The main legal point established in the judgment is the requirement for fair inspection procedures and the application of relevant legal provisions to determine the legality of excavation activities.

JUDGMENT :

Syed Qamar Hasan Rizvi, J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. Upon an inspection being done by the Lekhpal on 27.03.2017 a report was submitted by him to the Sub-Divisional Magistrate, who in his turn forwarded the same to the Mining Authorities by a communication dated 06.04.2017. Thereafter, the prescribed authority (Mines) on behalf of the District Magistrate, Shamli issued a show cause notice to the petitioners to show cause as to why royalty and fine totalling Rs.3,94,000/- may not be charged from them, for excavating 2050 cubic metre of soil illegally.

3. The petitioners replied to the show cause notice on 22.04.2017 stating therein that the petitioners, who were the owners of the plot in question namely Plot No. 520 of Village Kaidi, Tehsil & District Shamli had never excavated any soil from the plot in question and that they had only tried to level their plot of land for irrigation purposes and they had further submitted through the said reply that someone had maliciously made a complaint against the petitioners and therefore, had prayed that the notice be withdrawn.

4. However, on 20.05.2017, the District Magistrate-Shamli concluded that the soil had been excavated and fastened the liability of Rs.3,94,000/- on the petitioners.

5. Aggrieved by the order of the District Magistrate (respondent no. 3) dated 20.05.2017, the petitioners preferred an appeal under Section 77 of the U.P. Miner Minerals (Concession) Rules, 1963 before the Commissioner (respondent no. 2) which was partly allowed vide order dated 5.10.2017 to the extent that the penalty of Rs.25,000/- was reduced to 10,000/-. The petitioners preferred an application for the recall of the aforesaid order dated 5.10.2017 which was rejected by the respondent no. 2 vide order dated 10.12.2017. Not being satisfied with the aforesaid orders, the petitioners preferred a revision before the State Government which was finally decided vide order dated 18.12.2018.

6. It may be noted that at the appellate stage the penalty which was earlier imposed by the District Magistrate was reduced from Rs.25,000/- to Rs.10,000/-. Further when the petitioners had filed a revision, the penalty portion had been done away with.

7. However, since the petitioners were aggrieved by the order by which it was found that the petitioners had illegally excavated, they filed the instant writ petition.

8. Learned counsel for the petitioners states that the report of the Lekhpal, which was the foundation of the case and on the basis of which the notice was issued, was an absolutely ex-parte report. Neither were the petitioners present at the time of the preparation of the report nor was any independent witness present.

9. Learned counsel for the petitioners relying upon a Government Order dated 24.12.2012 has further stated that if the digging of the soil is not more than two meters in depth then it would not be said that there was any mining operation done.

10. Learned counsel for the petitioner has submitted that when the Government Order had provided that digging had to be of more than two meters deep for the purposes of bricklin then definitely it would hold good for the ordinary farmers and therefore the Government Order would apply to the petitioners who were only found digging soil / earth just to level the field for irrigation purpose.

11. Since the learned counsel for the petitioner has relied upon the Government Order dated 24.12.2012, the same is being reproduced herein under :

12. In support of his case, learned counsel for the petitioners has also relied upon a judgment passed by this Court in the case of Ramvir Singh Vs. State of U.P. & 2 others, reported in 2016 (132) RD 121.

13. Learned counsel for the petitioners has stated that in his reply to the notice the petitioner had stated that the petitioners had never dug any mineral and infact they had only levelled their plots of land bearing Khasra No. 520 measuring area 0