IMPORTANT POINT
The burden to establish illegal mining operations and fiscal charges lies upon the authorities, and any ambiguity in penal provisions should be resolved in favor of the person subjected to penalty.

JUDGMENT :

Kshitij Shailendra, J.

1. Heard Shri Prateek Kumar, learned counsel for the petitioner, Shri Rajiv Gupta, learned Additional Chief Standing Counsel for all the respondents and perused the record.

2. Counter and rejoinder affidavits have been exchanged between the parties and, therefore, the writ petition is being finally decided.

3. The petitioner is aggrieved by the order impugned dated 15.11.2018 whereby the Additional District Magistrate (Finance & Revenue), Bulandshahr (respondent No. 2) has levied upon him a sum of Rs.1,46,360/- (Royalty Rs.21,060 + Mineral Value Rs.1,05,300/- + compounding Fee Rs.20,000/-) under Rules 3 and 70 of U.P. Minor Minerals (Concession) Rules, 1963 read with Section 4 of Mines and Minerals (Development and Regulations) Act, 1957.

4. The facts of the case are that the petitioner claims to be joint tenure holder of Bhumindhari land covered by Khasra Plot No. 133 measuring 2.3040 hectares situated at village Fatehpur Buzurg, Pargana Baran, Tehsil and District Bulandshahr; copy of revenue records annexed. It is pleaded that in pursuance of an inquiry dated 15.06.2012 held behind the back of the petitioner, a report was prepared by the Tehsilder, Sadar, Bulandshahr recording that the petitioner had indulged in mining of soil to the volume of 2340 cubic meters. A notice was, thereafter, said to be issued to the petitioner on 25.06.2012, but it remained unserved upon him and, based thereupon, the respondent No. 2 passed an order dated 19.09.2012 issuing recovery against the petitioner to the tune of Rs.1,46,360/-. The petitioner, having come to know about the order, challenged the same by filing Writ - C No. 64507 of 2012 (Om Prakash vs. State of U.P. and others), in which an interim order was passed by this Court on 18.12.2012 restraining coercive steps against him in pursuance of the order dated 19.09.2012. Later on, the writ petition was disposed of vide order dated 05.07.2018 setting aside the order dated 19.09.2012 on the ground of violation of principles of natural justice, however, this Court permitted the authorities to pass fresh order after providing opportunity of hearing to the petitioner leaving it open to him to take all legal pleas permissible under the law. It appears that pending writ petition, a fresh inquiry was conducted culminating into a report dated 30.04.2018 prepared by the Tehsildar recording that the petitioner had indulged in mining of 2340 cubic meters of soil upto the depth of 1.30 meters. Relying upon the said inquiry report, the order dated 15.11.2018, impugned in the instant petition, has been passed levying the aforesaid sums upon the petitioner.

5. The case of the petitioner, in a nutshell, is that the Government of U.P. had issued a Government Order dated 24.12.2012 providing that if any manual excavation of ordinary earth takes place and the depth of mining site is not more than two meters, the action would not fall under ‘mining operations’ and, hence, the impugned levy is liable to be set aside.

6. A counter affidavit has been filed on behalf of all the respondents stating that the petitioner’s case based upon the Government Order dated 24.12.2012 has no substance inasmuch as the proceedings had begun in furtherance of inquiry report dated 15.06.2012, by which time, the Government Order dated 24.12.2012 had not come in existence. Further defence is that, even otherwise, the Government Order dated 24.12.2012 itself provides for payment of royalty for the excavation of soil for the purpose of brick-kiln and since the petitioner had admitted digging of soil by him, though it is less than two meters depth, but was done for commercial purpose, the levy upon him was justified as the activity undertaken by the petitioner would fall within the purview of ‘mining operations’.

7. The rejoinder affidavit filed by the petitioner states that reliance placed on the Government Order dated 24.12.2012 having the Subject: “In Relation to U.P. Minerals (Concession) (35th Amendmen