Ramvir Singh vs State of U.P. And 2 Others

Sudhir Agarwal and Ram Surat Ram (Maurya), JJ. - All these writ petitions involve common questions of facts and law and therefore as agreed by learned counsel for the parties, have been heard and decided together. For the purpose of reference, pleadings and documents in Writ Petition No. 3169 of 2016 are being referred with the consent of parties.

The petitioner in writ petition No. 3169 of 2016 is a farmer having bhumidhari rights in agricultural land, Gata No. 107, Khasra No. 151, which is a joint holding of petitioner along with eight other persons, as is evident from copy of Khatauni of Fasli year 14191424 filed as Annexure 1 to writ petition. Petitioner has also filed copy of Khasra of Fasli 1422, showing that land is being used for agricultural purposes.

The petitioner received a notice dated 18th November 2015 issued by Additional city Magistrate II/Incharge Officer (Mining), Aligarh (hereinafter referred to as the "Mining Officer"), requiring petitioner to show cause as to why he may not be charged with royalty at the rate of Rs. 14/- per cubic meter and 5 times of price of mineral as well as maximum penalty of Rs. 25,000/- under Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the "Act 1957"). The notice further said that Deputy Collector has submitted a report dated 6.11.2015, informing that petitioner is a co-tenure holder (Bhumidhar) with transferable rights of aforesaid land and has undertaken illegal mining of 3594.24 Cubic Meters of mines and minerals i.e. soil.

The petitioner submitted reply dated 2.12.2015 stating that neither any spot inspection was made, nor Deputy Collector himself ever reached at spot. The land was uneven and for the purpose of agricultural operation petitioner levelled it. Reply was received in the office of Mining Officer on 9.12.2015 and thereafter impugned order dated 28th December 2015 has been passed by Mining Officer, reiterating the fact stated in show cause notice dated 18 November 2015. Considering the correctness of reply given by petitioner, it has simply recorded its conclusion that petitioner is guilty of illegal mining and, therefore, is liable to pay Rs. 2,51,595/- cost of mining and 5 times of royalty and penalty of Rs. 25,000/-. The petitioner was thus directed to deposit Rs. 3,26,914/-.

In fact, order passed by Mining Officer is not addressed to petitioner but it is addressed to Collector, Aligarh requesting him to recover the aforesaid amount as arrears of land revenue. The order shows that the petitioner has violated Rule 3 of the Uttar Pradesh Mines Minerals (Concession) Rules 1963 (hereinafter referred to as the Rules, 1963 ) and Section 21 of Act, 1957. He is also guilty of committing of an offence under Act 1957 read with Rules 1963.

Learned counsel for the petitioner contended that petitioner is farmer, engaged in agricultural activities on his own land. He has never done excavation on his land. If authorities are of the view that there was any unauthorized mining, procedure prescribed under Rule 58(1) of Rules, 1963 for charging royalty etc. should have been followed, but the same has not been followed. Petitioner is not lease holder of the State land and, hence, there is no occasion to obtain a permit. Digging of land for the purpose of construction of building etc. does not amount to excavation. Reliance is placed on decision of Supreme Court in Promoters and Builders Association of Pune v. State Maharashtra and others, 2014 (13) JT 413. The complete exercise without following procedure prescribed under the law, is illegal and even otherwise is a gross abuse of process of law. It has been initiated on wrong perception just to harass the petitioner.

Since the order, whereby recovery was ordered from petitioner, did not show as to how authorities found that petitioner has undertaken the mining operation illegally. This Court vide order dated 27 January 2016 directed the respondent to file counter affidavit, specifically stating as to what material was available to show that the petitioner has undertaken some unauthorized mining operation on the agricultural land in question.

Pursuant to the aforesaid order dated 27 January, 2016 Shri Ram Surat Pandey, Additional City Magistrate II Aligarh has appeared before Court and filed counter affidavit on behalf of respondents 2 and 3. It is stated in para 4 of the counter affidavit that Shishupal Sharma, concerned Lekhpal visited spot and found that petitioner is doing illegal mining, digging out his earth without any prior permission from concerned authorities as such he reported matter along with site-plan. Thereupon Naib Tehsildar, Tehsil Khair submitted a report to Tehsildar who in turn submitted report to Sub-Divisional Magistrate, copies of which has been filed as Annexure CA-1. Thereupon Sub-Divisional Magistrate submitted report dated 6/7.11.2015 to Additional District Magistrate (Finance and Revenue) Aligarh (Annexure CA2).

Notice dated 28.11.2015 was issued pursuant to aforesaid reports and subsequently demand letter dated 28.12.2015 was issued. It is said in Paragraph 8 of the counter affidavit that the petitioner has been doing illegal mining of 1008 Cubic Meters and hence was imposed liability of royalty at the rate of Rs. 14/- per Cubic Meter besides penalty of Rs. 25,000/-. All paragraphs from 4 to 18 have been sworn on the basis of record.

Learned Standing counsel placed before us averments contained in paragraphs 4, 6, 7, 8, 10, 11, 13 and 19 to the counter affidavit and reports of subordinate officials to show that petitioner was engaged in illegal mining, hence impugned order been passed.

We find that in para 4 of counter affidavit it is said that spot report is said to have been given by Shishupal Sharma, concerned Lekhpal. It is alleged that he visited spot and found that petitioner is doing illegal mining. The relevant averments contained in para 4 reads as under:

"It is submitted that earlier the concern Lekhpal namely Shishupal Sharma visited the spot and found that the petitioner is doing illegal mining, digging out his earth without any prior permission from the concern authorities as such he reported the matter along with the siteplan."

On perusal of reports, copies whereof have been filed as Annexures CA1 and CA2, it is disclosed that there was not even a whisper by any of officers that he visited the spot and found petitioner doing illegal mining. Report of concerned Lekhpal dated 27.10.2015 reads as under :

xzke fot;Bk ij&VIiy rg0 [kSj ftyk vyhx<+ dh [kkrk [krkSuh la0 93 ds xkVk la0 209 jdck 0-768 gS0 jkeohj flag] gfjvkse] jkes''oj iq=x.k dju flag fu0 ekuiqj ij0 VIiy rg0 [kSj ftyk vyhx<+ }kjk vius xkVk la0 209 ls voS/k [kuu ftldk vk;ru 1008 ?ku eh0 gSA jk;YVh jsV 14 :0 izfr ?ku eh0 ds fglkc ls 14112=00 pkSng gtkj ,d lkS ckjg :0 gksrk gSA

fu;ekuqlkj tqekZuk olwy fd;s tkus gsrq vk[;k egksn; dh lsok esa lknj izsf"krA"

" Royalty of Rs. 14,112/- is determined @ of Rs. 14/- per cubic meter in respect of illegal mining to the extent of 1008 cubic meter by Ramvir Singh, Hariom and Rameshwar sons of Karan Singh r/o Manpur, pargana Tappal, tehsil Khair, district Aligarh from gata no. 209 of their holding in khata/Khatauni no. 93 of village Vijyatha, pargana Tappal, tehsil Khair, district Aligarh. (Fourteen thousand one hundred twelve only).

The report is submitted to your good-self for realisation of penalty as per rule."

(English translation by the Court)

Thereupon the report of Naib Tehsildar dated 28.10.2015 reads as under :-

"xzke fot;Bk ij0 VIiy rg0 [kSj ftyk vyhx<+ ds xkVk la0 209 jdck 0-768 gS0 es ls 1008 ?kuehVj feV~Vh [kuu jkeohj flag o gfjvkse o jkes''oj iq=x.k dju flag fu&ekuiqj ij0 VIiy rg0 [kSj ftyk vyhx<+ }kjk djk;s tkus ij 14 :0 izfr?ku eh0 ds fglkc ls 14112=00 :i;k jk;YVh gksrh gSA fjiksVZ lsok esa izsf"krA"

"For soil digging of 1008 cubic metre by Ramvir Singh, Hariom and Rameshwar sons of Karan Singh r/o Manpur, pargana Tappal, tehsil Khair, district Aligarh from gata no. 209 area 0.768 of village Vijyatha, pargana Tappal, tehsil Khair, district Aligarh, royalty is determined at Rs. 14112/- (Fourteen thousand one hundred twelve only) @ Rs. 14/- per cubic metre. Report is submitted to your good self."

(English translation by the Court)

The report of Tehsildar dated 4.11.2015 addressed to Sub Divisional Magistrate, Khair, reads as under :-

xzke fot;Bk xkVk la0 209 jdck 0-768 gs0 esa ls 1008 ?kueh0 voS/k feV~Vh [kuu [kkrk/kkjd }kjk fd;k x;k gSA vr% 1008 x 14 = 14112/- :i;s jk;YVh o vFkZn.M olwyh dh laLrqfr lfgr vk[;k lknj lsok esa izsf"kr gSA

"Illegal digging of 1008 cubic metre from gata no. 209 area 0.768 has been done by the khata holder. Hence, report is submitted with approval for realisation of royalty of 1008 x 14 = Rs. 14112/- with fine.

(English translation by the Court).

In the siteplan also we find that alleged mining is shown in four trenches with specifications 84 meters in length, 5 meter in width and 0.06 meter in depth. All these trenches shown as A, B, C, D are reported to be exactly equal size in length, width, and breadth. Volume of alleged excavation of sub soil is reported to be 250 Cubic Meter.

In the present case dispute relates to alleged illegal and unauthorized mining of ordinary clay/ordinary sand. It is admitted by parties that it is a ''minor minerals'' as defined under Section 3(e) of Act 1957, which reads as under:

"(e) minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;"

It is also defined in Rule 2 (7) of Rules, 1963 which reads as under :

"(7) "Minor minerals" means building stones, gravel ordinary clay, ordinary sand other then sand used for prescribed purposes, and any other mineral which the Central Government has declared from time to time or may declare, by notification in the official Gazette, to be a minor mineral, under clause (e) of section 3 of the Mines and Mineral (Regulation and Development) Act, 1957 (Act no. 67 of 1957);"

Chapter 2 deals with grant of mining lease. In exercise of power under Section 23(c) of Act 1957 the State Government has also framed Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage) Rules, 2002 (hereinafter referred to as the "Rules 2002").

It is not in dispute that ordinary clay/ordinary sand if excavated for the purpose of manufacturing of bricks or filling or highting or for other use in construction activities, will come within the purview of the Act, 1957 and Rules, 1963 as well as 2002. However in order to protect the ordinary agriculturists undertaking agricultural activities, the State Government has clarified vide Government Order No. 3514/862012235/2010, dated 24 December 2012 that any manual excavation taken in land extracting ordinary clay/ordinary sand should not be more than 2 meters of depth. The process of manual taking away of ordinary clay or ordinary sand would not constitute "mining operation". Clarification given by State Government vide order dated 24 December 2012, reads as under:

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From, No. 3514/862012235/2010

Vivek Varshney,

Special Secretary,

Government of Uttar Pradesh.

To,

The Director, Geology and Mining, U.P.

All District Magistrates,

All Divisional Commissioners

Geology and Mining Section Lucknow: Dated: 24th Dec, 2012

Sub: Uttar Pradesh Minerals (Concession) (Thirty Fifth Amendment) Rules, 2012 � Reg.

Sir,

It is to inform you that under the aforesaid amendment, in view of the essentiality of environment clearance certificate having been dispensed with for operation of brick kilns, "Clarification" has been added to Rule 3, and Sub Rule (1A) to Rule 211 of the amendment rules as under:

Clarification: For brick making, the act of taking out the ordinary earth by way of manual digging or hand movements shall not fall under mining operations unless the depth of the mining site is more than 2 metres.

1A: Notwithstanding anything contrary in Rule 3, the brick kiln owners shall be liable to pay for their titles at the rate specified for the time being in the first schedule of the Rules.

In this regard, I am directed to say that for operation of brick kilns, please take necessary action as mentioned above.

Sincerely,

(Vivek Varshney)

Special Secretary"

(English translation by the Court)

In the present case, site plan appended to counter affidavit filed by respondents clearly shows that depth of land where from manual removal of ordinary clay/ordinary sand was taken away was only 0.60, meters i.e. not even 1 meter and, hence, in view of the Government order dated 24.12.2012, any exercise undertaken by petitioner should not have been treated to be "mining operation". That being so, question of illegal or unauthorized mining and liability of penalty, does not arise.

When confronted to the aforesaid position, learned Standing counsel fairly concluded that petitioners cannot be said to have been undertaken mining operations and he could not dispute that the impugned orders have been passed unauthorisedly and illegally. In fact respondent no. 3 i.e. Additional City Magistrate IInd, who is also present in the Court, could not dispute that in these cases petitioner could not have been saddled with responsibility of penalty and impugned orders have been passed illegally.

The above facts make it very clear that just to harass the poor agricultural farmers like petitioners, impugned orders have been passed, knowing it well that operation even if undertaken by the petitioners, as alleged, by taking away some ordinary clay/ordinary sand, was not a mining operation and no penalty could have been imposed. The impugned orders therefore are gross misuse abuse of process of Law and harassment to the poor petitioners.

The writ petitions, therefore, are allowed. Impugned recovery certificates dated 28.12.2015 are hereby quashed. The petitioners shall be entitled to costs which we quantify to Rs. 5,000/- for each set of writ petition.