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2024 DIGILAW 603 (ALL)

Suresh Chand v. Commissioner Aligarh Division

2024-02-27

ANJANI KUMAR MISHRA, JAYANT BANERJI

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JUDGMENT : 1. Heard Shri Virendra Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the State. 2. This petition has been filed challenging the order dated 18.06.2015 passed by the District Magistrate, Hathras in purported exercise of powers under Rule 3, 57, & 70 of the UP Minor Minerals (Concession) Rules, 1963, [Rules, 1963]. Also under challenge is the order dated 27.09.2017, passed by the commissioner, Aligarh Division, dismissing the appeal of the petitioners. 3. It appears from the record that a notice dated 01.05.2015 was issued to the petitioners in respect of plot No. 139 with the allegation that 3689 cubic meters of soil was illegally mined and an amount of Rs.2,83,230/- was sought to be imposed. By that notice, a date was fixed before the District Magistrate to enable the petitioners to file their objections, if any. 4. From page 28 to page 30 of the paper book of this petition, a typed copy of the response dated 25.05.2015 submitted by the petitioner is enclosed, which is addressed to the District Magistrate/ Additional District Magistrate, Hathras, in which mining on plot No. 139 was emphatically denied and it was stated that provisions of Rules, 1963 were not applicable in respect of agricultural land. It was further stated that they cannot be subjected to any such imposition inasmuch as the petitioners was merely levelling their agricultural field and it cannot be held to be mining operation within the Rules, 1963. It has also been mentioned that the payment demanding royalty, etc. is illegal and the site plan is contrary to the actual situation existing at the site. 5. By the impugned order dated 18.06.2015, the contentions raised by the petitioners were narrated and the report of the Tehsildar stating that mining of 3689 cubic meters of soil was done, was considered. The objections of the petitioners that the soil of their agricultural land was levelled and they had neither sold the soil nor had mined the same, were considered. The District Magistrate considered the report of the Tehsildar and the Sub-Divisional Officer, Hathras and came to the conclusion that illegal mining of 3689 cubic meter of soil on plot No. 139 was done. Accordingly, royalty @ 14 per sq. meter was imposed, which was multiplied five times and after imposing compounding fee, a total amount of Rs.2,83,230/- was imposed. 6. Accordingly, royalty @ 14 per sq. meter was imposed, which was multiplied five times and after imposing compounding fee, a total amount of Rs.2,83,230/- was imposed. 6. The petitioners challenged the order of the District Magistrate in an appeal before the Commissioner under Section 79 of the Rules, 1963. In the memorandum containing the grounds of appeal that has been enclosed as Annexure-4 to the writ petition, it was stated that no proper opportunity was given to the petitioners for hearing and to produce evidence and neither were the reports of the Tehsildar or the Sub-Divisional Officer supplied to them. It was stated that the District Magistrate did not decide the case on merits but only on the basis of the reports. 7. By means of an impugned order dated 27.09.2017, the Commissioner has rejected the appeal after taking into account the spot inspection report dated 18.03.2015 made by the Revenue Inspector and the Area Lekhpal who had made a site plan and had taken measurements to conclude that on plot No. 139, 3689 cubic meters of soil was mined. The reports of the Tehsildar and Sub Divisional Officer were also considered and the order of the District Magistrate, Hathras making the imposition on the petitioners was upheld and the appeal was dismissed. 8. The learned counsel for the petitioners has submitted that petitioners are simple agriculturists who neither had any intention nor undertook any mining operation on plot No. 139. It is stated that there was no evidence of mining, sale, or transportation of soil. It is argued by learned counsel that in view of the facts and circumstances of the case, Rule 3 of the aforesaid Rules, 1963 would not apply to the petitioners. 9. Learned counsel in support of his contention has relied upon a judgment of this Court in the case of Bharat Singh vs. State of U.P. & 4 Others, 2017 (2) ADJ 184 in Writ - C No. 18753 of 2016 that was decided by this Court on 23.05.2016. It is submitted that this Court in the case of Bharat Singh, has relied upon a Government Order dated 24.12.2012, a perusal of which reveals that no case of illegal mining, as ordered by the District Magistrate and upheld in appeal by the Commissioner, is made out against the petitioner. 10. The contentions of learned counsel for the petitioners do not appear to be correct. 10. The contentions of learned counsel for the petitioners do not appear to be correct. A perusal of the aforesaid judgment of this Court in Bharat Singh reveals that under consideration therein was a notice issued by the Incharge Officer (Mining/ Additional District Magistrate-II), Aligarh, requiring the petitioner therein to show cause why royalty @ Rs.14 per sq. meter and five times fee of minerals, and penalty Rs.25,000/- under Section 21 of the Mines and Minerals (Development & Regulation) Act, 1957, be not imposed. After considering the avements and submissions made on behalf of the counsel for the parties, this Court in Bharat Singh considered the Government Order dated 24.12.2012 on the subject UP Minor Minerals (Concession) (35th amendment) Rules 2012. The aforesaid Government Order, as quoted in the judgment is being reproduced below:- 11. This Court relied upon the aforesaid Government Order dated 24.12.2012 and held that in exercise undertaken by the petitioners therein could not be treated to be mining operation. Accordingly the petitions were allowed. 12. A perusal of Rule 3 of Rules, 1963 reflects that it was substituted by the 37th Amendment Rules, 2014 dated 22.10.2014 which came into force with effect from 22.10.2014. Rule 3 as amended by the 37th Amendment Rules, 2014, reads as under:- “3. Mining Operations to be under a mining lease or mining permit-(1) No person shall undertake any mining operations in any area within the State of any minor mineral to which these rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules: Provided that nothing shall affect any operations undertaken in accordance with the terms and conditions of mining lease or permit duly granted before the commencement of these rules. Explanation:- For the purposes of this rule manual digging or manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations: Provided that pit created by such digging or extraction should not be deeper than two meters. (2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules.” (emphasis supplied) 13. (2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules.” (emphasis supplied) 13. The explanation mentioned in this rule provides an exception to sub-section (1) of Rule 1 providing that manual digging or manual extraction or ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations subject to its being used for making bricks and pottery and provided that pit created by such digging or extraction should not be deeper than two meters. 14. On comparison of the Rule 3 of Rules, 1963 as quoted above and the amendment sought to be incorporated by the 35th Amendment of the Rules, 1963 as noted in the Government Order quoted above, reflects a change in the explanation to sub-Rule (1) of Rule 3 was made by the 37th Amendment in the year 2014 inasmuch as the extraction of ordinary clay, ordinary earth, which are not to be treated as mining operations, are qualified to be for the purpose of making bricks and pottery. This purpose was not existing in 35th Amendment of the Rules, 1963 as reflected in the aforesaid Government Order dated 24.12.2012. 15. It is pertinent to mention here that the aforesaid judgement of Bharat Singh, this Court was considering a notice issued by the competent authority on 23.07.2014 which was prior to the coming into force of the 37th Amendment to the Rules, 1963, with effect from 22.10.2014. 16. It is noted in the appellate order of the Commissioner that the site plan reflected mining and the measurements of the pits were also taken. The exact quantity of soil extracted was also specified therein. In the explanation submitted by the petitioner pursuant to the notice dated 01.05.2015, in para 8 thereof, they have specifically stated that the site plan enclosed with the order of the District Magistrate is contrary to the factual situation existing at the site. The aforesaid facts and circumstances reflects that the petitioner had full knowledge of the material existing in the records of the District Magistrate and were aware of the site plan also. 17. Under the circumstances, the grounds taken in the appeal that the petitioners were not aware of the site plan and other material on record, does not appear to be correct. 17. Under the circumstances, the grounds taken in the appeal that the petitioners were not aware of the site plan and other material on record, does not appear to be correct. In the counter affidavit filed by the State on behalf of the State-respondents, apart from denying the contents of the writ petition, the explanation to Rule 3 of the Rules, 1963 has been repeated and has been emphasised that extraction or digging of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operation. 18. It is contended by the learned Standing Counsel that the petitioners have failed to demonstrate before the respondent-authorities that the extraction was for making bricks and pottery. 19. Under the facts and circumstances of the case, the orders impugned do not call for interference and this writ petition is dismissed.