IMPORTANT POINT
The central legal point established is the interpretation of mining operations under Rule 3 of the UP Minor Minerals (Concession) Rules, 1963, and the requirement to demonstrate the purpose of extraction for making bricks and pottery to qualify for the exception.

JUDGMENT :

1. Heard Shri Virendra Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the State.

2. This petition has been filed challenging the order dated 18.06.2015 passed by the District Magistrate, Hathras in purported exercise of powers under Rule 3, 57, & 70 of the UP Minor Minerals (Concession) Rules, 1963, [Rules, 1963]. Also under challenge is the order dated 27.09.2017, passed by the commissioner, Aligarh Division, dismissing the appeal of the petitioners.

3. It appears from the record that a notice dated 01.05.2015 was issued to the petitioners in respect of plot No. 139 with the allegation that 3689 cubic meters of soil was illegally mined and an amount of Rs.2,83,230/- was sought to be imposed. By that notice, a date was fixed before the District Magistrate to enable the petitioners to file their objections, if any.

4. From page 28 to page 30 of the paper book of this petition, a typed copy of the response dated 25.05.2015 submitted by the petitioner is enclosed, which is addressed to the District Magistrate/ Additional District Magistrate, Hathras, in which mining on plot No. 139 was emphatically denied and it was stated that provisions of Rules, 1963 were not applicable in respect of agricultural land. It was further stated that they cannot be subjected to any such imposition inasmuch as the petitioners was merely levelling their agricultural field and it cannot be held to be mining operation within the Rules, 1963. It has also been mentioned that the payment demanding royalty, etc. is illegal and the site plan is contrary to the actual situation existing at the site.

5. By the impugned order dated 18.06.2015, the contentions raised by the petitioners were narrated and the report of the Tehsildar stating that mining of 3689 cubic meters of soil was done, was considered. The objections of the petitioners that the soil of their agricultural land was levelled and they had neither sold the soil nor had mined the same, were considered. The District Magistrate considered the report of the Tehsildar and the Sub-Divisional Officer, Hathras and came to the conclusion that illegal mining of 3689 cubic meter of soil on plot No. 139 was done. Accordingly, royalty @ 14 per sq. meter was imposed, which was multiplied five times and after imposing compounding fee, a total amount of Rs.2,83,230/- was imposed.

6. The petitioners challenged the order of the District Magistrate in an appeal before the Commissioner under Section 79 of the Rules, 1963. In the memorandum containing the grounds of appeal that has been enclosed as Annexure-4 to the writ petition, it was stated that no proper opportunity was given to the petitioners for hearing and to produce evidence and neither were the reports of the Tehsildar or the Sub-Divisional Officer supplied to them. It was stated that the District Magistrate did not decide the case on merits but only on the basis of the reports.

7. By means of an impugned order dated 27.09.2017, the Commissioner has rejected the appeal after taking into account the spot inspection report dated 18.03.2015 made by the Revenue Inspector and the Area Lekhpal who had made a site plan and had taken measurements to conclude that on plot No. 139, 3689 cubic meters of soil was mined. The reports of the Tehsildar and Sub Divisional Officer were also considered and the order of the District Magistrate, Hathras making the imposition on the petitioners was upheld and the appeal was dismissed.

8. The learned counsel for the petitioners has submitted that petitioners are simple agriculturists who neither had any intention nor undertook any mining operation on plot No. 139. It is stated that there was no evidence of mining, sale, or transportation of soil. It is argued by learned counsel that in view of the facts and circumstances of the case, Rule 3 of the aforesaid Rules, 1963 would not apply to the petitioners.

9. Learned counsel in support of his contention has relied upon a judgment of this Cour