S. K. MOHANTY, J. ( 1 ) UNION of India through the two petitioners who are high ranking Engineers of South Eastern Railways challenge the liability of the Indian Railways and their contractors for payment of royalty and cess to the State Government, in respect of materials recovered from railway land and utilised in construction and laying down of railway lines. ( 2 ) FOR Morapur-Rayagada Railway line and Raipur-Vijayanagaram doubling railway line projects, certain lands were acquired by the State of Orissa and possession of the same was handed over to the Railways, who have also paid compensation as fixed under the Land Acquisition Act. After taking over possession, the railways took up the work of laying down railway lines and utilised materials namely the rock-cut spoils and earth recovered during excavation. In respect of such materials. the Tahasildars, Koraput, Rayagada and Patangi initiated proceedings for realisation of royalty and cess from the railways and its contractors. They and the higher revenue authorities have held that the railways are liable to pay royalty and cess in respect of above materials recovered from the land whose possession had been handed over to the railways after necessary acquisition. Meanwhile, the Government in Revenue Department by order dated 22-3-1991 have communicated their decision that royalty is to be paid on ordinary clay, silt, sand, brick, earth, morum and ordinary earth which are minor minerals as per Orissa Minor Minerals Concession Rules, 1990, such decision of the State Government is assailed in this proceeding. ( 3 ) THE decision of the State Government is challenged on the following grounds. The railways recovered the materials through excavation from their own land for domestic consumption. The rock-cut spoils cannot be termed as 'minor minerals' under the Orissa Minor Mineral Concession Rules. The railways are not 'lease holders' and have not been granted any quarry permit nor are carrying any mining and quarry operations so as to make them liable to pay royalty under aforesaid rules. The materials obtained in the process of excavation are being utilised by way of domestic consumption mainly for the purpose, for which the land was acquired i. e. construction of the railway lines under the projects and therefore, no royalty is payable under the said rules, since such rules have been framed for regulating the grant of mining leases in respect of minor minerals. ( 4 ) THE demand for payment of cess is challenged on the ground that the same is not payable in law as laid down in M/s. Orissa Cement ltd. v. State of Orissa, AIR 1991 SC 1676 . ( 5 ) ON behalf of the State Government a stand has been taken that land acquired by the State Government for the railways or Government land transferred to the railway do not convey ownership of the minor minerals existing on or inside the land, in favour of the Railways and the State being the dominant owner of the land is entitled to realise royalty in respect of minor minerals raised therefrom and utilised by the Railways, because Railways are not the owner of the minor minerals lying in deposit beneath the earth and they have merely acquired the surface right. In support of such stand, reliance in placed on the provisions of Section 21 (5) of the Mines and Minerals (Regulation and Development) Act, 1957 (for short the Act) and schedule I of the Orissa Minor Mineral concession Rules, 1990. ( 6 ) IT was admitted at the hearing that for the two Railway projects some private lands have been acquired and the Railways have since taken possession and paid the compensation amount as fixed under the law. It is further admitted that possession of certain Government land has also been handed over to the Railways for the two projects, but as yet there has been no formal transfer and ownership thereof still rests with the State Government. Thus the question as to payment of royalty and cess in respect of minor minerals raised from the acquired land of which the Railway is the owner and the Government land still belonging to the State Government but in actual possession of the Railways, are to be dealt with separately. ( 7 ) NOW the relevant provisions of law may be stated. The aforementioned Act was enacted by Parliament in exercise of power given to it under Entry 54 of the Central List in the Constitution of India. As per the declaration contained in Section 2 of the Act, Regulation of Mines and Development of Minerals come under the control of the Central Government. Under Section 13 the Central Government is empowered to make rules in respect of major minerals. As per the declaration contained in Section 2 of the Act, Regulation of Mines and Development of Minerals come under the control of the Central Government. Under Section 13 the Central Government is empowered to make rules in respect of major minerals. Under Section 15, the State Government is empowered to make rules in respect of major minerals, Under Section 15, the State Government is empowered to make rules in respect of minor minerals. Sections 13 and 15 read together clearly mean that power to grant mining leases or concessions in respect of major minerals rests with the Central Government, whereas power to grant quarry lease, mining lease and other mineral concessions in respect of minor minerals and matters connected therewith rests with the State Government. In exercise of powers under Section 15, the Government of Orissa has framed Orissa Minor Mineral Concession Rules, 1990. These rules deal with quarry leases and quarry operations in respect of minor minerals. Rule 13 occurring in the chapter under the heading - ";grant of quarry leases";, provides that the 'holder of a quarry lease shall pay to the State Government royalty specified in Schedule I, besides dead rent and surface rent and fees for compensatory afforstation. Schedule I framed as per Rule 13 enumerates the rate of royalty in respect of items specified therein. Thus royalty under Orissa Minor Mineral Concession Rules in respect of minor minerals is payable only by holders of quarry leses. ( 8 ) NOW the first question arises whether earth and rock-cut spoils are minor minerals. The only specified items in the definition of 'minor minerals' in Section 3 (e) are building stones, gravel, ordinary clay and ordinary sand. Of course, the expression also includes other minerals which Central Government declared by notification to be minor minerals. It is not disputed at the hearing that there is no Central Government Notification specifically declaring earth and rock-cut spoils to be minor minerals. There is therefore no difficulty in concluding that rock-cut spoils are not minor minerals. There is, however, some difficulty so far as earth/ordinary earth is concerned. The difficulty lies on the question whether clay can be identified as earth. In Lexicon Webster Dictionary, Encyclopedic Edition, clay means a natural earthy material used chiefly for making bricks or pottery. There is therefore no difficulty in concluding that rock-cut spoils are not minor minerals. There is, however, some difficulty so far as earth/ordinary earth is concerned. The difficulty lies on the question whether clay can be identified as earth. In Lexicon Webster Dictionary, Encyclopedic Edition, clay means a natural earthy material used chiefly for making bricks or pottery. In New Oxford Illustrated Dictionary, 'clay' means 'stiff viscous earth consisting chiefly of aluminium silicate and forming with water a tenacious paste which may be moulded, or dried and baked into bricks, pottery, tiles, etc. 'in State of West Bengal v. Jagadamba Prasad Prasad Singh, AIR 1969 Cal 281 , Calcutta High Court has held that ordinary earth is not ordinary clay, the word clay is not identifical with earth and some kind of earth may be clay. Considering the aforesaid dictionary meanings and Calcutta decision, we are of the view that earth is the species and clay is the genus and they are not synonymous or interchangeable words. Therefore ordinary earth cannot be equated to ordinary clary and consequently earth/ordinary earth is not a minor mineral. This apart, admittedly, the railways are not holders of quarry leases and therefore, the State Government cannot in exercise of powers under Rule 13 and Schedule I levy any royalty on the railways. ( 9 ) REALISING above difficulties, learned Addl. Government Advocate relied on the provisions of Section 21 (5) of the aforesaid Act which for proper appreciation is extracted below. (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such persons the mineral so raised, or, where such mineral has already been disposed of, 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 persons without any lawful authority. ( 10 ) THE plain meaning of the aforesaid sub-section is that when any mineral from any land is raised by any person without any lawful authority, the State Government has powers to act in two ways : firstly, the State Government may recover from that person the mineral raised or the price thereof, secondly, if the person is in occupation of the land without lawful authority, it may also recover rent, royalty or tax, as the case may be. The learned Addl. The learned Addl. Government Advocate submitted that in the case at hand the State Government has justifiably exercised its power under the second part of the subsection and charged royalty on the railways. But for attracting this part of the sub-section, firstly the substance raised must be a mineral and secondly, the railways must be held to be in occupation of the land in question without any lawful authority. According to the learned counsel for the railways, rock-cut spoils and earth are not minerals, and, railways being in occupation under lawful authority, second part of the sub-section is inapplicable. The argument requires careful examination. ( 11 ) THE word 'mineral' has been defined in Section 3 (a) of the Act as including all minerals, excepting mineral oils. It is thus found that the word 'mineral' is not a term of all matters upon or under the earth fall into three categories, namely, animal, vegetable or mineral kingdoms. Therefore, scientifically mineral is understood as meaning substance which is neither animal nor vegetable. The word is also after understood as meaning substance obtained from underneath the surface of the earth by digging or collected from the surface of the earth. Thus the word is elastic and its meaning depends upon the setting and context in which it is used. ( 12 ) IN M/s. Banarasi Dass Chadha v. Lt. Governor, Delhi Administration, AIR 1978 SC 1587 , it was argued that brick earth being not a mineral could not be declared as minor mineral under Section 3 (e) of the Act. There the question arose whether brick earth was mineral within the meaning of the Act. The Apex Court held that the word 'mineral' is of sufficient amplitude to include brick earth, and if 'minor mineral' as defined in the Act includes ordinary clay and ordinary sand, there is no earthly reason why brick earth should not be held to be 'any other mineral'. The view that brick earth cannot be a mineral because nobody speaks so, was not accepted and it was ultimately held that brick earth was mineral. Calcutta High Court in Chandeswar Prasad Singh v. Sub-divisional L. R. Officer, AIR 1986 Cal 1 , has held that earth, clay and brick earth all fall in the category of mineral. The view that brick earth cannot be a mineral because nobody speaks so, was not accepted and it was ultimately held that brick earth was mineral. Calcutta High Court in Chandeswar Prasad Singh v. Sub-divisional L. R. Officer, AIR 1986 Cal 1 , has held that earth, clay and brick earth all fall in the category of mineral. ( 13 ) FOLLOWING the aforesaid decisions, we accest the positions that earth and rock-cut spoils excavated by the railway are minerals, but since the railways are occupying both the category of lands under lawful authority, the second part of sub-section (5) is not attracted and State Government cannot levy any royalty thereunder for the excavated materials. ( 14 ) INCIDENTALLY, the question arises whether under the first part of sub-section (5) the State Government is entitled to recover from the railways the excavated materials or the price thereof, they being minerals within the meaning of the Act and railways do not possess lawful authority to raise the same and utilise in their construction work. In the facts of the case, we are not called upon to decide this question and therefore, we leave this question open. ( 15 ) AS to levy of case on royalty, law is well-settled by the Apex Court vide M/s. Orissa Cement Ltd. v. State of Orissa, AIR 1991 SC 1676 , that cess is not leviable on royalty in respect of land held for carrying on minor operations. In this case the State of Orissa, in its counter admits that cess has been included by mistake. In other words, it is conceded by the State that cess on royalty cannot be levied on the railways. ( 16 ) CONCLUDING we hold that the State Government is not entitled to levy and royalty or cess in respect of earth and rock-cut spoils excavated by the railways from the acquired land and utilised by them for the purpose of construction of the railway line. So far as Government land in occupation of railways is concerned, the matter stands differently. There has been no formal transfer so far and the terms and conditions of the transfer are yet to be settled. So far as Government land in occupation of railways is concerned, the matter stands differently. There has been no formal transfer so far and the terms and conditions of the transfer are yet to be settled. It would be open to the State Government to incorporate in the formal transfer a term as to payment of royalty or any charges in respect of the aforesaid items and in that case, railways can be made liable for the same. In fact, the railways under Annexure-B dated 10-6-1987 have agreed to abide by the terms and conditions to be decided by the State Government while sanctioning transfer of Government land. ( 17 ) IN the light of discussions in the foregoing paragraphs, the writ application is allowed. The demands for royalty and cess thereon from the railways are quashed. In the special facts of the case, parties shall bear their own costs. ( 18 ) L. RATH, J. I agree. Application allowed.