By the Court.—The petitioner is carrying on certain construction activities on a plot of land bearing 12/GH 04, Vrindavan Yojna, Raebareli allotted by the U.P. Avas Evam Vikas Parishad for a consideration of Rs. 9,90,02,750/-. An agreement dated 23 November 2011 was executed in favour of the petitioner, a copy of which has been annexed at Annexure-1 to these proceedings. Building plans were sanctioned for a group housing project and in paragraphs 10 and 11 of the petition, it has been stated that the execution of the work involves an excavation of the soil for laying the foundation of the building. The land, it has been averred, is being used for no other purpose except for the construction of the building. The petitioner applied to the Collector for the grant of mining permission for the excavation of soil. An order was passed by the Collector on 22 September 2012 for the excavation of soil to the extent of 14,000 cubic meters of a depth of no more than four meters subject to the payment of a stipulated amount and for a specific period.

2. Demand notices have been issued to the petitioner on 28 October 2014 and 20 December 2014 for the recovery of royalty in the amount of Rs. 4,21,848/- on the ground that the petitioner had excavated in excess of the permission granted. In response, the petitioner moved the District Magistrate, Lucknow on 8 January 2015 relying upon a decision of the Supreme Court in Promoters and Builders Association of Pune v. The State of Maharashtra and others, Civil Appeal No. 10717 of 2014, decided on 3 December, 2014. On 9 January 2015, the Tehsildar submitted a report to the Sub Divisional Magistrate to the effect that the petitioner had excavated soil with the aid of a JCB Machine which has accumulated at the work site. The SDM has passed an order directing the revenue authorities to inspect the site and to ensure that there is no illegal excavation of the soil.

3. The submission which has been urged on behalf of the petitioner by the learned Senior Counsel is that the activity which is being carried by the petitioner does not fall within the definition of the expression ‘Mining Operations’ in Rule 2 (5) of the U.P. Minor Mineral (Concession) Rules, 1963 (the Rules). Hence, it is submitted that though the petitioner had applied for permission to excavate the soil and was granted such permission subject to certain terms and conditions, as a matter of fact, no mining operations are involved and that the entire quantity of soil excavated will be utilized only for the purposes of building operations at the very site in question. In this regard reliance was placed on the decision of the Supreme Court in Promoters and Builders Association of Pune (supra).

Rule 2 (5) of the Rules provides as follows:

“2. Definitions.—In these rules, unless the context otherwise requires-

“ ...... ..... .....

(5) “Mining Operations” means any operations undertaken for the purpose of winning any minor minerals.”

4. The definition of the expression ‘Mining Operations’ covers operations which are undertaken for a specific purpose; the purpose being winning any minor minerals.

5. In Promoters and Builders Association of Pune (supra), the Supreme Court, inter alia, considered the provisions of Section 2 (j) of the Mines Act 1952 and the expression ‘Mining Operations’ appearing in Section 3 (d) of the Mines and Minerals (Development and Regulation) Act, 1957 as well as a notification dated 3 February 2000. The notification issued by the Central Government declares that ordinary earth used for filling or levelling purpose in the construction of buildings would be a minor mineral. In the case before the Supreme Court, it was not in dispute that the excavation of ordinary earth was being undertaken either for laying the foundation of buildings or for the purposes of widening a channel to bring an adequate quantity of sea water for the purpose of cooling a nuclear plant. In that context, the Supreme Court observed that the not