Allahabad High Court
Tara Chand vs State Of U.P. And 4 Others on 11 October, 2013
Bench: Ashok Bhushan, Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 37
Case :- WRIT - C No. - 51007 of 2013
Petitioner :- Tara Chand
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Nigamendra Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Ashok Bhushan,J.
Hon'ble Vipin Sinha,J.
Heard Sri Nigamendra Shukla, learned Counsel for the petitioner and Sri Alok Kumar Singh, learned Standing Counsel representing the State respondents.
By this writ petition, the petitioner has prayed for quashing the citation dated 19.11.1992, issued by the Tahsildar for recovery of amount of Rs. 7,38,302/- consequent to the order dated 31.10.2012, issued by the District Magistrate, Meerut for recovery of royalty, value of minerals and penalty on the ground of illegal mining by the petitioner.
The petitioner claims to be Bhumidhar of plot No. 490, situate in village Rithani, Tahsil and District Meerut. Lekhpal of the area submitted reports dated 27.8.2012 and 15.10.2012, alleging that the petitioner has indulged in illegal mining. On the basis of the reports submitted by the Tahsildar, impugned order dated 31.120.2012 has been passed. Order impugned in the writ petition further mentions that a notice was issued to the petitioner but no objections were filed to the notice. The petitioner's case in the writ petition is that he is Bhumidhar of the land hence, no illegal mining can be alleged against the petitioner. It is further submitted that agricultural land of the petitioner cannot be treated to be a minor mineral. The petitioner also claims to have filed an appeal before the Divisional Commissioner, Meerut on 20.8.2013 under Rule 77 of the U.P. Minor Mineral (Concession) Rules, 1963. Learned Counsel for the petitioner submits that the said appeal is not maintainable hence, the petitioner is filing the present writ petition praying for quashing the recovery proceedings.
Learned Standing Counsel appearing for the State respondents has raised a preliminary objection to the entertainability of the writ petition. He submits that recovery has been initiated on the basis of the order dated 31.10.2012, passed by the District Officer for recovery of royalty, the value of minerals and penalty hence, the petitioner's remedy is to prosecute his appeal filed under Rule 77 of the 1963 Rules and the writ petition need not be entertained due to availability of the statutory remedy to the petitioner. Learned Counsel for the petitioner further submits that in the recovery proceedings an amount of Rs. 1,50,000/- and Rs. 51,520/- i.e. total Rs. 2,01520/- has already been realised by the Tahsil authorities from the petitioner.
Before we consider the other submissions raised by learned Counsel for the parties, it is necessary to consider as to whether against the order passed by the District Magistrate dated 31.10.2012, appeal lies under Rule 77 of the U.P. Minor Mineral (Concession) Rules, 1963.
Learned Counsel for the petitioner submits that the appeal does not lie under Rule 77 of the 1963 Rules as the order dated 31.10.2012 has not been passed under any provisions of the 1963 Rules rather the said order has been passed in exercise of powers under section 21(5) of the Mines and Minerals (Development and Regulation) Act, 1957. It is submitted that the order of the District Magistrate being not referable to any provisions of 1963 Rules, no appeal can be filed under Rule 77.
1957 Act provides for development and regulation of the mines and minerals under the control of the Union. Section 4 of the said Act provides that no person shall undertake any mining operations in any area, except under and in accordance with the terms and conditions of the mining lease granted under the Act and Rules made thereunder. Section 15 of the Act empowers the State Government to make rules in respect of minor minerals. Section 21 (1) provides that whoever contravenes the provisions of sub-section (1) of sub-section (1A) of Section 4 shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to twenty five thousand rupees, or with both. Section 21 has been amended by Act no. 38 of 1999. Section 21(5) as amended by Act No. 38 of 1999 provides as follows:
"(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority."
Rule 3 of the 1963 Rules provides that no person shall undertake any mining operations in any area within the State of any minor mineral except in accordance with the terms and conditions of mining lease or mining permitted granted under the rules. Rule 57 provides that whoever contravenes the provisions of Rule 3 shall on conviction be punishable with punishment for a term which may extend up to six months or with fine which may extend to one thousand rupees or with both. Rule 70 provides for restriction on transport of minerals, Rule 74 provides for cognizance of offences and Rule 75 provides for compounding of offences. Rule 77 which provides for appeal is as follows:
" 77. Appeal.- An appeal against an order passed under these rules by the District Officer of the Committee shall lie to the Divisional Commissioner within a period of sixty days fro the date of communication of such order ot the party aggrieved."
The right of appeal is a right which is conferred by a Statute. Rule 77 as quoted above confers right of appeal "against an order passed under these rules" Thus pre-condition of filing an appeal is that the order appealed must be an order passed under Rules 1963. The order, passed by the District Magistrate dated 31.10.2012 has specifically referred to Section 21(5) of 1957 Act in which power has been exercised to recover the royalty, value of the minerals and penalty on the ground of alleged illegal mining by the petitioner. Whether an order for recovery of the aforesaid amount as provided by Section 21(5) has to be treated an order passed under the 1963 Rules is a question to be answered. Learned Standing Counsel submits that since 1963 Rules have been framed by the State Government for the minor minerals, all orders passed by the District Officer shall be treated to be orders passed under the 1963 Rules and an appeal shall lie against the order dated 31.10.2012.
This writ petition raises an important issue which needs to be decided after taking into consideration the stand of the State Government regarding the nature of order passed. The State has further to explain as to what is the mechanism for making determination under section 21(5) and as to what is the remedy of a person aggrieved by a determination made under section 21(5) of the 1957 Act. All the above issues have to be examined and decided after a counter affidavit is filed by the State.
In view of the above, we grant three weeks to the learned Standing Counsel to file counter affidavit. Let the writ petition be listed on 7.11.201. Looking to the nature of the dispute raised in the writ petition, the writ petition itself may be finally decided by the next date.
The petitioner having already deposited the amount of Rs. Rs. 2,01520/-, we are of the view that further recovery in pursuance of the citation dated 19.11.2012 (Annexure-3 to the writ petition) shall remain stayed.
Order Date :- 11.10.2013
LA/-
