Allahabad High Court
M/S Vaishnavi Enterprises Thru. Prop. ... vs State Of U.P. Thru. Secy. Geology And ... on 21 August, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:55363 Court No. - 17 Case :- WRIT - C No. - 18966 of 2021 Petitioner :- M/S Vaishnavi Enterprises Thru. Prop. Nagendra Singh Respondent :- State Of U.P. Thru. Secy. Geology And Mining Lko.And Ors. Counsel for Petitioner :- Pushpila Bisht,Gagan Katyayan Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Ms. Pushpila Bisht, learned counsel for the petitioner as well as learned Standing counsel on behalf of the respondents.
2. By means of the present petition the petitioner has challenged the order dated 3.2.2021 passed by District Magistrate/District Officer, Kanpur Nagar thereby imposing an amount of Rs.2,39,06,360/- as charges for illegal mining and penalty as well as order dated 9.8.2021 passed by the State Government in exercise of its revisional powers.
3. It has been submitted by learned counsel for the petitioner that the petitioner was granted mining lease on 7.4.2018 after obtaining all the clearances including the environmental clearance. On 6.12.2020 an inspection was carried out by Mining Officer, Kanpur Nagar, which submitted a report that petitioner No.1 carried out mining activities outside the area allotted to him and subsequently another inspection was carried out after few days wherein it was alleged that petitioner No.1 had carried out illegal mining of 5.4219 hectare outside the mining area. Accordingly show cause notice was issued on 22.12.2020 to the petitioner who submitted its reply with regard to the allegations of illegal mining outside the mining area. The petitioner submitted a belated reply on 1.2.2021 and denied the allegations leveled in the notice. Another inspection was carried out on 11.1.201. In the said inspection dated 11.1.2021 it was found that it was difficult to determine the mining site correctly and hence team was sought to be constituted. The team was accordingly constituted which conducted inspection on 12.1.2021 and submitted report on 13.1.2021. The said report was never communicated to the petitioner and merely on the basis of the report dated 13.1.2021 the District Magistrate/District Officer passed order dated 3.2.2021 holding that the petitioner had, in fact, conducted illegal mining in an are not allotted to him and imposed penalty to the tune of Rs.2,39,06,360/-.
4. It is further submitted by learned counsel for the petitioner that Director, Geology and Mining, U.P., Lucknow by means of order dated 14.1.2021 had directed the District Magistrate to initiate punitive action against the petitioner for illegal mining and directed the District Magistrate to take appropriate steps for realizing the charges and valuation of the excess mining conducted by the petitioner in accordance with law.
5. Aggrieved by the said order dated 3.2.2021 the petitioner had filed a revision before the State Government which incidentally has been decided by Dr. Roshan Jacob who herself was the author of the letter dated 14.1.2021and on whose letter the proceedings against the petitioner were initiated. In the said revisional order the petitioner had stated that copy of the inspection report dated 13.1.2021 was never supplied to him and even the reply submitted by them on 13.2.2021 which was before the District Magistrate was not taken into consideration while imposing the penalty against the petitioner. The revisional court admitted that reply of the petitioner was before the District Magistrate but because it was submitted beyond the prescribed time, the same was not liable to be considered.
6. The second aspect that the inspection report dated 13.1.2021 was never supplied to the petitioner was specifically taken by him as mentioned in the paragraph 39 of the revision but no finding in this regard was recorded or considered by the revisional authority.
7. Learned counsel for the petitioner has vehemently stated that matterial consideration before the Prescribed Authority with regard to illegal mining against the petitioner was the inspection carried out on 12.1.2021 resulting in report dated 13.1.2021 on the basis of which it was concluded that the petitioner has indulged in illegal mining. The material documents reliance of which was taken note of by the District Magistrate while passing the order dated 3.2.2021 was never supplied to the petitioner and consequently the petitioner was severely prejudiced in as much as the finding was recorded without giving proper opportunity to the petitioner to defend himself. Even when the petitioner had raised these points before the revisional authority the same was neither considered and the revision was rejected.
8. Learned Standing counsel, on the other hand, has defended both the impugned order. He submits that proper opportunity was given to the petitioner before passing the impugned order dated 3.2.2021 the reply of the petitioner was was duly considered while passing the said order and the second reply submitted by the petitioner was received in the office of the District Magistrate on the same day on which order dated 13.2.2021 was passed and as the same was belated reply the same was not considered.
9. I have heard learned counsel for the parties and perused the records.
10. The first question which requires consideration is as to whether the impugned order can be sustained in light of the fact that it was at the behest of Director, Geology and Mining, U.P. Civil Secretariat, Lucknow that the proceedings for illegal mining were initiated against the petitioner. The petitioner had preferred a revision before the State Government was referred to and was decided by Director, Geology and Mining U.P., Lucknow which post was held by Dr. Roshan Jacob who having herself participated in the said proceedings by passing necessary direction to the District Magistrate to initiate proceedings against the petitioner. She should not have decided the revision against the order of the District Magistrate and this Court is of the considered view that the impugned revisional order dated 9th August, 2021 is hit by the vice of bias and this aspect is very clear that no person can be a judge of his / her own cause. The Director Mining and Geology had initiated the proceedings and had the inspection conducted and forwarded all the documents to the District Magistrate for taking action and consequently could not have herself decided the revision against the order of District Magistrate.
11. In the case of A. K. Kraipak & Ors. Etc vs Union Of India & Ors, 1969 (2) SCC 262 Hon'ble Supreme Court has held as under:-
"It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most -appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates."
12. In light of the above, this Court is of the considered opinion that the revisional order is illegal and arbitrary and hit by the vice of bias.
13. The second ground raised by the petitioner is that the Prescribed Authority prior to passing of the impugned order dated 3.2.23021 had got another inspection conducted on 12.1.2021 report of which was submitted on 13.1.2021which formed the basis of the order of imposition of cost and penalty for the alleged illegal mining done by the petitioner.
14. The petitioner has stated that the report dated 13.1.2021 was never supplied and consequently the petitioner was prejudiced in as much as the relevant documents were never supplied in absence of which the impugned order has been passed in gross violation of principles of natural justice.
15. This Court has perused the order of the Prescribed Authority from which it is evident that one of the materials for imposing the penalty upon the petitioner is the inspection report dated 13.1.2021. Even in the impugned order there is no averment that copy of the report dated 13.1.2021 was ever supplied and consequently there is no reason to disbelieve the stand of the petitioner. This ground was raised by the petitioner in the revision preferred before the State Government but despite raising this issue no finding has been returned by the revisional court nor the said ground has been considered.
16. In light of the above, both the impugned orders are set aside. The matter is remitted back to the District Magistrate, Kanpur Nagar to pass fresh order after taking into account the reply submitted by the petitioner including the reply dated 3.2.2021 before passing any final order Copy of the inspection report dated 13.1.2021 should be handed over to the petitioner expeditiously say within one week from the date a certified copy of this order is produced before him. The petitioner shall have two weeks thereafter to file reply to the said inspection report and the District Magistrate is further direction to pass fresh order expeditiously say within a period of six weeks from the date of submission of reply by the petitioner in accordance with law.
17. In light of the above, the petition stand allowed.
Order Date :- 21.8.2023 (Alok Mathur, J.)
RKM.