Court No. - 40
Case :- WRIT - C No. - 21598 of 2021 Petitioner :- Krishna Pratap Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prashant Mishra,Tarun Agrawal Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J. Hon'ble Jayant Banerji,J.
Heard Shri Tarun Agrawal for the petitioner; the learned Standing Counsel for the respondents and have perused the record.
Considering the facts of the case, borne out from the impugned order itself, as also the nature of the order that we propose to pass, we do not deem it necessary to invite the counter affidavit and keep the matter pending therefore, with the consent of the learned counsel for the parties, this petition is being disposed off finally at the fresh stage itself.
In brief, the facts that could be elicited from the record are as follows:
The petitioner was accorded a mining lease for a period of 10 years commencing from 1.10.2011 upto 30.9.2021. The Mining Department carried out inspection and, on the basis of that inspection, by order dated 8.7.2021, the District Magistrate imposed a penalty of Rs. 19,62,500/- for illegally mining the area adjoining the allotted area. Aggrieved by imposition of penalty, the petitioner filed an appeal before the Commissioner (the second respondent) claiming that he was not given proper opportunity of hearing; that no show cause notice was served before taking a decision to impose penalty; and that the inspection report which formed the basis of the penalty was not provided to the petitioner.
The Commissioner (the second respondent) by the impugned order dated 4.8.2021 directed that the petitioner shall deposit the entire penalty imposed within 15 days which, upon deposit, shall be invested in an interest bearing deposit, and, subject to the deposit, the District Magistrate, Lalitpur shall pass a fresh order after providing due opportunity of hearing to the petitioner and the amount so deposited would abide the fresh order to be passed by the District Magistrate, Lalitpur.
Challenging the order dated 8.7.2021 and the appellate order dated 4.8.2021, this petition has been filed.
The submission of the learned counsel for the petitioner is that once it was noticed that the order imposing penalty was passed without affording due opportunity of hearing and without supplying the copy of the inspection report that formed the basis of the order, there was no other option for the appellate authority than to set aside the order of penalty and, thereafter, remit the matter to the District Magistrate to pass a fresh order in accordance with law and after giving due opportunity of hearing to the petitioner. It has been submitted that once the order imposing penalty stands vitiated, the direction to make deposit in pursuance of the penalty order is arbitrary and the same is liable to be quashed.
The learned Standing Counsel, who appears for the respondents, though tried to justify the direction to deposit the penalty pending fresh adjudication by the District Magistrate but could not point out that opportunity of hearing was provided to the petitioner by the District Magistrate, Lalitpur before passing the order imposing penalty.
Having considered the rival submissions and having perused the record carefully, we do not find from the order dated 8.7.2021 that the District Magistrate had accorded opportunity of hearing to the petitioner before imposing the penalty and from the order passed by the appellate authority it becomes clear that as due opportunity of hearing was not afforded to the petitioner therefore, the matter was remitted back to the District Magistrate to pass a fresh order.
Under the circumstances, when the appellate authority was satisfied that due opportunity of hearing was not afforded to the petitioner before imposition of the penalty order, the order passed by the District Magistrate ought to have been set aside and then the matter ought to have remitted back for fresh consideration. However, though the matter was remitted back but the order of penalty was not specifically set aside. Rather, a direction was issued to deposit the penalty though with an observation that it would abide the fresh decision. This approach of the appellate authority, in our view, is not justified, particularly, when it was brought to its notice that the order of penalty was without opportunity of hearing to the petitioner. Thus, this portion of the appellate order needs to be corrected.
In view of the above, the writ petition is partly allowed. The direction of the appellate authority to deposit the penalty imposed under order dated 08.07.2021 is set aside. And this petition is disposed off by providing that the District Magistrate (third respondent) shall decide the proceedings with respect to imposition of penalty afresh in the light of the observations made by the appellate authority in its order dated 4.8.2021. Till such time a fresh decision is taken by the District Magistrate, pursuant to the order dated 04.08.2021, the effect and operation of the order dated 08.07.2021 shall remain stayed and as and when a fresh order is passed by the District Magistrate, Lalitpur the same shall supplant his earlier order dated 08.07.2021. To facilitate the fresh exercise as directed above, it is provided that the petitioner shall submit a copy of this order in the office of the District Magistrate, Lalitpur within three weeks from today, failing which, the benefit of this order would not be available.
Order Date :- 24.9.2021 A. V. Singh