Allahabad High Court
Manshad And Anr. vs State Of U.P. And 3 Others on 23 January, 2018
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - C No. - 69822 of 2015 Petitioner :- Manshad and another Respondent :- State of U.P. and others Counsel for Petitioner :- Anil Kumar, A.K.Aditya Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
Hon'ble Shashi Kant, J.
1. In this case, notice of recovery dated 30.07.2015 issued by Additional District Magistrate (Finance and Revenue), Shamli was challenged on the ground that no mining activities has been undertaken by respondents, as alleged, and further that matter of digging ordinary soil upto two meters depth does not come within the purview of mining in the light of Government Order dated 24.12.2012, as held by this Court in Rameshwar Singh Vs. State of U.P. and others 2016 (6) ADJ 475.
2. Respondents were granted time to file counter affidavit by order dated 07.01.2016 and interim order was passed in favour of petitioners. No reply was filed, therefore time was again granted on 31.03.2016, 06.05.2016, 18.08.2017, 08.09.2017 and 19.09.2017. When the matter came up before Court on 06.10.2017 we found that twice it was stated on behalf of respondents that counter affidavit is under preparation and matter was got adjourned on 08.09.2017 and 19.09.2017 but no counter affidavit was filed which demonstrates that statement made on both the earlier occasions was incorrect.
3. In view thereof, we called upon respondents-1 and 2 to appear in Court to explain, why action be not taken for not filing counter affidavit and getting a wrong statement made in the Court. Thereafter learned Standing Counsel stated that his file itself was not received from Office, hence he was not in a position to assist Court. Since this problem we were facing almost everyday in the last few months, we had no option but to pass following order on 06.10.2017:
"1. Twice case was adjourned on statement made by learned Standing Counsel that counter affidavit is under preparation on 8th September, 2017 and 19th September, 2017, though no affidavit has been filed till date. Earlier both statements made by learned Standing Counsel were false. In these circumstances, we have no option but to direct respondent nos. 1 and 2 to appear before Court to explain as to why action against them be not taken.
2. Learned Standing Counsel for the State further stated that his record is not available so he is not in a position even to assist Court. Let Legal Remembrancer appear in person and explain as to why proper arrangement has not been made to represent State Authorities in the Court for assistance and if capable and suitable State Law Officers are not being appointed why Court should not proceed to decide matter ex parte after observing about non assistance on behalf of State and its authorities and why heavy cost should not be imposed for wasting Court's time by not providing assistance to the Court.
3. List this matter on 24th October, 2017, by which date concerned officials shall appear in person before Court.
4. In the above facts and circumstances of case, we also find no reason to confine interim order for a limited period and thus we extend interim order until further orders."
4. On 24.10.2017, Principal Secretary, Law/ Legal Remembrance appeared and admitted that working condition in the Office and building of Advocate General and Chief Standing Counsel Office are extremely difficult for various reasons including non functioning of elevators in the building, lots of defects in construction of building, non working of generator sets etc. and also for lack of otherwise infrastructure. He also stated that formal possession of building was not taken from construction agency and, therefore, there is no maintenance in the said building causing lot of functional problems to State Law Officers. He, however, said that he is making all out efforts to get the situation improved.
5. Believing on the said statement, we adjourned the matter to 30.11.2017 but position did not change even on 30.11.2017. Then matter was again taken up on 22.12.2017 when Advocate General appeared but situation and functional conditions remained same. We were informed during course of argument that a very huge amount was spent on the construction of new building of Advocate General's Office where State Law Officers are presently having their offices but there appears to be a lot of irregularities and bungling as a result whereof functional conditions in the building are very poor, or virtually either amenities are not available or not in working order etc. Between the lines, we find that there had occurred a lot of irregularities in construction of building and its maintenance, though a veru huge amount was spent. Nobody was able to clarify reasons for such shortcomings in the aforesaid newly constructed Office.
6. We are really surprised that Office of Advocate General, which has been constructed upto 9th floor, and, is supposed to have entire offices of State Law Officers, has been raised with lot of shortcomings and irregularities as a result whereof a new building Elevators are not properly functioning, Generator Sets of a very big capacity are installed but non functional and there are several other structural and qualitative shortcomings. These all are causing hindrance in sending record to Courts, rendering State Law Officers lot of difficulties in assisting Courts and many a times they have no record at all to assist Court. This is an alarming situation inviting appropriate action. In our view when a huge amount has been spent in raising of such a huge building, it is difficult to believe that building is not in a proper functioning condition and appropriate amenities are not functional. Apparently, there must have some serious irregularities in the entire operation resulting in defalcation of funds or something else. This requires investigation. In our view, an enquiry by Vigilance Department of State of U.P. would be appropriate in this matter. We, therefore, direct Director General, Vigilance to get an appropriate enquiry in the matter conducted as to whether funds spent in the building have been properly utilized, building has been constructed with due specifications, standards etc. and the amenities provided are as per specifications, and if not, who are the persons responsible. Director General, Vigilance shall authorize an Officer of senior rank to make this enquiry and if find necessary may constitute a team having specialized persons but shall personally supervise the said enquiry and till this enquiry is completed, the present incumbent holding office of Director General,Vigilance may not be disturbed by the Government. We request Chief Secretary, Government of U.P. and Principal Secretary (Home) to take care of this aspect of matter and if necessary, may seek leave of Court, if any change is inevitable. The investigation shall be conducted and progress report shall be submitted on the expiry of two months from today.
7. So far as merits of writ petition is concerned, we find that petitioners have challenged notice dated 30.07.2015 issued by District Magistrate stating that there is unauthorized mining of ordinary clay in Khasra No. 1529 and Khasra No. 1544, for which petitioners were required to show cause why they should not be held liable for payment of royalty of Rs. 1,04,202/- and five times penalty thereon. It is submitted that reply was submitted by petitioners on 18.09.2015 stating that no unauthorized mining has been done, but we find that in reply dated 18.09.2015, petitioners have denied unauthorized mining by them in Khasra No. 1524 and nothing has been said in respect to Khasra No. 1529 and 1544. It is in these facts and circumstances, notice in respect to Khasra No. 1529 and 1544 has not been disputed or challenged by petitioners by submitting reply before authority concerned. We, therefore, find not reason to interfere with the said notices.
8. The writ petition lacks merits. Dismissed.
9. However, it is made clear that this writ petition shall be listed for the purpose of perusal of progress report/investigation report submitted by Vigilance, as directed above.
Dt. 23.01.2018 PS