JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri V.B. Upadhyaya, Senior Advocate, assisted by Sri Ritvik Upadhya, counsel for the revisionist. 2. Revisionist, Hindalco Industries Limited is a Private Limited Company, duly incorporated under the provisions of the Companies Act, filed Original Suit No. 19 of 2000 in the Court of Civil Judge (Senior Division), Sonebhadra for the following the relief : Þ¼v½ ;g fd ;g ?kksf"kr fd;k tk; fd Áfroknhx.k }kjk oknh ds fo:) tkjh eqofyx 90] 98] 108 :i;k ds olwyh dh dk;Zokgh vos/k o kwU; gSA ----------dksVZ Qhl eq0 200 :i;k ¼c½ ;g fd Áfroknhx.k dks tfj, LFkkbZ fuks/kkKk euk fd;k tk; fd os oknh ls [kfut jk;YVh ds :i esa eq0 90] 98] 108 :i;k ;k dksbZ jde olwy u djsA ----------dksVZ Qhl eq0 500 :i;k ¼l½ ;g fd dqy [kpkZ eqdnek dh fMxzh cgd oknh f[kykQ Áfroknhx.k lkfnj QjekbZ tkosaA ¼n½ ;g fd vykok ;k ctk; nknjlh mijksDr ds oknh vkSj Hkh ftl&ftl nknjlh dk eqLrgd utnhd jk; vnkyr djkj ik;k tkWosa mldh Hkh fMxzh cgd oknh f[kykQ Áfroknhx.k lkfnj QjekbZ tkosaAÞ 3. In the plaint it was stated that the plaintiff has been served with recovery certificates on 12.2.2000 and 16.2.2000 under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as U.P.Z.A. & L.R. Act) with a notice that the money demanded be deposited, failing which the property of the plaintiff would be attached and sold for recovery of the said amount. 4. Challenging the recovery so initiated it was alleged that the plaintiff company purchased 771 acres of forest land by way of sale from the State of U.P. under the Government Grants Act, 1985 for the purpose of setting up their factory at Renukoot, district Sonebhadra. The land so sold has been used solely for the purpose of establishing an Alumrinum factory by the plaintiff. The land is situate in a hilly terrain and was uneven. Plaintiff, therefore, leveled the land, for the purpose relocated the hill rocks, soil, boulders etc. found on the surface of the said land. 5. The applicant was served with a citation by the Tehsildar, Duddhi dated 9.2.2000 stating that sum of Rs. 90,98,108/- was payable as royalty by the company. Two other separate citations both dated 15.2.2000 were similarly issued by the Tehsildar. 6. found on the surface of the said land. 5. The applicant was served with a citation by the Tehsildar, Duddhi dated 9.2.2000 stating that sum of Rs. 90,98,108/- was payable as royalty by the company. Two other separate citations both dated 15.2.2000 were similarly issued by the Tehsildar. 6. The plaintiff stated that it was not granted any mining lease or licence under the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as Rules, 1963) and in fact it had not carried out any mining operations, therefore, the recovery of royalty was without authority of law. 7. Trial Court on 9th May, 2009 an order of temporary injunction restraining the State defendants from recovering the amount mentioned in the recovery certificate on the condition of furnishing security by way of bank deposit receipt. The plaintiff is stated to have complied with the condition. 8. Written statement was filed by the State authorities and recovery initiated was claimed to be as per law and it was submitted that suit was barred under the U.P.Z.A. & L.R. Act. 9. On 11.10.2001 issues were framed. Issue No. 2 was with regard to the suit being barred under Section 287 read with Section 330 of the U.P.Z.A. & L.R. Act. Issue No. 5 was framed 30.3.2006 to the effect as to whether the recovery was null and void. 10. The trial Court decided issue No. 2 vide order dated 19.9.2009 and held that in the facts of the case the recovery proceedings cannot be said to be without jurisdiction, the civil suit as filed as barred under Section 330 of the U.P.Z.A. & L.R. Act. Accordingly, the plaint was returned for presentation before the Court having jurisdiction to hear the same. It is against this order of the trial Court that the present revision has been filed. 11. On behalf of the revisionist it is contended that the suit as filed before the Civil Court was not barred under the provisions of Code of C.P.C. or under the U.P.Z.A. & L.R. Act. The plaintiff has challenged the very demand of royalty by the respondents and it was their case that such royalty was not payable and therefore, the suit, as filed, was clearly maintainable and order impugned is illegal. 12. Revisionist submits that Section 9 of the C.P.C. confers jurisdiction upon the Civil Court qua determination of all disputes of civil nature. The plaintiff has challenged the very demand of royalty by the respondents and it was their case that such royalty was not payable and therefore, the suit, as filed, was clearly maintainable and order impugned is illegal. 12. Revisionist submits that Section 9 of the C.P.C. confers jurisdiction upon the Civil Court qua determination of all disputes of civil nature. Unless the suit is barred under a statutory provision, either specifically or by necessary implication, the Civil Court will have the jurisdiction to adjudicate the same. Reference in that regard is made to the judgment of the Hon’ble Supreme Court in the case of Mahant Dooj Dass v. Udasin Panchayati Bara Akhara, (2008) 12 SCC 181 , which in turn refers to earlier judgment of the Hon’ble Supreme Court, including the Three Judges judgment in the case of Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, (2003) 6 SCC 220 . 13. It is then contended that Rules, 1963, which is a special statute, specifies certain mandatory conditions, which are necessarily to be followed before any recovery proceedings can be initiated. In the facts of this case it was pleaded that such mandatory conditions had not been complied with and therefore, the recovery could be challenged by way of civil proceedings. The statutory bar against such a suit will not apply. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Dhulabhai v. State of M.P., AIR 1969 SC 78 and Rajasthan SRTC v. Bal Mukund Bairwa (2), (2009) 4 SCC 299 , as well as upon the other judgments. 14. It is then contended that there is no tax liability in law if there is ambiguity as to any of three component of tax law, (a) subject of tax (b) person liable to pay tax and (c) rate at which tax is to be paid. The recovery certificate would be without authority of law and therefore, violative of Article 265 of the Constitution of India. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Govind Saran Ganga Saran v. V.C.I.T., 1985 SCC (Supp.) 205. 15. It has also been contended that jurisdiction of the Court is to be determined with reference to the allegations made in the plaint and not on merit or result of the suit. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Govind Saran Ganga Saran v. V.C.I.T., 1985 SCC (Supp.) 205. 15. It has also been contended that jurisdiction of the Court is to be determined with reference to the allegations made in the plaint and not on merit or result of the suit. Reference is made to the judgment in the case of Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207 . 16. Lastly it is contended that issue No. 2 regarding bar of Section 287-A and Section 330 of the U.P.Z.A. & L.R. Act is a mixed question of law and fact and therefore, could not be decided as preliminary issue. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Kali Prasad v. Dy. Director of Consolidation, (2000) 6 SCC 640 and Balram Prasad v. State of U.P. and others, 2002 AWC 124. 17. Plea of res judicata has also been raised with regard to the earlier order of the trial Court dated 16.8.2007, which recorded that the issue No. 2 will be decided after evidence is led. 18. The Court may deal with last issue first. For principle of res judicata to be applicable it is necessary that the issue must have been finally decided between the same parties in respect of the same subject-matter earlier. The order dated 16.8.2007 is not a determination of any issue between the parties and therefore, it cannot operate as res judicata. 19. Initially on behalf of the revisionist it was stated before the Court that absolutely no notice was served upon the revisionist nor any demand order was made before issuance of the recovery certificate. It is in this factual background pleaded, the Court examined the facts stated in the stay application filed in this revision, duly supported by an affidavit. Stay Application runs into 37 paragraphs and there is absolutely no mention with regard to any notice having been issued under the Rules, 1963 or any demand order having been passed before issuance of the recovery certificates, which were sought to be declared null and void by means of the said suit. 20. Stay Application runs into 37 paragraphs and there is absolutely no mention with regard to any notice having been issued under the Rules, 1963 or any demand order having been passed before issuance of the recovery certificates, which were sought to be declared null and void by means of the said suit. 20. On examination of the written statement, which was filed on behalf of the State respondents in the said suit and is part of the affidavit filed with the stay application, the Court finds that such notice before determining the liability of the revisionist qua payment of royalty under the Rules, 1963 in fact was issued on 23.4.1997 and on 29.5.1997, to which reply was submitted through Advocate on behalf of the plaintiff company. Thereafter orders were passed after considering the explanation so furnished. Demand Notice dated 28.7.1999 was issued to the plaintiff to deposit the money towards royalty. The demand order was not challenged by the plaintiff before any competent authority and the same has been permitted to become final. 21. In the written statement it has been disclosed that on the basis of the spot inspection report of the Inspecting Team dated 18.4.1997 it was found that boulder/soil, measuring 4,01,387 cubic meter and mud measuring total 2,67,592 cubic meter was illegally excavated by the plaintiff. In respect of the same a sum of Rs. 90,98,108/- was payable as royalty. It was clarified that even the minor minerals, which are available on the surface of the land vest in the State Government and it is the State Government which has a right to charge royalty for wining the same. Therefore, the demand of royalty was in accordance with law. For demand of royalty it is not necessary that the person concerned must have been granted licence/lease for the purpose. In respect of illegal mining without licence/lease also royalty is payable as per the provision detailed in the reply. 22. For appreciating the contentions raised on behalf of the revisionist it is worthwhile to point out that under the Mines and Mineral (Regulation and Development) Act, 1957 (hereinafter referred to as Act, 1957) the State Government has framed Rule, 1963, which describes the mining operation. 22. For appreciating the contentions raised on behalf of the revisionist it is worthwhile to point out that under the Mines and Mineral (Regulation and Development) Act, 1957 (hereinafter referred to as Act, 1957) the State Government has framed Rule, 1963, which describes the mining operation. The Hon’ble Supreme Court in the case of Bhagwan Das v. State of U.P. and others, AIR 1976 (3) SC 1963, has laid down that minerals need not be subterranean and mining operations cover every operation for the purpose of wining any minor mineral. For ready reference relevant portion of the judgment is quoted below : “13. .........It is in the first place wrong to assume that mines and minerals must always be subsoil 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 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 subterranean and that mining operations cover every operation undertaken for the purpose 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 a mineral. Only, that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral.” 23. The Central Government in exercise of powers under Section 3(e) of the Act, 1957 vide Notification dated 3rd February, 2000 has declared the ordinary earth used for filling or leveling purposes in construction of embankments, roads, railways, buildings to be minor mineral. The State of U.P. under the Rules 1963 has adopted the definition of minor minerals as provided in Clause (e) of Section 3 of the Act, 1957. The Rules, 1963 make provisions for grant of mining lease, payment of royalty/dead rent etc., including consequences of non-payment of royalty/rent and other dues. Powers of the District Officers for the purpose of assessment of royalty and collection of royalty, appeal against order passed under the rules and thereafter remedy by way of appeal/revision before the State Government has been provided. Powers of the District Officers for the purpose of assessment of royalty and collection of royalty, appeal against order passed under the rules and thereafter remedy by way of appeal/revision before the State Government has been provided. Reference Rules 21, 54, 55, 58, 64, 66, 67, 70, 71, 77 and 78 of Rules, 1963. 24. A Division Bench of this Court in the case of M/s. J.K. Construction Engineers and Contractor and others v. Union of India and others, 2006(3) ADJ 471 (All) (DB), has examined the issue as to whether demand of royalty can be raised only against a lessee or mining permit holder, and the demand of royalty against a person who is neither lessee nor mining permit holder is violative of Rules of 1963 or not. In paragraph 101 of the said judgment it has been held as follows : “Now coming to the question as to whether the amount of royalty can be recovered from the petitioners who are the contractors and suppliers of ordinary earth and other minor minerals, we are of the considered opinion that the royalty is payable on excavation of any minor minerals. The liability is primarily of the person holding the mining lease or a mining permit but if a person does not hold any mining lease or a mining permit, the liability does not cease. Any person dealing in a minor mineral is required to maintain and keep documents to show that the royalty has been paid and in order to ensure that due royalty on minor minerals has been paid within the State of U.P., the State Government by the three Government Orders have provided for producing copies of declaration in form MM 11 and treasury challan evidencing deposit of royalty.” The Court may now refer to the provisions of Section 330 of the U.P.Z.A. & L.R. Act, which reads as follows : “330. Bar to jurisdiction of Civil Courts in certain matters.Save as otherwise provided by or under this Act, no suit or other proceeding shall lie in any Civil Court in respect of— (a) any entry in or omission from a Compensation Assessment Roll; or (b) any order passed under Part 1 of this Act; or (c) the assessment or collection of land revenue under Chapter X or the recovery of any sum of money recoverable as arrears of land revenue.” 25. The Court, in view of the said legal background, may examine the facts and issues raised. 26. From the recital of the facts, as noticed above,it is further apparently clear that the notice was issued to the revisionist before determination of royalty by the District Officer. The order fixing the liability towards royalty was passed after considering the reply of the revisionist company under the provisions of the Rules, 1963. The revisionist has not pursued the remedy provided under the Rules, 1963 as regards the demand of royalty. The revisionist has permitted the demand to become final. It has chosen to question the recovery certificate only without questioning the basic order levying the royalty. The Hon’ble Supreme Court of India in the case of Government of Maharastra v. Deokar’s Distillery, (2003) SCC 669, Barkat Ali v. Badri Narain, AIR 2008 SC 1272 and P. Chithranja Menon v. A. Balakrishnan, AIR 1977 SC 1720 , has held that if the basic order is not under challenge, consequential order cannot be subjected to challenge. 27. In these circumstances this Court has no hesitation to hold that the order of demand under the 1963 Rules has become final. The consequential recovery of the amount so demanded as arrears of land revenue cannot be questioned specifically in view of the fact that under notification issued by the State Government (which is not under challenge) arrears of royalty are liable to be recovered as arrears of land revenue. 28. A bare reading of Section 330(C) of the U.P.Z.A. & L.R. Act would establish that civil suit in respect of the matters pertaining to recovery, qua the amount recoverable as arrears of land revenue, would be barred. The trial Court has, therefore, rightly held that suit as presented by the plaintiff was barred under Section 330 of the U.P.Z.A. & L.R. Act. Reference in that regard may be had to the judgment of the Hon’ble Supreme Court in the cases of Madarri Chemicals v. Union of India, AIR 2004 SC 2371 , Devinder Singh and others v. State of Haryana, AIR 2006 SC 2850 and Gopalji v. Mandi Samiti, 1996 (1) AWC 370. 29. Now coming to the issues raised by the revisionist. The plea that the suit is not barred by Section 9 of the C.P.C. is totally misconceived. 29. Now coming to the issues raised by the revisionist. The plea that the suit is not barred by Section 9 of the C.P.C. is totally misconceived. This Court has already noticed that the suit as filed is barred by Section 330 of the U.P.Z.A. & L.R. Act. The judgment of the Hon’ble Supreme Court relied upon by the counsel for the revisionist also lay down that a civil suit would be entertained only if it is not specifically or by necessary implication barred by any Statute. 30. In the facts of the case the counsel for the revisionist has not been able to demonstrate as to which mandatory condition of the statute qua the process for determination of the liability towards royalty has not been followed. Even otherwise this Court may record that the plaintiff had not challenged the order determining the liability towards royalty, which was passed after due notice and opportunity to the plaintiff-revisionist. The liability, which has been fastened upon the plaintiff towards royalty, is strictly in accordance with the provisions of Rules 1963 and therefore, not hit by Article 265 of the Constitution of India. 31. The jurisdiction of the Court to try a suit is to be examined with reference to the pleadings, which are brought on record before it including the pleas raised in the objection taken qua maintainability of the suit before the Civil Court. The pleadings in that regard are to be considered as a whole and not in isolation as asserted by the plaintiff. The principles lay down in all the judgments relied upon by the counsel for the revisionist are not in doubt but in the facts of this case they do not help the revisionist, more appropriately lead to a conclusion that the suit as filed was barred. 32. For the reasons recorded above, this Court finds no good ground to interfere with the order passed by the trial Court. Revision is dismissed. ————