# Suresh Chand & Ors v. Commissioner, Aligarh & Ors

- **Citation:** (2024) 3 ILRA 1826
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-27
- **Case number:** Writ-C No. 200 of 2018
- **Bench:** Anjani Kumar Mishra, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chand-ors-v-commissioner-aligarh-ors-51626
- **Pages:** 5

## Headnote

Civil Law - Constitution of India,1950Article
226-Mines
and
Minerals
(Development of Regulation) Act,1957Section 21-UP Minor Minerals(Concession)
Rules,1963 amended 2014-Rule 3-the
petitioners
were
accused
of
illegally
mining 3689 cubic meters of soil from plot
no. 139-a notice was issued to the
petitioners demanding Rs. 2,83,230/- as
royalty
and
penalty-The
District
Magistrate and the Commissioner upheld
the
penalty-The
court
dismissed
the
petition stating that the petitioners failed
to prove the soil extraction was for
permissible activities like brick-making or
pottery-The court analyzed the Rule 3
including amendments and exceptions for
3 All. Suresh Chand & Ors. Vs. Commissioner, Aligarh & Ors.
1827
certain non-mining activities but the
petitioners were unable to show that their
activities met the exceptions provided
under the rules.(Para 1 to 19)

The writ petition is dismissed. .(E-6)

List of cases cited:

## Text

1826 INDIAN LAW REPORTS ALLAHABAD SERIES
explained in the following manner : (SCC
p. 568, para 3)

"3.It has been contended before
us by the learned counsel for the appellant
that principles of natural justice were
satisfied before taking action under Section
29, assuming that it was necessary to do so.
Let it be seen whether it was so. It is well
settled that natural justice cannot be placed
in a straitjacket; its rules are not embodied
and they do vary from case to case and
from one fact-situation to another. All that
has to be seen is that no adverse civil
consequences are allowed to ensue before
one is put on notice that the consequence
would follow if he would not take care of
the lapse, because of which the action as
made known is contemplated. No particular
form of notice is the demand of law. All will
depend on facts and circumstances of the
case."

14. From a bare reading of the order
dated August 10, 2021 passed by the
Respondent No. 3 it is palpably clear that
no opportunity of personal hearing was
afforded by the Respondent No. 3 to the
petitioner, which is a statutory obligation
under Section 75(4) of the UPGST Act,
2017. Furthermore, the Respondent No. 2,
while dismissing the appeal failed to
correct this glaring impropriety in its order
dated September 26, 2022. These orders
cannot be allowed to pass through the
legislative barriers of natural justice,
erected to safeguard individual rights and
prevent abuse of power.

15. In light of the aforesaid
discussion, let there be a writ of certiorari
issued against the order dated August 10,
2021 passed by the Respondent No. 3 and
order dated September 26, 2022, passed by
the Respondent No. 2. These orders are
quashed and set aside. Consequential relief
to follow. The Respondent No. 2 is directed
to grant an opportunity of personal hearing
to the petitioner and thereafter pass a
reasoned order in accordance with the law
within a period of two months from date.

16. This writ petition is, accordingly,
allowed.
----------
(2024) 3 ILRA 1826
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2024

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 200 of 2018

Suresh Chand & Ors. ...Petitioners
Versus
Commissioner, Aligarh & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Deena Nath, Sri Deepak Kumar, Sri Shubham
Yadav

Counsel for the Respondents:
C.S.C.
Civil Law - Constitution of India,1950Article
226-Mines
and
Minerals
(Development of Regulation) Act,1957Section 21-UP Minor Minerals(Concession)
Rules,1963 amended 2014-Rule 3-the
petitioners
were
accused
of
illegally
mining 3689 cubic meters of soil from plot
no. 139-a notice was issued to the
petitioners demanding Rs. 2,83,230/- as
royalty
and
penalty-The
District
Magistrate and the Commissioner upheld
the
penalty-The
court
dismissed
the
petition stating that the petitioners failed
to prove the soil extraction was for
permissible activities like brick-making or
pottery-The court analyzed the Rule 3
including amendments and exceptions for
3 All. Suresh Chand & Ors. Vs. Commissioner, Aligarh & Ors.
1827
certain non-mining activities but the
petitioners were unable to show that their
activities met the exceptions provided
under the rules.(Para 1 to 19)

The writ petition is dismissed. .(E-6)

List of cases cited:

1. Bharat Singh Vs St. of UP & ors.(2017) 2 ADJ
184

(Delivered by Hon'ble Anjani Kumar
Mishra, J. & Hon'ble Jayant Banerji, J.)

1. Heard Shri Virendra Singh, learned
counsel for the petitioner and learned
Standing Counsel appearing for the State.

2. This petition has been filed
challenging the order dated 18.06.2015
passed by the District Magistrate, Hathras
in purported exercise of powers under Rule
3, 57, & 70 of the UP Minor Minerals
(Concession) Rules, 19631. Also under
challenge is the order dated 27.09.2017,
passed by the commissioner, Aligarh
Division, dismissing the appeal of the
petitioners.

3. It appears from the record that a
notice dated 01.05.2015 was issued to the
petitioners in respect of plot No. 139 with
the allegation that 3689 cubic meters of soil
was illegally mined and an amount of Rs.
2,83,230/- was sought to be imposed. By
that notice, a date was fixed before the
District Magistrate to enable the petitioners
to file their objections, if any.

4. From page 28 to page 30 of the
paper book of this petition, a typed copy of
the response dated 25.05.2015 submitted by
the petitioner is enclosed, which is
addressed to the District Magistrate/
Additional District Magistrate, Hathras, in
which mining on plot No. 139 was
emphatically denied and it was stated that
provisions of Rules, 1963 were not
applicable in respect of agricultural land. It
was further stated that they cannot be
subjected to any such imposition inasmuch
as the petitioners was merely levelling their
agricultural field and it cannot be held to be
mining operation within the Rules, 1963. It
has also been mentioned that the payment
demanding royalty, etc. is illegal and the
site plan is contrary to the actual situation
existing at the site.

5. By the impugned order dated
18.06.2015, the contentions raised by the
petitioners were narrated and the report of
the Tehsildar stating that mining of 3689
cubic meters of soil was done, was
considered.
The
objections
of
the
petitioners that the soil of their agricultural
land was levelled and they had neither sold
the soil nor had mined the same, were
considered.
The
District
Magistrate
considered the report of the Tehsildar and
the Sub-Divisional Officer, Hathras and
came to the conclusion that illegal mining
of 3689 cubic meter of soil on plot No. 139
was done. Accordingly, royalty @ 14 per
sq. meter was imposed, which was
multiplied five times and after imposing
compounding fee, a total amount of Rs.
2,83,230/- was imposed.

6. The petitioners challenged the
order of the District Magistrate in an appeal
before the Commissioner under Section 79
of the Rules, 1963. In the memorandum
containing the grounds of appeal that has
been enclosed as Annexure-4 to the writ
petition, it was stated that no proper
opportunity was given to the petitioners for
hearing and to produce evidence and
neither were the reports of the Tehsildar or
the Sub-Divisional Officer supplied to
1828 INDIAN LAW REPORTS ALLAHABAD SERIES
them. It was stated that the District
Magistrate did not decide the case on
merits but only on the basis of the reports.

7. By means of an impugned order
dated 27.09.2017, the Commissioner has
rejected the appeal after taking into account
the spot inspection report dated 18.03.2015
made by the Revenue Inspector and the
Area Lekhpal who had made a site plan and
had taken measurements to conclude that
on plot No. 139, 3689 cubic meters of soil
was mined. The reports of the Tehsildar and
Sub
Divisional
Officer
were
also
considered and the order of the District
Magistrate, Hathras making the imposition
on the petitioners was upheld and the
appeal was dismissed.

8. The learned counsel for the
petitioners has submitted that petitioners
are simple agriculturists who neither had
any intention nor undertook any mining
operation on plot No. 139. It is stated that
there was no evidence of mining, sale, or
transportation of soil. It is argued by
learned counsel that in view of the facts
and circumstances of the case, Rule 3 of the
aforesaid Rules, 1963 would not apply to
the petitioners.

9. Learned counsel in support of
his contention has relied upon a judgment
of this Court in the case of Bharat Singh
vs. State of UP & 4 Others2 in Writ C No.
18753 of 2016 that was decided by this
Court on 23.05.2016. It is submitted that
this Court in the case of Bharat Singh, has
relied upon a Government Order dated
24.12.2012, a perusal of which reveals that
no case of illegal mining, as ordered by the
District Magistrate and upheld in appeal by
the Commissioner, is made out against the
petitioner.

10. The contentions of learned
counsel for the petitioners do not appear to
be correct. A perusal of the aforesaid
judgment of this Court in Bharat Singh
reveals that under consideration therein was
a notice issued by the Incharge Officer
(Mining/ Additional District Magistrate-II),
Aligarh, requiring the petitioner therein to
show cause why royalty @ Rs. 14 per sq.
meter and five times fee of minerals, and
penalty Rs. 25,000/- under Section 21 of
the Mines and Minerals (Development &
Regulation) Act, 1957, be not imposed.
After
considering
the
avements
and
submissions made on behalf of the counsel
for the parties, this Court in Bharat Singh
considered the Government Order dated
24.12.2012 on the subject UP Minor
Minerals (Concession) (35th amendment)
Rules 2012. The aforesaid Government
Order, as quoted in the judgment is being
reproduced below:-

"प्रेर्क, सांख्या 3514/86.2012.235/2010

वववेक वाष्णेय
ववर्शेर् सवचव
उिर प्रिेर्श र्शासन।
सेवा मे,
1.वनिेर्शक

2. समस्ि वजलाविकारी।
भूित्व एवां खवनकमा, उ०प्र०

3.
समस्ि
मण्डलायुक्त।
लखनऊ।
भूित्व एवां खवनकमा अनुभागः
लखनऊ
विनाांक 24 विसम्बर, 2012
कवषयः उत्तर प्रदेश खकिि (पररहार) (पैंतीसवा संशोिि)
कियमावली, 2012 िे सम्बन्ि में।
महोिय,
अवगि कराना है वक उपयुाक्त सांर्शोिन के अन्िगाि ईट
भट्ठों के सांचालन में पयाावरण स्वच्ििा प्रमाण पत्र की बाध्यिा को
समाप्त वकये जाने के दृवष्टगि सांर्शोिन के वनयम-3 में "स्पष्टीकरण"
िथा वनयम- 21-1 के बाि उप वनयम-(1-क) वनम्नवि् जोड विया
गया है।
3 All. Suresh Chand & Ors. Vs. Commissioner, Aligarh & Ors.
1829
1- स्पष्टीकरणः- ईट बनाने हेिु हस्िचालन से खुिायी
द्वारा अथवा हस्िचालन से सामान्य वमट्टी को वनकालने की वक्रया
खनन सांवक्रयाओां के अन्िगाि नहीं आयेगी जब िक की खनन स्थल
की गहरायी 02 मीटर से अविन न हो।
2- (1-क) वनयम-3 में वकसी बाि के प्रविकूल होिे
हुये भी ईट भट्ठा मावलकों को वनयमावली की प्रथम अनुसूची में
ित्समय वववनविाष्ट िरों पर स्वावमत्व का भुगिान करना होगा।
इस सांबांि में मुझे यह कहने का वनिेर्श हुआ है वक ईट
भट्ठों के सांचालन के सांबांि में उपयुाक्तानुसार आवश्यक कायावाही
करने का कष्ट करें।
भविीय,
(वववेख वाष्णेय)
ववर्शेर् सवचव"
11. This Court relied upon the
aforesaid
Government
Order
dated
24.12.2012 and held that in exercise
undertaken by the petitioners therein could
not be treated to be mining operation.
Accordingly the petitions were allowed.

12. A perusal of Rule 3 of Rules,
1963 reflects that it was substituted by the
37th Amendment
Rules,
2014
dated
22.10.2014 which came into force with
effect from 22.10.2014. Rule 3 as amended
by the 37th Amendment Rules, 2014, reads
as under:-

"3. Mining Operations to be
under a mining lease or mining permit-
(1) No person shall undertake any mining
operations in any area within the State of
any minor mineral to which these rules are
applicable except under and in accordance
with the terms and conditions of a mining
lease or mining permit granted under these
rules:
Provided that nothing shall affect
any operations undertaken in accordance
with the terms and conditions of mining
lease or permit duly granted before the
commencement of these rules.
Explanation:- For the purposes of
this rule manual digging or manual
extraction of ordinary clay, ordinary earth
for making bricks and pottery shall not be
treated as mining operations:
Provided that pit created by such
digging or extraction should not be deeper
than
two
meters.
(2) No mining lease or mining permit shall
be granted otherwise than in accordance
with the provisions of these rules."
(emphasis supplied)

13. The explanation mentioned in
this rule provides an exception to subsection (1) of Rule 1 providing that manual
digging or manual extraction or ordinary
clay, ordinary earth for making bricks and
pottery shall not be treated as mining
operations subject to its being used for
making bricks and pottery and provided
that pit created by such digging or
extraction should not be deeper than two
meters.

14. On comparison of the Rule 3
of Rules, 1963 as quoted above and the
amendment sought to be incorporated by
the 35th Amendment of the Rules, 1963 as
noted in the Government Order quoted
above, reflects a change in the explanation
to sub-Rule (1) of Rule 3 was made by the
37th Amendment in the year 2014
inasmuch as the extraction of ordinary clay,
ordinary earth, which are not to be treated
as mining operations, are qualified to be for
the purpose of making bricks and
pottery. This purpose was not existing in
35th Amendment of the Rules, 1963 as
reflected in the aforesaid Government
Order dated 24.12.2012.

15. It is pertinent to mention here
that the aforesaid judgement of Bharat
Singh, this Court was considering a notice
issued by the competent authority on
23.07.2014 which was prior to the coming
1830 INDIAN LAW REPORTS ALLAHABAD SERIES
into force of the 37th Amendment to the
Rules, 1963, with effect from 22.10.2014.

16. It is noted in the appellate
order of the Commissioner that the site plan
reflected mining and the measurements of
the pits were also taken. The exact quantity
of soil extracted was also specified therein.
In the explanation submitted by the
petitioner pursuant to the notice dated
01.05.2015, in para 8 thereof, they have
specifically stated that the site plan
enclosed with the order of the District
Magistrate is contrary to the factual
situation existing at the site. The aforesaid
facts and circumstances reflects that the
petitioner had full knowledge of the
material existing in the records of the
District Magistrate and were aware of the
site plan also.

17. Under the circumstances, the
grounds taken in the appeal that the
petitioners were not aware of the site plan
and other material on record, does not
appear to be correct. In the counter affidavit
filed by the State on behalf of the Staterespondents, apart from denying the
contents
of
the
writ
petition,
the
explanation to Rule 3 of the Rules, 1963
has been repeated and has been emphasised
that extraction or digging of ordinary clay,
ordinary earth for making bricks and
pottery shall not be treated as mining
operation.

18. It is contended by the learned
Standing Counsel that the petitioners have
failed
to
demonstrate
before
the
respondent-authorities that the extraction
was for making bricks and pottery.

19.

Under
the
facts
and
circumstances of the case, the orders
impugned do not call for interference and
this writ petition is dismissed.
----------
(2024) 3 ILRA 1830
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.03.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ -C No. 397 of 2018

Reliance Nippon Life Insurance Co. Ltd.
 ...Petitioner
Versus
Permanent Lok Adalat & Anr.
 ...Respondents

Counsel for the Petitioner:
Abhishek Bhatnagar

Counsel for the Respondent:
Arvind Tilhari, Om Prakash Nag

Civil Law - Constitution of India,1950Article 226-The policyholder claimed that
the policies he purchased differed from
the promises made by the insurance
company's agent-he sought to cancel the
policies and refund the premiums paid-the
policyholder approached the insurance
Ombudsman, who directed adjustments to
the premium-unsatisfied, the policyholder
moved to the Permanent Lok Adalat which
ruled in his favour ordering a refund of the
premiums
plus
interest-the
dispute
centered on whether the 15 day "free
look" period, allowing policy cancellations
was adhered to-the insurance company
stated that the cancellation request was
made outside this period-Held, the court
referred to section 9 of the General Clause
Act,1897, which excludes the first day in
calculating a specified time period-the
court upheld that the cancellation request
fell within the 15 day period-and The
Permanent Lok Adalat decision to refund
Rs. 3,23,869/- including interest, to the
the
policy
holder
upheld.