# Anil Kumar Sharma & Ors v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-07
- **Case number:** Writ-C No. 6637 of 2019
- **Bench:** Siddhartha Varma, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-sharma-ors-v-state-of-u-p-ors-50801
- **Pages:** 4

## Headnote

C.S.C.

Held -
Where the report of illegal soil excavation was
made ex parte without presence of the
petitioner or independent witnesses and where
the excavation was admittedly less than two
meters in depth, no offence of illegal mining
was made out in light of the Government Order
dated 24.12.2012. The said G.O. clarifies that
manual digging not exceeding two meters in
depth does not amount to mining operation.
Further, petitioner being a farmer had only
levelled the field for irrigation purposes.
Authorities acted arbitrarily and in violation of
natural justice. Orders of District Magistrate and
Commissioner
as
well
as
the
Revisional
Authority quashed.

Case Law Discussed:

Ramvir Singh Vs St. of U.P. & ors., 2016 (132)
RD 121

Key Words -
Illegal excavation - Soil levelling by farmer -
Government Order dated 24.12.2012 - No
excavation beyond two meters - Natural justice
- Inspection without notice or witnesses -
Penalty - Arbitrary action - Quashing of
proceedings.

Law Point -
Manual soil digging for agricultural land levelling
not exceeding two meters in depth is not mining
under U.P. Minor Minerals Rules, in view of G.O.
dated
24.12.2012.
Action
without
proper
inspection in presence of affected party or
independent witnesses violates principles of
natural justice.

## Text

382 INDIAN LAW REPORTS ALLAHABAD SERIES
(bb) and Regulation 3 (g) of Chapter-II
cannot be sustained and is quashed.

20. The matter is remitted to the
DIOS to pass an order on the request made
by the Committee of Management with
regard to the attestation of signatures.

21. The respondent no.7 would be at
liberty to challenge any seniority list sent
by the Management in terms of the powers
of appeal conferred under Regulation 3(f)
of the Chapter-II, if he is so advised.

22. Needless to say that the final order
passed on a challenge in appeal, if any,
shall govern the issue with regard to the
appointment of the ad hoc Principal in
future. The DIOS shall pass fresh orders as
directed above within a period of two
weeks.

23. In the meanwhile, the petitioner,
who is prima facie senior to the respondent
no.7 shall continue to work as officiating
Principal till the fresh order is passed as
directed above.

24. In view above, the writ petition
stands allowed.
----------
(2023) 9 ILRA 382
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-C No. 6637 of 2019

Anil Kumar Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Atul Srivastava

Counsel for the Respondents:
C.S.C.

Held -
Where the report of illegal soil excavation was
made ex parte without presence of the
petitioner or independent witnesses and where
the excavation was admittedly less than two
meters in depth, no offence of illegal mining
was made out in light of the Government Order
dated 24.12.2012. The said G.O. clarifies that
manual digging not exceeding two meters in
depth does not amount to mining operation.
Further, petitioner being a farmer had only
levelled the field for irrigation purposes.
Authorities acted arbitrarily and in violation of
natural justice. Orders of District Magistrate and
Commissioner
as
well
as
the
Revisional
Authority quashed.

Case Law Discussed:

Ramvir Singh Vs St. of U.P. & ors., 2016 (132)
RD 121

Key Words -
Illegal excavation - Soil levelling by farmer -
Government Order dated 24.12.2012 - No
excavation beyond two meters - Natural justice
- Inspection without notice or witnesses -
Penalty - Arbitrary action - Quashing of
proceedings.

Law Point -
Manual soil digging for agricultural land levelling
not exceeding two meters in depth is not mining
under U.P. Minor Minerals Rules, in view of G.O.
dated
24.12.2012.
Action
without
proper
inspection in presence of affected party or
independent witnesses violates principles of
natural justice.

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State-respondents.
9 All. Anil Kumar Sharma & Ors. Vs. State of U.P. & Ors.
383

2. Upon an inspection being done by
the Lekhpal on 27.03.2017 a report was
submitted by him to the Sub-Divisional
Magistrate, who in his turn forwarded the
same to the Mining Authorities by a
communication
dated
06.04.2017.
Thereafter, the prescribed authority (Mines)
on behalf of the District Magistrate, Shamli
issued a show cause notice to the
petitioners to show cause as to why royalty
and fine totalling Rs. 3,94,000/- may not be
charged from them, for excavating 2050
cubic metre of soil illegally, .

3. The petitioners replied to the show
cause notice on 22.04.2017 stating therein
that the petitioners, who were the owners of
the plot in question namely Plot No. 520 of
Village Kaidi, Tehsil & District Shamli had
never excavated any soil from the plot in
question and that they had only tried to
level their plot of land for irrigation
purposes and they had further submitted
through the said reply that someone had
maliciously made a complaint against the
petitioners and therefore, had prayed that
the notice be withdrawn.

4. However, on 20.05.2017, the
District Magistrate- Shamli concluded that
the soil had been excavated and fastened
the liability of Rs. 3,94,000/- on the
petitioners.

5. Aggrieved by the order of the
District Magistrate (respondent no. 3) dated
20.05.2017, the petitioners preferred an
appeal under Section 77 of the U.P. Miner
Minerals (Concession) Rules, 1963 before
the Commissioner (respondent no. 2) which
was partly allowed vide order dated
5.10.2017 to the extent that the penalty of
Rs. 25,000/- was reduced to 10,000/-. The
petitioners preferred an application for the
recall
of
the
aforesaid
order
dated
5.10.2017 which was rejected by the
respondent
no.
2
vide
order
dated
10.12.2017. Not being satisfied with the
aforesaid orders, the petitioners preferred a
revision before the State Government
which was finally decided vide order dated
18.12.2018.

6. It may be noted that at the appellate
stage the penalty which was earlier
imposed by the District Magistrate was
reduced from Rs. 25,000/- to Rs. 10,000/-.
Further when the petitioners had filed a
revision, the penalty portion had been done
away with.

7. However, since the petitioners were
aggrieved by the order by which it was
found that the petitioners had illegally
excavated, they filed the instant writ
petition.

8. Learned counsel for the petitioners
states that the report of the Lekhpal, which
was the foundation of the case and on the
basis of which the notice was issued, was
an absolutely ex-parte report. Neither were
the petitioners present at the time of the
preparation of the report nor was any
independent witness present.

9. Learned counsel for the petitioners
relying upon a Government Order dated
24.12.2012 has further stated that if the
digging of the soil is not more than two
meters in depth then it would not be said
that there was any mining operation done.

10. Learned counsel for the petitioner
has submitted that when the Government
Order had provided that digging had to be
of more than two meters deep for the
purposes of bricklin then definitely it
would hold good for the ordinary farmers
and therefore the Government Order would
384 INDIAN LAW REPORTS ALLAHABAD SERIES
apply to the petitioners who were only
found digging soil / earth just to level the
field for irrigation purpose.

11. Since the learned counsel for the
petitioner has relied upon the Government
Order dated 24.12.2012, the same is being
reproduced herein under:

"प्रेषि

संख्या 3514/86-2012.235/2010

कववेि वाष्णेय

कवशेष सकचव

उत्तर प्रदेश शासि।

सेवा में,

1. किदेशि भूतत्व एवं िकििमग, उ0 प्र 0 िििऊ ।

2. समस्त कििाकधिारी ।

3. समस्त मण्ििायुक्त ।

भूतत्व एवं िकििमग अिुभार्: िििऊ कदिााँि 24
कदसम्बर, 2012

कवषय; उत्तर प्रदेश िकिि पररहार प तीसवााँ संशोधि
कियमाविी, 2012 िे समबन्ध में

महोदय,

अवर्त िरािा ह fd उपयुगक्त संशोधि िे अंतर्गत ईट
भट्ठों िे संचािि में पयागवरण स्वच्छता प्रमाण पत्र िी

बाध्यता िो समाप् किये िािे िे दृकष्टर्त संशोधि
कियमाविी िे कियम -3 में स्पष्टीिरण तथा कियम 21-1िे
बाद उप कियम-1-ि किम्िवत िोड़ कदया र्या ह ।

1. स्पष्टीिरण:- ईट बिािे हेतु हस्तचािि से िुदाई द्वारा
अथवा हस्तचािि से सामान्य कमट्टी िो कििाििे िी कक्रया
ििि संकक्रयाओं िे अंतर्गत िहीं आयेर्ी िब ति िी ििि
स्थि िी र्हराई ०२ मीटर से अकधि ि हो ।

2. 1-ि कियम-3 में किसी बात िे प्रकतिूि होते हुए
भी ईट भट्ठा माकििों िो कियमाविी िी प्रथम अिुसूची में
तत्समय कवकिकदगष्ट दरों पर स्वाकमत्व िा भुर्ताि होर्ा ।
इस संबंध में मुझे यह िहिे िा किदेश हुआ ह िी ईट भट्ठों
िे संचािि िे संबंध में उपयुगक्तािुसार आवश्यि िायगवाही िरिे
िा िष्ट िरें ।

भवदीय,
कववेि वाष्णेय
कवशेष सकचव

12. In support of his case, learned
counsel for the petitioners has also relied
upon a judgment passed by this Court in
the case of Ramvir Singh Vs. State of U.P.
& 2 others, reported in 2016 (132) RD 121.

13.

Learned
counsel
for
the
petitioners has stated that in his reply to the
notice the petitioner had stated that the
petitioners had never dug any mineral and
infact they had only levelled their plots of
land bearing Khasra No. 520 measuring
area 0.738 hectare situated in village Kaidi,
District Shamli for the purposes of proper
irrigation.

14. Learned standing counsel in reply
however has submitted that since the
authorities had found that there was
digging of minerals the only option with
them was to take the price of the minerals;
royalty and the penalty.

15. Learned standing counsel has
stated that the Government Order dated
24.12.2012 was with regard to the digging
for the purposes of a bricklin and the
petitioners would not draw any benefits
from it.

16. Learned standing counsel has
also relied upon a Government Order
dated 18.12.2020 and has stated that
before the mineral 'mud' was being
removed the petitioner ought to have
applied online.
9 All. Ajai Kumar Singh Vs. State Public Services Tribunal, Lko. & Ors.
385

17. Having heard the learned counsel
for the petitioners and learned Standing
Counsel, Sri Ankur Tandon, the Court is of
the view that at the time when the
inspection was done, the petitioners ought
to have been informed and if the petitioners
were not available then the inspection
ought to have been done in the presence of
two independent witnesses. Further, we
conclude that the petitioners would also be
benefited by the Government Order dated
24.12.2012. Though it applies vis-a-vis
bricklin owners but we are of the view that
when the intention of the government was
to see that charge for digging of soil had to
be imposed if the digging was more than
two meters deep then definitely the
petitioners would be given the benefit of
Government
Order
dated
24.12.2012.
Never mind if they were farmers.

18. We find that the petitioners get
support from this Government Order as the
petitioners definitely had not dug below
two meters.

19. We also find that the case of the
petitioners is covered by the law as has
been laid down in the case of Ramvir
Singh (supra). The petitioners at the time
of the inspection were not informed about
the same and also the petitioners had not
dug anything below two meters. The writ
petition thus deserves to be allowed.

20. Facts culled out from the
pleadings are that the petitioner being a
poor
farmer
has
been
unnecessarily
harassed and the action to hold the
petitioners
guilty
of
doing
unlawful
excavation is arbitrary and unwarranted.

21. Having regard to the facts and
circumstances of the case, the order dated
20.5.2017 passed by District Magistrate,
Shamli (respondent no. 3), the orders dated
5.10.2017,
18.12.2017
passed
by
Commissioner,
Saharanpur
Division,
Saharanpur (respondent no. 2) and the
order dated 11.12.2018 passed by Special
Secretary, Mines and Minerals, Lucknow
(respondent no. 1) are quashed and are set
aside.

22. For the reasons aforestated, the
writ petition is allowed.
----------
(2023) 9 ILRA 385
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Writ-A No. 8329 of 2019

Ajai Kumar Singh ...Petitioner
Versus
State Public Services Tribunal, Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Rama Kant Dixit, Anand Mani Tripathi, Rekha
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government
Servant
(Discipline
and
Appeal)
Rules, 1999 - Rule 11 - Censure
entry - Statutory appeal was filed
beyond
period
of
90
days
as
prescribed under R. 11 - No provision
of condonation of delay to file appeal
- Effect - Appeal was summarily
rejected - Validity challenged - Held,
Appellate authority rightly rejected
the appeal summarily being barred by
limitation
because
the
Appellate
Authority u/R 11 has no power to
condone the delay. (Para 21)