The central legal point established in the judgment is that the removal of 'Malma' for commercial gain without due permission amounted to illegal mining under section 247(7) of the Madhya Pradesh Land Revenue Code.

Arun Mishra, J.—Petitioner is assailing the orders passed by the Additional Collector, Commissioner and Board of Revenue contained in Annexure D, E and I imposing royalty of Rs. 24,000/- and penalty of Rs. 25,000/- on the Managing Director, Onama Glass Works Ltd.

2. It is not in dispute that lease was granted to the petitioner for extraction of "fire clay". The case of the petitioner is that he did not extract any mineral in illegal manner. A show cause notice dated 19-09-1980 was issued to the petitioner and also upon Shri Tarunmal Sethi and Company, alleging that petitioner has illegally extracted mineral "Mitti (Malma)" measuring 4,00,000 Cubic Feet worth Rs. 73,6800.0 from the area leased out to the petitioner comprising in Survey No. 501, 502 and 503 Mouza Garha, Jabalpur. Petitioner was called upon to show why proceedings u/s 247(7) of Madhya Pradesh Land Revenue Code be not initiated for illegal extraction of mineral "Mitti" and fine be not imposed. Petitioner submitted a reply (Annexure-B) on 27-10-1980 pointing out that petitioner was an authorised lease holder over the area under question and over the period of time with regard to which the alleged extraction is imputed against him. Petitioner had paid all the necessary surface compensation to the lessor and acquired full rights to extract the mineral "fire clay". Petitioner had permitted its mines manager to allow the persons to transship free of cost the waste material known as "Malma". The area surface did not contain any clay which could be of any intrinsic value at the site. Thus, the show cause notice be dropped.

3. Petitioner submits that chemical examination was not done in order to ascertain its commercial value. The Additional Collector examined the witnesses. However, the petitioner was not given opportunity to enter into the witness box. The Additional Collector passed detailed order and found that mineral "Muram" was extracted by the petitioner in an illegal manner from the quarry. Quantity of 4,80,000 Cubic Feet, "Mitti" of the market value of Rs. 73,680/- was illegally extracted by the petitioner. The royalty payment of Rs. 24,000/- and fine of Rs. 25,000/- was imposed on the petitioner. Shri Takhatmal Sethi was proceeded ex-parte.

4. Petitioner preferred an appeal before the Additional Commissioner. The appeal has been dismissed. Petitioner preferred another appeal before the learned Board of Revenue. This appeal has also been dismissed. Hence, present writ petition has been filed. Petitioner submits that it cannot be a case of illegal extraction as the area was leased out, the provisions of section 247(7) of the Madhya Pradesh Land Revenue Code is not applicable. The order is violative of principles of natural justice. Petitioner ought to have been given an opportunity to enter into the witness box.

5. A return has been filed by the respondent. The stand taken is that illegal extraction has been admitted in para 4 of the reply to the show cause notice. Petitioner had admitted the fact of removal of "Malma". In the writ petition also averment has been made that the petitioner has allowed the removal of "Mitti" which amounts to illegal removal of mineral which was unauthorised under the conditions of the lease. Petitioner was authorised only to remove "fire clay". Thus, section 247(7) is clearly attracted. The mineral which has been removed could not be removed without prior permission of the Government. Rule 27(a) and (b) of Mineral Concession Rules, 1960 are relevant which provides that in the leased area any mineral is found, which is not specified in the lease, it has to be reported to the State Government. Mineral cannot be removed by lease holder until and unless he obtains permission therefore. As per section 3, mineral is defined includes all minerals except mineral oils. The material removed was not mineral oils. As such it was a mineral within purview of section 3 of Mines and Mineral (Regulation and Development) Act, 1957 which could not be