By the Court.—Heard Mr. Vivek Dhaka for the petitioners and Mr. P.K. Tripathi, learned Standing Counsel for the respondents.

2. The sole legal question which stands raised in the instant writ petition is with respect to the liability of the petitioners to pay royalty on excavation of ordinary earth, which according to them was used for the purposes of levelling an agricultural plot. Since there was no dispute on essential facts, learned counsel for the parties consented for the disposal of this writ petition without exchange of affidavits.

3. The petitioners seek quashing of the order dated 25 April 2018 passed by the Commissioner affirming a decision of the Additional District Magistrate dated 17 May 2017. The Commissioner exercising appellate powers conferred by Rule 77 of the U.P. Minor Mineral (Concession) Rules, 1963 (1963 Rules) has principally upheld the view taken by the Additional District Magistrate as embodied in his order aforementioned that the petitioners were liable to pay royalty having extracted ordinary earth without the requisite permissions or permits.

4. The petitioners are co-sharers of khasra No. 480 which is utilised for agricultural operations. For the purposes of irrigating this field, the petitioners are stated to have constructed a channel which was linked to the main irrigation canal. It is asserted that since the plot in question was low-lying and since problems were faced in irrigating the same, they excavated the plot by removing the top soil and sought to raise the height of the plot in question. As per the petitioners, the top soil which was excavated, was neither transported out of their agricultural field nor was it put to any commercial use. According to them, it was utilised solely for the purposes of levelling the agricultural plot and raising its height so as to facilitate uniform irrigation of the agricultural plot in question.

5. On 1 December 2016, the District Magistrate acting upon a report submitted to him issued a show-cause notice calling upon the petitioners to explain why they be not held liable to pay royalty on the total quantity of ordinary earth which was excavated. Ultimately, an order was passed on 17 May 2017 holding the petitioners liable to pay Rs. 4,97,500/- as royalty on the total quantity of ordinary earth so extracted. Aggrieved by the aforesaid order, the petitioners instituted a statutory appeal before the Commissioner, which came to be dismissed on 10 January 2018 on the ground of having been preferred with delay. The order of the Commissioner dated 10 January 2018 was quashed by this Court on 19 March 2018 while allowing Writ-C No. 10017 of 2018 and remanding the matter to the Commissioner with a direction to decide the appeal on merits. Pursuant to the order of remand, the Commissioner undertook a hearing of the appeal and has ultimately passed the order impugned. The Commissioner in terms of the impugned order, it is relevant to note, has affirmed the decision rendered by the Additional District Magistrate on 17 May 2017 in part. While upholding the levy of royalty, the Commissioner has chosen to reduce the penalty from Rs. 25,000/- to Rs. 5000/-.

6. Assailing these orders, learned counsel for the petitioners has submitted that the levy of royalty was clearly unjustified since the ordinary earth which was excavated, was redeployed on the same plot of land and was not shown to have been sold or transferred for commercial gains. It was contended that the mere excavation of ordinary earth for the purposes of levelling the agricultural field could not be said to fall within the ambit of the expression “mining operations” as defined in Rule 2(5) of the 1963 Rules.

7. Countering the said submissions, the learned Standing Counsel contends that the demand of royalty cannot be held to be illegal merely because the excavated minor mineral was not sold or transferred for commercial gains. According to the learned Standing Counsel, since what the petitioners exca