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2013 DIGILAW 2513 (ALL)

KULDEEP SINGH v. STATE OF U. P.

2013-10-04

TARUN AGARWALA

body2013
JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner was granted a mining lease for a period of three years commencing from 15th February, 2007 till 14th February, 2010. It transpires that an ex parte inspection was carried out at the site between 6th January, 2008 to 9th January, 2008 and an inspection report was filed on 14th January, 2008 indicating therein that Form MM-11 was issued from 15th February, 2007 to 7th January, 2008 for transportation of 7600 cubic meters of sand, but it transpires that the petitioner had excavated 26,700 cubic meters, and therefore, there has been an excess mining of 19,100 cubic meters. The report suggested that for this excess mining, royalty of Rs. 4,39,300/-becomes payable. 2. Based on this report, the District Magistrate issued an order dated 28th January, 2008 directing the petitioner to immediately stop the mining operations. The notice indicated that the value of excess mining of 19,100 cubic meters was Rs. 26,35,800/-, which was in violation of Rule 70 and 35 of the U.P. Minor Minerals (Concession) Rules, 1963 and that the mining was also done outside the prescribed area. Subsequently, an amended notice dated 19th February, 2008 was issued to show-cause as to why the royalty and price of mining should not be charged for excess mining of 19,100 cubic meters of land in violation of Rule 70 and 35 of the Rules and for not demarcating the property as per the lease deed. 3. The petitioner denied the allegation in his reply and further contended that no inspection was made in the presence of the petitioner and requested that a fresh inspection be carried out in his presence. 4. The District Magistrate, after considering the reply, passed an order dated 04th May, 2009 directing the petitioner to deposit a sum of Rs. 21,96,500/-towards royalty and price of the mineral. The petitioner, being aggrieved, preferred an appeal, which was rejected by the Commissioner by an order dated 07th April, 2010. The petitioner, thereafter, filed a revision under Rule 78 of the U.P. Minor Minerals (Concession) Rules, 1963 before the State Government, which was eventually rejected by an order dated 04th February, 2011. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition. 5. Heard Sri H.M. Srivastava, the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 6. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition. 5. Heard Sri H.M. Srivastava, the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 6. The learned counsel for the petitioner submitted that the revision was heard on 28th December, 2010, and thereafter, was adjourned for further hearing for 21st January, 2011. The petitioner has made a specific allegation that when he went to the revisional authority on 21st January, 2011, he found to his dismay that the revisional authority had already rejected his appeal on 04th January, 2011 in gross violation of the principles of natural justice. The learned counsel further submitted that after he had filed the writ petition, the State Government realized its mistake and issued a corrigendum indicating that the order was not passed on 04th January, 2011, but was passed on 04th February 2011. The learned counsel submitted that the entire exercise was made by the Revisional Authority to remove the defect, which was so glaring on the face of it. 7. On merits, the learned counsel submitted that under the notice, the authorities have levelled violation of the Rule 70 and 35 of the Rules, and consequently, penalty, if any, can only be imposed as provided under the said Rules, but in the instant case, the authorities without levelling penalty as per Rule 70 of the Rules, has imposed royalty as well as cost of the mineral alleged to have been excavated in excess of Form MM-11. The learned counsel further submitted in the alternative that the respondents could only impose royalty on the excess mining but could not charge the price of the minerals. In the end, the learned counsel submitted that the inspection made at the site was done behind the back of the petitioner, and consequently, all proceedings initiated pursuant thereto was wholly illegal and in violation of the principles of natural justice, and consequently, all the orders were liable to be quashed. 8. The learned counsel has relied upon a decision of this Court in Writ Petition No. 1899 (MS) of 2005, Gajpal Singh v. State of U.P. and others, decided on 6.4.2005, wherein the Court held that since the action on the report was taken by the authority without associating the said petitioner in the enquiry or survey, the orders could not be sustained. 9. 9. Having heard the learned counsel for the petitioner, the Court directed the learned Standing Counsel to produce the original record of the revisional authority. The Court finds that several adjournments were sought by the State Government in producing the record, and eventually, a photo stat copy of the revisional record was placed before the Court, which action was totally deprecated by the Court. It was only thereafter the original record was placed. The Court found to its dismay that there were discrepancies in the photostat record and in the original record. In the photostat record, the pagination had not been made, whereas the original record contained the pagination, which has led the Court to believe that earlier there was no pagination of the original record, when the photostat copies were produced before the Court. The pagination was done later on. This leads to a presumption that the record of the revisional authority is not being maintained properly. If pagination is not done immediately, it can lead to the tampering of the records and any person could easily remove or add the pages in the record. The petitioner has made a specific allegation that after hearing the parties on 28th December, 2010 the matter was adjourned for 21st January, 2011, but prior to that date, the revision was dismissed on 04th January, 2011. The Court finds from a perusal of the ordersheet that, the matter was heard on 21st January, 2011and the Advocate was also heard, and thereafter, 31st January, 2011, was fixed for delivery of the order. On 31st January, 2011, the order could not be delivered and 4th February, 2011 was fixed for delivery of the orders, on which date, the appeal was dismissed. 10. The Court finds that there is no averment in the writ petition that the Advocate was not heard on 22nd January, 2011. The ordersheet of the 21st January, 2011 clearly indicates that the Advocate of the petitioner was heard. The only averment made in the writ petition is that when the petitioner approached the revisional authority on 21st January, 2011, he found to his dismay that the revision had already been dismissed on 04th January, 2011. The ordersheet of the 21st January, 2011 clearly indicates that the Advocate of the petitioner was heard. The only averment made in the writ petition is that when the petitioner approached the revisional authority on 21st January, 2011, he found to his dismay that the revision had already been dismissed on 04th January, 2011. No doubt, the impugned order indicates the date of the dismissal of the revision on 04th January, 2011, but the Revisional Authority having realized this error issued a corrigendum indicating that the actual date of the order is 04th February, 2011. 11. The Court also directed the Revisional Authority to produce the dispatch register, which has been produced and from a bare perusal of the dispatch register, the Court finds that the impugned order was dispatched to the parties on 04th February, 2011. This leads to an inference that the order was passed on 04th February, 2011 and the order was dispatched thereafter. 12. In the light of the aforesaid, the Court is of the opinion that the order was passed on 04th February, 2011 after hearing the parties. The Court is however, constrained to observe that the file of the Revisional Authority has not been properly maintained. One does not know whether the file starts from bottom going upwards or that it starts from the top and goes downwards. Consequently, the Court gets an uncanny feeling that the tampering of the record is possible, especially in the light of the conduct of the office of the Revisional Authority before this Court with regard to the production of the photostat copies, and thereafter, by the production of the original record. 13. The notice alleges violation of the Rule 35 and Rule 70 of the Rules of 1963 which are extracted here under. “Rule 35-Erection and maintenance of boundary marks.—The lessee shall, after the survey and demarcation of the area granted under the lease land before executing the lease deed, at his own expense, erect and at all times maintain and keep in good repair boundary marks and pillars necessary to indicate the demarcation shown in the plan annexed to the lease deed. Rule-70. Rule-70. Restrictions on transport of the minerals.—(1) The holder of mining lease or permit or a person authorised by him in this behalf may issue a pass in Form MM-11 to every person carrying a consignment of minor mineral by a vehicle, animal or any other mode of transport. The State Government may, through his district officer, make arrangements for supply of printed MM-11 Form books on payment basis. Rule (2) No person shall carry, within the State, a minor mineral by a vehicle, animal or any other mode of transport, excepting railway, without carrying a pass in Form MM-11 issued under sub-rule (1). (3) Every person carrying any minor mineral shall, on demand by any officer authorised under Rule 66 of such officer as may be authorised by the State Government in this behalf, show the said pass to such officer and allow him to verify the correctness of the particulars of the pass with reference to the quantity of the minor mineral. (4) The State Government may establish a check-post for any area included in any mining lease or permit, and when a check-post is so established public notice shall be given of this fact by publication in the Gazette and in such other manner as may be considered suitable by the State Government. (5) No person shall transport a minor mineral for which these rules apply from such area without first presenting the mineral at the check-post established for that area for verification of the weight or measurement of the mineral. (6) Any person found to have contravened any provision of this rule shall, on convictions, be punishable with imprisonment of either description for a term which may extent to six months or with fine which may extent to one thousand Rs. or with both.” 14. Rule 35 indicates that the lessee is required to demarcate the lease area as per the lease deed. Rule 70 place restriction upon the lessee for transport of the minerals and requires the lessee to transport the minerals under Form MM-11. Sub clause (6) of Rule 70 provides that any person who contravenes any provision, shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to Rs. 1000/-or with both. Sub clause (6) of Rule 70 provides that any person who contravenes any provision, shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to Rs. 1000/-or with both. The violation under Rule 70 is with regard to the transportation of the minerals without a valid form, which results in a criminal action taken in a Court of law. But it does not mean that the authorities cannot take action against the petitioner for the illegal excess mining done without permission in this regard. Section 21(5) of the Mines and Minerals (Regulation and Development) Act, 1957 provides a complete picture, which provides for imposition of penalty. For facility, Section 21(5) is extracted hereunder. “21(5) Whenever any person raise, without any lawful authority, any, mineral from any land, the State Government may recover from such person 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 person without any lawful authority.” 15. A perusal of the aforesaid provision clearly indicates that any minerals so raised without any lawful authority or where such mineral had already been disposed of, the price as well as royalty or tax can be recovered from such person. 16. In the light of this provision, the District Magistrate was justified in not only recovering the royalty, but also the cost of the mineral so excessively excavated by the petitioner from the site in question without any lawful authority. The submission of the learned counsel for the petitioner that only royalty could have been charged at best and not the cost of mineral is patently erroneous. 17. The contention that no order could have been passed in view of the ex parte inspection is patently erroneous. The contention that the inspection or survey should only be made in the presence of the petitioner cannot be accepted. The judgement cited is based on its own facts and is not based on any principles of law, which could be culled out from any provision of the Act or the Rules or Regulations framed therein. No provision has been indicated to show that it is mandatory for the authority to make an inspection in the presence of the petitioner. The judgement cited is based on its own facts and is not based on any principles of law, which could be culled out from any provision of the Act or the Rules or Regulations framed therein. No provision has been indicated to show that it is mandatory for the authority to make an inspection in the presence of the petitioner. 18. For the reasons stated aforesaid, the Court does not find any error in the impugned orders. The writ petition fails and is dismissed. 19. Before parting, the Court has already observed that the original record of the revisional authority is being maintained in a haphazard manner. The Court accordingly directs the Registrar General to send a certified copy of the order to the Chief Secretary within two weeks from today, who will issue necessary instructions to all the authorities including the Revisional Authority exercising quasi judicial powers to maintain the file in a proper manner and ensure that the pagination is done immediately whenever a paper is added to the file. The file can move from top to bottom or vice versa. This will show transparency in the system and will further ensure that a file is maintained properly without any chance of it being tampered. 20. The original record alongwith the photostat copies of the original record and the dispatch register is being handed over to Sriprakash Singh, the learned Standing Counsel, who will forward it to the Revisional Authority concerned. 21. Necessary endorsement with regard to the receipt of the original record shall be obtained by the Reader of the Court on the ordersheet. 22. The Registry is directed to place the certified copy of this order before the Registrar General within 10 days.