JUDGMENT By the Court.—All these writ petitions involve common question of facts and law hence have been heard together and are being decided by this common order. 2. Since all these writ petitions are based on same identical facts and directed against similar recovery notice except for there being difference in dates, with the consent of the learned counsel for the parties for the purpose of reference, pleadings and documents of Civil Misc. Writ Petition No. 18753 of 2016 are being referred. 3. All the petitioners claim that they are farmers having bhumidhari rights in agricultural land and have been charged of illegal mining from their bhumidhari lands while they were carrying on mining operation. They have filed copy of Khasra and Khatauni of 1417 F. to 1422 F. to demonstrate that they are having bhumidhari rights in agricultural land. A notice dated 23.7.2014 was issued by Incharge Officer (Mining)/Additional District Magistrate-II, Aligarh requiring the petitioners to show-cause why they may not be charged with royalty at the rate of Rs. 14/- per cubic meter and five times price of mineral as well as maximum penalty of Rs. 25,000/- under Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 (herein after referred to as the “Act 1957”). The notice further mentioned that Deputy Collector has submitted a report dated 20.6.2014 informing that petitioners have undertaken illegal mining of 1500 cubic meter of clay/soil from plot No. 343. Petitioners submitted their reply dated 30.12.2014 stating that there is no violation of any provision of the Act and the Rules and that plot in question was only levelled by them for agricultural purpose and is covered under the proviso to Section 3 which provides that if digging/excavation is less than 02 meters then the provisions are not attracted. Thereafter, impugned recovery notice dated 23rd June, 2015 has been issued by Incharge Officer (Mining)/Additional District Magistrate-II, Aligarh to the Collector, Aligarh simply recording that no reply has been received despite service of notice and petitioners are guilty of illegal mining as such a sum of Rs. 1,46,000/- being cost of mining and five times royalty and penalty of Rs. 25,000/- is liable to be recovered from them as arrears of land revenue. 1,46,000/- being cost of mining and five times royalty and penalty of Rs. 25,000/- is liable to be recovered from them as arrears of land revenue. The recovery notice demonstrates that petitioners have violated Rule 3 of the Uttar Pradesh Mines Minerals (Concession) Rules 1963 (hereinafter referred to as the Rules 1963) and Section 21 of Act 1957 and are also guilty of committing of an offence under Act 1957 read with Rules, 1957. 4. It is contended on behalf of the petitioners that they are farmers, engaged in agricultural activities on their bhumidhari lands and never done excavation. However, in case, if respondents-authorities found that there has been any unauthorized mining, procedure prescribed under Rule 58(1) of Rules, 1963 for charging royalty etc. should have been followed, which has not been done. It is also submitted that since no excavation of any mineral or clay/soil was being carried out by the petitioners hence, there was no occasion to obtain a permit. Digging of land for the purpose of carrying out agricultural operation or construction of building etc. does not amount to excavation. To support the contention, reliance has been placed on decision of Supreme Court in the case of Promoters and Builders Association of Pune v. State Maharashtra and others, 2014 (13) JT 413 . It is also submitted that entire exercise undertaken against the petitioners without following procedure prescribed by law is illegal and gross abuse of process of law. It has been initiated on wrong perception just to harass the petitioner. 5. When writ petition No. 18753 of 2016 was taken up finding that despite pendency of a large number of similar petitions and despite time having been allowed, no counter-affidavit has been filed on behalf of State nor any instructions were sent and the petition was unnecessarily pending, the Court directed the Collector, Aligarh to appear on 13.5.2016 alongwith complete record. 6. When the matter was taken up on 13.5.2016 on an application made on behalf of Collector, Aligarh, the personal presence on the said date was exempted and the writ petitions were fixed for 23.5.2016 requiring the Collector to appear in person on the said date alongwith the record. 7. In compliance of the aforesaid order, Sri Vijay Kumar Singh, Additional District Magistrate, holding charge of District Magistrate appeared and filed counter-affidavit on behalf of respondent Nos. 2, 3, 4 and 5. 7. In compliance of the aforesaid order, Sri Vijay Kumar Singh, Additional District Magistrate, holding charge of District Magistrate appeared and filed counter-affidavit on behalf of respondent Nos. 2, 3, 4 and 5. It is stated in paragraph 4 of the counter-affidavit that demand letter dated 23.6.2015 was issued on the report of Sub Divisional Magistrate, Kol dated 20.6.2014 in which it has been mentioned that petitioners have excavated 1500 cubic meter ordinary earth without obtaining permission from the competent authority. After considering the report of the Sub Divisional Magistrate, Kol, a report was submitted by Additional District Magistrate (F & R), Aligarh and on the report itself, the District Magistrate calculated the compounding fee and directed the Additional District Magistrate to proceed with the recovery against the petitioners after calculating the amount of mineral and its royalty and penalty. 8. It is to be taken note of that no documents referred to in paragraph 4 have been annexed alongwith the counter-affidavit nor any record has been produced before us. The allegations made in paragraph 4 of the counter-affidavit are self contradictory in as much as, there is nothing on record to demonstrate that District Magistrate applied his mind and calculated the compounding fee. On the contrary, recovery notice issued impugned in the writ petition has been issued by Incharge Officer (Mining)/Additional District Magistrate-II, Aligarh to the Collector, Aligarh to recover the amount from the petitioners as arrears of land revenue. A categorical averment has been made by the petitioner in paragraph 6 of the writ petition that report dated 19.6.2014 was submitted by the Lekhpal with regard to illegal excavation by the petitioner on his land. Copy of the said report has been filed as Annexure ‘2’ to the writ petition. A perusal of the same goes to show that allegation against the petitioner is that on measurement, it was found that petitioner has excavated ordinary earth of 1500 cubic meter over the plot in question which is one meter in depth. Specific averments made in paragraph 6 of the writ petition in this regard have not been at all denied in the counter-affidavit. It may be relevant to quote paragraph 7 of the counter-affidavit which reads as under : “That the contents of paragraph 6 of the writ petition are not admitted as stated hence denied. Specific averments made in paragraph 6 of the writ petition in this regard have not been at all denied in the counter-affidavit. It may be relevant to quote paragraph 7 of the counter-affidavit which reads as under : “That the contents of paragraph 6 of the writ petition are not admitted as stated hence denied. It is submitted that the petitioner excavated ordinary earth from his own plot without obtaining any prior permission from the competent authority. The Director, Geology and Mining, U. P. Lucknow issued letter dated 19.3.2013 to the District Magistrate, Aligarh to the effect that no mineral can be excavated by any person without obtaining prior permission as such short term mining permit or mining lease under the Rules of 19.3.2013. A true photostat copy of the letter dated 19.3.2013 is annexed herewith and is marked as Annexure CA ‘1’ to this affidavit.” 9. It is, thus, undisputed that even if excavation of ordinary clay/soil has been undertaken by the petitioner, it is less than two meters. In view of the ‘minor minerals’ defined under Section 3(e) of Act 1957, and Rule 2 (7) of Rules 1963, ordinary clay/soil is a minor minerals. Section 3 (e) of Act 1957 reads as under : “(e) “minor minerals” means building stones, gravel, ordinary 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, declare to be a minor mineral;” Rule 2 (7) of Rules, 1963 reads as under : “(7) “Minor minerals” means building stones, gravel ordinary clay, ordinary sand other then sand used for prescribed purposes, and any other mineral which the Central Government has declared from time to time or may declare, by notification in the official Gazette, to be a minor mineral, under clause (e) of Section 3 of the Mines and Mineral (Regulation and Development) Act, 1957 (Act No. 67 of 1957);” 10. In view of the definition of “minor minerals” contained in the Act 1957 as well as U. P. Rules, it cannot be disputed that ordinary clay/ordinary sand if excavated for the purpose of manufacturing of bricks or filling or heighting or for other use in construction activities, will come within the purview of the Act, 1957 and Rules, 1963 as well as Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage) Rules 2002 framed by the State Government under Section 23 (C) of the Act 1957. However in order to protect the ordinary farmers undertaking agricultural activities, the State Government has vide Government Order No. 3514/86-2012-235/2010, dated 24 December 2012 clarified that any manual excavation carried out in land extracting ordinary clay/ordinary sand shall not fall under mining operation unless the depth of the mining site is more than two metres. The Government Order dated 24 December 2012 reads as under: ^^izs"kd] la[;k % 3514@86&2012&235@2010 lsok esa] 1- funs'kd foosd ok".ksZ; fo'ks"k lfpo mRrj izns'k 'kkluA 2- leLr ftykf/kdkjh HkwrRo ,oa [kfudeZ] m0iz0] y[kuÅA 3- leLr e.Myk;qDr HkwrRo ,oa [kfudeZ m0iz0] y[kuÅA fnukWd % 24 fnlEcj] 2012 vuqHkkx% fo”k;% mRrj izns'k [kfut ¼ifjgkj½ ¼iSarhlok la'kks/ku½ fu;ekoyh] 2012 ds lEcUèk esaA egksn;] voxr djkuk gS fd mi;qZDr la'kks/ku ds vUrxZr bZV HkV~Bksa ds lapkyu esa Ik;kZoj.k LoPNrk izek.k i= dh ck/;rk dks lekIr fd;s tkus ds n`f"Vxr la'kks/ku fu;ekoyh ds fu;e&3 esa ^^Li"Vhdj.k^^ rFkk fu;e 21&1 ds ckn mi&fue ¼1&d½ fuEuor~ tksM+ fn;k x;k gSA 1- Li"Vhdj.k%& bZV cukus gsrq gLrpkyu ls [kqnk;h }kjk vFkok gLrpkyu ls lkekU; feV~Vh dks fudkyus dh fdz;k [kuu lafdz;kvksa ds vUrZxr ugha vk;sxh tc rd dh [kuu LFky dh xgjk;h 02 ehVj ls vf/kd u gksA 2- ¼1&d½ fu;e&3 esa fdlh ckr ds izfrdwy gksrs gq;s Hkh bZV HkV~Bk ekfydksa dks fu;ekoyh dh izFke vuqlwph esa rRle; fofufnZ"V njksa ij LokfeRo dk Hkqxrku djuk gksxkA bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd bZV HkV~Bksa ds lapkyu ds laca/k esa mi;qZDrkuqlkj vko';d dk;Zokgh djus dk d"V djsaA Hkonh;] ¼foosd ok".ksZ;½ fo'ks"k lfpoA** 11. Much stress has been laid by the learned Standing Counsel that the petitioner never submitted any reply to the show-cause notice and the alleged reply filed alongwith writ petition is a fabricated document. Much stress has been laid by the learned Standing Counsel that the petitioner never submitted any reply to the show-cause notice and the alleged reply filed alongwith writ petition is a fabricated document. Referring to averments made in paragraph 11 of the counter-affidavit, it has been submitted that reply which has been annexed alongwith the writ petition has been addressed to Sub Divisional Magistrate whereas notice dated 23.6.2014 was given by Additional District Magistrate (F & R) which makes it clear that it was never submitted before the concerned authority who has given the notice. 12. Even if the argument advanced by the learned Standing Counsel is accepted then also it does not make any difference in as much as a perusal of the report of Lekhpal filed as Annexure ‘2’ to the writ petition on the basis of which proceedings were initiated against the petitioners goes to show that excavation, if any, carried out was only one meter and hence in view of Government Order dated 24th December, 2012, extracted above, the exercise undertaken by the petitioners cannot be treated to be a mining operation. 13. When the learned Standing Counsel was confronted with the aforesaid factual situation, he could not satisfy us that in what manner the petitioners can be said to have undertaken mining operation and the impugned notice issued against them for recovery of amount of royalty, penalty etc. are legal and are sustainable. Even Additional District Magistrate, holding charge of District Magistrate, who is present in Court, could not place before us any material to demonstrate that in all the cases, petitioners were engaged in mining activity and royalty and penalty could not have been imposed upon them. 14. In view of the aforesaid facts and discussions, it is clear that impugned notice issued against the petitioners for recovery of royalty, penalty etc. are patently illegal and without jurisdiction in as much digging operation, even if undertaken by the petitioners as alleged by taking away some ordinary clay would not tentamount to mining operation. The impugned notice are nothing but a gross abuse of the process of law and tentamount to harassment and totally unsustainable. All the writ petitions stand allowed. Impugned recovery certificates issued against the petitioners are, hereby, quashed. However, in the facts and circumstances, we do not make any order as to costs.