Allahabad High Court
M/S Sagar Brick Field,Kaushambi Thru. ... vs State Of U.P. Thru. Secy. Deptt. Of ... on 24 January, 2023
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- WRIT - C No. - 4168 of 2022 Petitioner :- M/S Sagar Brick Field,Kaushambi Thru. Proprietor Sanjay Kumar Respondent :- State Of U.P. Thru. Secy. Deptt. Of Geology And Mining/Revisional Authority, Lko. And Another Counsel for Petitioner :- Shishir Chandra Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard Sri Shishir Chandra, learned counsel for the petitioner and Dr. Udaiveer Singh, learned Additional Chief Standing Counsel appearing for the State-respondents.
2. Instant petition has been filed praying for the following main relief(s):
"(i). Issue a writ or order or direction or writ in the nature of certiorari to quash the order dated 05.04.2022 passed by the respondent no. 1dismissing the Mines Revision No.97(R)/SM/2021 (Re. M/s Sagar Brief Field Vs. District Magistrate,Kaushambi), affirming the order dated 07.11.2020 passed by the District Magistrate, Kaushambi in so far as it pertains to holding the petitioner guilty of illegal mining of 1540 cubic meters and imposition of Rs. 2,38,27,600/- towards dues of illegal mining.
(ii). Issue a writ or order or direction or writ in the nature of certiorari to quash the order No. 841/KhananSahayakKau., dated 07.11.2020 passed by the District Magistrate, Kaushambi in so far as it pertains to holding the petitioner guilty of illegal mining of 1540 cubic meters and imposition of Rs. 2,38,27,600/- towards dues of illegal mining.
(iii) Issue a writ or order or direction or writ in the nature of mandamus commanding the respondents not to proceed with recovery against the petitioner consequent to impugned orders dated 05.04.2022 & 07.11.2020."
3. The case set forth by the petitioner is that he had been granted mining lease for Khand 8/3 & 8/4 ad-measuring 24.28 hectares situated in Village- Rusai Saidpur, Tehsil Chayal of District Kaushambi for a period of five years. The lease deed was executed between the District Magistrate, Kausambi and the petitioner on 19.03.2020 which was valid up to 18.03.2025. A joint inspection was conducted on 02.06.2020 by the police and the mining department officials in the mining area of the petitioner and the adjoining area and a joint inspection report was submitted on 02.06.2020, a copy of which is part of Annexure-5 to the writ petition (Page 58) from which it emerged that the petitioner was found to have indulged in illegal mining beyond his specified and allocated area. Incidentally, the report talks about a dispute pertaining to the area in which the petitioner was found to have indulged in illegal mining i.e as to whether the said area fell within District Kaushambi or District Prayagraj.
4. In order to ascertain the district in which the area was located, the report required a joint inspection team of the revenue officials to be constituted of both districts to inspect the area and ascertain the actual area on 04.06.2020. In pursuance thereof, a joint team of officials of District Prayagraj and District Kaushambi was constituted which conducted a survey of the area but was unable to determine as to whether the area fell within district Kaushambi or district Prayagraj as is apparent from the perusal of the joint inspection report dated 04.06.2020, a copy of which is Annexure- CA 2 to the counter-affidavit filed by the respondents.
5. On 05.06.2020, the Senior Mining Officer sent a letter to the Mining Officer, District Kaushambi, a copy of which is part of Annexure- 5 to the writ petition (page 60) indicating that illegal mining has been found in District Kaushambi. On the basis of joint inspection report that had been submitted, it was also indicated in the letter that the lease holder (the petitioner herein) was doing illegal mining beyond the area allocated to him which appeared to be an area falling in District Prayagraj. It also indicated that certain vehicles had been seized which were being used for the purpose of illegal mining.
6. Subsequent thereto, on 12.06.2020, a notice was issued to the petitioner by the District Magistrate, Kaushambi, a copy of which is part of Annexure-5 to the petition (Page 62 of the writ petition) pointing out that a joint inspection was conducted on 02.06.2020 and the petitioner had been found indulging in illegal mining beyond the area allocated to him for the purpose of mining and that in the geo-mapping done of the area in which the illegal mining was noticed, it has been found that the petitioner had indulged in illegal mining in an area of 15,883 square meter to an average depth of 1.5 meter which resulted in he having indulged in illegal mining of 23,824 cubic meter of sand and thus, was required to show cause as to why the royalty amount, the value of mineral and the penalty be not realized from the petitioner in accordance with rules.
7. The petitioner claims to have submitted his reply to the said notice on 26.06.2020, a copy of which is part of Annexure 5 to the writ petition (Page 64 of the writ petition) in which he indicated that he has only done mining in his allocated area and thus, prayed that the charges levelled against him in the show cause notice dated 12.06.2020 were bad in the eyes of law and the notice is required to be set aside.
8. The Competent Authority vide order impugned dated 07.11.2020, a copy of which is Annexure 2 to the writ petition rejected the reply filed by the petitioner and found that the petitioner has indulged in illegal mining beyond the area of his lease and thus, imposed the royalty, the value of the mineral and the penalty totalling an amount of Rs. 2,38,27,600/- upon the petitioner which the petitioner was required to deposit within a specified time.
9. Being aggrieved, the petitioner filed a revision as per rules before the Revisional Authority, a copy of the which is Annexure 5 to the petition.
10. The Revisional Authority vide impugned order dated 05.04.2022, a copy of which is annexure 1 to the writ petition rejected the revision filed by the petitioner.
11. Being aggrieved, the instant writ petition has been filed.
12. The contention of the learned counsel for the petitioner is that in the joint inspection report dated 02.06.2020, it does not come out that the petitioner has himself indulged in any illegal mining rather all along the stand of the petitioner was that the petitioner has done mining in the area for which he was having the mining lease. It is also contended that in case the contention of the respondent was that the petitioner has indulged in illegal mining beyond the area for which lease has been granted to him then the onus of proving the said illegal mining having been done by the petition, was on the respondents and the petitioner was not required to discharge the onus of he not having indulged in illegal mining inasmuch as the law is that a person is not required to prove the negative.
13. The other argument is that when in the area where alleged illegal mining was being done, has not been correctly ascertained i.e as to whether the said area falls in District Kaushambi or District Prayagraj as such, without ascertainment of the area, it cannot be said that there was illegal mining on the part of the petitioner. Non consideration of all the aforesaid facts vitiates the notice that had been issued to the petitioner as well as the order dated 07.11.2020 passed by the Competent Authority imposing the royalty and value of mineral along with penalty against the petitioner for the alleged illegal mining. It is also contended that this aspect of the matter has not been considered by the Revisional Authority despite the petitioner having stated in the revision filed by him that the petitioner has not indulged in illegal mining rather all along the mining has been carried out by the petitioner only in the area allocated to him.
14. In this regard, the reliance has been placed on the Division Bench Judgment of this Court in the case of Ranveer Singh Vs. State of U.P. and Others reported in 2017(1) ADJ 240.
15. Placing reliance on the said judgment, learned counsel for the petitioner argues that the Division Bench of this Court has held that the rules of natural justice have to be read in the rules and all material over which reliance was sought to be placed by the authorities had to be made available to the person in order to enable him to submit an effective reply and in absence thereof, in case any adverse order is passed, the same would be vitiated in the eyes of law.
16. No other ground has been urged.
17. On the other hand, learned Additional Chief Standing Counsel appearing for the State-respondents argues that in the joint inspection report that had been submitted by the competent authorities, it was specifically found that the petitioner was indulging in illegal mining beyond the area for which the lease has been granted to him. The said report also took into consideration the latitude and longitude of the area in which the illegal mining was found and the quantity of illegal mining done by the petitioner had also been ascertained. The only dispute, which had no relevance with the illegal mining, was as to whether the area in which the illegal mining was noticed fell within District Kaushambi or District Prayagraj.
18. For the ascertainment of the geographical location of the said area, a joint inspection of revenue authorities of both the districts i.e Kaushambi and Prayagraj was conducted on 04.06.2020 but the team was of the view that no demarcation of the area was possible. Subsequent thereto, the Senior Minor Officer wrote a letter to the Mining Officer, Kaushambi indicating that the illegal mining has been found in District Kaushambi and in pursuance of the joint inspection report on 02.06.2020 and the letter of the Senior Mining Officer dated 05.06.2020, a notice was issued to the petitioner as to why the royalty, value of mineral and penalty imposed be not upon the petitioner for the illegal mining done by him. The petitioner submitted his reply on 28.06.2020 but did not deny that he has not done illegal mining despite the joint inspection report having specifically indicated that illegal mining was being done by the petitioner and the notice dated 12.06.2020 having also indicated about the illegal mining having been done by the petitioner. Though in the reply the petitioner took all sort of objections but for the fact that no denial was ever made by him pertaining to illegal mining not having been done by him. Taking this into consideration and the joint inspection report dated 02.06.2020, the order dated 07.11.2020 was passed imposing the royalty, value of mineral and penalty upon the petitioner. The petitioner filed a revision against the said order which was also rejected by the Revisional Authority vide order dated 05.04.2022.
19. Placing reliance on the averments contained in counter-affidavit, the argument is that once the petitioner was specifically issued a show cause notice as having indulged in illegal mining beyond the area that had been allocated to him as emerged from a perusal of the joint inspection report dated 02.06.2020 as such, the petitioner should have denied in not having indulged in illegal mining but once there was no denial at any stage by the petitioner as such, the competent authority did not err in passing the order dated 07.11.2020 and the revisional authority has also correctly proceeded to reject the revision filed by the petitioner. Thus, it is contended that the writ petition being misconceived merits to be dismissed.
20. Heard the learned counsel appearing for the contesting parties and perused the record.
21. From arguments as raised by the learned counsel appearing for the contesting parties and perusal of the record, it emerges that the petitioner was having a mining lease for Khand 8/3 & 8/4 ad-measuring 24.28 hectares situated in Village Rusai Saidpur, Tehsil Chayal of District Kaushambi for a period of five years. The said lease was valid up to 18.03.2025. A joint inspection was conducted on 02.06.2020 in the aforesaid mining area of the petitioner and the adjoining area. A report thereof was submitted on 02.06.2020 in which the petitioner was clearly found to have indulged in illegal mining beyond the specified area as had been assigned to him for the mining lease. However, there was a dispute as to whether the area in which the illegal mining has been done falls within District Kaushambi or District Prayagraj. In order to ascertain the area, a joint inspection team of the revenue officials of both the districts namely District Prayagraj and District Kaushambi was constituted which conducted a survey of the area but was unable to demarcate the area i.e as to whether the area in which the illegal mining has been done falls in District Prayagraj or District Kaushambi. A report in this regard was submitted on 04.06.2020. On 05.06.2020, the Senior Mining Officer sent a letter to the Mining Officer, District Kaushambi indicating the fact of illegal mining having taken place in District Kaushambi and that the lease holder, in this case the petitioner, was doing illegal mining beyond the area allocated to him which appears to be an area falling in District Prayagraj. Subsequent thereto, a notice dated 12.06.2020 was issued by District Magistrate, Kaushambi to the petitioner pointing out that in the joint inspection which was conducted on 02.06.2020, the petitioner had been found to have indulged in illegal mining beyond the area allocated to him. The quantity of illegal mining that had been done by the petitioner was also indicated through geo-mapping along with the estimated volume of the illegal mining and the petitioner was required to show cause as to why the royalty, the value of mineral and the penalty be not realised from him in accordance with rules.
22. The petitioner submitted his reply to the said notice on 26.06.2020 wherein he did not deny the allegation of illegal mining but prayed that the charges levelled against him in the show cause notice were bad in the eyes of law and notice was liable to be set aside. He also pointed out that the area in which the petitioner has been alleged to have done illegal mining is not clear i.e as to whether the area is in District Kaushambi or District Prayagraj. He also raised the ground of modes to recover royalty. As his reply was not found satisfactory, the competent authority vide order dated 07.11.2020 rejected the reply of the petitioner and found that the petitioner has indulged in illegal mining beyond the area of his lease and proceeded to impose royalty, value of mineral and the penalty amount of Rs. 2,38,27,600/- upon the petitioner for the illegal mining done by him. Being aggrieved, the petitioner filed a revision before the revisional authority but the revisional authority through the order impugned dated 05.04.2022 rejected the revision and hence, the petition.
23. The first ground of challenge to the orders impugned as raised by the learned counsel for the petitioner is that in the joint inspection report dated 02.06.2020, it did not emerge that the petitioner had himself indulged in illegal mining and consequently, the onus was upon the respondents to have proved beyond doubt that it was the petitioner who had indulged in illegal mining and without proving the said charge, the impugned order directing for payment of royalty, cost of illegally extracted mineral and penalty could not have been imposed.
24. Considering the said ground, the Court has to consider the show cause notice that had been given to the petitioner along with joint inspection report dated 02.06.2020 and the reply given by the petitioner to the said notice.
25. A perusal of the joint inspection report dated 02.06.2020 would indicate that it is the petitioner who had been found to have indulged in illegal mining inasmuch as the joint inspection report categorically records that in the inspection on the basis of geo-co-ordinates and upon inspecting and measuring the site, it has been found that the concerned lease holder has done mining beyond the area specified. The petitioner had not denied in his reply that he is the lease holder of the area in which the joint inspection had been conducted. As per the geo-coordinates and actual measurement of the site of the petitioner, it has been found that the petitioner has done mining beyond the area leased out to him which the petitioner has not denied in his reply dated 26.06.2020 and thus, it is apparent that it is the petitioner who has indulged in illegal mining as the fact of illegal mining has clearly emerged from the joint inspection report. The only dispute which emerged from the joint inspection report appears to be the area in which the illegal mining had been done i.e whether the area falls in District Kaushambi or District Prayagraj. Even after the joint inspection by the revenue authorities of both the districts, it could not clearly come out as to whether the said area in which the illegal mining was done falls within District Kaushambi or District Prayagraj. However, the dispute in the location of the area i.e whether it falls in District Kaushambi or District Pragyaraj has no relevance to the dispute inasmuch as the matter does not pertain to the location of the area rather the matter pertains to illegal mining in which the petitioner was found to have indulged. As per the joint inspection report and as per the geographical location of the area in which the illegal mining has been done, the fact of the matter remains that illegal mining was carried out by the petitioner as clearly emerged from the joint inspection, the report of which was submitted on 02.06.2020.
26. Considering this, the show cause notice was issued to the petitioner on 12.06.2020 in which a specific mention has been made to the said inspection report dated 02.06.2020 and it has been pointed out that the petitioner has indulged in illegal mining beyond his area and this fact has also been indicated through the geo-mapping and it was also clearly indicated in the said notice that it the petitioner who has indulged in illegal mining which on measurement has been found to be 23,824 cubic meter. The petitioner had been asked to show cause as to why the royalty, the cost of mineral and penalty may not be imposed on the petitioner. Thus, both from the joint inspection report dated 02.06.2020 and the show cause notice dated 12.06.2020, it is apparent that petitioner was specifically charged for having indulged in illegal mining beyond the area as allocated to him.
27. The petitioner claims to have submitted his reply to the said show show cause notice on 26.06.2020, a copy of which has been filed as part of Annexure 5 to the petition (Page 64). The petitioner claims to have indicated that he has only done mining in his area. However, the petitioner never denied having carried out mining beyond his allocated area. It would be relevant to consider the reply that had been given by the petitioner to the show cause notice which, for the sake of the convenience, is reproduced below:-
सेवा में, Jheku ftykkf/kdkjh dkS'kkEch] ¼[kuu vuqHkkx½ tuin dkS'kkEch m0iz0 विषय:- जिलाधिकारी कार्यालय द्वारा निर्गत नोटिस दिनांक 5.06.2020 एवं 12.06. 2020 को वापस / निरस्त करने के सम्बन्ध में।
महोदय जी अधोहस्ताक्षरी श्रीमान जी के समक्ष निम्नलिखित निवेदन करता हूँ।
यह कि शासनादेश दिनांक 14.06.2017 के अनुपालन में मोरम खनन (5 वर्ष) के लिये ekjeखनन पट्टा स्वीकृत / संचालित है। जनपद कौशाम्बी में 30 मोरम खनन क्षेत्रों की विज्ञप्ति दिनांक 17.03.2018 को गई थी। उक्त निर्गत विज्ञप्ति के खण्ड संख्या 8/3 से 8/4 क्षेत्रफल 24.28 हे0 ग्राम रूसहाई सैदपुर तहसील चायल में प्रार्थी सर्वोच्च बोलीदाता होने के कारण प्रार्थी के पक्ष में दिनांक 11.02.2018 के पक्ष मे सहमति पत्र निर्गत किया गया था। उक्त सहमति पत्र के आधार पर अधोहस्ताक्षर में 25 प्रतिशत प्रतिभूति एवं 25 प्रतिशत प्राथम किश्त अर्थात पट्टे की प्रथम वर्ष के लिए निर्धारित 50 प्रतिशत धनराशि 2 करोड़ 79 लाख सहमति पत्र प्राप्त होने के 2 वर्ष पूर्ण होने के अन्दर जमा कर दिया था।
यह कि सहमति पत्र पर लिखित अधोहस्ताक्षरी में उक्त नियमावली 1963 के नियम- 34 के उपबन्धों के अनुसार अनुमोदित (खनन योजना) एवं वन पर्यावर्णीय मंत्रालय की अधिसूचना दिनांक 14.09.2008 lifBr दिनॉक 15.01.2016 के vuqcU/kksaके आधीन स्वच्छता प्रमाण पत्र के लिए आवेदन यथा समान प्रस्तुत किया था चूकि स्वच्छता प्रमाण पत्र खनन हेतु मई 2020 में निर्गत हुआ था अधोहस्ताक्षरी के पट्टे के निश्पादन हेतु 6 मई 2020 को हुआ था अत,o अधोहस्ताक्षरी के बीच निरन्तर खनन खण्ड संख्या 8/3 से 84 क्षेत्रफल 24.28 हे० ग्राम रूसहाई सैदपुर तहसील चायल में शुरू हुआ।
यह कि यहां पर श्रीमान जी के समक्ष यह सूचित करना आवश्यक है कि पट्टा निष्पादन होने के पूर्व अधोहस्ताक्षरी में जैसा कि नियम- 17 में खनिज परिहार नियामावली 1963 में उल्लिखित के आधार पर सीमांकन शुल्क 22 हजार मंझनपुर खनिज कार्यालय जनपद कौशाम्बी में जमा करा दिया था तदोपरान्त क्षेत्रीय पुलिस एवं खनन अधिकारी एवं सर्वेक्षक प्रयागराज द्वारा प्रार्थी के खनन क्षेत्र का सीमांकन यथावत एवं अधोहस्ताक्षरी द्वारा सीमांकन के तत्पश्चात उपरोक्त क्षेत्र में सीमांकन खम्भे उन्हीं के उपस्थिती में खड़े किये गये थे।
यह कि अधोहस्ताक्षरी के पट्टा विलेख में चौहद्दी सीमांकन की गयी है उत्तर मे यमुना नदी का उत्तरी तट, दक्षिण में यमुना नदी का शेष भाग जनपद प्रयागराज तक एवं पूरब में खण्ड सं0 8/2, पश्चिम में खण्ड सं0 8/5 अंकित है।
उपरोक्त चौहद्दी के आधार पर अधोहस्ताक्षरी के सीमांकन पाया गया एवं खम्भे नियात किया गया जो कि सीमांकन अधिकारियों द्वारा प्रक्रिया में अंकित है यह कि दुर्भाग्यवश अधोहस्ताक्षरी को नोटिस दिनांक 05.06.2020 एवं 12.06.2020 को निर्गत की गयी है जिसमें प्रार्थी को आश्चर्य हुआ कि प्रार्थी के विरुद्ध अवैध खनन का आरोप लगाया गया है।
प्रार्थी को नोटिस दिनांक 05.06.2020 द्वारा आरोपित किया गया है कि प्रार्थी को सम्बन्धित क्षेत्र से बाहर जाकर पैमाइश के अनुसार लगभग 44 मी0 yEck 35 मी० चौड़ा एवं 01 मी० गहराई इस प्रकार कुल 1540 घन मी0 अवैध खनन / परिवाहन किया गया है जिसकी रायल्टी 1540 X150= 2,31,000 रू० खनिमुख मूल्य 11,55,000 तथा अधिकतम अर्थदण्ड 5,00,000 इस प्रकार कुल रू0 18,86,000/- (अट्ठारह लाख छियासी हजार रू०) होता है एवं नोटिस दिनांक 12.06.2018 द्वारा: यह आरोपित किया गया है कि अधोहस्ताक्षरी ने जनपद प्रयागराज की सीमा में अवैध खनन कार्य किया गया है अवैध खनन कार्य की पैमाइश के अनुसार 15,883 वर्ग मी० क्षेत्रफल में औसत गहराई 1.5 मी० के अनुसार 23.824 घन मी० बालू/मोरम का अवैध खनन / परिवहन किया गया है जिसकी रायल्टी 2,38,241x50= 35,73,600 रू० खनिमुख मूल्य रू0 1,78,68,000/- (एक करोड़ अठहत्तर लाख अड़सठ हजार रू०) तथा अधिकतम अर्थदण्ड 5,00,000/- (पांच लाख रू०) इस प्रकार कुल रू० 2,19,41,600/- (दो करोड़ उन्नीस लाख इक्तालिस हजार छसे होता है जो उ0प्र0 mi[kfutपरिहार नियमावली 1963 के नियम खान एवं खनिज विकास एवं विनियमन) अधिनियम 57 व खान एवं खनिज (विकास एवं विनियमन) अधिनिय 1957 की धारा 21 के अनुसार दण्डनीय अपराध है।
उपरोक्त नोटिसों के voyksdu से विदित होता है कि श्रीमान उपजिलाधिकारी बारा प्रयागराज के नेतृत्व में क्षेत्राधिकारी पुलिस बार प्रयागराज एवं खान निरीक्षक प्रयागराज सर्वेक्षक प्रयागराज द्वारा कोई संयुक्त निरीक्षण किया गया था दूसरा संयुक्त जिलाधिकारी एवं उपजिलाधिकारी चायल द्वारा किया गया। यह कि उपरोक्त के lEcU/k में श्रीमान जी को अवगत कराना निश्चित होगा कि नोटिस दिनांक 05.06. 2020 को अपने खनन क्षेत्र के बाहर जाकर खनन किया गया है जब कि नोटिस दिनांक 12.06.2020 के द्वारा अधोहस्ताक्षरी को यह आदेशित किया गया कि जनपद प्रयागराज के क्षेत्र में किया गया है।
उपरोक्त को अवगत कराना है कि दिनांक 05.06.2020 को खानfujh{kdदिनांक 28.06.2020 को दर्शाया गया है। यह पूर्णतः गलत है दिनांक 28.05.2000 के सम्बन्ध में न तो प्रार्थी को न ही प्रार्थी के किसी प्रतिनिधी को सूचना दी गयी है। वस्तुतः कोई निरीक्षण किया ही नही गया है सम्भवता फर्जी बालू का आरोपित किया गया है जो किसी फर्जी व्यक्ति द्वारा सूचना दिया गया है।
दिनांक 28.05.2020 को प्रार्थी का खनन कार्य चल रहा था प्रार्थी स्वयं उपस्थित थे जहाँ तक नोटिस दिनांक 12.06.2020 को यह अंकित है कि दिनांक 02. 06.2020 को प्रयागराज संयुक्त टीम द्वारा निरीक्षण किया गया कि उपरोक्त दिनांक 02.06.2020 को प्रार्थी एवं प्रार्थी के प्रतिनिधी का कोई निरीक्षण नहीं किया गया। दिनांक 05.06.2020 को ज्येष्ठ खान अधिकारी प्रयागराज अधिकारी द्वारा एवं जांचोपरान्त यह पाया गया कि जनपद कौशाम्बी में प्रार्थी द्वारा क्षेत्र में कोई अवैध खनन नहीं किया गया पत्रांक सं0- 427 / खनन / 2020-21 दिनांक 05.06.2020 द्वारा विस्तृत रूप से दी गयी है। अतः नोटिस दिनांक 12.06.2020 में वर्णित तथ्य पूर्णतया असत्य एवं दोषपूर्ण है।
यह कि यहां पर श्रीमान जी को यह भी अवगत कराना होगा कि नोटिस दिनांक 05.06.2020 जो कि ज्येष्ठ खान अधिकारी द्वारा निर्गत किया गया है जो पूर्णतया निश्चित हो जाता है कि जनपद प्रयागराज की सीमा में न तो कोई अवैध खनन कार्य किया गया है और न ही कोई अवैध वाहन उपस्थित पाया गया है इससे स्पष्ट है कि नोटिस दिनांक 12.06.2020 dks of.kZr तथ्य पूर्णतया nks"kiw.kZ है lhekaduदक्षिण सीमा में जनपद प्रयागराज की pkSgnnh तक ही किया गया है यह कि उपरोक्त को नोटिस दिनॉक 05.06.2020 एवं नोटिस दिनांक 12.06.2020 में निर्गत की गयी है।
उपरोक्त निरीक्षण अन्तिम रूम से आरोपित एवं उत्तरदायी का पालन किया गया है जब तक माननीय उच्च न्यायालय द्वारा दी गयी जाँच अधिकारी नियुक्त किया जाना चाहिए उपरोक्त दोनों नोटिस दिनांक 05.06.2020 एवं 12.06.2020 दोषपूर्ण है।
यह कि प्रार्थी को उपरोक्त जाँच निरीक्षण के सम्बन्ध में दिनांक 28.05.2020 - 02:06 2020 के lEcU/k में न तो प्रार्थी को न ही प्रार्थी के किसी प्रतिनिधी को सूचना दी गयी है। अतः दोनो निरीक्षण प्रार्थी के अनुपस्थिती में की गयी है जो कि प्रार्थी में पट्टाधारक रहा है प्रार्थी प्रतिदिन उपस्थित रहता है दोनों निरीक्षण आख्या दोषपूर्ण है एवं एकपक्षीय निरीक्षण आख्या अधोहस्ताक्षरी किया जाना विधिपूर्ण है। यह कि उपरोक्त तथ्यों से अवगत कराना है कि उपरोक्त तिथियों पर खनन नही पाया गया है।
उपरोक्त निरीक्षण आख्या मनगढन्त तैयार की गयी है यदि कोई प्रार्थी के क्षेत्र में पहुँचा होता तो निश्चित ही प्रार्थी को इस सम्बन्ध में सूचना मिलती यदि प्रार्थी के भूखण्ड की जाँच करानी है तो प्रार्थी को सूचित किया जाना अनिवार्य है।
यह कि अधोस्ताक्षरी के विरूद्ध श्रीमान द्वारा अवगत दोनो नोटिस दिनॉक 05. 06.2020, 12.06.2020 दोषपूर्ण है दिनांक 28.05.2001 को शासन द्वारा एक शासनादेश निर्गत किया गया है। पेनाल्टी एवं रायल्टी निश्चित किया गया है। अवैध खनन की रायल्टी एवं पेनाल्टी के प्रक्रिया के सम्बन्ध में निदेशालय के किसी अधिकारी के द्वारा जारी परिपत्र सं0 3381 में यह अवधारित किया गया है कि नियम- 74 उ०प्र० खनिज परिहार 1963 के आधीन राज्य सरकार के न्यायालय में बाद संस्थित कर डिग्री प्राप्त करना है। डिग्री प्राप्त होने पर रायल्टी की वसूली की जा सकती है अवैध खनन की रायल्टी की वसूली भू-निलामी नहीं की जा सकती है उ०प्र० खनिज परिहार नियमावली - 57 में अधिकृत खनन के लिए शास्ति की व्यवस्था जिसका संज्ञान नियम- 74 में उल्लिखित जिलाधिकारी या उनके द्वारा प्राधिकृत किसी अन्य अधिकारी के द्वारा या मजिस्ट्रेट के द्वारा की जाने की व्यवस्था की गयी है। नियम- 58 के पट्टे की धनराशि की प्रकिया अवैध खनन विधिक के प्रकरण में नहीं अपनायी जा सकती।
अतः fu;e 57 एवं 74 के अनुरूप अवैध खनन का विचारण नियम 57 एवं नियम- 74 में दी गयी प्रक्रिया के अनुसार न्यायिक प्रक्रिया द्वारा की जा सकती है और जब तक सक्षम न्यायालय में न हो जाय तब तक इनकी वसूली नहीं की जा सकती है।
प्रार्थना अतः श्रीमान जी से विनम्र निवेदन है कि प्रार्थी के ऊपर लगाये गये आरोप जिलाधिकारी कार्यालय द्वारा निर्गत नोटिस दिनांक 05.06.2020 एवं 12.06.2020 को निरस्त कर अधोहस्ताक्षरी को सुनिश्चित करने की कृपा करें।
दिनाँक:- 26/6/2020 प्रार्थी मे० सागर ब्रिक फील्ड प्रो० संजय कुमार पुत्र स्व० जगत नारायण निवासी महमूदनगर मनौरी तहसील चायल जनपद कौशाम्बी
28. Perusal of the reply of the petitioner would indicate that he has not denied the charge of illegal mining as has been levelled against him in the show cause notice based on the joint inspection conducted on 02.06.2020. However, the petitioner has raised a dispute indicating that the joint inspection was conducted on 02.06.2020 which was not conducted in the presence of either petitioner or his representative. The petitioner has also raised a dispute pertaining to the area in which the illegal mining had been done. However, the fact of the matter remains that no denial was ever given by the petitioner pertaining to he having indulged in illegal mining beyond the area allocated to him. Consequently, when the petitioner never disputed of having indulged in illegal mining and in the joint inspection report, it clearly came out that it was the petitioner who had indulged in illegal mining beyond his area for which the petitioner was also charged while issuing the show cause notice and there being no denial by the petitioner in his reply as such, the respondents were not required to prove anything further regarding the illegal mining done by the petitioner. Thus, the aforesaid ground as raised by the learned counsel for the petitioner being misconceived is rejected.
29. So far as the ground pertaining to the geographical location of the area in which the illegal mining was done being not clear and that without ascertainment of the area, it could not be said that there was illegal mining, though attractive on the face of it, merits outright rejection inasmuch as it is not the geographical location of the area which would be relevant rather it is the illegal mining which had been done by the petitioner and which emerged in the joint inspection which indicated that it was the petitioner who had indulged in illegal mining irrespective of the geographical location of the area in which the illegal mining was done. The fact of the matter remains that illegal mining was done by the petitioner which charge the petitioner failed to deny. Thus, the said ground is also rejected.
30. The petitioner also filed a revision before the revisional authority i.e the State Government under Rule 78 of the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the "Rules, 1963") yet he was also not successful in the revision. The petitioner had taken various grounds including the onus being on State-respondents to prove illegal mining by the petitioner yet the revisional authority considered that in the joint inspection report dated 02.06.2020, it clearly emerged that the petitioner had indulged in illegal mining beyond the specified area for which a notice had been issued and as such, the revisional court was of the view after examination of the record that there was no illegality or infirmity in the order passed by the competent authority dated 07.11.2020 whereby the petitioner had been required to deposit the royalty, the cost of mineral and the penalty.
31. Even otherwise, from a perusal of the record i.e the power which is possessed by the State Government while exercising power of revision under Rule 78 of the Rules, 1963, the fact which appears to have prevailed on the State Government while dismissing the revision reveals that when in the joint inspection report dated 02.06.2020 the petitioner had specifically been found to have indulged in illegal mining and there was no denial by the petitioner in his reply to the show cause notice of he having indulged in illegal mining, as such, when seen in this context, this Court does not find any illegality or infirmity with the revisional order dated 05.04.2022.
32. Another aspect of the matter is that this Court is exercising jurisdiction under Article 226 of Constitution of India. A perusal of the Show Cause Notice issued by the respondents viz-a-viz the reply submitted by the petitioner would indicate that despite the specific charges in the Show Cause Notice of the petitioner having indulged in illegal mining beyond his area of lease, there was no denial by the petitioner in this regard. Subsequent thereto, in the revision filed by him, the petitioner has raised a challenge on various grounds including trying to shift onus of proving the charge of illegal mining beyond his area to be on the respondents. All these would thus fall within the realm of being disputed questions of fact which cannot be examined by this Court under Article 226 of Constitution of India.
33. Yet another aspect of the matter is that this Court while exercising jurisdiction under Article 226 of Constitution of India and while exercising power of judicial review has only to see as to whether the process in reaching the decision has been observed correctly and it is not for the Court to see the decision as such. In this regard, it would be suffice to refer the judgment of the Apex Court in the case of Syed TA Naqsnbandi and Ors Vs. State of J & K and Ors reported in (2003) 9 SCC 592 wherein the Apex Court has held as under:-
"........judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions........"
(emphasis by the Court)
34. Likewise, the Apex Court in a three judges judgment in the case of Punjab State Power Corporation Limited and Ors vs. Emta Coal Limited and Ors. reported in 2022 (2) SCC 1 has held as under:-
"31. It could thus be seen that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision/making process. The limited areas in which the court can enquire are as to whether a decision making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice. It can examine as to whether an authority has reached a decision which no reasonable Tribunal would have reached or has abused its powers. It is not for the court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. The court will examine as to whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury. While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it."
32. Applying the aforesaid principle, it can clearly be seen that the decision of PSPCL dated 6th April 2018, cannot be questioned on the ground of illegality or procedural impropriety. The decision is taken in accordance with Section 11 of the said Act and after following the principle of Natural Justice. The limited area that would be available for attack is as to whether the decision is hit by the Wednesbury principle. Can it be said that the decision taken by the authority is such that no reasonable person would have taken it? No doubt, that the authority has also relied on Clause 12.4.1 of the Allotment Agreement, however, that is not the only ground on which the representation of EMTA is rejected. No doubt, that while considering EMTA's representation, PSPCL has referred to Clause 12.4.1 of the Allotment Agreement which requires the coal mines to be developed through contractors who were selected through a competitive bidding process, however, that is not the only ground on which the representation of EMTA is rejected. It will be relevant to refer to the following observations in the order passed by PSPCL dated 6 th April 2018: "Moreover, there is no reason why competitive bidding process for the purposes of eliciting the best operator be not preferred. Needless to mention that as the composition with respect to capital/revenue investment is altogether different, hence the bidding parameters have entirely changed."
35. Accordingly, when the facts of the instant case along with orders impugned are seen in the context of the law laid down by the Apex Court it emerges that the decision making process of the respondents cannot be faulted with inasmuch as specific Show Cause Notice had been issued to the petitioner calling upon him to submit his explanation as to why he should not be penalized in illegal mining in an area beyond his lease area. The Show Cause Notice stated about the joint inspection report in which the petitioner was found indulging in illegal mining beyond his specified area. The petitioner in his reply did not deny in having indulged in illegal mining rather only disputed the area in which illegal mining had taken place regarding its geographical location so far as it pertains to which district the area was located. In the absence of any denial, the respondents passed the orders impugned and revision filed by the petitioner was also dismissed. Thus, the rules of natural justice were adhered to and this Court does not find that there is any fault in the decision making process and thus following the dictum of the judgments of the Apex Court in the cases of Syed TA Naqsnbandi (supra) & Punjab State Power Corporation Limited (supra) on this ground also, this Court does not find any error in the orders impugned.
36. So far as the judgment of Division Bench of this Court in the case of Ranveer Singh (Supra) is concerned, suffice it to say that a perusal of the said judgment would indicate that upon a notice being issued to the petitioner therein of having indulged in illegal mining and he having been required to pay royalty and other dues, the petitioner in his detailed reply clearly disowned his involvement in the illegal mining rather went to the extent of stating in his reply that it was impossible that large scale illegal mining could have been carried out by the petitioner. Despite the specific denial of the petitioner, the authorities proceeded to direct for recovery of charges against the petitioner for illegal mining. In these circumstances, the Division Bench of this Court was of the view that when the petitioner had filed a detailed reply denying his involvement in the illegal mining consequently in case the liability was to be fastened on the shoulders of the petitioner, then it was the obligation of the State to prove by way of credible evidence available that it was the petitioner who had indulged in illegal mining and in these circumstances, apart from issuing show cause notice, all the evidence that was sought to be relied upon should have been disclosed to the petitioner.
37. For the sake of convenience, the relevant observations of the Division Bench of this Court in the Ranveer Singh (supra) are reproduced below.
"22. In the present case, the allegations that have come forward is that petitioner has indulged in illegal mining and accordingly, royalty and other dues are liable to be charged from him. Section 21(5) of the MMDR Act, 1957 clearly makes its intentions clear by empowering the State Government to recover rent, royalty or tax from the person who has raised the mineral from any land without any lawful authority and also empowers the State Government to recover the price thereof where such mineral has already been disposed of, inasmuch as, the same would not be available for seizure and confiscation.......
27.Here, in the present case, State is coming up with the case that petitioner has himself indulged in illegal mining whereas the petitioner, in his turn, is declining of being engaged in any illegal mining and contrarily, he claims himself to be a crusader against illegal activities and thus a victim. This is also an accepted position that on his complaint Apex Court has already taken cognizance in the matter against the incumbent, against whom he has made a complaint, but the fact of the matter is when fingers have been pointed at others, then counter finger has been pointed in the direction of petitioner also that he has tainted background and the fact of the matter is that he himself is Mining mafia. Apex Court in its order dated 25.04.2016, gives liberty to petitioner to respond to the notices before the Competent Authority, and the Competent Authority has been asked to bring the proceedings to its logical conclusion. In the present case as such, the petitioner is also burdened to get clean chit in the said direction once the Authorities on the spot even before the matter has been before Apex Court has initiated proceedings as against him.
31. Once such is the factual that there is no prescribed procedure provided for, then we proceed to examine the record in question that has been produced before us and that has been examined by us with the able assistance of learned Standing Counsel as well as the parties appearing before us and what we find from the record in question is that in the present case, pursuant to the order passed by the Apex Court, a detailed and elaborate reply has been submitted by the petitioner and at the point of time when the said reply in question has been considered, the District Magistrate concerned has proceeded to take note of notice dated 31.08.2012, notice dated 09.12.2014, notice dated 09.07.2015 and notice dated 08.09.2015. What we find from the record in question is that petitioner has proceeded to file a detailed and elaborate reply on 19.08.2016 clearly disowning therein of his involvement in illegal mining and has also proceeded to make a clear cut mention that it was impossible to believe that such large scale illegal mining has been carried out by the petitioner and not even a single mineral has been seized by the Authorities concerned. We have checked the original record produced before us and Annexure 12 to the Writ petition i.e. the reply submitted by the petitioner wherein qua each and every notice so issued detailed and elaborate reply, as already mentioned, has been furnished. Record in question reflects that notice dated 31.08.2012 issued by respondent no.6 disclose that petitioner was alleged to have mined illegally 108940 metric tonne of mineral. The said demand notice was based on spot inspection allegedly report dated 25.082012 and in the said notice in question, the incumbent from whom information was supplied was not mentioned. It was also not mentioned as to whether petitioner was on the spot when inspection was done and even the details of the event when illegal mining and transportation was done was also not mentioned.
32. Here, the petitioner has been denying his indulgence in the activity of illegal mining and what we find from the decision making process and from the record is that rule of fair play has been breached with impunity, inasmuch as, after liberty has been accorded by the Apex Court, the petitioner has proceeded to file a detailed and exhaustive reply wherein each and every facet of the matter was sought to be denied/disputed and most conveniently, it is sought to be mentioned by the District Magistrate that the reply submitted by the petitioner was not satisfactory and in the earlier part of the order while dealing with respective notices, it has been mentioned that petitioner has not proceeded to place sufficient material to rebut the allegation. Decision maker in the present case has ignored the weight of reply available on record as extracted above and has dealt with the same in perfunctory manner with closed mind, whereas while exercising quasi-judicial authority was required to be free from bias i.e. there should be absence of conscious or unconscious prejudice to either of the parties. Here the tenor of proceedings are speaking for itself that District Magistrate while dealing with the matter was proceeding with pre-conceived notion that petitioner in-fact has indulged in illegal mining, whereas the said opinion could have been formed, only after enquiry was held.
33. Once the liability was to be fastened on the shoulder of petitioner, then it was the obligation of the State to prove by way of credible evidence available that it was the petitioner, who has indulged in illegal mining and in the said direction, apart from issuing show cause notice, all the evidence that was sought to be relied upon i.e. the incumbents who have carried out the search and survey and the incumbents who have come forward to depose against petitioner, their names ought to have been disclosed and they ought to have been produced to support the case of State that petitioner in-fact has indulged in illegal mining. Not only this as a part of process, petitioner was entitled to have reasonable opportunity of defending himself by questioning the veracity of evidence produced against him and by adducing his own defence evidence, if any. Decision maker is bound to act fairly, as under the scheme of things provided for, the determination made by him will entail civil consequences, as qua the person charged with illegal mining on charges being proved financial liability would be shouldered and in contra situation, the State would be at loss.
(Emphasis by the Court)
38. The aforesaid judgment of the Division Bench of this Court is clearly distinguishable inasmuch as in the instant case, the petitioner had failed to deny the illegal mining done by him rather raised a dispute pertaining to the geographical location of the area of illegal mining. At the risk of repetition when the joint inspection report dated 02.06.2020, clearly indicated that petitioner had done illegal mining beyond his specified/allocated area and the same was also indicated in the show cause notice issued to the petitioner and there being no denial in the reply submitted by the petitioner, consequently the onus was no longer on the State to prove illegal mining on the part of the petitioner. Thus, the judgment in the case of Ranveer Singh (Supra) would have no applicability to the facts of the instant case.
39. Keeping in view the aforesaid discussion, the Court does not find any infirmity and illegality in the orders impugned dated 05.04.2022 & 07.11.2020. Accordingly, writ petition is dismissed.
Order Date :- 24.1.2023 Mohit Singh/Pachhere