Uttarakhand High Court
Tara Singh vs District Magistrate Almora And Another on 10 November, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1318 of 2016
Tara Singh ..................Petitioner
-Versus-
District Magistrate Almora and Another
....................Respondents
Present: Mr. Akshay Latwal, learned counsel for the petitioner.
Mr. T.S. Phartiyal, learned Deputy Advocate General for the State of Uttarakhand.
Date of Hearing and Order: 10.11.2022
Sri Sanjaya Kumar Mishra, J.
Upon hearing the learned counsel for the parties, the Court has passed the following order:-
1. By filing this writ petition, the petitioner has prayed for the following reliefs:
(i) Issue a writ or order in the nature of certiorari quashing the impugned recovery order dated 28.02.2016 issued by respondent no. 1 as well as the consequential impugned recovery citation dated 25.01.2016 issued by the respondent no. 2.
(ii) Issue a writ or order in the nature of mandamus directing the respondents not to initiate the recovery proceeding against the petitioner.
2
(iii) Pass such order which this Hon'ble court deem just and proper in the circumstances of the present case.
(iv) Award the cost of the petition.
2. The facts of this case are not disputed. The petitioner, in this case, is constructing certain buildings in his own land, for laying down the plinth to the building. In the process, the earth/soil that is excavated from the land was transported to other place and the Authorities i.e. the District Magistrate, Almora imposed mining cess and penalty by passing the order dated 27.02.2015 (Annexure No. 4 to the W.P.), and imposes a sum of Rs. 1,19,000/- upon the petitioner terming the activity to be illegal mining. As the petitioner could not pay the mining cess and the penalty, therefore, recovery citation has been issued against him.
3. The learned counsel for the petitioner, in reference to the rejoinder affidavit, would rely upon the Notification dated 19.11.2014, wherein, an additional Rule has been framed. For the purpose of appreciation, which is quoted below:-
3
vfrfjDr izfrLFkkfir izkfo/kku ^^mRrjk[k.M ds ioZrh; {ks= ,oa eSnkuh {ks=ksa esa Lo;a dh futh uki Hkwfe esa LFky fodkl djus ds mn~ns"; ls igkM+h ds dVku] cslesaV dh [kqnkbZ vFkok Hkwfe ds leryhdj.k fd;s tkus ij fudyus okyh lk/kkj.k feV~Vh dks mlh futh uki Hkwfe ds IykV ;k vius gh fdlh vU;= Hkw[k.M ¼IykV½ ij ys tkrk gS rks og [kuu dh Js.kh esa ugha vk;sxk vkSj bl izdkj mDr ds laca/k esa bZ0vkbZ0,0 dh ck/;rk ugha gksxh] bl gsrq ts0lh0ch0 dk iz;ksx fd;k tk ldrk gS rFkk ;g lqfuf"pr fd;k tk;sxk fd ;g izfØ;k dsoy Lo;a ds futh uki Hkwfe ds iz;kstu gsrq fudyus okyh lk/kkj.k feV~Vh ij gh ykxw gksxhA vU; [kuu lafØ;kvksa ij ;g ykxw ugha gksxhA ;fn mijksDrkuqlkj futh Hkwfe ds Hkw[k.M ¼IykV½ ls lk/kkj.k feV~Vh fdlh vU;= LFkku ij O;olkf;d mi;ksx gsrq ifjogu dh tkrh gS] rks mDr O;fDr dks fu;ekoyh dh izFke vuqlwph esa rRle; fofufnZ'V njksa ij jk;YVh dk Hkqxrku djuk gksxkA mRrjk[k.M [kfut uhfr] 2011 ds fcUnq la[;k & 2 ds izLrj&7 ds v/khu iwokZuqefr izkIr djuh gksxhA^^
4. Thus, it is clear that in a case, where a person is constructing a building for his own residence and in the process, digs out normal earth from the land, then it 4 shall not be termed as illegal mining. However, there is a condition that he should either keep that earth soil taken out from his own land, which may be the same land or some other land. The State Government or the District Magistrate, Almora has come up with the case that the petitioner, in this case, has not put up earth so excavated in his own land, but he has sold it to other person.
5. This Court takes note of the fact that the order impugned (Annexure No. 4) does not say anywhere that the petitioner has sold earth soil to other person, in fact, the order is completely silent about that. Now, at present, when rejoinder affidavit has been filed by the petitioner, the District Magistrate, Almora has come up with a different case and stated that it has been sold to some other person. Curiously enough though, the D.M. states that the earth has been sold to some other persons, they have not mentioned the names of the persons, who has purchased the soil from the petitioner. No supporting documents have been filed to that effect. Only a bald assertion has been made to that effect. 5
6. In that view of the matter, in applying the aforesaid provisions quoted above, this Court is inclined to hold that the order passed in this case is liable to be set- aside.
7. Hence, the Rule is made absolute. The impugned recovery order as well as the consequential recovery citation, i.e. at Annexure No. 4 and 5, issued by respondent nos. 1 and 2 respectively, are hereby quashed. Accordingly, the writ petition is allowed.
8. The Registry is directed to refund the money to the petitioner, which has already been deposited by him within a period of 15 days from production of certified copy of this order.
(Sanjaya Kumar Mishra, J.) 10.11.2022 (Grant urgent certified copy of this order, as per Rules) A/-