WPMS/2605/2020
2021 Latest Caselaw 22 UK

WPMS No. 2605 of 2020
Hon'ble Manoj K. Tiwari, J.

Mr. V.B.S. Negi, Senior Advocate assisted by Mr. Amit Kapri, Advocate for the petitioner.

Mr. Rakesh Kunwar, Additional C.S.C. for the State of Uttarakhand.

By means of this writ petition, petitioner has sought following relief:-

(i) Issue a writ of certiorari quashing the impugned order dated 21.12.2020 passed by respondent no. 1 (Contained as Annexure No. 20 to this writ petition)

(ii) Issue a writ of certiorari quashing the impugned order dated 20.07.2020 passed by Additional District Magistrate, Nainital (Contained as Annexure No. 13 to this writ petition).

(iii) Issue a writ of certiorari quashing the impugned order dated 13.11.2020 passed by S.D.M., Haldwani, District Nainital (Contained as Annexure No. 17 to this writ petition).

(iv) Issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Nainital to call afresh report on the application of the petitioner dated 8.7.2019 from the authority concern, who may inspect the land of the petitioner in the presence of petitioner so that a proper and just inspection report may be prepared for deciding the application of the petitioner.

It transpires that petitioner was granted permission to remove river bed material from his Bhumidhari land. An inspection was subsequently made and it was found that petitioner has dug more area than the area for which permission was granted.

According to the petitioner, District Magistrate, vide order dated 20.07.2020 asked the petitioner to deposit a sum of `1,09,33,600/- as royalty with penalty. Aggrieved by the order passed by District Magistrate, petitioner filed an appeal, which was decided by Commissioner, Kumaon Division vide order dated 12.11.2020.

Perusal of the order passed by Appellate Authority indicates that petitioner's appeal was partly allowed and the matter was remanded back to the District Magistrate with a direction that petitioner shall deposit the remaining amount after adjusting the sum of `44,74,270/- already deposited by him.

Petitioner had earlier filed WPMS No. 2205 of 2020 challenging the orders passed by District Magistrate and the Commissioner. The said writ petition was disposed of in view of the statement made by learned State counsel that the order passed by the Appellate Authority is revisable before the State Government. The petitioner was also granted liberty to approach the Revisional Authority.

Revisional Authority has dismissed petitioner's revision as not maintainable, however, he has affirmed the order passed by the Appellate Authority. Thus, feeling aggrieved, petitioner has approached this Court.

The order passed by Revisional Authority indicates that new Rules have been notified on 15.07.2020 known as "Uttarakhand Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2020". Rule 14 thereof provides that the order passed by Divisional Commissioner in appeal shall be final. The Revisional Authority was justified in dismissing petitioner's revision as not maintainable. However, the finding of affirmation given by Revisional Authority to the order of Appellate Authority appears to be unwarranted.

Since the Appellate Authority had remanded the matter to the District Magistrate for reconsideration and had directed that petitioner would be required to deposit the remaining amount, after adjusting the amount already deposited by him, therefore, this condition according to the petitioner is unjust, inasmuch as, the Appellate Authority / Divisional Commissioner himself recorded a finding that the order passed by District Magistrate does not appear to be justified.

Learned Senior Counsel for the petitioner has placed reliance upon an order dated 05.08.2020 passed in WPMS No. 1214 of 2020 and other connected petitions and he submits that in the said judgment, similar condition imposed by the Appellate Authority, while remanding the matter to District Magistrate was set aside.

This Court finds substance in the submission made on behalf of the petitioner. Since the Appellate Authority has made observation against District Magistrate's order, therefore, the condition imposed by the Divisional Commissioner for depositing the entire amount in terms of District Magistrate's order, cannot be sustained.

In such view of the matter, the writ petition is disposed of by providing that District Magistrate shall hear the matter afresh in terms of order passed by the Divisional Commissioner, without requiring the petitioner to deposit any amount other than the amount already deposited by him.

                          (Manoj K. Tiwari, J.)
Aswal                            05.01.2021