( 1. ) PETITIONER, Kailash Auto Builders Co. Pvt. Ltd. has filed the instant writ petition assailing the orders (P-5, P-6 and P-7) passed respectively by the collector, Commissioner and Board of Revenue imposing penalty under section 247 (7) of the M. P. Land Revenue Code for excavation of Muram and stones to the extent of Rs. 20,038/ -.

( 2. ) SHOW-CAUSE notice (P-l) was issued on 9-6-1987 to Shri Iqbal ahmed, Manager Kailash Auto Pvt. Ltd. and Shri J. S. Dadwal, Supervisor, kailash Auto Pvt. Ltd. on the basis of the report of Mining Inspector dated 19-5-1987. The quantity of excavated stone was 1731 tons and that of Muram was 2413 tons, which were having the market value of Rs. 36,614/ -. Penalty of rs. 73,228/-was proposed to be imposed. Reply (P-2) was filed on behalf of the petitioner taking categorical stand that none of the employees of Kailash auto Builders ever excavated minerals from the Government Land of Village dobhi, Tehsil Niwas, District Mandla. Shri Iqbal Ahmed is the only supplier of building materials at Udaipur who has supplied all the building materials required by M/s Kailash Auto Builders Pvt. Ltd. situated at Udaipur, District mandla. Against bills for all materials supplied payments were made by the petitioner by account payee crossed cheques making the transaction complete bona fide and legal, in all respects. Photocopies of the bills, cheques through which amount was paid were also submitted. Collector, Mandla examined witnesses namely; D. C. Mehrotra, Chironjilal and Jameel Ahmed and in defence petitioner examined Shri Krishna Bhave, Shri J. S. Dadwal and colonel S. P. Tiwari and Shri Iqbal Ahmed also examined himself. Collector as per order (P-5) passed on 26-9-1988 came to the conclusion that petitioner has utilized the stones and Muram which were of the Government land and was excavating out of Survey Nos. 13/5,16/1 and 45/1 and it was excavated by shri Iqbal Ahmed. In spite of giving finding that Shri Iqbal Ahmed excavated collector imposed the liability on the petitioner on the ground that Shri Iqbal ahmed acted on behalf of the petitioner. The Collector held that he was simply a labourer and if penalty is imposed he may not be able to pay, as such Kailash auto Builders, therefore, may bear the burden of imposition of penalty of Rs. 20,038/- against the royalty which was payable on the quantity of stones and muram excavated.

( 3. ) PETITIONER preferred an appeal against order (P-5) before the commissioner, Jabalpur. The Commissioner dismissed the appeal on the finding that Shri Iqbal Ahmed acted on behalf of the petitioner. The petitioner knew it very well that supply made by Shri Iqbal Ahmed was not proper. The board of Revenue also dismissed the appeal filed by the petitioner. Hence, the present writ petition has been filed before this Court.

( 4. ) I have gone through the evidence in minute details. In my opinion the finding recorded by the Collector, Commissioner and the Board of Revenue are such which can not be allowed to stand. Shri D. C. Mehrotra, witness examined on behalf of the respondents has clearly stated that the muram and Stones were supplied by Shri Iqbal Ahmed. He used to supply the material for the last about three years. He had not seen any of the officer of the petitioner excavating nor they were found at any point of time of the lifting of material. Other witness; Chironjilal examined on behalf of respondent No. 1 stated that he has not seen anybody excavating. He was not aware whether shri Iqbal Ahmed used to supply the material. Shri Jameel Ahmed is another witness examined on behalf of the respondent No. 1. He has stated that Shri iqbal Ahmed was working on the basis of commission. In Para 5 he has stated that the stones and Muram were supplied by Shri Iqbal Ahmed to Kailash Auto builders.

( 5. ) SHRI Iqbal Ahmed himself has been examined as a witness. His deposition is P-4 which is material and clinches the issue. He has stated that he has started supply of buildin