JUDGMENT : Manish Kumar, J. 1. Heard Shri Rahul Srivastava, learned counsel for petitioner and Shri Rajesh Tiwari, learned Additional Chief Standing Counsel for the State. 2. Since the legal issue relating to jurisdiction is involved in the present case, the matter is finally decided at this stage with the consent of the parties. 3. The present writ petition has been preferred for quashing of the order dated 4.7.2023 passed by respondent no.3 under Rule 58 of the U.P. Minor Mineral (Concession) Rules, 2021 (herein referred as Rules of 2021) by which penalty of Rs.7,66,500/- has been imposed upon the petitioner and the order dated 24.6.2023 passed by the District Magistrate approving the order dated 04.07.2023 passed by respondent No.3 but the copy of the approval order has never been served upon the petitioner. 4. Learned counsel for petitioner has submitted that the petitioner, who is the president of the Mahesh Narayan Rajkumar Smiriti Society is constructing a Higher Secondary School on gata no.3286, 3290 and 3265 situated in Vikas Khand Bichhiya, Village Panchayat Korari Kala, District-Unnao. For the purpose of filling or levelling of the land, the petitioner had used the soil either from the same land or the adjoining land. In this connection a show cause notice dated 5.6.2023 was issued which was served upon the petitioner on 23.5.2023 against which the petitioner had submitted the reply and whereafter the impugned order was passed. 5. Learned counsel for petitioner has submitted that the impugned order dated 4.7.2023 passed by the respondent no.3-Additional District Magistrate (Finance and Revenue), District Unnao is not competent to pass an order under Rule 58 of the Rules of 2021. The order is passed without jurisdiction hence, it is liable to be quashed. It is further submitted that Rule 58 under Chapter VII of the Rules of 2021 provides for 'contraventions, offences and penalties'. The order passed under Rule 58 is a penalty imposed upon the petitioner. It is further submitted that as per Rule 76 of the Rules 2021, an order of penalty/punishment can be passed by the Magistrate of the first class, whereas the respondent no.3 is not a Magistrate of the first class. 6. The order passed under Rule 58 is a penalty imposed upon the petitioner. It is further submitted that as per Rule 76 of the Rules 2021, an order of penalty/punishment can be passed by the Magistrate of the first class, whereas the respondent no.3 is not a Magistrate of the first class. 6. On the other hand, learned Additional Chief Standing Counsel has submitted that it is not a penalty but a fine imposed upon the petitioner for illegal mining of the soil but he is unable to dispute that the order has been passed under Rule 58 of Rules 2021 and has also not disputed that such orders can be passed by the Magistrate of the first class and the respondent no.3 is not a Magistrate of the first class. 7. After hearing the learned counsel for the parties and going through the record and Rules applicable to the case, it is found that the orders which are under challenge are not in consonance with Rule 58 read with Rule 76 of Rules 2021. For the convenience the Rule 58 and Rule 76 are quoted herein below : "Rule 58 of the 2021 Rules: Whoever contravenes the provisions of rule 3 shall on conviction be punishable with imprisonment of either description for a term which may extend up to five years or with fine which shall not be less than of 2 lacs rupees per hectare and which may extend to five Lacs rupees per hectare of the area, or with both. Rule 76 of the 2021 Rules: (1) No Court shall take cognizance of any offence punishable under these rules except on a compliant in writing of the fact constituting such offence by the District Officer or by any officer authorized by him in this behalf. (2) No court inferior to that of a Magistrate of the first class, shall try any offence under these rules." 8. As per the Rule 58 of 2021, the penalty is to be imposed for contravening the provisions of Rule 3 of 2021 Rules, which is specifically mentioned in the impugned order and Rule 76 provides that it is to be passed by the Magistrate of the first class. 9. The Magistrate of the first class has been defined under Section 3 (3)(a) Cr.P.C. The same is quoted below : "3. Construction of references.- ......... 9. The Magistrate of the first class has been defined under Section 3 (3)(a) Cr.P.C. The same is quoted below : "3. Construction of references.- ......... (3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code,- (a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class;" 10. In view of the above, the Magistrate of first class has been defined in the Cr.P.C. 1973. It is undisputed that the respondent no.3 is not court of the Magistrate of the first class which alone could take cognizance of the matter and hence the order passed by him under Rule 58 of 2021 Rules is without jurisdiction and liable to be quashed. 11. In view of the facts and circumstances of the present case, the writ petition is allowed and impugned orders dated 4.7.2023 and 24.6.2023 are hereby quashed. 12. At this stage, learned Additional Chief Standing Counsel submits that liberty may be given to the State to proceed against the petitioner in accordance with law. It goes without saying that liberty is always available to proceed in accordance with law.