Allahabad High Court
R G Infra City (P) Ltd. Thru. Authorized ... vs State Of U.P. Thru. Secy. Mining & ... on 19 February, 2015
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Chief Justice's Court AFR Case :- MISC. BENCH No. - 663 of 2015 Petitioner :- R G Infra City (P) Ltd. Thru. Authorized Signatory Respondent :- State Of U.P. Thru. Secy. Mining & Geology & 7 Ors. Counsel for Petitioner :- Dhruv Mathur Counsel for Respondent :- C.S.C. Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Pankaj Mithal,J.
The petitioner is carrying on certain construction activities on a plot of land bearing 12/GH 04, Vrindavan Yojna, Raebareli allotted by the U.P. Avas Evam Vikas Parishad for a consideration of Rs.9,90,02,750/-. An agreement dated 23 November 2011 was executed in favour of the petitioner, a copy of which has been annexed at Annexure-1 to these proceedings. Building plans were sanctioned for a group housing project and in paragraphs 10 and 11 of the petition, it has been stated that the execution of the work involves an excavation of the soil for laying the foundation of the building. The land, it has been averred, is being used for no other purpose except for the construction of the building. The petitioner applied to the Collector for the grant of mining permission for the excavation of soil. An order was passed by the Collector on 22 September 2012 for the excavation of soil to the extent of 14,000 cubic meters of a depth of no more than four meters subject to the payment of a stipulated amount and for a specific period.
Demand notices have been issued to the petitioner on 28 October 2014 and 20 December 2014 for the recovery of royalty in the amount of Rs. 4,21,848/- on the ground that the petitioner had excavated in excess of the permission granted. In response, the petitioner moved the District Magistrate, Lucknow on 8 January 2015 relying upon a decision of the Supreme Court in Promoters and Builders Association of Pune vs. The State of Maharashtra & Ors.1 On 9 January 2015, the Tehsildar submitted a report to the Sub Divisional Magistrate to the effect that the petitioner had excavated soil with the aid of a JCB Machine which has accumulated at the work site. The SDM has passed an order directing the revenue authorities to inspect the site and to ensure that there is no illegal excavation of the soil.
The submission which has been urged on behalf of the petitioner by the learned Senior Counsel is that the activity which is being carried by the petitioner does not fall within the definition of the expression 'Mining Operations' in Rule 2 (5) of the U.P. Minor Mineral (Concession) Rules, 19632. Hence, it is submitted that though the petitioner had applied for permission to excavate the soil and was granted such permission subject to certain terms and conditions, as a matter of fact, no mining operations are involved and that the entire quantity of soil excavated will be utilized only for the purposes of building operations at the very site in question. In this regard reliance was placed on the decision of the Supreme Court in Promoters and Builders Association of Pune (supra).
Rule 2 (5) of the Rules provides as follows:
"2. Definitions.- In these rules, unless the context otherwise requires-
" ...... ..... .....
(5) "Mining Operations" means any operations undertaken for the purpose of winning any minor minerals."
The definition of the expression 'Mining Operations' covers operations which are undertaken for a specific purpose; the purpose being winning any minor minerals.
In Promoters and Builders Association of Pune (supra), the Supreme Court, inter alia, considered the provisions of Section 2 (j) of the Mines Act 1952 and the expression 'Mining Operations' appearing in Section 3 (d) of the Mines and Minerals (Development and Regulation) Act, 1957 as well as a notification dated 3 February 2000. The notification issued by the Central Government declares that ordinary earth used for filling or levelling purpose in the construction of buildings would be a minor mineral. In the case before the Supreme Court, it was not in dispute that the excavation of ordinary earth was being undertaken either for laying the foundation of buildings or for the purposes of widening a channel to bring an adequate quantity of sea water for the purpose of cooling a nuclear plant. In that context, the Supreme Court observed that the notification covered ordinary earth which is used for the purposes enumerated therein namely for filling or levelling purposes. Hence, it was held that excavation of ordinary earth for uses not contemplated in the aforesaid notification would not amount to a mining activity so as to attract the provisions of either the Maharashtra Land Revenue Code or the Act of 1957. The observations of the Supreme Court in the decision were as follows:
"As use can only follow extraction or excavation it is the purpose of the excavation that has to be seen. The liability under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertaken to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations...."
As we have noted above, the definition of the expression 'Mining Operations' in Rule 2 (5) of the Rules refers to operations which are undertaken for the purpose of winning any minor minerals. The purpose of the operation is hence what is significant.
In the present case, it is sought to be urged on behalf of the petitioner that the purpose of the operation is not winning of any minor minerals and that the entire quantity of soil which is excavated would be used only for the construction of the building. This, in our view, is evidently a factual matter which must primarily be determined by the Collector/District Magistrate, Lucknow. The petitioner has, as a matter of fact, already moved the Collector in a representation dated 8 January 2015.
At this stage, we are of the view that the ends of justice would be met if a direction is issued to the effect that the petitioner shall (i) deposit the amount of Rs. 4,21,848/- which forms the subject matter of the demand notice dated 28 October 2014 and, if there are other demand notices which are pending, makes payment thereof; and (ii) undertake not to make any commercial use of the excavated earth and, as stated in the writ petition, and before this Court, the excavated earth shall be used only for the purpose of carrying on a building operation at the site.
Conditional on the petitioner complying with the aforesaid directions, the petitioner shall not be restrained from carrying out the building operations for which due sanctions have been received provided that the work is carried out strictly in accordance with law and in accordance with sanctioned plans. The Collector, Lucknow shall dispose of the representation submitted by the petitioner by a reasoned and speaking order within a period of one month of the receipt of a certified copy of this order.
The petition is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 19.2.2015 (Dr.D.Y.Chandrachud,C.J.)
RK
(Pankaj Mithal,J.)