JUDGMENT B.N. Sapru, J. - The petitioners M/s Ram Brick Field and M/s Achhumal and Sons, are the brickskiln owners. They alongwith a large number of other brickkiln owners whose petitions have been heard along with this writ petition, have challenged the demand for royalty for the use of earth for manufacturing the bricks for the year 1983-84. 2. The controversy in this case is identical with the controversy in other cases. Though there are certain differences on facts in the cases but they are not material. The period for which the royalty has been demanded, also varies in some of the other cases but that will have no effect on the decision in any of those cases. 3. The petitioners assert that they are carrying on business of manufacture of bricks and they had obtained permits for the manufacture of bricks for the financial year 1982-83. The petitioners are aggrieved by the Government Order dated 27-3-1982 under which they have been directed to pay royalty at the rate of Rs. 2-00 per thousand bricks as provided under the First Schedule to the U.P. Minor Minerals (Concession) Rules. 1963, hereinafter to be referred to as `the Rules'. 4. The petitioners contend that they are the owners of the land and as such they are not liable to pay any royalty. 5. It has been settled by the Supreme Court that the rights of the former zamindars in the mines and minerals were extinguished with the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1951. It has further been held that the right to the minerals had passed to the State as a consequence of the aforesaid Act and the State is the owner of the minerals. See in this connection AIR 1976 SC 1393 . Bhagwan Dass v. State of Uttar Pradesh. 6. In the case of Sharma and Company v. State of Uttar Pradesh, AIR 1975 All 386 it has been held that `brick earth' is a minor mineral within the meaning of Section 3 of the Mines and Minerals Regulation and Development( Act, 1957. (hereinafter to be referred to as the Act') and every person would have to pay the royalty for extracting earth for manufacture of bricks. 7. (hereinafter to be referred to as the Act') and every person would have to pay the royalty for extracting earth for manufacture of bricks. 7. The petitioners' case is that they did not apply for the grant of permit during the financial year 1983-84 as all the brickkiln owners had decided not to run their brickkilns in protest against certain laws being made applicable to the brickkilns as also the increase in royalty, but nevertheless a demand of Rs. 5,000/- for royalty has been made as against them for the year 1983-84. In the counter-affidavit it has been stated that the petitioner continued to manufacture bricks during the financial year. 8. We, in the circumstances, cannot place reliance on the petitioners assertion that the petitioners did not manufacture bricks during the financial year 1983-84. It is apparent that the brickkiln industries did not cease to operate in the financial year 1983-84 though a large number of brickkiln owners did not obtain the permits. In any case, the writ petition cannot be decided on the footing that the petitioners did not carry on the manufacture of bricks during the financial year 1983-84. 9. There is a further submission on behalf of the petitioners that even assuming that the petitioners extracted earth to manufacture bricks, they are not liable to pay the royalty as they had neither executed a lease nor obtained a permit for manufacturing bricks from the State. It is said that it is only those brickkiln owners who had obtained the lease or the permit, were liable to pay the royalty. The petitioners assert that they can only be prosecuted for having violated the rules for extracting earth for manufacture of bricks. For this the petitioners have relied upon certain observations made in the case of Sharma and Company v. State of Uttar Pradesh, AIR 1975 All 386 , wherein it has been held that a person who extracts earth but obtains no lease or permit, the royalty cannot be recovered and he can only be prosecuted. 10. Another decision on which reliance is placed, is a Full Bench decision of Punjab and Haryana High Court in the case of Amar Singh Modi Lal v. State of Haryana, AIR 1972 Punj and Har 356, In this case in paragraph 54 of the judgment it was observed as follows : "54. With disarming fairness. Mr. 10. Another decision on which reliance is placed, is a Full Bench decision of Punjab and Haryana High Court in the case of Amar Singh Modi Lal v. State of Haryana, AIR 1972 Punj and Har 356, In this case in paragraph 54 of the judgment it was observed as follows : "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 respondents and either of the petitioners. The legal position that unless there is such a subsisting contract, no royalty can be levied. is not controverted on behalf of the State. Consequently Mr. Kaushal clearly states that in the present two cases, he cannot support the levy of the royalty and also the validity of the notices issued against the petitioners for its recovery. In terms it has been stated that on this point the two petitions are entitled to succeed." 11. To the same effect is a decision of the Jammu and Kashmir High Court in the case of Bharat Kiln v. Officer-in-charge D.M.O., AIR 1983 J & K 68. 12. In none of these cases, the provisions of Section 21(5) of the Act was noticed. 13. Section 21(5) of the Act runs as follows : "21(5). Whenever any person raises, without any lawful authority, any minerals from any mines, the State Government may recover from such persons the minerals so raised, or, where such mineral has already been disposed the price thereof, and may also recover from such person the 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." 14. In view of the provisions of Section 21(5) of the Act it must be held that the petitioners are liable to pay the royalty even though they did not obtain the permits or lease from the Government for the manufacture of bricks. 15. It has been urged that Rule 21 of the Rules which provides for the payment of royalty, is invalid as it is provided that the rate of royalty in respect of any minerals shall not be raised more than once in any period of two years. 15. It has been urged that Rule 21 of the Rules which provides for the payment of royalty, is invalid as it is provided that the rate of royalty in respect of any minerals shall not be raised more than once in any period of two years. It is submitted that under Section 15(3) of the Act which is the section which authorises the State Government to make rules the proviso to sub-section (3) of Section 15 provides that the State Government shall not enhance the rate of royalty in respect of any minor minerals for more than once in any period of four years. 16. The Uttar Pradesh Minor Minerals (Concession) Rules, 1963, were published in the U.P. Gazette dated 14-9-1963 vide Notification No. 1575-M/XVIII-R-M-95-58 dated 20-8-1963. At that time there was no sub-section (3) in Section 15 of the Act. In other words, there was no limitation on the power of the State Government to enhance the rate of royalty in any period of time. Sub- section (3) of section 15 of the Act came into force on 12-9-1970. The rules were, therefore, valid when framed. 17. In this case the rate of royalty right from 1975 was Rs. 1-50 per thousand bricks and it was enhanced to Rs. 2-00 per thousand bricks by the U.P. Minor Minerals (Concession) (10th Amendment) Rules, 1982, which substituted a new First Schedule which prescribed the rate. 18. What had happened was that the rate of royalty was Rs. 1-50 per thousand bricks but the brickkiln owners were given an option to pay to royalty at a fixed rate in lieu of paying the royalty on the amount of bricks manufactured by them. A lump sum amount was calculated on an estimated number of bricks to be manufactured by the brickkiln owners in a financial year. It was also said that the estimate for manufacturing bricks would be increased every year by 5 per cent which meant that the amount required to be paid as a lump sum in lieu of royalty would be enhanced by 5 per cent in each financial year. 19. The rate of royalty was enhanced only in 1982 when the first Schedule was amended and the rate was prescribed at Rs. 2-00 per thousand bricks. There was, thus, no enhancement of rate of royalty within four years of 1982. 19. The rate of royalty was enhanced only in 1982 when the first Schedule was amended and the rate was prescribed at Rs. 2-00 per thousand bricks. There was, thus, no enhancement of rate of royalty within four years of 1982. Therefore, the argument raised about the invalidity of sub-rule (2) of Rule 21 of the Rules fails. 20. We may add here that sub-rule (2) of Rule 21 was valid when it was enacted. It came into conflict with the provisions of section 15(3) of the Act when the proviso to Section 15(3) of the Act was added. We would read down Rule 21(2) to save its validity and would substitute four years for two years in the Rule and bring it in conformity with the proviso to Section 15(3) of the Act but we are not driven to the situation in the instant case. 21. It has also been urged that the amount of royalty prescribed is excessive as it comes to more than 20 per cent of the pit's mouth value of the earth extracted. The petitioners' assertion is that the pit's mouth value is calculated by dividing the area from the value of the land from where the mineral is being taken out. It is stated that- "For example one Bigha area is equal to 108900 c.ft. The value at present of one bigha area in the case of the petitioner is Rs. 8000/- . One bigha area produces 1306800 bricks. Therefore, for 1000 of bricks the pit's mouth value will be Rs. 6 and 12 paise only. If 20% of it be calculated then it will come to Re. 1 and 22 paise only per thousand." 22. It is further submitted in paragraph 23 of the writ petition that- "It is pertinent to mention here that 80% of brickskiln in U.P. are situate over the lease land which are taken on lease by the Brickkiln owners for three or four years at a time and in their cases the value of the land is estimated at a rate from three to four thousand rupees per bigha and as such in their cases the pit's mouth value comes near about half of what has been calculated in the above mentioned paragraph." 23. The assertions of the petitioners in paragraphs 22 and 23 of the writ petition about the pit's mouth value has been denied in the counter-affidavit. In paragraph 22 of the counter-affidavit, it is stated that- "The pit's mouth value of the mineral means "the sale price at the point of manufacturing or the cost of production of the product plus profit". In this para only the cost of the land had been included in the calculation. The labour cost in digging, mixing, moulding, burning, handling etc. has not been added. As such the rate of Rs. 2/- per thousand bricks fixed by the State Government is well within the 20% of the pit's mouth value of the bricks." 24. It is not possible to accept the contention of the petitioners that pit's mouth value of the extracted earth is related to the value of the land in a particular area. It is obvious that the cost of production of a mineral is a very relevant factor in determining its pit's mouth value. The material placed by the petitioners for challenging the fixation of royalty on the ground that it exceeds 20 per cent of the pit's mouth value is insufficient and the fixation cannot be successfully questioned on this ground. 25. Then it is urged that the Rule required the petitioners to deposit the royalty for the total quantity of the mineral permitted to be extracted on the grant of the permit, is invalid. In other words, the challenge is to the provisions of Rule 54(1) which makes such a provision. The argument is that Section 1513) of the Act provides that- "(2) The holder of a mining lease or any other mineral concessions granted under any rule made under sub-section (1) shall pay royalty in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of the minor minerals." 26. It is submitted that unless the minerals have been removed or consumed there can be no demand for royalty. 27. It is submitted that unless the minerals have been removed or consumed there can be no demand for royalty. 27. Section 15(3) of the Act provides for the payment of royalty by the holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay royalty in respect of minor minerals removed or consumed by him or on his behalf does not either prescribe the rate of royalty or the manner of its collection. Both the manner of collection and the rate of royalty are prescribed by Rule 54(1) of the Rules. There is no prohibition in Section 15(3) of the Act on the demand for royalty in advance. Rule 54(l) of the Rules is, therefore, valid. It may be that in a case where the quantity of mineral consumed is less than the estimated consumption on the basis of which the royalty has been paid by the holder of a mining lease or mineral concession, the said person would be entitled to a refund. That position does not emerge in the present case. 28. In the result, we find no merits in any of the arguments advanced on behalf of the petitioners. 29. The writ petition is consequently dismissed with costs. The stay order dated 9-4-1984 is hereby vacated.