MUKHIYA Vs. STATE

JUDGEMENT

(1.) HEARD Sri Mukesh Prasad, learned counsel for the petitioner and Sri S.P. Mishra, learned standing counsel for the respondents. 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.

(2.) 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. 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.

(3.) 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 under Section 26(2) of the Act, District Magistrate has been appointed as officer under Section 21(4) of the Act. 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 under Section 21(5) of the Act. 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.