrived on these two points and we do not consider it necessary to burden this judgment by repeating those reasons. We therefore, do not find any merit in the Special Appeal filed by the brick kiln owners which deserves to be dismissed. 10. Coming now to the appeal filed by” the State Government which is aggrieved by acceptance of the third submission made by the Petitioner we agree with the learned single Judge that the State Government derives its authority to recover royalty in respect of extraction of minor minerals under the provision of Rule 21 of the U.P. Minor Mineral (Concession) Rules, 1963 which runs thus: 21. Royalty. (1) The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from the leased area at the rates for the time being specified in the first Schedule to these rules. (2).... 11. Under this rule it is the holder of mining lease who has been made liable to pay royalty in respect of the minerals removed from the leased area. Admittedly the Petitioners did not hold any mining lease and as such they are not liable to pay royalty in respect of mineral extracted by him. It may be that the Petitioners, having extracted the mineral in contravention of the provisions of the U.P. Minor Mineral (Concession) Rules, rendered themselves liable for some other action but they are not liable to pay any royalty in respect of the brick earth extracted by them otherwise than under a mining lease. 12. It may be that the Petitioners, having extracted the mineral in contravention of the provisions of the U.P. Minor Mineral (Concession) Rules, rendered themselves liable for some other action but they are not liable to pay any royalty in respect of the brick earth extracted by them otherwise than under a mining lease. 12. Learned Counsel appearing for the State brought to our notice Section 12 of the Mines and Mineral (Regulation and Development) Amendment Act, 1972, which amended Section 21 of the Mines and Mineral (Regulation and Development) Act, 1957, inter alia by inserting a new Sub-section (5) which runs thus: (5) Where any person removes under any lawful authority any mineral from any land, the State Government may recover from such person the mineral so removed, or where such mineral has already been disposed off, the price thereof, and may also recover from such person rent, royalty or tax, as the case may be for the period during which the land was occupied by such person without any lawful authority. 13. He contended that as the Petitioner had removed the minor mineral without any lawful authority they are liable to, as provided in this Sub-section, to pay royalty in respect of the mineral extracted by them and as such the mandamus granted by the single Judge restraining them from recovering the same should be set aside. 14. We are unable to accept this submission. In the first place, in the instant case royalty is sought to be recovered for the period 12.9.70 to 31.3.71 i.e., for a period prior to the date on which the amendment mentioned above was brought in force. The amendment, on the face of it, is prospective and does not create any liability for payment of royalty in respect of mineral extracted prior to the date of coming into force of the amendment. Moreover, Section 21(5) of the Act lays down that royalty for unauthorised extraction of mineral is to be paid for the period during which a person has been in unauthorized occupation of the land. In the instant case all the Petitioners are Bhumidhars, who, under the law are entitled to occupy the land from which they extracted the brick earth as the same was their Bhumidhari land. In the instant case all the Petitioners are Bhumidhars, who, under the law are entitled to occupy the land from which they extracted the brick earth as the same was their Bhumidhari land. As they were lawful occupier of the land they have u/s 21(5) of the Act not been made liable to pay royalty in respect of the brick earth extracted by them in contravention of the provisions of the rules. In case it is held that Section 21(5) of the Act applies retrospectively to earth extracted prior to its coming into force (which we do not think is the correct legal position), the State Government could at best be entitled to recover from the Petitioners the price of the mineral extracted by them in an unauthorised manner, but then the impugned demand is for royalty and not for the price of the mineral unlawfully extracted. The demand raised by the State Government, therefore, does not fall within the purview of Section 21(5) either. 15. In the result we agree with the learned single Judge that the State is not authorised to recover any royalty from the Petitioners in respect of the earth unlawfully removed by the Petitioners from the Bhumidhari holding and the mandamus in this regard granted by him does not call for any interference. 16. In the result both the appeals fail and are dismissed. In each case the parties are directed to bear their own costs.