Sibghat Ullah Khan, J.@mdashHeard Sri Mukesh Prasad, learned Counsel for the Petitioner and Sri S.P. Mishra, learned standing counsel for the Respondents.
2. This writ petition is directed against order dated 19.05.1996 passed by District Magistrate, Hamirpur, contained in Annexure-III to the writ petition, order dated 31.08.1998 passed by Commissioner, Jhansi Division, Jhansi contained in Annexure-V to the writ petition and the order dated 17.11.1998 passed by the State Government dismissing Revision No. NIL of 1998, contained in Annexure-VI to the writ petition, which was directed against the order dated 31.08.1998.
3. The Petitioner was granted a mining lease on 18.05.1995 for five years for mining of sand/ morrum from an area earmarked as Plot No. 5 situate in village Nethi, District Hamirpur. Formal lease deed was also executed. The royalty was Rs. 76 lacs. On 12.04.1996 Collector, Hamirpur served a notice upon the Petitioner that he was doing illegal mining from adjacent Plot No. 6. The price of the material which had illegally been taken out from Plot No. 6 was calculated to be Rs. 538200/-. Petitioner was required to pay the same. Petitioner was also required to show cause as to why lease in respect of Plot No. 5 should not be cancelled. Petitioner filed his reply on 27.04.1996 obviously denying the allegation. He asserted that some other persons were doing illegal mining in Plot No. 6.
4. Through order dated 19.05.1996, Collector determined the lease of the Petitioner in respect of Plot No. 5 and also directed that the amount of Rs. 5,39,200/-should be realised from the Petitioner as arrears of land revenue (Rs. 1000/-was to be realised as penalty). Against the order of the Collector, Petitioner filed Appeal No. 14 of 1995-96 which was allowed in part by Commissioner Jhansi Division Jhansi on 31.08.1998 and penalty of Rs. 1000/-imposed by the Collector was set aside. Thereafter Petitioner filed revision before the State Government which was dismissed on 17.11.1998 by Special Secretary, Industrial Development Department, hence this writ petition.
5. During arguments learned Counsel for the Petitioner confined his arguments to the direction for realisation of the amount of Rs. 5 lacs and odd. Cancellation of lease was not challenged even before the authorities below. The main argument was that u/s 21(5) of Mines and Minerals (Regulation and Development) Act, 1957 it is only State Government which may recover the price etc. of illegally raised minerals hence D.M. had no authority to pass the order. u/s 21(4)(4) it is provided that any tool or vehicle which is brought for illegal mining may be seized. Sections 21 (4) & (5) are quoted below:
Penalties.-(4) Whenever any person raises without any lawful authority, any mineral from any land, and, for that purpose, brings on the land any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.
(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
6. In the judgment passed by the Government on revision dated 17.11.1998, a reference has been made to a G.O. dated 10.02.1986 through exercising power of delegation as provided u/s 26(2) of the Act, District Magistrate has been appointed as officer u/s 21(4) of the Act.
7. The argument of learned Counsel for the Petitioner is that the said delegation or appointment is only for the purposes of Section 21(4) of the Act which deals with seizer of tools etc. and the delegation is not for determining and realising price of illegally raised mineral which is provided u/s 21(5) of the Act.
8. The other argument of learned Counsel for the Petitioner is that the orders passed by the authorities are based upon inspection notes while inspections were not done in the presence of or after notice to the Petitioner and no opportunity was granted to the Petitioner for filing his objection to the inspection notes. It has specifically been mentioned in Para-30 of the writ petition.
9. The Supreme Court in Karnataka Rare Earth v. Senior Geologist, Department of Mines and Geology AIR 2004 S.C. 2915 has held that even though the marginal note of Section 21 of the Act is ''penalties'', however Section 21(5) is not penal in nature and it is only for recovery of illegally raised mineral.
10. I agree with the contention of the learned Counsel for the Petitioner that order u/s 21(5) of the Act can be passed only by the State Government and not by the D.M. who is empowered to act only u/s 21(4) of the Act which deals with seizure of tools equipment and etc. However, the matter has ultimately been decided by the State Government even though on revision. In such situation it may be taken that the orders passed by D.M. and the Commissioner were only in the nature of the opinion. While deciding the revision, the State Government has dealt with the entire material on record and given independent reasons. Accordingly, the defect that initially the matter was decided by the D.M. stood cured.
11. The other argument of the learned Counsel for the Petitioner is that there were different reports and in each report different quantity of illegally raised mineral was mentioned and the authorities below committed an error of law in accepting report of Tehsildar in preference to the reports of the inspectors related with the work of mining. The State Government has clearly mentioned that different quantities were mentioned in different reports for the reason that after every report further quantity of mineral was illegally raised hence the quantity mentioned in every report was more than mentioned in the earlier report. In view of this, the report of Tehsildar which was last in chronological order was rightly accepted.
12. The last argument of the learned Counsel for the Petitioner is that copies of reports were not supplied to the Petitioner hence he could not effectively reply the same. As far as illegal raising mineral is concerned, it is admitted to the Petitioner also. Petitioner''s defence was that others were doing that and he had informed the D.M. about this fact through letters/applications. In this regard, the State Government has held that firstly there is no evidence that the said applications/letters actually reached the D.M. (The only thing which one writes exclusively for himself is an un-posted letter). It has further been held by the State Government in this regard that as there was no other way to reach the plot No. 6 from where mineral had illegally been raised except through the plot No. 5 which was leased to the Petitioner hence no one else except Petitioner could do the illegal mining and that even if letters/complaints were sent by the Petitioner to D.M. they were in the nature of Peshbandi.
13. Learned Counsel for the Petitioner has lastly argued that unless proper forum determines actual amount, it cannot be recovered. In this regard copy of an order dated 15.01.2002 passed by State Government in an other revision has been shown.
14. In para 19 of the aforesaid authority of Supreme Court it has been held as follows:
At the end, the learned Counsel for the Appellants submitted that the Appellants may be allowed the liberty of making a representation to the State Government for some relief at least in the calculation of the amount of price. Needless to say that the Appellants are always at liberty to do and we express no opinion thereon.
15. In this writ petition on 07.11.1998 the following interim order was passed:
In the meantime, the Petitioner shall furnish a Bank guarantee for a sum of Rs. 5,40,000/-of a Nationalised Bank within one month from today failing which the recovery proceedings in pursuance of order of State Government dated 17.11.1998 (Annexure-6) shall be revived and the entire amount shall be recoverable all at once.
16. Accordingly, it is directed that the amount of Rs. 5,38,200/-shall at once be remitted by the Bank to the Government otherwise it shall be recovered from the Petitioner like arrears of land revenue with 10% recovery charges immediately.
17. Petitioner is at liberty to file representation before the State Government regarding quantum of illegally raised mineral. Representation may be filed within six weeks from today. If no representation is filed in six weeks then apart from Rs. 5,38,200/-, no further amount shall be payable by the Petitioner as interest. However, if representation is filed then Petitioner shall also be liable to pay 10% per year simple interest from the date of order of D.M. till actual payment on the amount which may be determined as payable by the Petitioner on his representation, whether it is same amount of Rs. 5,38,200/-or less.
18. Writ petition is disposed of accordingly.
