Allahabad High Court
Sateesh And Another vs State Of U.P. And 5 Others on 16 October, 2019
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 17550 of 2019 Petitioner :- Sateesh And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Madan Lal Srivastava Counsel for Respondent :- C.S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Prakash Padia,J.
1. Heard Sri Madan Lal Srivastava, learned counsel for the petitioners and learned Standing Counsel on behalf of all the respondents.
2. The petitioners had preferred the present writ petition with the following prayers:-
"(a) A writ order or direction in the nature of certiorari quash the impugned demand order dated 07-04-2017/01-04-2017 passed by the District Magistrate, Gautam Buddha Nagar as well as order dated 17-12-2018 passed by respondent no. 2 in Appeal No. 01883 of 2018 (Sanjay Vs. State of U.P.) and Appeal No. 01886 of 2018 (Shatish Vs. State of U.P.) under section 77 of the U.P. Mines & Mineral (Development and Regulation) Act, 1957.
(ii) A writ order or direction in the nature of mandamus directing the respondents to not take any correcive steps against the petitioners, during the pendency of present writ petition before this Hon'ble Court.
(iii) To pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iv) Award a cost of the petition to the petitioner."
3. The facts in brief as contained in the writ petition are that an inspection was conducted by the Revenue Authorities in village- Murshadpur, where no excavation work of sand was found, but at the Gata No. 389, 381, 379 and 380 storage sand was found which was stored by the villagers. Thereafter concerned Lekhpal and Revenue Inspector after making calculation of the storage sand, prepared a report on 21.10.2015 indicating the name of 8 persons including petitioners by whom illegal sand was stored. It is stated that subsequently the name of 3 persons were deleted from the report and the names of the petitioners for illegal storage of sand were retained. It is stated in paragraph-7 of the writ petition that the petitioners are not involved in business of sand and they have falsely been involved only due to party bandi of village
4. Pursuant to the report dated 21.10.2015, the respondent no. 4/Additional District Magistrate (Administration) District Gautam Budh Nagar issued a notice to the petitioners on 26.10.2015 stating therein that as per the report of Tehsildar, 1070 cubic meter illegal storage of sand was found which is in violation of Section 4/21 of U.P. Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'Act 1957') as well as the Uttar Pradesh Mineral (Prevention of illegal Mining, Transportation and Storage Rules) 2002. (hereinafter called as 'Rules 2002'). Respondent no. 4 by the aforesaid notice directed the petitioners to submit their explanation within 7 days along-with relevant documents. It is contended that an explanation was submitted by the petitioners before the Mining Officer, District Gautam Budh Nagar on 04.11.2015 stating therein that petitioners are not involved in the illegal storage of the sand and they have falsely been implicated in the matter.
5. It is further contended that the respondent no. 4 only on the basis of the direction given by the District Magistrate, Gautam Budh Nagar/respondent no. 3 without giving any proper opportunity of hearing to the petitioners passed an ex-parte order on 01.04.2017. After the aforesaid order was passed a demand notice dated 07.04.2017 was issued against the petitioners. It is further contended that the copies of the aforesaid orders were never provided to the petitioners as such they applied for the same under Right to Information Act, 2005 and thereafter they were able to obtain the copy of the demand order dated 07.04.2017 by which the demand was raised against the petitioners for recovery of Rs. 7,11,800/-.
6. Aggrieved against the aforesaid orders, an appeal was preferred by the petitioners before the Commissioner, Meerut Region Meerut. The said appeal was rejected by him by passing the order dated 17.12.2018. Challenging the aforesaid order the petitioners had preferred the present writ petition. Initially when the writ petition was taken up, an interim order was granted in favour of the petitioners by Another Coordinate Bench of this Court on 23.05.2019, the same is reproduced below:-
"In paragraph-10 of the writ petition the petitioner has made an averment that impugned order has been passed without furnishing any opportunity to the petitioner. Learned counsel for the petitioner has drawn our attention to the impugned order, a perusal of which shows that the impugned order is not a notice but it is decision of the authority concerned.
Our attention has also been drawn to an interim order dated 17th May, 2019 passed by this court in Writ-C No. 15984 of 2019 (M/s Suresh Chandra Gupta v. State of U.P. & others) on similar facts and circumstances. The said order reads as under:
"In paragraph-30 of the writ petition the petitioner has made an averment that from a perusal of the impugned order it is evident that the decision has already been taken by the authority concerned and the notice is merely a futile exercise. Hence, the question of alternative remedy does not arise in the present case.
Learned counsel for the petitioner has placed reliance on a judgment of a Division Bench of this Court in the case of Ranveer Singh v. State of U.P. and others, 2017 (1) AWC 940.
The matter needs consideration.
Learned Standing Counsel, who appears for all the respondents, may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within ten days thereafter.
List this case on 18th July, 2019.
Having regard to the fact that no opportunity has been given to the petitioner, it is provided that no coercive action shall be taken against the petitioner till the next date of listing."
We have heard learned counsel for the petitioner and the learned Standing Counsel.
Taking into consideration the fact that the petitioner has not been furnished an opportunity, we extend the benefit of interim order granted in aforementioned case, extracted hereinabove, to the petitioners herein also.
Counter affidavit be filed within four weeks.
List after expiry of the said period."
7. Although four weeks time was granted to the learned Standing Counsel to file counter affidavit vide order dated 23.05.2019, till date no counter affidavit has been filed.
8. Since no counter affidavit has been filed in the present writ petition, we dispose of the present writ petition finally with the consent of learned counsel for the parties.
9. From perusal of the record, it reveals that an order dated 01.04.2017 was passed by the respondent no. 3/District Magistrate, Gautam Budh Nagar against the petitioners without giving any notice or opportunity of hearing to them. On the basis of the aforesaid order, a demand notice was issued against the petitioners on 07.04.2017. Against the aforesaid orders an appeal was preferred by the petitioners before the respondent no. 2/Commissioner Meerut Region Meerut but the same was also rejected by him vide order dated 17.12.2018. From perusal of the appeal preferred by the petitioners, it is made clear that large number of grounds were taken by the petitioners while filing the appeal specially the ground that before passing the order dated 01.04.2017 as well as before issuing the demand notice dated 07.04.2017, no proper opportunity has been given to the petitioners but the aforesaid aspect of the matter not at all taken into consideration by the respondent no. 2 while rejecting the appeal filed by the petitioners.
10. Apart from the same, it further appears from the perusal of the order dated 17.12.2018 passed by the respondent no.2 that the said order was passed without any application of mind. The order is absolutely non speaking order and no findings whatsoever have been recorded by the respondent no. 2 before passing the order dated 17.12.2018.In the present case the allegations that have come forward are that the petitioners have been indulged in illegal mining and accordingly orders were passed by District Authorities for recovery.
11. Once there has been complaint of illegal mining, then certainly the said amount in question has to be recovered from the person, who was not entitled in law to raise such minerals but has proceeded to indulge in raising of such mineral without any authority of law, but the larger issue that is engaging our attention is as to what should be the procedure that is to be adhered at the point of time when such a liability is fastened on a incumbent, qua whom allegations have come forward that he has caused loss to the State by raising of minerals though he was not entitled in law to raise the same.
12. Rate of royalty/dead rent is fixed under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder, the extent of illegal mining can be computed by making comprehensive survey and then assessing the quantity of mineral illegally raised, followed by quantification of the amount liable to be recovered and then proceeding to recover the same from the person responsible for such illegal mining. Before recovering the liability to be discharged is liable to be fastened on incumbent, who has purportedly caused loss to the State exchequer by raising the mineral, qua the same a full-fledged mechanism is not at all there, in view of this, we posed specific query to the State as to in what way and manner, an incumbent, against whom financial liability is to be shouldered in lieu of illegal mining, is to be dealt with. Learned Standing Counsel has submitted that there is no fixed criteria provided for and accordingly, action is taken by the State/Competent Authority by adhering to provide reasonable opportunity of hearing before forming formal conclusion.
13. Law on the subject is clear that the exercise of power by public authority is always coupled with duty to fulfill the conditions of such exercise and the said responsibility in question has to be properly discharged and in the said direction, once there is procedure in place then action contemplated has to be done in a certain way or not at all, but once there is no specific procedure provided for as to in what way and manner for illegal mining, liability is to be fastened, then obviously in absence of Rules, fair procedure has to be followed.
14. 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.
15. 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.
16. 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.
17. 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.
18. In view of the facts as narrated above, we are of the opinion that decision making process that has been so under taken by the respondents is arbitrary and with closed mind without providing reasonable opportunity of hearing to the petitioners and for absence of reasons. Accordingly, the impugned order/demand notice dated 07.04.2017/1.04.2017 passed by the respondent no. 3 as well as the order dated 17.12.2018 passed by the respondent no. 2 are liable to be set aside and the same are hereby set aside. Since the aforesaid orders were quashed only on the ground that proper notice and opportunity of hearing was not provided to the petitioners before the action was taken against them, we dispose of the present writ petition with liberty to the petitioners to submit a detailed reply raising all their grievances before the District Magistrate, Gautam Budh Nagar/respondent no. 3 along with certified copy of this order within period of three weeks from today. If such representation is made, respondent no. 3 is directed to pass appropriate order in accordance with law after providing opportunity of hearing to the petitioners within a period of four months thereafter. Till the time a decision is taken by the respondent no. 3, no coercive action shall be taken against the petitioners.
19. With the aforesaid observations, the present writ petition is disposed of finally. No order as to cost.
Order Date :- 16.10.2019 Swati