# Praveen Pratap Singh v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1484
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-26
- **Case number:** Writ-C No. 6190 of 2023
- **Bench:** Vivek Chaudhary, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-pratap-singh-v-state-of-u-p-ors-50551
- **Pages:** 3

## Headnote

Law
-
Criminal
Procedure
Code,1973 - Section 3(3)(a) - Rule 58 &
76 of the Rules, 2021 - read with Section
3(3)(a) Cr.P.C. - Penalty under Rule 58
can be imposed only upon conviction by
Judicial Magistrate First Class - ADM
(F&R) not competent authority - Order
held without jurisdiction.

Held:
Under
the
U.P.
Minor
Mineral
(Concession) Rules, 2021, penalty under Rule
58 for contravention of Rule 3 can only be
imposed by a Magistrate of the First Class as per
Rule 76. The Additional District Magistrate
(Finance and Revenue), who passed the
impugned order imposing penalty, is not
competent under the law to do so. Therefore,
the impugned orders are without jurisdiction
8 All. Praveen Pratap Singh Vs. State of U.P. & Ors.
1485
and liable to be quashed. Liberty is, however,
granted to the St. to proceed in accordance with
law.

Case Law Discussed:

## Text

1484 INDIAN LAW REPORTS ALLAHABAD SERIES
statement.
They
did
not
participate
thereafter. Evidence of the workman was
recorded and several opportunities for cross
examination were afforded but they did not
take advantage of the same. No cogent
reasons is forthcoming for not participating
in the proceeding after filing of the written
statement. This is not a case where the
employer was never served with the
summons or he was not aware of the
proceedings initiated by the employee, but
initially he appeared and participated but
without any reason stopped participating
thereafter.

18. In the peculiar facts of the present
case and also considering the judgments of
the Hon'ble Supreme Court this court is of
the considered opinion that remand of a
case cannot be granted on mere asking of a
party unless he is able to demonstrate that
in the interest of justice the matter should
be remanded. The proceedings were
pending before the Controlling Authority
for
a
substantial
period
of
time.
Undisputedly the petitioner was aware of
the proceedings as he had initially
participated in the same and filed his
written statement. He cannot in the
present circumstances be permitted to
justify his deliberate non-appearance,
where no justifiable cogent reason of the
same,
either
exists
or
could
be
demonstrated before this Court. In the
present case remand order would be
contrary to "interest of justice". The
petitioner in any case cannot be permitted
to take advantage of his own callousness
and
deliberate
omission
in
not
prosecuting
the
case
before
the
Controlling Authority deligently.

19. It the opinion of this Court, the
said legal principle will apply in this matter
also with full force.

20. In light of the above, this Court
does not find any infirmity so as to
interfere with the impugned order in
exercise of powers under Article 226 of the
Constitution of India. Accordingly, the writ
petition is dismissed.

21. Supplementary affidavit filed
today is taken on record.
----------
(2023) 8 ILRA 1484
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.07.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE MANISH KUMAR, J.

Writ-C No. 6190 of 2023

Praveen Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rahul Srivastava

Counsel for the Respondents:
C.S.C.

Criminal
Law
-
Criminal
Procedure
Code,1973 - Section 3(3)(a) - Rule 58 &
76 of the Rules, 2021 - read with Section
3(3)(a) Cr.P.C. - Penalty under Rule 58
can be imposed only upon conviction by
Judicial Magistrate First Class - ADM
(F&R) not competent authority - Order
held without jurisdiction.

Held:
Under
the
U.P.
Minor
Mineral
(Concession) Rules, 2021, penalty under Rule
58 for contravention of Rule 3 can only be
imposed by a Magistrate of the First Class as per
Rule 76. The Additional District Magistrate
(Finance and Revenue), who passed the
impugned order imposing penalty, is not
competent under the law to do so. Therefore,
the impugned orders are without jurisdiction
8 All. Praveen Pratap Singh Vs. State of U.P. & Ors.
1485
and liable to be quashed. Liberty is, however,
granted to the St. to proceed in accordance with
law.

Case Law Discussed:

1. Section 3(3)(a), Cr.P.C., 1973

2. Rule 58 and Rule 76, U.P. Minor Mineral
(Concession) Rules, 2021

Petition Allowed.

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Rahul Srivastava,
learned counsel for petitioner and Shri
Rajesh Tiwari, learned Additional Chief
Standing Counsel for the State.

2. Since the legal issue relating to
jurisdiction is involved in the present case,
the matter is finally decided at this stage
with the consent of the parties.

3. The present writ petition has been
preferred for quashing of the order dated
4.7.2023 passed by respondent no.3 under
Rule 58 of the U.P. Minor Mineral
(Concession) Rules, 2021 (herein referred
as Rules of 2021) by which penalty of
Rs.7,66,500/- has been imposed upon the
petitioner and the order dated 24.6.2023
passed by the District Magistrate approving
the order dated 04.07.2023 passed by
respondent No.3 but the copy of the
approval order has never been served upon
the petitioner.

4. Learned counsel for petitioner has
submitted that the petitioner, who is the
president of the Mahesh Narayan Rajkumar
Smiriti Society is constructing a Higher
Secondary School on gata no.3286, 3290
and
3265
situated
in
Vikas
Khand
Bichhiya, Village Panchayat Korari Kala,
District-Unnao. For the purpose of filling
or levelling of the land, the petitioner had
used the soil either from the same land or
the adjoining land. In this connection a
show cause notice dated 5.6.2023 was
issued
which
was
served
upon
the
petitioner on 23.5.2023 against which the
petitioner had submitted the reply and
whereafter the impugned order was passed.

5. Learned counsel for petitioner has
submitted that the impugned order dated
4.7.2023 passed by the respondent no.3Additional District Magistrate (Finance and
Revenue), District Unnao is not competent
to pass an order under Rule 58 of the Rules
of 2021. The order is passed without
jurisdiction hence, it is liable to be quashed.
It is further submitted that Rule 58 under
Chapter VII of the Rules of 2021 provides
for 'contraventions, offences and penalties'.
The order passed under Rule 58 is a penalty
imposed upon the petitioner. It is further
submitted that as per Rule 76 of the Rules
2021, an order of penalty/punishment can
be passed by the Magistrate of the first
class, whereas the respondent no.3 is not a
Magistrate of the first class.

6. On the other hand, learned
Additional Chief Standing Counsel has
submitted that it is not a penalty but a fine
imposed upon the petitioner for illegal
mining of the soil but he is unable to
dispute that the order has been passed
under Rule 58 of Rules 2021 and has also
not disputed that such orders can be passed
by the Magistrate of the first class and the
respondent no.3 is not a Magistrate of the
first class.

7. After hearing the learned counsel
for the parties and going through the record
and Rules applicable to the case, it is found
that the orders which are under challenge
are not in consonance with Rule 58 read
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
with Rule 76 of Rules 2021. For the
convenience the Rule 58 and Rule 76 are
quoted herein below:

"Rule 58 of the 2021 Rules:
Whoever contravenes the provisions of rule
3 shall on conviction be punishable with
imprisonment of either description for a
term which may extend up to five years or
with fine which shall not be less than of 2
lacs rupees per hectare and which may
extend to five Lacs rupees per hectare of
the area, or with both.

Rule 76 of the 2021 Rules: (1)
No Court shall take cognizance of any
offence punishable under these rules except
on a compliant in writing of the fact
constituting such offence by the District
Officer or by any officer authorized by him
in this behalf.

(2) No court inferior to that of a
Magistrate of the first class, shall try any
offence under these rules."

8. As per the Rule 58 of 2021, the
penalty is to be imposed for contravening
the provisions of Rule 3 of 2021 Rules,
which is specifically mentioned in the
impugned order and Rule 76 provides that
it is to be passed by the Magistrate of the
first class.

9. The Magistrate of the first class has
been defined under Section 3 (3)(a) Cr.P.C.
The same is quoted below:

"3. Construction of references.-

.........

(3) Unless the context otherwise
requires, any reference in any enactment
passed before the commencement of this
Code,-

(a) to a Magistrate of the first
class, shall be construed as a reference to a
Judicial Magistrate of the first class;"

10. In view of the above, the
Magistrate of first class has been
defined in the Cr.P.C. 1973. It is
undisputed that the respondent no.3 is
not court of the Magistrate of the first
class
which
alone
could
take
cognizance of the matter and hence the
order passed by him under Rule 58 of
2021 Rules is without jurisdiction and
liable to be quashed.

11. In view of the facts and
circumstances of the present case, the writ
petition is allowed and impugned orders
dated 4.7.2023 and 24.6.2023 are hereby
quashed.

12. At this stage, learned Additional
Chief Standing Counsel submits that liberty
may be given to the State to proceed
against the petitioner in accordance with
law. It goes without saying that liberty is
always available to proceed in accordance
with law.
----------
(2023) 8 ILRA 1486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-C No. 11568 of 2023

Smt. Akeedan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Aditya, Sri Diwakar Prasad
Tiwari, Sri Ramesh Chandra Tiwari