Pet it ioner v. St at e of Ut t arakhand ot hers

: Mr. Yogesh Chandra Tiwari, learned Addit ional Chief St anding Counsel for t he St at e / respondent s Th e Co u r t m a d e t h e f o l l o w i n g : JUD GM EN T: ( p e r H o n ’ b l e Th e Ch i e f Ju st i ce Sr i G. N a r e n d a r ) Heard t he learned counsel for t he pet it ioner Mr. Mahendra Singh Rawat and t he learned Addit ional Chief St anding Counsel for t he St at e Mr. Yogesh Chandra Tiwari. 2) The case of t he pet it ioner is t hat he is t he owner of cert ain in Village Bhaguva Bangar, Tehsil Ram nagar, Dist rict Nainit al, and he is a farm er and has plant ed m ango and lit chi t rees and developed an orchard, and on t he rem aining land he grows paddy and wheat t o 1 support him self and his fam ily, and t hat t he pet it ioner’s wife is working in an Anganwadi. 3) That on 13.05.2019, allegedly a t eam of officers from t he depart m ent s of Mining and Revenue carried out a surprise j oint inspect ion and t he course t hey m inerals st acked in various land parcels. I n all, 10 such land parcels were visit ed and it was found t hat sub- m inerals were allegedly illegally st ored in cert ain lands, and one such dum p of m inerals is alleged t o have been st ored by t he pet it ioner, and t he j oint inspect ion t eam assessed t he value of t he m ineral and t he penalt y payable, and concluded t hat t he pet it ioner was liable t o pay a sum of Rs.13,66,000/ - , and t he sim ilarly m inerals found dum ped in 09 ot her places were also valued under t he j oint inspect ion report , and t he sam e was sent t o t he com pet ent aut horit y, i.e., t he Dist rict Magist rat e, and t he Dist rict Magist rat e issued a show cause not ice dat ed 29.06.2019. Under said not ice, explanat ion was sought from t he pet it ioner regarding discovery of t he m ineral dum ped in his lands. I n response t o t he sam e, t he pet it ioner appeared before t he Dist rict Magist rat e and subm it t ed his explanat ion st at ing t hat he has not hing t o do wit h t he illegally st ored m ineral. That t he m ineral is not st ored on t he pet it ioner’s land and t hat t he land on which t he m ineral st ored belongs t o one Mr. Mohan Ram , Fakir Ram and Harj eet Singh s/ o Mr. Rudra Singh, Village 2 Madaiya, Tehsil Ram nagar, Dist rict Nainit al. The Dist rict Magist rat e, wit hout considering t he t rut hfulness of t he reply proceeded t o im pose t he penalt y as assessed under t he j oint inspect ion report vide order dat ed 31.01.2020. 4) That t he pet it ioner could not appeal against t he order dat ed 31.01.2020 as allegedly t hereaft er t he pandem ic broke out , and t hat on 16.08.2022, he addressed a let t er t o t he Com m issioner, Kum aon Division, Nainit al request ing for a re- enquiry, and as no act ion was fort hcom ing from t he Com m issioner, Kum aon Division, he preferred a m ining appeal before t he learned Com m issioner, Kum aon Division, Nainit al. I nit ially, t he appellat e court st ayed t he operat ion t he dem and as t he int erregnum t he Tehsildar Ram nagar has issued a recovery cit at ion under Sect ion 280 of t he U.P. Zam indari Abolit ion and Land Reform s Act , 1950. 5) I t is t he case of t he pet it ioner t hat on 28.08.2024, t he m at t er was list ed before t he appellat e aut horit y. That t he counsel represent ing t he pet it ioner failed t o represent him in t he hearing leading t o t he appellat e aut horit y dism issing t he appeal for want of prosecut ion. 6) I t is t he case of t he pet it ioner t hat t he dat e had been wrongly not ed by his counsel, and on account of t hat t he counsel could not present him self on 28.08.2024, and t hat his counsel had ot herwise been diligent ly prosecut ing t he 3 appeal. That t he appellat e aut horit y could not have dism issed t he appeal st raight away for non prosecut ion as it involved civil consequences, and t hat t he pet it ioner being a poor farm er, he would be put int o severe dist ress. That t he appellat e aut horit y failed t o appreciat e t hat t he onus ought not have t o be put against pet it ioner, and t he appellat e aut horit y ought t o have given at least one m ore chance of hearing. 7) Thereaft er, pet it ioner preferred applicat ion under Order 41 Rule 19 CPC, giving reason for non- appearance on

28.08.2024. I t is t he case of t he pet it ioner t hat t he appellat e aut horit y wit hout considering t he fact s and circum st ances m ent ioned in t he applicat ion rej ect ed t he sam e vide order dat ed 20.02.2025. 8) Per cont ra, t he learned Addit ional Chief St anding Counsel for t he St at e would reit erat e and support t he order of dism issal, and cont end t hat t he Governm ent has been init iat ing st rict act ion against illegal m ining, and as a consequence of which, t he penalt y cam e t o be im posed. 9) Having heard bot h counsels, and having given our anxious considerat ion t o t he various cont ent ions, we perused t he im pugned order and t he j oint inspect ion report . 10) The penult im at e paragraph of t he j oint inspect ion report reads as under : 4 “ At t he above m ent ioned illegal sub- m ineral sit es, no st orage owner / represent at ive was present t o present t he docum ent s relat ed t o t he sub- m ineral st orage sit e.” 11) That apart , we have perused t he report in det ail, m ore part icularly paragraph No. 1, which relat es t o t he pet it ioner and t he rem aining part of t he report also. A reading of paragraph No. 1 would clearly show t hat t he inspect ing part y has not carried out a survey t o ident ify t he survey num ber or khasra num ber. The paragraph does not reveal on which land t he m ineral is st ored. I n t he absence of a survey and ident ificat ion of t he land, we are unable t o com prehend as t o how t he j oint inspect ion t eam cam e t o t he conclusion t hat t he m ineral belonged t o t he pet it ioner. I t was incum bent for t he j oint inspect ion t eam t o st at e as t o how t hey ident ified t he person who had st ored t he m ineral. The principles of nat ural j ust ice would have dem anded an ident ificat ion of t he owner, and an opport unit y t o t he person t o explain t he presence of t he m ineral in his land. The inspect ion report does not even m ent ion eit her t he khasra num ber or t he survey num ber of t he land in which t he m ineral has been dum ped. The report also does not reveal on what basis t he j oint inspect ion t eam cam e t o t he conclusion t hat it belongs t o person ‘A’, person ‘B’ or person ‘C’. I n t he absence of any m at erial point ing t owards t he pet it ioner or any ot her person in t he report , it appears t o be 5 per se arbit rary. Be t hat as it m ay, t he scope of t he pet it ion is lim it ed t o t he m anner in which t he appeal has been dealt wit h whereby it has been dism issed for want of prosecut ion or, in ot her words, dism issed in default for non- appearance of appellant or his counsel. The above sought discussion would dem onst rat e t hat t here are severe lacunas in t he report and based on such report revenue recovery orders have been issued. I t st ares at us t hat whet her in t he absence of any evidence, is it perm issible t o penalize a person for an offence, t he com m ission of which is not proved. The report , prim a facie, appears t o be vit iat ed by arbit rariness. Be t hat as it m ay, t he cont ent ion t hat t he appellat e aut horit y could have adj ourned t he hearing t o anot her dat e is not wit hout subst ance, especially in t he background t hat we have recorded above. 12) I n t hat view of t he m at t er, we are of t he considered opinion, t hat t he writ pet it ion could be disposed of by set t ing aside t he order dat ed 28.08.2024 dism issing t he appeal for want of prosecut ion, and order dat ed

20.02.2025, and direct ing t he appellat e aut horit y t o consider t he appeal afresh, and while so considering, t he appellat e aut horit y m ay also keep in considerat ion t he prim a facie observat ions m ade by t his Court . Accordingly, bot h t he orders im pugned are set aside. The appeal is direct ed t o be rest ored t o t he file of t he appellat e aut horit y, and t he 6 appellat e aut horit y shall issue not ice of hearing t o t he part y. The part y shall appear before t he appellat e aut horit y on

25.04.2025, at 02: 00 P.M., t hereupon, it is open for t he appellat e aut horit y t o fix t he dat e of hearing as per it s convenience. 13) The writ pet it ion st ands disposed of, accordingly. ________________ G. N A REN D A R, C.J. _ _ _ _ _ _ _ _ _ _ _ _ A LOK M A H RA , J. Dt : 25 TH MARCH, 2025 Negi HIMANS HU NEGI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=bb3b60774012c1ef1dae20d13aaf 116e73351fdaf6878326386908a7f90d5757, postalCode=263001, st=UTTARAKHAND, serialNumber=75BD9D0FB7F4A80990FC51 A722A6BC552D470EB4FD2F88DDF7C18DB 2A1524A4D, cn=HIMANSHU NEGI 7