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2023 DIGILAW 1880 (ALL)

Vinay Prakash Shukla v. State of U. P.

2023-08-04

MANOJ BAJAJ, SIDDHARTHA VARMA

body2023
JUDGMENT : 1. Instructions filed today by learned Standing Counsel be kept on record. 2. In pursuance of an e-tender notice dated 9.6.2017, the petitioner applied and when he was found to be the highest bidder for the mining of morum of 30,351 cubic meters in Plot no. 6 of Zone-10, area 10 acre, he was given a six months permit from 9.6.2017 to 8.12.2017. While the petitioner was excavating the morum, he got a notice dated 25.6.2017, which was numbered as Letter No. 356, and he was to give an explanation with regard to non submission of environmental clearance certificate and non installation of CCTV camera etc. Simultaneously, another notice was served upon the petitioner on 5.7.2017, wherein, the same notice number being Letter No. 356 was given and he was required to show cause as to why royalty and penalty for illegal mining of 5436 cubic meters be not taken from him. 3. On 12.7.2017, the petitioner's reply to the notice with regard to the illegal mining was submitted wherein it was stated that the petitioner had not done any illegal mining but in fact had carved out a certain path for reaching the place of mining. When the petitioner's reply was not being considered, he filed a writ petition being Writ-C No. 55531 of 2017 and challenged the notice dated 25.6.2017. However, this Court on 22.11.2017 passed an order that the petitioner's reply be considered within a period of four weeks from the date of receipt of a certified copy of order dated 22.11.2017. 4. Pursuant to the order dated 22.11.2017 passed in Writ-C No. 55531 of 2017, an order was passed on 25.1.2018, wherein, it was alleged that since the petitioner had accepted that he had done illegal mining by depositing a penalty of Rs.5 lacs, it had to be concluded that the petitioner had done illegal mining. In between the passing of the order dated 25.1.2018 and the issuing of the notices/orders dated 31.5.2018 and 18.8.2018 for depositing of Rs.38,88,000/-towards royalty, the petitioner had also filed an application on 6.2.2018 stating that the order was a non-speaking one and that it was based upon no inspection report etc. 5. Aggrieved by the order dated 25.1.2018 and the notice for depositing the penalty etc. dated 31.5.2018, the instant writ petition has been filed. 6. 5. Aggrieved by the order dated 25.1.2018 and the notice for depositing the penalty etc. dated 31.5.2018, the instant writ petition has been filed. 6. Learned counsel for the petitioner has argued that respondents have acted in a most mala fide manner. There were two notices issued on 25.6.2017 and 5.7.2017 and both were numbered as Letter No. 356. Learned counsel for the petitioner states that without any inspection and without any application of mind, notices were sent. Further, it has been submitted that after the notices were sent, an assurance was given to the petitioner that if he deposited Rs.5 lacs, then the matter would be compounded and no further action would be taken and therefore, the petitioner had deposited the Rs.5 lacs on 28.9.2017 on the basis of an oral assurance given by respondents. 7. Learned counsel for the petitioner states that petitioner on the oral assurance had deposited the money and had therefore, virtually been duped of Rs.5 lacs as it was not even taken into account while passing the impugned order dated 25.1.2018. Learned counsel for the petitioner further states that the notice dated 25.6.2017 had stated that illegal mining was to the extent of 5436 cubic meters but the order had stated that the illegal mining was to the tune of 4320 cubic meters. It is further submitted by learned counsel for petitioner that categorically in the reply, which the petitioner had given in pursuance to the notice dated 25.6.2017 with regard to illegal mining, he had stated that he had only carved out a passage through the plot in which it was alleged that illegal mining had taken place, but this aspect of the matter was not even remotely considered. 8. With regard to the depositing of Rs.5 lacs on the oral assurance of the respondents, mention has been made by the petitioner in paragraph nos.30 to 32 of the writ petition. They are thus being reproduced herein as under:- "30. That the petitioner has deposited Rs. 5 lacs on the assurance given by respondent no.3 that matter will be compounded under Rule 75 and notices dated 19.6.2017 and 25.6.2017 will be dropped. 31. That the petitioner has already paid the price of the mineral and has not exceeded the permitted quantity and has extracted less quantity then the quantity permitted, therefore, the demand is illegal. 32. 5 lacs on the assurance given by respondent no.3 that matter will be compounded under Rule 75 and notices dated 19.6.2017 and 25.6.2017 will be dropped. 31. That the petitioner has already paid the price of the mineral and has not exceeded the permitted quantity and has extracted less quantity then the quantity permitted, therefore, the demand is illegal. 32. That instead of considering the petitioner's representations, a notice was sent on 18.3.2019 by the respondent no.2. A copy of the notice dated 18.3.2019 is being filed as Annexure No.14 to this writ petition." 9. In reply, Sri Sandeep Kumar Singh, learned Additional Chief Standing Counsel has relied upon the counter affidavit and the instructions, which have been produced by him today. 10. Sri Sandeep Kumar Singh, learned Additional Chief Standing Counsel states that when the petitioner had admitted that illegal mining had been done and had deposited Rs.5 lacs then there was no other option but to conclude that illegal mining had taken place. The other notice dated 25.6.2017 with regard to non submission of environment clearance certificate and non installation of CCTV camera etc., learned Additional Chief Standing Counsel has given a statement on the basis of instructions received from the Mining Officer that the notice was dropped and no action was taken. 11. Upon a pointed question being asked as to what reply had been given by respondents with regard to paragraph nos.30 to 32 of the writ petition, learned Additional Chief Standing Counsel drew the attention of the Court to paragraph no.12 of the counter affidavit. For convenience, paragraph no.12 of the counter affidavit is being reproduced hereas under:- "12. That the contents of paragraph nos. 30, 31, 32, 33 of the writ petition are not admitted as stated, hence denied. In reply thereto, it is submitted that the petitioner admitted the allegation of illegal mining and deposited Rs.5,00,000/- through Challan No.MO10080 dated 28.9.2017. The petitioner received MM-11 from office of the District Magistrate, Kaushambi for transportation of 5436 cubic meter sand upto 19.6.2017. The notices were rightly issued to the petitioner." 12. A perusal of paragraph no.12 of the counter affidavit shows that allegations made in paragraph nos.30, 31, 32 & 33 have not been denied in so many words and only a vague denial had been made. The notices were rightly issued to the petitioner." 12. A perusal of paragraph no.12 of the counter affidavit shows that allegations made in paragraph nos.30, 31, 32 & 33 have not been denied in so many words and only a vague denial had been made. In fact, it has been admitted that the petitioner was made to deposit Rs.5,00,000/- even before the notices were sent. 13. In the Court, however, the Mining Officer, Sri Ajeet Kumar Pandey was present with the instructions and he has stated that Rs.5 lacs were not taken towards compounding but in fact they were taken towards the royalty and penalty for illegal mining. 14. Having heard learned counsel for the parties, we are of the view that the impugned order dated 25.1.2018 was passed without any application of mind. Only because the petitioner had deposited Rs.5 lacs on 28.9.2017 it had been concluded that the petitioner had done illegal mining. Further, we find that the notice had stated that 5436 cubic meter of sand was excavated whereas the order states that 4302 cubic meters were illegally excavated. All this goes to show that there was no application of mind. Still further we find that there was neither any inspection nor was there any report present on the basis of which order was passed. Apart from the fact that the order is based on no evidence, we are also pained to find that Rs.5 lacs were accepted from the petitioner without any adjudication and without any quantification of the penalty etc. This amount as per the learned counsel for petitioner was paid by the petitioner on the oral assurance that compounding would be done but no specific denial has been made in the counter affidavit. 15. The very fact that the money was taken prior to the adjudication definitely gives credence to the submission made by learned counsel for petitioner that the Rs.5 lacs were taken by the department on an assurance that compounding would be done. This reflects a deplorable state of affairs in the mining department. 16. For the reasons stated above, we do consider that the impugned order dated 25.1.2018, which was followed by the order dated 31.5.2018 cannot be sustained in the eyes of law and therefore, they have to be quashed. The subsequent notice dated 18.8.2018 is also being quashed. This reflects a deplorable state of affairs in the mining department. 16. For the reasons stated above, we do consider that the impugned order dated 25.1.2018, which was followed by the order dated 31.5.2018 cannot be sustained in the eyes of law and therefore, they have to be quashed. The subsequent notice dated 18.8.2018 is also being quashed. Before the adjudication take place, we also direct that the amount of Rs.5 lacs, which was taken from the petitioner be returned to him and interest be paid on that amount at the rate of 6% per annum from the date of deposit. 17. Needless to say that the respondents may re-adjudicate the matter on the basis of the reply given by the petitioner within a period of one month from the presentation of certified copy of this order after taking into account whatever local inspection etc. was done before the notice dated 25.6.2017 was issued. 18. With the aforesaid directions, the writ petition stands partly allowed.