Allahabad High Court
Devendra Signh vs State Of U.P. And Others on 25 February, 2020
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- WRIT - C No. - 61409 of 2009 Petitioner :- Devendra Signh Respondent :- State of U.P. and Others Counsel for Petitioner :- Birendra Singh Counsel for Respondent :- C.S.C. Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
Rejoinder affidavit filed today, by learned counsel for the petitioner, is taken on record.
Heard Sri Birendra Singh, learned counsel for the petitioner and Sri S.N. Shukla, learned Standing Counsel for the State. Perused the record.
By means of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 17.7.2009 whereby the penalty to the extent of Rs.1,59,900/- has come to be imposed upon the petitioner on account of unauthorised mining.
Assailing the order of recovery impugned in the present petition, learned counsel for the petitioner has argued that in reply to the show cause notice earlier issued to the petitioner in respect of the alleged unauthorised mining, he had submitted a detailed reply to the respondent-authority on 13.3.2008, copy of which is filed as Annexure No.1 to the counter affidavit. However, the same has not been considered by the respondents while exercising power under Rule 58 of the U.P. Minor Mineral (Concession) Rules, 1963 which has been framed under the Mines and Minerals (Regulation and Development) Act 1957. Learned counsel for the petitioner has further relied upon a Division Bench judgment of this Court in the case of Ranvir Singh vs. State of U.P. and others reported in 2017 (1) ADJ 240 (DB) in which the law on the point has been discussed in detail. The Court in the said judgment has categorically held that even in the absence of the detailed guidelines available under the Rules, the minimum requirement of compliance of the natural justice is a must when the power being exercised is quasi judicial in nature. It has been held by the Division Bench that authority exercisable under Section 58 of the Act is clearly in the nature of quasi judicial exercise of power. Vide paragraph no.34, 35, 36 and 37 the Court has held thus:
"34. Apex Court in the case of Goa Foundation vs. Union of India 2014 (6) SCC 590 while dealing with the report of Shah Commission, constituted for inquiring illegal mining, in reference of report so submitted held that prosecution of mining lessees cannot be directed on the basis of finding in report of Shah Commission, as before submitting said report, incumbents have not been provided with the opportunity of being heard and to produce evidence in their defence and not allowed the right to cross-examine. In the said case, Central Government/State Government gave undertaking that no action would be undertaken on the basis of said finding without undertaking exercise of giving opportunity of hearing.
35. Since in the present case the State/Competent Authority would conduct on enquiry into the allegation of illegal mining it would possess the character of quasi judicial proceeding. Recording of finding as to illegal mining being carried out by a particular incumbent for the purposes of fixing financial responsibility would certainly entail full-fledged enquiry, comprising allegation/evidence in support of charges coming forward followed by his case in defence and then findings arrived at based on evidence adduced. Recovery would follow if the finding returned is adverse to incumbent charged with allegation of illegal mining. Having regard to the character and complexion of proceedings in conjunction with the structure of power conferred by the Act/Rules, the inevitable conclusion is that proceedings in hand necessarily will have to be quasi-judicial proceedings wherein full play is required to be given to the rule of natural justice by the State/Competent Authority.
36. Apex Court in the case of Oryx Fisheries Ltd. vs. U.O.I, 2010 (13) SCC 427, has held that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind. The principle that justice must not only be done but it must eminently appear to be done as well is applicable to quasi-judicial proceeding if such proceeding has to inspire confidence in the mind of those who are subject to. Non suiting the defence on the pretext of being not satisfactory has been disapproved, similarly absence of reasons has not been approved of.
37. Apex Court in the case of Hienz Indian (P) Ltd. vs. State of U.P. 2012 (5) SCC 443 has held that power of judicial review is not so much concerned with the decision itself as much with the decision making process. In all such cases judicial examination is confined to finding out whether findings of fact have reasonable basis on evidence and whether such findings are consistent with law of land. "
Applying the above exposition of law by the Division Bench to the facts of the present case, we find that although it is admitted to the respondents that the petitioner has submitted a detailed reply to the show cause notice as detailed reply itself has been filed in the form of an affidavit but the same has not come to be discussed in the order dated 17.7.2009 whereunder penalty has come to be imposed upon the petitioner.
In such above view of the matter, therefore, the order dated 17.7.2009 is clearly unsustainable. The matter, therefore, requires to be revisited by the authority considering the reply of the petitioner in the matter.
Accordingly, the writ petition succeeds and is allowed to the above extent. The order dated 17.7.2009 filed as Annexure-1 to the writ petition passed by the Additional District Magistrate,(F&R) Farrukhabad, is hereby quashed.
The concerned competent officer is directed to revisit the matter fixing a date in the matter for giving opportunity of hearing to the petitioner on the said date fixed and thereafter proceed to pass reasoned and speaking order in the matter within a period of three months from the date of production of certified copy of this order.
(Ajit Kumar, J.) (Ramesh Sinha, J.) Order Date :- 25.2.2020 Deepika