- (1.) DHARAM Veer, J. By means of this writ petition, the petitioner has prayed for writ of certiorari quashing the demand letter No. 2127 Mines/2002 dated 1-11-2002 issued by respondent demanding a sum of Rs. 7,14,835/- on account of royalty and penalty being illegal, void and inopera tive as the provisions of Mines and Min erals (Regulation and Development) Act, 1957 and U. P. Minor Mineral (Conces sion) Rules, 1963 are hot applicable to the petitioner since the petitioner is not carrying out any mining operations.
(2.) BRIEF facts of the case according to the petitioner are that petitioner had purchased a property known as WHYTBANK Castle Estate, the Bridge, Outhouses, Cottages and Servant quarters etc. having an area of about 9 acres through Registered Sale Deed dated 4-1-1991 which is duly registered in the of fice of sub- registrar, Mussoorie, Distt. Dehradun. After the purchase of the said property, the petitioner demolished the existing construction and constructed a Hotel after getting the plan sanctioned which is now known by the name of Jay Pee Residency Manor and the boulders etc. gained during the course of digging the foundation for the building, the same were again used in filling work. Thereafter, the District Magistrate had called for certain information regarding digging/excavation done by petitioner for construction of Five Star Hotel and the said information was supplied through letter dated 1-8-1994. The petitioner informed, the D. M. concerned that about 4,800 cu m. usable stones were salvaged from the excavation. Thereafter, there had not been any response to the letter till 20-5-1996 when District Magistrate's letter was received asking for Royalty of Rs. 7,13,835/- and pen alty of Rs. 1,000/- failing which the pe titioner was threatened a suit would be filed in the court. The petitioner replied the said letter through letter dated 28-5-1996 and submitted that the provi sions of the U. P Minor Mineral (Conces sion) Rules, 1963 (hereinafter will be referred to as the Rules) are not at tracted in the case of the petitioner. The petitioner by means of the said letter also requested for personal hearing for representation of the' case. Subse quently, after the formation of State of Uttaranchal, on 16-8-2002, a demand was again made from the office of Dis trict Magistrate, Dehradun for depositing the amount in question. The petitioner vide his letters dated 20-8-2002 and 2-9-2002 submitted that the demand is il legal and unjustified and attention of the authorities was drawn to the different provisions of Mines and Minerals (Regula tion and Development) Act, 1957 (here inafter will be referred to as the Act ). Thereafter, the petitioner received a let ter from the office of District Magistrate fixing 4-9-2002 for hearing the matter and on the said date the representative of the petitioner appeared and matter was heard and the same was fixed for orders. Thereafter, through letter dated 1-11-2002, the petitioner was intimated that the objections raised by him through letters dated 20-8-2002 and 2-9-2002 were rejected and demand was made to deposit an amount of Rs. 7,13,835/- to wards royalty and Rs. 1,000/- as penalty within a week failing which a threat was given for recovery of the same as arrears of Land Revenue. It has been alleged by the petitioner that the District Magistrate concerned has overlooked the definition of Mining Operations and has also over looked the fact that the petitioner was not involved in the mining operations and hence the letter dated 1-11-2002 has been challenged on the ground of il legality and arbitrariness and hence it has been alleged that the same is not binding upon the petitioner and as such is liable to be dismissed. A counter affidavit has been filed on behalf of Respondent in which it has been stated that the petitioner while constructing his Hotel did unauthorized min ing operation namely digging of rocks and excavating the lime stones mineral and the petitioner also used compressor machines etc. for doing the aforesaid operation.-It has been stated that the petitioner has filed the petition on the conception that such operations are not covered by the provisions of the Act and the Rules, however, the said conception is denied by the respondents. It has been stated that the limestones and boulders etc. are all come within the definition of Minor Mineral as envisaged under Section 3-E of the Act and under the definition as envisaged in Rule 2 (7) of the Rules, 1963. It has also been stated that the land wherein the petitioner constructed the Hotel Building is limestone zone and there are huge de posits of lime stones in the form of rocks. The petitioner for the purpose of con struction of Hotel Building did digging, drilling, winning minor minerals of the said land and converted the same to its use unauthorizedly and the petitioner also disposed of the minor minerals of the said area and hence the activities done by the petitioner are in utter disre gard, of Rules, 1963. It has also been stated that on receiving the complaint about illegal mining operation under taken by the petitioner, the Naib Tehsildar was ordered to make inspec tion and to give his report and the in spection of the site was made and it was found that the petitioner was doing the mining operation by using the compres sor machine and by drilling the area. The Naib Tehsildar immediately ordered to stop the illegal mining and to give undertaking that the petitioner shall not restart illegal mining but the officials of the petitioner refused to discontinue the operation. The Naib Tehsildar also challaned the vehicle of the petitioner il legally taking out the minor minerals from the site and the said vehicle was taken into custody by the concerned Police Station, it has also been stated in the counter affidavit that the demand raised by the respondent vide letter dated 1-11-2002 is in accordance with the pro visions of relevant provisions of law and rules. The letter is neither illegal nor ar bitrary and it is the duty of the petitioner to pay immediately the amount of roy alty and penalty which was being demanded from him since 1996. It has also been stated that the demand of Rs. 7,13,835/- raised by the respondent is based on the joint inspection reporting regarding inspection of the site of Hotel Building construction on 12-9-1993 by the Geologist and Surveyor of Directorate of Geology and Mining, Dehradun and by the Tehsildar and Naib Tehsildar, Khanij, Dehradun and as such it cannot be said that the demand is arbitrary. Accordingly, it has been stated that petition of the pe titioner is not legally maintainable and the same is liable to be dismissed with costs and the grounds taken by the petitioner from I to XIX are all misconceived and not legally maintainable. The petitioner in reply to the con tents of counter affidavit filed by Re spondent, also filed a rejoinder affida vit stating therein that it is incorrect to say that at the time of excavation for construction, the rate of royalty was Rs. 45 per cubic meter. It has been stated that the petitioner had not done any il legal mining by excavating the limestone while constructing the Hotel Building. The petitioner merely for the purpose of construction excavated the land. The petitioner has also denied the fact that he did excavation of lime stone of 17,625 cubic meter and it has been stated that total usable stone salvaged from the excavation were only 4800 cubic meter as was initiated to the re spondent. The petitioner has also taken the support of Division Bench of Allahabad High Court in the case of Ml s. Sharma and Co. Vs. State of U. P. re ported in 1979, AWC, Page 473, and hence it has been stated that the peti tioner is not liable to pay any royalty.
(3.) WE have learned counsel for the parties and perused the entire material available on record. Rule 3 of the Rules, 1963 pro vides that no mining operations are to take place except and in accordance with the terms and conditions of min ing lease or mining permit granted un der the Rules. The provision for demand of royalty is contained in Rule 21 of the Rules, 1963. The contention of learned counsel for the petitioner is that the pe titioner has merely dug the foundation for construction of hotel and he has used the boulders which he gained after excavation of the foundation and hence neither Rule 3 nor Rule 21 is attracted. Learned counsel for the petitioner invited our attention on the words 'mining op eration' used in Rule 3 of the Rules, 1963. The words 'mining operation' have been defined in Section (sic) sub-rule (5) of Rule 2 of the Rules which provides that '"mining operations' means any op erations undertaken for the purpose of winning any minor mineral".;