By the Court.—All these writ petitions involve common questions of facts and law and therefore as agreed by learned counsel for the parties, have been heard and decided together. For the purpose of reference, pleadings and documents in Writ Petition No. 3169 of 2016 are being referred with the consent of parties.

2. The petitioner in writ petition No. 3169 of 2016 is a farmer having bhumidhari rights in agricultural land, Gata No. 107, Khasra No. 151, which is a joint holding of petitioner alongwith eight other persons, as is evident from copy of Khatauni of Fasli year 1419-1424 filed as Annexure-1 to writ petition. Petitioner has also filed copy of Khasra of Fasli 1422, showing that land is being used for agricultural purposes.

3. The petitioner received a notice dated 18th November 2015 issued by Additional city Magistrate-II/Incharge Officer (Mining), Aligarh (hereinafter referred to as the “Mining Officer”), requiring petitioner to show-cause as to why he may not be charged with royalty at the rate of Rs. 14/- per cubic meter and 5 times of price of mineral as well as maximum penalty of Rs. 25,000/- under Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the “Act 1957”). The notice further said that Deputy Collector has submitted a report dated 6.11.2015, informing that petitioner is a co-tenure holder (Bhumidhar) with transferable rights of aforesaid land and has undertaken illegal mining of 3594.24 Cubic Meters of mines and minerals i.e. soil.

4. The petitioner submitted reply dated 2.12.2015 stating that neither any spot inspection was made, nor Deputy Collector himself ever reached at spot. The land was uneven and for the purpose of agricultural operation petitioner levelled it. Reply was received in the office of Mining Officer on 9.12.2015 and thereafter impugned order dated 28th December 2015 has been passed by Mining Officer, reiterating the fact stated in show-cause notice dated 18 November 2015. Considering the correctness of reply given by petitioner, it has simply recorded its conclusion that petitioner is guilty of illegal mining and, therefore, is liable to pay Rs. 2,51,595/- cost of mining and 5 times of royalty and penalty of Rs. 25,000/-. The petitioner was thus directed to deposit Rs. 3,26,914/-.

5. In fact, order passed by Mining Officer is not addressed to petitioner but it is addressed to Collector, Aligarh requesting him to recover the aforesaid amount as arrears of land revenue. The order shows that the petitioner has violated Rule 3 of the Uttar Pradesh Mines Minerals (Concession) Rules 1963 (hereinafter referred to as the Rules, 1963) and Section 21 of Act, 1957. He is also guilty of committing of an offence under Act 1957 read with Rules 1963.

6. Learned counsel for the petitioner contended that petitioner is farmer, engaged in agricultural activities on his own land. He has never done excavation on his land. If authorities are of the view that there was any unauthorized mining, procedure prescribed under Rule 58(1) of Rules, 1963 for charging royalty etc. should have been followed, but the same has not been followed. Petitioner is not lease holder of the State land and, hence, there is no occasion to obtain a permit. Digging of land for the purpose of construction of building etc. does not amount to excavation. Reliance is placed on decision of Supreme Court in Promoters and Builders Association of Pune v. State Maharashtra and others, 2014 (13) JT 413. The complete exercise without following procedure prescribed under the law, is illegal and even otherwise is a gross abuse of process of law. It has been initiated on wrong perception just to harass the petitioner.

7. Since the order, whereby recovery was ordered from petitioner, did not show as to how authorities found that petitioner has undertaken the mining operation illegally. This Court vide order dated 27 January 2016 directed the respondent to file counter-affidavit, specifically st