JUDGMENT :

1. Heard learned counsel for the petitioner and learned Standing Counsel.

2. The petitioner by means of this writ petition is challenging the order dated 08.12.2022 passed by the District Magistrate, Mathura and the order dated 06.11.2023 passed by the Commissioner, Agra Division, Agra, whereby the order passed by the District Magistrate has been affirmed.

3. It appears that a notice was issued to the petitioner alleging illegal mining of soil in Khasra (Khata) No.19 area 3.933 hectares. The alleged excavation over an area of 323 feet x 313 feet and upto 3 feet in the depth, using a JCB machine, which amounted to violation of the provisions of Rule 3 of the U.P. Minor Minerals (Concession) Rules, 2021 (hereinafter referred to as the Rules, 2021).

4. The petitioner admittedly replied to the notice. After considering the reply of the petitioner, penalty to the tune of Rs. 4,82,700/- was imposed upon the petitioner by the order passed by the District Magistrate. Hence this writ petition.

5. The contention of learned counsel for the petitioner is that no illegal mining had been conducted by the petitioner. In any case, the report of the Lekhpal, which is the basis of the notice, does not mention any date when the illegal mining was carried out by the petitioner. He has also stated that he has denied having carried out any extraction of soil using a JCB machine; there is no violation of Rule 3 of the Rules, 2021; the impugned orders are therefore, patently illegal and are liable to be set aside. It is further contended that in view of the explanation of Rule 3 of the Rules, 2021, no illegality had been committed by the petitioner.

6. Perusal of the reply to the notice, filed by the petitioner reveals that it had been alleged therein that from the surrounding plots, soil upon a depth about 6 feet had been extracted for construction of a railway flyover. As a result, the land of the petitioner become much higher than the surrounding plots. This resulted in soil erosion from petitioners' plot during the rainy season. Therefore, the petitioner had merely leveled his plot using agricultural equipments and tractor.

7. In our considered opinion, the reply filed by the petitioner amounts to an admission of what has been alleged in the notice against him. In order to level his field to the level of the surrounding plots, to prevent erosion of soil, petitioner was necessarily required to remove soil up to a depth of 5 to 6 feet. Nothing less would prevent erosion of soil.

8. In the light of the above factual situation, this Court is required to analyze what is contained in Rule 3 of the Rules 2021. The explanation to this Rule, which is being relied upon by learned counsel for the petitioner reads as follows:-

"Explanation:- For the purposes of this rule manual digging or manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations:"

9. Perusal of the portion extracted above makes it clear that it is applicable only where manual digging or manual extraction of ordinary clay has been carried out and such excavation is not deeper than two meters. Only if these two conditions are fulfilled and the soil is excavated for making bricks or pottery, will the excavation of soil not amount to illegal mining and the petitioner would not be charged of illegal mining.

10. From the facts noticed in the initial part of this order, it is admitted that the so called leveling carried out by the petitioner was by using agricultural tools and tractor. Moreover, as already discussed above, if the petitioner's case is accepted in toto, the same necessarily amounts to removal of soil to make the plot of the petitioner equal in height with the adjoining plots.

11. It is not the case of the petitioner that this soil which had to be removed by using machinery was for making bricks and/or pottery.

12. Under the circumstances, the petitioner is not entitled to any benefit of the explanation to Rule 3. For the