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2023 DIGILAW 1896 (ALL)

Anil Kumar Sharma v. State of U. P.

2023-08-07

SIDDHARTHA VARMA, SYED QAMAR HASAN RIZVI

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JUDGMENT : Syed Qamar Hasan Rizvi, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. Upon an inspection being done by the Lekhpal on 27.03.2017 a report was submitted by him to the Sub-Divisional Magistrate, who in his turn forwarded the same to the Mining Authorities by a communication dated 06.04.2017. Thereafter, the prescribed authority (Mines) on behalf of the District Magistrate, Shamli issued a show cause notice to the petitioners to show cause as to why royalty and fine totalling Rs.3,94,000/- may not be charged from them, for excavating 2050 cubic metre of soil illegally. 3. The petitioners replied to the show cause notice on 22.04.2017 stating therein that the petitioners, who were the owners of the plot in question namely Plot No. 520 of Village Kaidi, Tehsil & District Shamli had never excavated any soil from the plot in question and that they had only tried to level their plot of land for irrigation purposes and they had further submitted through the said reply that someone had maliciously made a complaint against the petitioners and therefore, had prayed that the notice be withdrawn. 4. However, on 20.05.2017, the District Magistrate-Shamli concluded that the soil had been excavated and fastened the liability of Rs.3,94,000/- on the petitioners. 5. Aggrieved by the order of the District Magistrate (respondent no. 3) dated 20.05.2017, the petitioners preferred an appeal under Section 77 of the U.P. Miner Minerals (Concession) Rules, 1963 before the Commissioner (respondent no. 2) which was partly allowed vide order dated 5.10.2017 to the extent that the penalty of Rs.25,000/- was reduced to 10,000/-. The petitioners preferred an application for the recall of the aforesaid order dated 5.10.2017 which was rejected by the respondent no. 2 vide order dated 10.12.2017. Not being satisfied with the aforesaid orders, the petitioners preferred a revision before the State Government which was finally decided vide order dated 18.12.2018. 6. It may be noted that at the appellate stage the penalty which was earlier imposed by the District Magistrate was reduced from Rs.25,000/- to Rs.10,000/-. Further when the petitioners had filed a revision, the penalty portion had been done away with. 7. However, since the petitioners were aggrieved by the order by which it was found that the petitioners had illegally excavated, they filed the instant writ petition. 8. Further when the petitioners had filed a revision, the penalty portion had been done away with. 7. However, since the petitioners were aggrieved by the order by which it was found that the petitioners had illegally excavated, they filed the instant writ petition. 8. Learned counsel for the petitioners states that the report of the Lekhpal, which was the foundation of the case and on the basis of which the notice was issued, was an absolutely ex-parte report. Neither were the petitioners present at the time of the preparation of the report nor was any independent witness present. 9. Learned counsel for the petitioners relying upon a Government Order dated 24.12.2012 has further stated that if the digging of the soil is not more than two meters in depth then it would not be said that there was any mining operation done. 10. Learned counsel for the petitioner has submitted that when the Government Order had provided that digging had to be of more than two meters deep for the purposes of bricklin then definitely it would hold good for the ordinary farmers and therefore the Government Order would apply to the petitioners who were only found digging soil / earth just to level the field for irrigation purpose. 11. Since the learned counsel for the petitioner has relied upon the Government Order dated 24.12.2012, the same is being reproduced herein under : 12. In support of his case, learned counsel for the petitioners has also relied upon a judgment passed by this Court in the case of Ramvir Singh Vs. State of U.P. & 2 others, reported in 2016 (132) RD 121 . 13. Learned counsel for the petitioners has stated that in his reply to the notice the petitioner had stated that the petitioners had never dug any mineral and infact they had only levelled their plots of land bearing Khasra No. 520 measuring area 0.738 hectare situated in village Kaidi, District Shamli for the purposes of proper irrigation. 14. Learned standing counsel in reply however has submitted that since the authorities had found that there was digging of minerals the only option with them was to take the price of the minerals; royalty and the penalty. 15. 14. Learned standing counsel in reply however has submitted that since the authorities had found that there was digging of minerals the only option with them was to take the price of the minerals; royalty and the penalty. 15. Learned standing counsel has stated that the Government Order dated 24.12.2012 was with regard to the digging for the purposes of a bricklin and the petitioners would not draw any benefits from it. 16. Learned standing counsel has also relied upon a Government Order dated 18.12.2020 and has stated that before the mineral 'mud' was being removed the petitioner ought to have applied online. 17. Having heard the learned counsel for the petitioners and learned Standing Counsel, Sri Ankur Tandon, the Court is of the view that at the time when the inspection was done, the petitioners ought to have been informed and if the petitioners were not available then the inspection ought to have been done in the presence of two independent witnesses. Further, we conclude that the petitioners would also be benefited by the Government Order dated 24.12.2012. Though it applies vis-a-vis bricklin owners but we are of the view that when the intention of the government was to see that charge for digging of soil had to be imposed if the digging was more than two meters deep then definitely the petitioners would be given the benefit of Government Order dated 24.12.2012. Never mind if they were farmers. 18. We find that the petitioners get support from this Government Order as the petitioners definitely had not dug below two meters. 19. We also find that the case of the petitioners is covered by the law as has been laid down in the case of Ramvir Singh (supra). The petitioners at the time of the inspection were not informed about the same and also the petitioners had not dug anything below two meters. The writ petition thus deserves to be allowed. 20. Facts culled out from the pleadings are that the petitioner being a poor farmer has been unnecessarily harassed and the action to hold the petitioners guilty of doing unlawful excavation is arbitrary and unwarranted. 21. Having regard to the facts and circumstances of the case, the order dated 20.5.2017 passed by District Magistrate, Shamli (respondent no. 3), the orders dated 5.10.2017, 18.12.2017 passed by Commissioner, Saharanpur Division, Saharanpur (respondent no. 21. Having regard to the facts and circumstances of the case, the order dated 20.5.2017 passed by District Magistrate, Shamli (respondent no. 3), the orders dated 5.10.2017, 18.12.2017 passed by Commissioner, Saharanpur Division, Saharanpur (respondent no. 2) and the order dated 11.12.2018 passed by Special Secretary, Mines and Minerals, Lucknow (respondent no. 1) are quashed and are set aside. 22. For the reasons aforestated, the writ petition is allowed.