By the Court.—All these writ petitions involve common question of facts and law hence have been heard together and are being decided by this common order.

2. Since all these writ petitions are based on same identical facts and directed against similar recovery notice except for there being difference in dates, with the consent of the learned counsel for the parties for the purpose of reference, pleadings and documents of Civil Misc. Writ Petition No. 18753 of 2016 are being referred.

3. All the petitioners claim that they are farmers having bhumidhari rights in agricultural land and have been charged of illegal mining from their bhumidhari lands while they were carrying on mining operation. They have filed copy of Khasra and Khatauni of 1417 F. to 1422 F. to demonstrate that they are having bhumidhari rights in agricultural land. A notice dated 23.7.2014 was issued by Incharge Officer (Mining)/Additional District Magistrate-II, Aligarh requiring the petitioners to show-cause why they may not be charged with royalty at the rate of Rs. 14/- per cubic meter and five times price of mineral as well as maximum penalty of Rs. 25,000/- under Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 (herein after referred to as the “Act 1957”). The notice further mentioned that Deputy Collector has submitted a report dated 20.6.2014 informing that petitioners have undertaken illegal mining of 1500 cubic meter of clay/soil from plot No. 343. Petitioners submitted their reply dated 30.12.2014 stating that there is no violation of any provision of the Act and the Rules and that plot in question was only levelled by them for agricultural purpose and is covered under the proviso to Section 3 which provides that if digging/excavation is less than 02 meters then the provisions are not attracted. Thereafter, impugned recovery notice dated 23rd June, 2015 has been issued by Incharge Officer (Mining)/Additional District Magistrate-II, Aligarh to the Collector, Aligarh simply recording that no reply has been received despite service of notice and petitioners are guilty of illegal mining as such a sum of Rs. 1,46,000/- being cost of mining and five times royalty and penalty of Rs. 25,000/- is liable to be recovered from them as arrears of land revenue. The recovery notice demonstrates that petitioners have 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 and are also guilty of committing of an offence under Act 1957 read with Rules, 1957.

4. It is contended on behalf of the petitioners that they are farmers, engaged in agricultural activities on their bhumidhari lands and never done excavation. However, in case, if respondents-authorities found that there has been any unauthorized mining, procedure prescribed under Rule 58(1) of Rules, 1963 for charging royalty etc. should have been followed, which has not been done. It is also submitted that since no excavation of any mineral or clay/soil was being carried out by the petitioners hence, there was no occasion to obtain a permit. Digging of land for the purpose of carrying out agricultural operation or construction of building etc. does not amount to excavation. To support the contention, reliance has been placed on decision of Supreme Court in the case of Promoters and Builders Association of Pune v. State Maharashtra and others, 2014 (13) JT 413. It is also submitted that entire exercise undertaken against the petitioners without following procedure prescribed by law is illegal and gross abuse of process of law. It has been initiated on wrong perception just to harass the petitioner.

5. When writ petition No. 18753 of 2016 was taken up finding that despite pendency of a large number of similar petitions and despite time having been allowed, no counter-affidavit has been filed on behalf of State nor any instructions were sent and the petition was unnecessarily pending, the Court d