The court emphasized the importance of proving evidence as per the law and upheld the permissible limit of excavation as per the State authorities.

JUDGMENT :

1. Upon a complaint being received that the petitioners were excavating soil illegally from the plot no. 362 of village Palpur Kamalpur Pargana & Tehsil Sadar District Bareilly, a spot inspection was got done and thereafter a notice was issued to the petitioners jointly on 15.3.2016 as to why the petitioners be not made liable to pay for the 8550 cubic meter soil which they had excavated. The petitioners individually replied to the notice on 4.4.2016 and stated that they had not excavated any soil and in fact had only tried to level the agricultural plot of theirs. The reply of the petitioners was considered and rejected on 29.4.2016 by the District Magistrate, Bareilly, and a recovery of Rs.15,39,000/- was ordered to be made from the petitioners.

2. The petitioners under Rule 77 of the U.P. Minor Mineral (Concession) Rules, 1963, filed an Appeal. When the appeal was dismissed on 9.1.2017, the instant writ petition has been filed.

3. Learned counsel for the petitioners has assailed the two orders and has taken support of the Government Order dated 24.12.2012 by which it had been provided that if the excavation was lesser than two meters then it shall not be considered as excavation of soil.

4. In the instant case, learned counsel for the petitioners relying upon the report of the Lekhpal submitted that the excavation itself, as per the report of the Lekhpal, was in an area measuring 95x75x1.2 meters and, therefore, he submits that the depth as per the report of the local inspection was not more than two meters and, therefore, he submits, if the land could be allowed to be excavated to the extent of two meters as per the Government Order dated 24.12.2012 for the purposes of making bricks then definitely the petitioners could not be made liable for the illegal excavation.

5. Learned counsel for the petitioners further submitted that the spot inspection was an ex parte one without notice to the petitioner and the report had been submitted arbitrarily. Learned counsel for the petitioners submits that even the photographs of the Tractor etc. which had been used by the District Magistrate and the Commissioner were of no avail as it was not proved that they had excavated the soil which was excavated from the plots in question.

6. Learned counsel for the petitioners still further submitted that the petitioners were only levelling the soil of their agricultural plots and this aspect was not considered at all and arbitrarily it was presumed that there was excavation done and liability of Rs.15,39,000/- had been imposed upon the petitioners.

7. Learned counsel for the petitioners relied upon a judgement of this Court dated 10.3.2016 passed in Writ -C No. 3169 of 2016 (Ramvir Singh vs. State of U.P. and 2 others) and other connected cases reported in 2016 (132) RD 121 and submitted that even in that judgement it had been held that if the excavation was not of more than two meters then it could not be said that there was excavation of soil.

8. Learned Standing Counsel, in reply, however, submitted that when the report was there of the lekhpal and when there were photographs, it clearly indicated that soil was being excavated and removed then it could not be said that the petitioners were only levelling their land. Still further, learned Standing Counsel submitted that the Government Order dated 24.12.2012 was not applicable as it was meant for such bhumidhars who were using their land for the making of bricks.

9. Having heard the learned counsel for the petitioners, learned Standing Counsel and after having perused the written submissions which have been submitted by the learned counsel for the parties, the Court is of the view that the Additional District Magistrate (F & R)/ Officer In-charge, (mines and Minerals) District – Barailly, by passing the orders dated 29.4.2016 & 25.7.2016 and the Commissioner, Bareilly Division, Bareilly, by passing the order dated 9.1.2017 had erred in law and, therefore, the orders dated 29.4.2016 & 25.7.2