Court No. - 4
Case :- WRIT - C No. - 31432 of 2019
Petitioner :- Teetu Yadav @ Raghvenda Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Satya Narayan Yadav Counsel for Respondent :- C.S.C.
Hon'ble Bala Krishna Narayana,J. Hon'ble Prakash Padia,J.
Per Hon'ble Prakash Padia,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel on behalf of all the respondents.
2. The petitioner has preferred present writ petition with the following prayer :-
"i. issue a writ, order or direction in the nature of certiorari quashing the order dated 21.07.2018 passed by the respondent no.2 as well as recovery certificate dated 24.08.2018 issued by the respondent no.2 in Case No.201801260000295/2018 (State Vs. Teetu Yadav) Under Section 21(4) Mining and Minerals (Regulation and Development) Act, 1957 for recovery of royalty Rs.1,94,400.00/- as arrears of land revenue and fine of Rs.5000/-”
3. The facts in brief as contained in the writ petition are that in respect of alleged illegal mining done by the petitioner a false report was submitted by the respondent no.3 namely Sub Divisional Magistrate, Shikohabad, District Firozabad on 08.2.2018. On the basis of the said report a case was registered against the petitioner as provided under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957. The case was numbered as Case No.201801260000295/2018 (State Vs. Teetu Yadav). In the said case the respondent no.2 issued noticed to the petitioner on 26.2.2018.
4. Learned counsel for the petitioner contended that the aforesaid notice dated 26.2.2018 was never served upon the petitioner. It is further argued that inspite of the aforesaid fact that the notice was never served upon the petitioner, the respondent no.2 passed an ex-parte order dated 21.7.2018 issuing a recovery certificate against the petitioner in respect of recovery of royalty of Rs.1,94,400/- as arrears of land revenue and penalty of Rs.5,000/-, copy of the order dated 21.7.2018 is appended as annexure 2 to the writ petition.
5. Learned counsel for the petitioner relied upon a judgement passed by Coordinate Bench of this Court in Writ C No.3169 of 2016 (Ramvir Singh Vs. State of U.P. and 2 others) connected with two other writ petitions decided on 10.3.2016.
6. It is admitted by the learned Standing Counsel that the controversy involved in the present case is identical as in the case of Ramvir Singh (supra). The operative portion of the aforesaid judgement is reproduced below :-
“18. Chapter 2 deals with grant of mining lease. In exercise of power under Section 23(c) of Act 1957 the State Government has also framed Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage)Rules, 2002 (hereinafter referred to as the "Rules 2002").
19. It is not in dispute that ordinary clay/ordinary sand if excavated for the purpose of manufacturing of bricks or filling or highting or for other use in construction activities, will come within the purview of the Act, 1957 and Rules, 1963 as well as 2002. However in order to protect the ordinary agriculturists undertaking agricultural activities, the State Government has clarified vide Government Order No.3514/86- 2012-235/2010, dated 24 December 2012 that any manual excavation taken in land extracting ordinary clay/ordinary sand should not be more than 2 meters of depth. The process of manual taking away of ordinary clay or ordinary sand would not constitute "mining operation". Clarification given by State Government vide order dated 24 December 2012, reads as under:-
"izs"kd] la[;k 3514/86-2012-235/2010 foosd ok".ksZ; fo'ks"k lfpo mRrj izns'k 'kkluA lsok esa] 1-funs'kd 2- leLr ftykf/kdkjhA HkwrRo ,oa [kfudeZ] m0iz0] 3- leLr e.Myk;qDrA y[kuÅA HkwrRo ,oa [kfudeZ vuqHkkx% y[kuÅ fnukWd 24 fnlEcj] 2012 fo"k;% mRrj izns'k [kfut ¼ifjgkj½ ¼iS arhlok l a'k ks/ku½ fu;ekoyh] 2012 ds lEcU/k es a A egksn;] voxr djkuk gS fd mi;qZDr la'kks/ku ds vUrxZr bZV HkV~Bksa ds lapkyu esa Ik;kZoj.k LoPNrk izek.k i= dh ck/;rk dks lekIr fd;s tkus ds n`f"Vxr la'kks/ku fu;ekoyh ds fu;e&3 esa ^^Li"Vhdj.k^^ rFkk fu;e&21&1 ds ckn mi fu;e&¼1&d½ fuEuor~ tksM+ fn;k x;k gSA 1& Li"Vhdj.k%& bZV cukus gsrq gLrpkyu ls [kqnk;h }kjk vFkok gLrpkyu ls lkekU; feV~Vh dks fudkyus dh fdz;k [kuu lafdz;kvksa ds vUrZxr ugha vk;sxh tc rd dh [kuu LFky dh xgjk;h 02 ehVj ls vf/kd u gksA 2& ¼1&d½ fu;e&3 esa fdlh ckr ds izfrdwy gksrs gq;s Hkh bZV HkV~Bk ekfydksa dks fu;ekoyh dh izFke vuqlwph esa rRle; fofufnZ"V njksa ij LokfeRo dk Hkqxrku djuk gksxkA bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd bZV HkV~Bksa ds lapkyu ds laca/k esa mi;qZDrkuqlkj vko';d dk;Zokgh djus dk d"V djsaA Hkonh;] ¼foosd ok".ksZ;½ fo'ks"k lfpo From, No.
3514/86-2012-235/2010 Vivek Varshney, Special Secretary, Government of Uttar Pradesh.
To,
1. The Director, Geology and Mining, U.P.
2. All District Magistrates,
3. All Divisional Commissioners Geology and Mining Section Lucknow: Dated: 24th Dec, 2012
Sub: Uttar Pradesh Minerals (Concession) (Thirty- Fifth Amendment) Rules, 2012 – Reg.
Sir, It is to inform you that under the aforesaid amendment, in view of the essentiality of environment clearance certificate having been dispensed with for operation of brick kilns, "Clarification" has been added to Rule 3, and Sub- Rule (1-A) to Rule 21-1 of the amendment rules as under:
1. Clarification: For brick making, the act of taking out the ordinary earth by way of manual digging or hand movements shall not fall under mining operations unless the depth of the mining site is more than 2 metres.
2. 1-A: Notwithstanding anything contrary in Rule 3, the brick kiln owners shall be liable to pay for their titles at the rate specified for the time being in the first schedule of the Rules.
In this regard, I am directed to say that for operation of brick kilns, please take necessary action as mentioned above.
Sincerely, (Vivek Varshney) Special Secretary"
(English translation by the Court)
20. In the present case, site plan appended to counter affidavit filed by respondents clearly shows that depth of land wherefrom manual removal of ordinary clay/ordinary sand was taken away was only 0.60, meters i.e. not even 1 meter and, hence, in view of the Government order dated 24.12.2012, any exercise undertaken by petitioner should not have been treated to be "mining operation". That being so, question of illegal or unauthorized mining and liability of penalty, does not arise.
21. When confronted to the aforesaid position, learned Standing counsel fairly concluded that petitioners cannot be said to have been undertaken mining operations and he could not dispute that the impugned orders have been passed unauthorizedly and illegally. In fact respondent no.3 i.e. Additional City Magistrate IInd, who is also present in the Court, could not dispute that in these cases petitioner could not have been saddled with responsibility of penalty and impugned orders have been passed illegally.
22. The above facts make it very clear that just to harass the poor agricultural farmers like petitioners, impugned orders have been passed, knowing it well that operation even if undertaken by the petitioners, as alleged, by taking away some ordinary clay/ordinary sand, was not a mining operation and no penalty could have been imposed. The impugned orders therefore are gross misuse abuse of process of Law and harassment to the poor petitioners.
23. The writ petitions, therefore, are allowed. Impugned recovery certificates dated 28.12.2015 are hereby quashed. The petitioners shall be entitled to costs which we quantify to Rs. 5,000/- for each set of writ petition.”
7. Since the controversy involved in the present case is identical, the orders dated 21.7.2018 passed by the respondent no.2 and the recovery certificate dated 24.8.2018 issued by the respondent no.2 in Case No.201801260000295/2018 (State Vs. Teetu Yadav) are liable to be set aside and the same are hereby set aside.
8. The writ petition is allowed. No order as to cost.
Order Date :- 26.9.2019 Pramod Tripathi