Allahabad High Court
Sri Kesari Nandan Singh vs State Of U.P. And 3 Others on 27 January, 2020
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 2748 of 2020 Petitioner :- Sri Kesari Nandan Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Singh,Sri. Shashi Nandan (Sr. Adv.) Counsel for Respondent :- C.S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
(Per Hon'ble Ravi Nath Tilhari)
1. Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri Birendra Singh, for the petitioner and learned Standing Counsel for respondents-1 to 4 and perused the record.
2. This writ petition has been filed challenging the notices dated 26.12.2019 and 28.12.2019 issued by the Additional District Magistrate(Finance & Revenue) and Incharge Officer (Minerals) in the office of respondent no.3 the District Officer/District Magistrate, district Kaushambi (Annexure-1 to the writ petition) and for quashing the impugned notices. The petitioner prays for further direction to be issued to the respondents, especially, respondents-3 and 4 not to adopt any coercive measure against the petitioner pursuant to the impugned notices dated 26.12.2019 and 28.12.2019.
3. The facts of this case are that in pursuance of Khanan Yojna/Niti 2017, the District Magistrate, Kaushambi has issued a notice dated 13.12.2017 notifying several mining lease areas and inviting online applications from the interested persons to participate in E tender/E auction proceeding for grant of mining lease and in pursuance of the said notice the petitioner participated in E auction for the lease area on Khand No.14/11 to 14/12, total area 24.28 hectares, quantity of availability of sand 4,85,000 cubic meters, situated in village Katari, tehsil Manjhanpur, district Kaushambi, which has been notified at Sl.No.85 in the notice. The petitioner deposited earnest money and being the highest bidder his bid was accepted and a letter of intent dated 15.2.2018 was issued by the District Magistrate, Kaushambi.The petitioner in terms and conditions of the letter of intent deposited the amount of royalty for one year after adjusting the earnest money deposited on 26.2.2018. The petitioner applied for mining plan which was approved by respondent no.2 under Rule 34 of U.P. Mining and Minerals(Concession) Rules, 1963(hereinafter referred to as "the Rules 1963). The petitioner applied for grant of environment clearance before the State Level Environment Impact Assessment Authority, Uttar Pradesh and environment clearance certificate dated 18.4.2018 was issued to the petitioner. Thereafter mining lease deed dated 20.12.2018 was executed in favour of the petitioner. The petitioner started mining operations over the leased area allotted to him and he was also being issued E Transportation Form MM-11 by respondent-2. The petitioner was continuing his mining work as per khanan niti, 2017, without any violation of the terms of the lease. In the meanwhile, an inspection was made behind the back of the petitioner and on the basis of it, the petitioner was held guilty of illegal mining and the notices dated 26.12.2019 and 28.12.2019 were issued to the petitioner (collectively filed as Annexure-1 to the writ petition).
4. By notice dated 26.12.2019, the petitioner was directed to submit explanation/reply with respect to the contents of the said notice. It was stated in the notice that the mining area which was under petitioner's lease was inspected on 18.11.2019 by the Incharge Officer(Mines) and Mines Officer, Kaushambi and in that joint inspection it was found that the petitioner had done mining work outside the allotted area in khand No.14/7, 14/8, 14/9, 14/10, excavated sand/mauram of about 2767 cubic meter and in Khand No.14/13 and 14/14, the petitioner had excavated about 1334 cubic meter sand/mauram, in total 4101 cubic meter. The said mining was illegal as such the petitioner was required to pay royalty of Rs.6,15,150/- and mining cost Rs.30,75,750/- and the maximum of the penalty of Rs., 5,00,000/- for violation by the provisions of Rule 3 of the Rules 1963 and Section 4 of Mineral (Development and Regulation) Act, 1957(hereinafter referred to "the Act 1957", read with Rule 54 of the Rules, 1963. The notice further provided that if the petitioner failed to submit his explanation or file reply within the stipulated period, the amount so determined, as mentioned in the notice, would be recovered from him as arrears of land revenue.
5. By the notice dated 28.12.2019 the petitioner was required to show cause with respect to contents of that notice within a period of thirty days from the date of receipt of notice failing which it was provided that the amount mentioned therein for illegal/mining, for total amount of Rs.15,80,000/- would be recovered as arrears of land revenue. Notice mentioned that on the basis of joint inspection report, signed by the Sub Divisional Officer, Manjhanpur and the Mining Officer, Kaushambi, the petitioner had transported about 1200 cubic meter sand/maurm by illegal mining and levelling work had been done by the petitioner, consequently the petitioner was liable to pay the amount of Rs.15,80,000/-in total. towards royalty of mineral cost and damages.
6. Learned Senior Advocate has submitted that the alleged joint inspection was carried on behind the back of the petitioner who never participated in the inspection work as such the said demand was in total defiance and in the teeth of judgment of this Court in Writ Petition No.1899(MS)2004(Gajpal Singh Yadav and others) decided on 6.4,.2004. His submission is that the impugned notices were issued directly, holding the petitioner guilty for illegal mining, outside the leased area without issuing any show cause notice to the petitioner and since the amount to be recovered, from the petitioner is directed to be recovered has already been determined in the said notice, the impugned notice which directed the petitioner to submit reply is an eyewash and the respondent-3, the authority issuing the notice, has not applied his own mind and issued notice on the basis of inspection report, stating that the petitioner had levelled the surface. . He has further submitted that in view of Section 21 of the Rules 1957, if the act of the petitioner has to be treated as an offence, then the District Mining Officer has no authority in the said matter. He has further submitted that under Section 22 of the Act of 1957 cost of minerals can be recovered if the mining authority comes to the conclusion that minerals have been excavated illegally and not otherwise. In the present case the petitioner is a lease holder and is authorized to excavate the minerals from his lease area. As there is no evidence on the record to show that illegal mining has been done by the petitioner outside his mining area and thus, the provision of Section 21 of the Act of 1957 is not attracted and no cost of minerals as well as penalty can be imposed against the petitioner. He has further relied upon Rule 70 of the Rules 1963 which provides that minerals can only be transported on a pass issued by lease holder in Form EMM-11 and sub-rule 6 provides that if any person infringes Rule 70 of the Rules, then he will be punished for a term which may be extended to 6 months or fine of Rs.25,000/- or with both. Submission is that if the petitioner's case amounts to violation of the said provision of mining of sand, the jurisdiction lies only with the competent court of law on the criminal side. He further submits that by issuing the impugned notices respondent-3 travelled beyond his jurisdiction inasmuch as according to Rules 1963, no such power is vested in respondent-3 to take action against the petitioner who is a lease holder and the matter is to be examined as per the provision of Section 22 of the Act-1957 and Rule 74 of the Rules, 1963.
7. On the other hand learned Standing Counsel submits that the petitioner has been issued notices dated 26.12.2019 and 28.12.2019 whereby the petitioner has been directed to appear before the authority concerned on the date fixed and submit his reply to the contents of the notice. Notice is within jurisdiction and has been issued by the competent authority. So far as the determination of the amount is concerned, learned Sanding Counsel submits that the determination has been made on the basis of joint inspection report and if the petitioner has any grievance, which according to him is not a final amount and only a tentative amount, the petitioner has every opportunity to place his case before the competent authority. The essence of the argument of the learned Standing Counsel is that the notices having been issued and the petitioner having been afforded opportunity of hearing, it is open for the petitioner to place his reply in pending case and get adjudicated the same.
8. So far as the jurisdiction of the authority is concerned it is submitted that every authority has power to decide its own jurisdiction and if the petitioner considers that the notice is beyond jurisdiction, the petitioner may raise this plea also before the authority concerned for its consideration.
9. We have considered the submissions advanced by the learned counsel for the petitioner as well as learned Standing Counsel.
10. We find that by notices under challenge dated 26.12.2019 and 28.12.2019 issued on the basis of joint inspection report by a duly constituted team, the assessment of royalty and the amounts under the different heads were made, finding that the petitioner had excavated sand from outside his leased area. This is only a tentative determination by the authority simply on the basis of joint inspection report. The petitioner is being afforded opportunity of hearing against the said determination as well as against the report of joint inspection team. Once notice has been issued and opportunity is being granted, we are not in agreement with the submission made by learned Senior Counsel that final decision has been made by the authority concerned and inviting reply of the petitioner for adjudicating petitioner's case is an eye wash.
11. So far as the contention that if the alleged acts of the petitioner amounts to offence under the provisions of the Act and the Rules then only the appropriate court of law has the jurisdiction, the petitioner may raise such plea before the authority concerned in pursuance of the notices.
12. None of the two shows cause notices states that the joint inspection teams have been constituted under the Act of 1957 or Rule 1963, finding illegal mining, which is against the loss of revenue to the Government. It is the duty of the authorities to look into that aspect of the matter and also determine, after following the established procedure, if there is loss to Government by the alleged illegal act of the petitioner. The question if the petitioner has done illegal mining can be decided taking into consideration the facts as to what was the leased area of the petitioner and as to on what area, illegal mining was done by the petitioner, outside his leased area. These are questions of facts and can be determined by authorities. The authority issuing notice has also the jurisdiction to decide its jurisdiction. The disputed questions of fact cannot be determined by this Court in writ jurisdiction under Article 226 of the Constitution of India.
13. Thus, in our considered opinion, we find that the petitioner has to avail the opportunity granted to him in pursuance of the impugned notices before the competent authority as mentioned in the notices by filing/submitting his reply, for redressal of his grievances before the authority concerned, as raised before us. The time granted to the petitioner in the notice has already expired. We therefore, direct that the petitioner shall submit reply in pursuance of the impugned notices dated 26.12.2019 and 28.12.2019, preferably within a period of two months from today. If such a reply is filed the competent authority shall consider the petitioner's reply and pass appropriate orders on it in accordance with law, within a period of one month thereafter from the date of submission of reply.
14. We make it clear that we have not adjudicated the controversy raised in the writ petition on the merit either way.
15. For a period of three months or till passing of the order by the competent authority as aforesaid, the realisation/recovery of the amount as mentioned in the impugned notices shall be kept in abeyance.
16. With the aforesaid direction the writ petition is disposed of.
Order Date :- 27.1.2020 mt