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2023 DIGILAW 1815 (ALL)

Meera Devi v. State Of U. P.

2023-07-28

MANOJ BAJAJ, SIDDHARTHA VARMA

body2023
JUDGMENT : 1. The petitioners are bhumidhars of plots no. 2744 and 2745 having an area of .271 hectares and .3040 hectares respectively. They were using their plots for agricultural purposes. However when the Authorities under the various provisions of the Mines and Minerals (Development and Regulation) Act, 1957, (hereinafter referred to as the Act of 1957) served an order dated 8.12.2018 on the petitioners that they had illegally mined from the plots and levied penalty also then the petitioners approached the Appellate Court and when the Appellate Court also on 8.5.2023 rejected the Appeal, the instant writ petition has been filed. 2. Contention of the learned counsel for the petitioners is that the order dated 8.12.2018 was based on a report of the Lekhpal dated 20.1.2018. Learned counsel for the petitioners states that this report was necessitated as the Lekhpal had received certain complaints from their own relatives that the petitioners were doing illegal mining on their bhumidhari plots. Learned counsel for the petitioners states that the lekhpal's report dated 20.1.2018 if is perused it becomes clear that the Lekhpal had not noted as to on what date the earth was removed. The Lekhpal had also not stated as to in whose presence the inspection was done on 20.1.2018. 3. Learned counsel for the petitioners has relied upon the averments made in the counter affidavit and has submitted that thereafter without further looking in the reports of the Lekhpal, the Sub Divisional Magistrate forwarded the report of the Lekhpal to the Additional District Magistrate (F & R) Mathura on 30.1.2018. Learned counsel for the petitioner again relied upon the averments made in the counter affidavit and has stated that probably a notice was also sent to the petitioner on 5.2.2018. When this notice went unreplied, on 24.4.2018 another notice was sent and when this notice was also not attended to by the petitioners then the ultimate notice dated 11.10.2018 was sent. 4. Learned counsel for the petitioners has stated that a perusal of the notice dated 11.10.2018 would reveal that the petitioners were charged with having contravened the provisions of Section 21(4) of the Act of 1957. 5. Learned counsel for the petitioners states that this notice had presumed without any actual record that the petitioners had excavated 13228 cubic meters of ordinary mud and without any basis the royalty on mineral(mud) was evaluated at Rs. 5. Learned counsel for the petitioners states that this notice had presumed without any actual record that the petitioners had excavated 13228 cubic meters of ordinary mud and without any basis the royalty on mineral(mud) was evaluated at Rs. 3,96,840/-and the price of it was evaluated at Rs. 19,84,200/-. The total payable amount by the petitioner came to Rs. 23,81,040/-. Over and above this amount a penalty of Rs. 25,000/- was also imposed. 6. Learned counsel for the petitioners states that the notice was followed by an order dated 8.12.2018 and he states that even this order did not come to the notice of the petitioners. Only when recovery was being initiated for Rs. 24,06,040/-that the petitioners filed a writ petition being Writ C No. 23885 of 2019. In the writ petition, the petitioner, however, was relegated to the filing of an Appeal under Section 77 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. The petitioners did file an Appeal and when it was dismissed without any basis, the instant writ petition was filed. 7. Learned counsel for the petitioners has raised essentially the following arguments: I. The Lekhpal report dated 20.1.2018 was an ex parte one. II. The Lekhpal did not indicate any date on which the Lekhpal had visited the spot. III. All the findings which were arrived at by the Lekhpal were ex parte, and the report was prepared without the presence of any independent witness. IV. The learned counsel for the petitioners states that no notice as had been indicated in the counter affidavit was ever received by the petitioners. The petitioners were, therefore, saddled with the responsibility of paying royalty, price of the minerals and the penalty amount without any basis. V. Learned counsel for the petitioners states that even if there was no reply to the notice, it did not give any authority to the District Magistrate to pass a wrong order. The District Magistrate before passing the order ought to have seen as to whether the Lekhpal's report was a correct one and also he ought to have confirmed that whether as per the provisions of Section 21(5) of the 1957 Act the minerals which were raised from the land were disposed of and were used elsewhere. In the absence of such a finding the petitioners could not be saddled with the responsibility to compensate the State. VI. In the absence of such a finding the petitioners could not be saddled with the responsibility to compensate the State. VI. Learned counsel for the petitioner states that though in the Code of Civil Procedure under Order VIII Rule 10 a Suit could be decreed on the non-filing of a written statement after notice is issued to file the written statement, the Supreme Court in the Case reported in AIR 1989 SC 162 : Modul India vs. Kamakshya Singh Deo has held that if a suit is to be decreed without a written statement then the court has to base its judgment on cogent reasons. In the instant case, learned counsel for the petitioners states that there was absolutely no reason provided for holding that the petitioner had to pay the price and the royalty. Also no reason was given to penalize the petitioner. Simply because the petitioners had not replied to the notice they were being penalized. The authorities, therefore, erred in holding the petitioners guilty. VII. Learned counsel for the petitioners also submits that the Appellate Court without looking into the fact that the District Magistrate on 5.12.2018 had passed the order without any application of mind had also erred in dismissing the Appeal on 8.5.2023. VIII. Learned counsel for the petitioners relied upon a judgment of this Court reported in 2017 (1) ADJ 240 (Ranveer Singh vs. State of U.P. and others) and has submitted that when there are no procedures provided in any statute or Act then the decision should be fair and should be based on fair procedure and that too after following the principles of natural justice. Since the learned counsel for the petitioners heavily relied upon paragraphs no. 30 and 33 of the judgment reported in 2017 (1) ADJ 240 (Ranveer Singh vs. State of U.P. and others) the same are being reproduced here as under:- "30. Since the learned counsel for the petitioners heavily relied upon paragraphs no. 30 and 33 of the judgment reported in 2017 (1) ADJ 240 (Ranveer Singh vs. State of U.P. and others) the same are being reproduced here as under:- "30. Thus law on the subject is clear that in case no procedure has been provided for as to in what way and manner the authority is to be exercised, then at the said point of time, the exercise of power by public authority has to be properly discharged i.e. it has to be decided with fairness and after following the principle of natural justice and the sense of justice and equity should continue to guide the Authorities concerned while conducting such proceedings in deciding the dispute on merit as the said decision in question would have large scale financial repercussions on the incumbent against whom proceedings in question have been initiated. 33. Once the liability was to be fastened on the shoulder of petitioner, then it was the obligation of the State to prove by way of credible evidence available that it was the petitioner, who has indulged in illegal mining and in the said direction, apart from issuing show-cause notice, all the evidence that was sought to be relied upon i.e. the incumbents who have carried out the search and survey and the incumbents who have come forward to depose against petitioner, their names ought to have been disclosed and they ought to have been produced to support the case of State that petitioner in fact has indulged in illegal mining. Not only this as a part of process, petitioner was entitled to have reasonable opportunity of defending himself by questioning the veracity of evidence produced against him and by adducing his own defence evidence, if any. Decision maker is bound to act fairly, as under the scheme of things provided for, the determination made by him will entail civil consequences, as qua the person charged with illegal mining on charges being proved financial liability would be shouldered and in contra situation, the State would be at loss." IX. The Appellate Court referred to all the arguments of the petitioners but did not advert to them and therefore learned counsel for the petitioners states that the Appellate Court’s order was a non-speaking one. 8. The Appellate Court referred to all the arguments of the petitioners but did not advert to them and therefore learned counsel for the petitioners states that the Appellate Court’s order was a non-speaking one. 8. Learned counsel for the petitioners to bolster his argument that the volume and price of the excavated minerals should have been determined and thereafter a price and royalty of the same ought to have been fixed relied upon the judgment of the Supreme Court in the case of Promoters and Builders Association of Pune Vs. The State of Maharashtra reported in 2015 (12) SCC 736 . Since learned counsel for the petitioners heavily relied upon the paragraph no. 16 of the judgment, the same are being reproduced here as under:- " 16. As use can only follow extraction or excavation it is the purpose of the excavation that has to be seen. The liability under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertaken to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations. If the determination was to return a finding in favour of the claim made by the builders, obviously, the Notification dated 3.2.2000 would have no application; the excavated earth would not be a specie of minor mineral under Section 3(e) of the Act of 1957 read with the Notification dated 3.2.2000." Relying upon the judgment learned counsel also submitted that there ought to be a finding as to what was the end result of the mud excavated. 9. Learned Additional Chief Standing Counsel Ms. Priyanka Midha, however, submitted that the writ petition be dismissed as the petitioners have throughout been very lax towards the notices which were served upon them. 9. Learned Additional Chief Standing Counsel Ms. Priyanka Midha, however, submitted that the writ petition be dismissed as the petitioners have throughout been very lax towards the notices which were served upon them. She, relying upon the averments made in the counter affidavit, has submitted that notices dated 5.2.2018, 24.4.2018, 1.5.2018 and 11.10.2018 were received by the petitioners but none of the notices was replied to. 10. Learned Additional Chief Standing Counsel states that notices were served and that too in the presence of two witnesses. Learned Additional Chief Standing Counsel thus submits that when there was no reply submitted to the notices then there was no other option left with the Authorities but to ascertain as to what was the mineral removed. She submits that after the ascertainment of the quantity, the price and royalty had been fixed. 11. Learned Additional Chief Standing Counsel also submitted that against the Appellate Court's order, the petitioners had a remedy of filing a Revision. 12. Having heard the learned counsel for the petitioners Sri Anshul Kumar Singhal and learned Additional Chief Standing Counsel Ms. Priyanka Midha, the Court is of the view that the District Magistrate while passing the order dated 8.12.2018 and the Appellate Court while passing the order dated 8.5.2023 erred in coming to a conclusion, ex parte, as to what was the material which was excavated and also erred in fixing the royalty and the price. Definitely when the petitioners did not file any reply to the notices then it was incumbent upon the Authorities to have seen whether the Lekhpal had made a proper inspection; whether the inspection was made on a particular date; whether it was done in the presence of any independent witness and also they had to ascertain as to what was the mineral actually removed before concluding that there was removal of minerals from the land of the petitioners and also that it was sold away. This having not been done, we are definitely of the view that the Authorities i.e. the District Magistrate/Collector, Mathura and the Commissioner, Agra Division, Agra, erred in passing the orders dated 8.12.2018 and 8.5.2023 respectively. Under such circumstances, the order dated 8.12.2018 passed by the District Magistrate/Collector, Mathura, and the order dated 8.5.2023 passed by the Commissioner, Agra Division, Agra are quashed and set aside. 13. Under such circumstances, the order dated 8.12.2018 passed by the District Magistrate/Collector, Mathura, and the order dated 8.5.2023 passed by the Commissioner, Agra Division, Agra are quashed and set aside. 13. Since we find that the petitioners had not replied to the notices, we remand the matter back to the District Magistrate/Collector, Mathura, for a fresh adjudication after hearing the petitioners. So far as the filing of a Revision is concerned, we do not consider it to be an appropriate remedy since there was definitely a violation of the principles of natural justice and also we find that the impugned order did not take into account the procedure as ought to have been followed. 14. For all the reasons stated above, the writ petition is partly allowed.