# Om Prakash v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-07
- **Case number:** Writ -C No. 39901 of 2018
- **Bench:** Manoj Kumar Gupta, Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-ors-51745
- **Pages:** 7

## Headnote

Regulations) Act, 1957 -Burden of proof in
Penal provision-Initial action of respondents
was interfered with by this Court- firstly, by
passing an interim order and thereafter by
setting aside the order impugned itself in 2018 -
liberty was granted to the respondents to take a
fresh decision- the subsequent report dated
30.04.2018 clearly mentions that the digging
depth was 1.30 meters- impugned order
passed-casts a 'negative burden' upon the
petitioner to establish the permissible depth -
concerning digging activity prior to issuance of
Government Order dated 24.12.2012 -order
impugned is fiscal in nature- the burden to
establish the guilt or wrong of the petitioner
cannot be shifted to or fastened upon the
petitioner to prove negatively- entitled to get
the
benefit
of
Government
Order
dated
24.12.2012-impugned order quashed.

Writ Petition allowed. (E-9)

List of Cases cited:

## Text

4 All. Om Prakash Vs. State of U.P. & Ors.
1547
complete bids, and was above the reserve
price, the same was liable to be accepted.

16. It is ordered accordingly.
----------
(2024) 4 ILRA 1547
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ -C No. 39901 of 2018

Om Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prateek Kumar

Counsel for the Respondents:
C.S.C.

Mines and Minerals (Development and
Regulations) Act, 1957 -Burden of proof in
Penal provision-Initial action of respondents
was interfered with by this Court- firstly, by
passing an interim order and thereafter by
setting aside the order impugned itself in 2018 -
liberty was granted to the respondents to take a
fresh decision- the subsequent report dated
30.04.2018 clearly mentions that the digging
depth was 1.30 meters- impugned order
passed-casts a 'negative burden' upon the
petitioner to establish the permissible depth -
concerning digging activity prior to issuance of
Government Order dated 24.12.2012 -order
impugned is fiscal in nature- the burden to
establish the guilt or wrong of the petitioner
cannot be shifted to or fastened upon the
petitioner to prove negatively- entitled to get
the
benefit
of
Government
Order
dated
24.12.2012-impugned order quashed.

Writ Petition allowed. (E-9)

List of Cases cited:
1. Ramvir Singh vs State of U.P. and 2 others,
2016 (5) AWC 5431

2. Bharat Barrel and Drum Manufacturing
Company vs Amin Chand Payrelal, AIR 1999 SC
1008

3. Tolaram Relumal and another vs State of
Bombay, AIR 1954 SC 496

4.
M/s
Virtual
Soft
System
Ltd.
vs.
Commissioner of Income Tax, 2007 (9) SCC 665

5. Abhiram Singh vs C.D. Commachen (Dead)
by L.Rs. and others, 2017 (2) SCC 629

6. Excel Crop Care Ltd. Vs Competition
Commission of India and others, 2017 (8) SCC
47

7. Isher Das vs. State of Punjab, AIR 1972 SC
1295

8. Assistant Commissioner vs Velliappa Textiles,
(2003) 132 Taxman 165

9. Krishi Utpadan Mandi Samiti and others vs
Pilibhit Pantnagar Beej Ltd. and another, AIR
2003 SCW 6696

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Prateek Kumar,
learned counsel for the petitioner, Shri
Rajiv Gupta, learned Additional Chief
Standing Counsel for all the respondents
and perused the record.

2. Counter and rejoinder affidavits
have been exchanged between the parties
and, therefore, the writ petition is being
finally decided.

3. The petitioner is aggrieved by the
order impugned dated 15.11.2018 whereby
the Additional District Magistrate (Finance &
Revenue), Bulandshahr (respondent No. 2)
has levied upon him a sum of Rs. 1,46,360/-
(Royalty Rs. 21,060 + Mineral Value Rs.
1548 INDIAN LAW REPORTS ALLAHABAD SERIES
1,05,300/- + compounding Fee Rs. 20,000/-)
under Rules 3 and 70 of U.P. Minor Minerals
(Concession) Rules, 1963 read with Section 4
of Mines and Minerals (Development and
Regulations) Act, 1957.

4. The facts of the case are that the
petitioner claims to be joint tenure holder
of Bhumindhari land covered by Khasra
Plot No. 133 measuring 2.3040 hectares
situated
at
village
Fatehpur
Buzurg,
Pargana
Baran,
Tehsil
and
District
Bulandshahr; copy of revenue records
annexed. It is pleaded that in pursuance of
an inquiry dated 15.06.2012 held behind
the back of the petitioner, a report was
prepared
by
the
Tehsilder,
Sadar,
Bulandshahr recording that the petitioner
had indulged in mining of soil to the
volume of 2340 cubic meters. A notice was,
thereafter, said to be issued to the petitioner
on 25.06.2012, but it remained unserved
upon him and, based thereupon, the
respondent No. 2 passed an order dated
19.09.2012 issuing recovery against the
petitioner to the tune of Rs. 1,46,360/-. The
petitioner, having come to know about the
order, challenged the same by filing Writ C
No. 64507 of 2012 (Om Prakash vs State of
U.P. and others), in which an interim order
was passed by this Court on 18.12.2012
restraining coercive steps against him in
pursuance of the order dated 19.09.2012.
Later on, the writ petition was disposed of
vide order dated 05.07.2018 setting aside
the order dated 19.09.2012 on the ground
of violation of principles of natural justice,
however,
this
Court
permitted
the
authorities to pass fresh order after
providing opportunity of hearing to the
petitioner leaving it open to him to take all
legal pleas permissible under the law. It
appears that pending writ petition, a fresh
inquiry was conducted culminating into a
report dated 30.04.2018 prepared by the
Tehsildar recording that the petitioner had
indulged in mining of 2340 cubic meters of
soil upto the depth of 1.30 meters. Relying
upon the said inquiry report, the order
dated 15.11.2018, impugned in the instant
petition, has been passed levying the
aforesaid sums upon the petitioner.

5. The case of the petitioner, in a
nutshell, is that the Government of U.P. had
issued
a
Government
Order
dated
24.12.2012 providing that if any manual
excavation of ordinary earth takes place
and the depth of mining site is not more
than two meters, the action would not fall
under 'mining operations' and, hence, the
impugned levy is liable to be set aside.

6. A counter affidavit has been
filed on behalf of all the respondents stating
that the petitioner's case based upon the
Government Order dated 24.12.2012 has no
substance inasmuch as the proceedings had
begun in furtherance of inquiry report dated
15.06.2012,
by
which
time,
the
Government Order dated 24.12.2012 had
not come in existence. Further defence is
that, even otherwise, the Government Order
dated
24.12.2012
itself
provides
for
payment of royalty for the excavation of
soil for the purpose of brick-kiln and since
the petitioner had admitted digging of soil
by him, though it is less than two meters
depth, but was done for commercial
purpose, the levy upon him was justified as
the activity undertaken by the petitioner
would fall within the purview of 'mining
operations'.

7. The rejoinder affidavit filed by
the petitioner states that reliance placed on
the Government Order dated 24.12.2012
having the Subject: "In Relation to U.P.
Minerals (Concession) (35th Amendment)
Rules, 2012", is perfectly justified as the
4 All. Om Prakash Vs. State of U.P. & Ors.
1549
Government Order has already been
interpreted by this Court in the case of
Ramvir Singh vs State of U.P. and 2 others,
2016 (5) AWC 5431. It is further stated that
since the impugned order has been passed on
the basis of inquiry report dated 30.04.2018,
by which time the Government Order dated
24.12.2012 had already come into existence,
reliance placed by the petitioner on the said
Government Order cannot be said to be
misplaced.

8. We have heard the learned
counsel for the parties and to appreciate the
controversy involved in the instant case, it is
first necessary to refer the aforesaid
Government Order dated 24.12.2012, which
reads as under:

"प्रेषक,
संख्या 3514/86-2012.235/2010
वििेक िाष्णेय
वििेष सधचि
उत्तर प्रदेि िासन।
सेिा में,
1. धनदेिक भूतत्ि एिं खधनकमज,
उ०प्र०, िखनऊ ।
2. समस्त म्जिाधिकारी।
3. समस्त मण्डिायुि।
भूतत्ि एिं खधनकमज अनुभागः िखनऊ
हदनांक 24 हदसमबर, 2012
विषयः उत्तर प्रदेि खधनज पररिार
पैंतीसिााँ संिोिन धनयमाििी, 2012 के समबन्ि
में।
मिोदय,
अिगत कराना िै हक उपयुजि संिोिन
के अन्तगजत ईंर् भट्ठों के संचािन में पयाजिरण
स्िच्िता प्रमाण पर्त्र की बाध्यता को समाप्त
हकये जाने के दृवष्टगत संिोिन धनयमाििी के
धनयम-3 में स्पष्टीकरण तर्था धनयम-21-1 के
बाद उप धनयम-1-क धनमनित् जोड हदया गया
िै।
1.
स्पष्टीकरण:-
ईंर्
बनाने
िेतु
िस्तचािन से खुदायी द्वारा अर्थिा िस्तचािन
से सामान्य धमट्र्ी को धनकािने की हिया
खनन संहियाओं के अंतगजत निीं आयेगी जब
तक हक खनन स्र्थि की गिरायी 02 मीर्र से
अधिक न िो।
2.1 - क धनयम-3 में हकसी बात के
प्रधतकूि िोते िुये भी ईंर् भ ट्ठा माधिकों को
धनयमाििी की प्रर्थम अनुसूची में तत्समय
विधनहदजष्ट दरों पर स्िाधमत्ि का भुगतान करना
िोगा।
इस संबंि में मुझे यि किने का धनदेि
िुआ िै हक ईंर् भट्ठों के संचािन के संबंि में
उपयुजिानुसार आिश्यक कायजिािी करने का
कष्ट करें।
भिदीय,
वििेक िाष्णेय
वििेष सधचि
***************
From-
No. 3514/862012235/2010
Vivek Varshney,
Special Secretary, Government of
Uttar Pradesh.

To-
1. The Director, Geology and
Mining, U.P.
2. All District Magistrates,
1550 INDIAN LAW REPORTS ALLAHABAD SERIES
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 (1A) to
Rule 211 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. 1A: 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)

9. A perusal of the aforesaid
Government Order clearly reveals that if
manual digging is done upto the depth of
two meters, the activity shall not fall under
'mining
operations'
and,
hence,
no
penal/fiscal action can be initiated against
the person concerned.

10. In the instant case, though the
proceedings had initiated pursuant to the
Tehsildar's
report
dated
15.06.2012,
however, the order based thereupon was
passed on 19.09.2012 and the action
undertaken against the petitioner on that
basis was initially stayed by this Court by
an interim order dated 18.12.2012 passed in
Writ C No. 64507 of 2012 and, later on, the
writ petition was disposed of setting aside
the impugned order therein on 05.07.2018
and when the matter was left open to be
decided by the authorities afresh, the action
was taken based upon another inspection
report dated 30.04.2018 that came in
existence pending the writ petition. The
said report records that digging was done
upto the depth of 1.30 meters to the extent
of 2340 cubic meters. Surprisingly, the
report dated 30.04.2018 does not mention
the date of inspection, however, figure
2340 cubic meters is the same, which was
mentioned in the initial report dated
15.06.2012. Additionally, depth of 1.30
mts. has been mentioned in the report dated
30.04.2018 that was not mentioned in the
previous
report
dated
15.06.2012.
Therefore, in absence of any material
contrary to the defence of the petitioner, the
report dated 30.04.2018 would be referable
to the same period of time when the first
report had come into existence in June,
2012.

11. The order impugned takes note
of the defence of the petitioner based upon
the Government Order dated 24.12.2012,
however, it mentions that since the
proceedings against the petitioner had
begun in June, 2012, by which time the
Government Order dated 24.12.2012 had
not been issued, the petitioner would not
get any benefit of the same. Additionally,
the order impugned records as follows:

"उि के अधतररि यि भी उलिेखनीय
िै हक विपक्षी अर्थिा सिायक भू-िैज्ञाधनक,
4 All. Om Prakash Vs. State of U.P. & Ors.
1551
बुिन्दििर की ओर से ऐसा कोई िासनादेि
प्रस्तुत निीं हकया हक िासनादेि हदनांक
24.12.2012 के प्रभािी िोने से पूिज धमट्र्ी खनन
की गिराई का कोई मापदण्ड िो हक हकतनी
गिराई तक खनन अिैि खनन की श्रेणी में निीं
आयेगा। ऐसी म्स्र्थधत में उि िासनादेि प्रश्नगत
प्रकरण पर प्रभािी न िोने के कारण विपक्षी द्वारा
हकया गया धमट्र्ी का खनन धमट्र्ी खनन की
श्रेणी में आता िै।"

12. Learned counsel for the
petitioner has urged that the issue raised
through this petition is squarely covered by
Division Bench judgment of this Court in
the case of Ramvir Singh (supra), wherein
this Court had dealt with identical case of a
farmer having bhumidhari rights in an
agricultural land and, after interpreting the
aforesaid
Government
Order
dated
24.12.2012, the action impugned before
this Court was found to be illegal and,
consequently, this Court set aside the
impugned recovery by allowing the writ
petition and also imposed cost upon the
State-respondents. He further submits that
the respondents, in their counter affidavit,
have admitted the depth of digging to be
less than two metres and, therefore, the
impugned levy is liable to be struck down.

13. On the other hand, Shri Rajiv
Gupta, learned Additional Chief Standing
Counsel, by referring to the counter
affidavit, tried to distinguish the judgment
in the case of Ramvir Singh (supra) on
facts arguing that, in that case, digging had
taken place in the year 2015 when the
Government Order dated 24.12.2012 was in
operation whereas, in the present case, the
action had begun prior to issuance of the
said Government Order and, therefore, the
petitioner would not get any benefit of the
said judgment or the Government Order
itself. He further submits that, even
otherwise, irrespective of the depth of
digging, the Government Order does not
save those who are involved in brick
making.

14. Having heard the learned
counsel for the parties, the Court finds that
the initial action of respondents that
commenced pursuant to the report dated
15.06.2012 was interfered with by this
Court, firstly, by passing an interim order in
the year 2012 and, thereafter, by setting
aside the order impugned itself in 2018
and, though liberty was granted to the
respondents to take a fresh decision, the
subsequent report dated 30.04.2018 clearly
mentions that the digging depth was 1.30
meters. The order impugned, in fact, casts a
'negative burden' upon the petitioner to
establish as to what was the permissible
depth concerning digging activity prior to
issuance of Government Order dated
24.12.2012 and it has been strangely
observed in the order impugned that the
petitioner has not brought anything to
demonstrate that digging activity upto what
extent would not fall within the meaning of
"illegal mining operations".

(Emphasis Supplied)

15. The Court is not satisfied by
the defence taken in the counter affidavit or
the reasoning assigned in the order
impugned for following multiple reasons.

16. It is well settled that the penal
and fiscal provisions must be strictly
construed and since the order impugned is
fiscal in nature, the burden to establish the
guilt or wrong of the petitioner, if any, lay
upon the respondents and it cannot be
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
shifted to or fastened upon the petitioner to
prove negatively; that is to say that, in case,
the respondents wanted to saddle the
petitioner with levy of royalty and other
penal charges, it was for them to establish,
beyond reasonable doubt, that the activity
done by the petitioner, though in the June,
2012 and prior to issuance of Government
Order dated 24.12.2012, would fall within
the meaning and import of 'illegal mining
operation'.

17. In a catena of decisions, the
Supreme Court has held that in the fiscal
matters, the burden to establish levy or any
financial charge lay upon the revenue and it
is not for the assesee to lead negative
evidence to evade the liability. The Court
may refer to the judgment of the Supreme
Court in the case of Bharat Barrel and
Drum Manufacturing Company vs Amin
Chand Payrelal, AIR 1999 SC 1008
wherein the Apex Court, while dealing with
a
case
arising
out
of
Negotiable
Instruments Act, 1881, in paragraph No. 12
of the report, held that "The Court may not
insist upon the defendant to disprove the
existence of consideration by leading direct
evidence as existence of negative evidence
is neither possible nor contemplated and,
even if led, is to be seen with a doubt".
(Emphasis Supplied)

18. In the instant case, neither the
counter affidavit states anything specific as
to what is the evidence to establish illegal
mining being carried by the petitioner nor
could
the
learned
Additional
Chief
Standing Counsel place before this Court
any other material to demonstrate that
manual digging activity carried out by the
petitioner in his own agricultural field
below two meters depth would fall under
'illegal mining operation' or that it would
be in teeth of any statutory provision.
19. As far as the argument of learned
Additional Chief Standing Counsel regarding
brick-kiln based upon the Government Order
dated 24.12.2012, the Court finds that the
said Government Order contains clarification
to the effect that 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.
Even otherwise, there is no material on
record to presume that the petitioner was
engaged in brick making activity. Neither any
report of the respondents nor even the order
impugned speaks so. Hence, the Court cannot
decide the case merely on hypothesis,
presumption, conjecture and surmises that the
petitioner was allegedly involved in brickmaking activity. Therefore, this argument of
the State side also does not have any force.

20. As regards interpretation of a
penal or fiscal statute, it is well settled
that if two views or constructions are
possible, the Court must lean towards that
view/construction which exempts the
subject from penalty rather than the one
which imposes penalty. It is also well
settled that if there is a reasonable doubt
or ambiguity, the principle to be applied
in construing a penal provision is that
such doubt or ambiguity should be
resolved in favour of the person who
would be subjected to penalty. Reference
in this regard can be made to the
following authorities:

(i) Tolaram Relumal and another
vs State of Bombay, AIR 1954 SC 496
(ii) M/s Virtual Soft System Ltd.
vs. Commissioner of Income Tax, 2007
(9) SCC 665
(iii) Abhiram Singh vs C.D.
Commachen (Dead) by L.Rs. and others,
2017 (2) SCC 629.
4 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
1553
(iv) Excel Crop Care Ltd. Vs
Competition Commission of India and
others, 2017 (8) SCC 47
(v) Isher Das vs. State of Punjab,
AIR 1972 SC 1295
(vi) Assistant Commissioner vs
Velliappa Textiles, (2003) 132 Taxman 165
(vii)
Krishi
Utpadan
Mandi
Samiti and others vs Pilibhit Pantnagar
Beej Ltd. and another, AIR 2003 SCW
6696.

21. Having considered the entire
material placed before this Court and the
submissions advanced, this Court is of
the view that the petitioner is entitled to
get the benefit of Government Order
dated 24.12.2012 and his case is covered
by the principle of law laid down by this
Court in the case of Ramvir Singh
(supra).

22. Consequently, the writ petition
succeeds and is allowed.

23. The order impugned dated
15.11.2018 passed by the Additional
District Magistrate (Finance & Revenue),
Bulandshahr (respondent No. 2) is hereby
quashed.

24. No order as to costs.
----------
(2024) 4 ILRA 1553
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Writ -C No. 40168 of 2023

Smt. Mamta & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Umair Alam, Sri Sanjay Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950Article 226-The petitioners who were in
an interfaith live-in relationship, sought
protection against interference in their
personal lives, particularly from the
father of petitioner no.1 who allegedly
threatened
them-claimed
protection
under judgments like Lata Singh's case
and
Shafin
Jahan's
case
which
emphasized the rights of adults to
choose their partners-Held, the court
ruled
that
the
petitioners
lacked
evidence of a long-term relationship
akin to marriage(e.g. joint or financial
arrangements)-petitioners
had
not
followed
the
legal
procedures
for
conversion
or
marriage
under
the
Special Marriage Act-More so, personal
law of petitioner no.2 did not support
live-in relationship.(Para 1 to 29)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Lata Singh Vs St. of U.P. & anr.. (2006) 5 SCC
475

2. Shafin Jahan Vs Asokan K.M. & ors. (2018)
16 SCC 368

3. Nandkumar & anr. Vs St. of Ker.(2018) 16
SCC 620

4. Kamini Devi Vs St. of U.P. Writ. C No. 11108
of 2020

5. Razia & anr. Vs St. of U.P. Writ C No. 27338
of 2023

6. Kiran Rawat & anr.. Vs St. of U.P.

7. D.Velusamy Vs D.Patchajammal (2010) 10
SCC 469

8. Indra Sarma Vs V.K.V. Sharma (2013) 15 SCC
755