2025:UHC:2194-DB IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE THE CHIEF JUSTICE SRI G. NARENDAR AND HON’BLE SRI JUSTICE ALOK MAHRA WRIT PETITION (M/B) NO. 72 OF 2025 25TH MARCH, 2025 Jagmohan Singh Bisht …… Petitioner Versus State of Uttarakhand & others …… Respondents Counsel for the petitioner : Mr. Mahendra Singh Rawat, learned counsel Counsel for the respondents : Mr. Yogesh Chandra Tiwari, learned Additional Chief Standing Counsel for the State / respondents The Court made the following: JUDGMENT: (per Hon’ble The Chief Justice Sri G. Narendar) Heard the learned counsel for the petitioner Mr. Mahendra Singh Rawat and the learned Additional Chief Standing Counsel for the State Mr. Yogesh Chandra Tiwari. 2) The case of the petitioner is that he is the owner of certain lands in Village Bhaguva Bangar, Tehsil Ramnagar, District Nainital, and he is a farmer and has planted mango and litchi trees and developed an orchard, and on the remaining land he grows paddy and wheat to 1 2025:UHC:2194-DB support himself and his family, and that the petitioner’s wife is working in an Anganwadi. 3) That on 13.05.2019, allegedly a team of officers from the departments of Mining and Revenue carried out a surprise joint inspection and in the course they found minerals stacked in various land parcels. In all, 10 such land parcels were visited and it was found that sub-minerals were allegedly illegally stored in certain lands, and one such dump of minerals is alleged to have been stored by the petitioner, and the joint inspection team assessed the value of the mineral and the penalty payable, and concluded that the petitioner was liable to pay a sum of Rs.13,66,000/-, and the similarly minerals found dumped in 09 other places were also valued under the joint inspection report, and the same was sent to the competent authority, i.e., the District Magistrate, and the District Magistrate issued a show cause notice dated 29.06.2019. Under said notice, explanation was sought from the petitioner regarding discovery of the mineral dumped in his lands. In response to the same, the petitioner appeared before the District Magistrate and submitted his explanation stating that he has nothing to do with the illegally stored mineral. That the mineral is not stored on the petitioner’s land and that the land on which the mineral stored belongs to one Mr. Mohan Ram, Fakir Ram and Harjeet Singh s/o Mr. Rudra Singh, Village 2 2025:UHC:2194-DB Madaiya, Tehsil Ramnagar, District Nainital. The District Magistrate, without considering the truthfulness of the reply proceeded to impose the penalty as assessed under the joint inspection report vide order dated 31.01.2020. 4) That the petitioner could not appeal against the order dated 31.01.2020 as allegedly thereafter the pandemic broke out, and that on 16.08.2022, he addressed a letter to the Commissioner, Kumaon Division, Nainital requesting for a re-enquiry, and as no action was forthcoming from the Commissioner, Kumaon Division, he preferred a mining appeal before the learned Commissioner, Kumaon Division, Nainital. Initially, the appellate court stayed the operation of the demand as in the interregnum the Tehsildar Ramnagar has issued a recovery citation under Section 280 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. 5) It is the case of the petitioner that on 28.08.2024, the matter was listed before the appellate authority. That the counsel representing the petitioner failed to represent him in the hearing leading to the appellate authority dismissing the appeal for want of prosecution. 6) It is the case of the petitioner that the date had been wrongly noted by his counsel, and on account of that the counsel could not present himself on 28.08.2024, and that his counsel had otherwise been diligently prosecuting the 3 2025:UHC:2194-DB appeal. That the appellate authority could not have dismissed the appeal straightaway for non prosecution as it involved civil consequences, and that the petitioner being a poor farmer, he would be put into severe distress. That the appellate authority failed to appreciate that the onus ought not have to be put against petitioner, and the appellate authority ought to have given at least one more chance of hearing. 7) Thereafter, petitioner preferred application under Order 41 Rule 19 CPC, giving reason for non-appearance on 28.08.2024. It is the case of the petitioner that the appellate authority without considering the facts and circumstances mentioned in the application rejected the same vide order dated 20.02.2025. 8) Per contra, the learned Additional Chief Standing Counsel for the State would reiterate and support the order of dismissal, and contend that the Government has been initiating strict action against illegal mining, and as a consequence of which, the penalty came to be imposed. 9) Having heard both counsels, and having given our anxious consideration to the various contentions, we perused the impugned order and the joint inspection report. 10) The penultimate paragraph of the joint inspection report reads as under : 4 2025:UHC:2194-DB “At the above mentioned illegal sub-mineral sites, no storage owner / representative was present to present the documents related to the sub-mineral storage site.” 11) That apart, we have perused the report in detail, more particularly paragraph No. 1, which relates to the petitioner and the remaining part of the report also. A reading of paragraph No. 1 would clearly show that the inspecting party has not carried out a survey to identify the survey number or khasra number. The paragraph does not reveal on which land the mineral is stored. In the absence of a survey and identification of the land, we are unable to comprehend as to how the joint inspection team came to the conclusion that the mineral belonged to the petitioner. It was incumbent for the joint inspection team to state as to how they identified the person who had stored the mineral. The principles of natural justice would have demanded an identification of the owner, and an opportunity to the person to explain the presence of the mineral in his land. The inspection report does not even mention either the khasra number or the survey number of the land in which the mineral has been dumped. The report also does not reveal on what basis the joint inspection team came to the conclusion that it belongs to person ‘A’, person ‘B’ or person ‘C’. In the absence of any material pointing towards the petitioner or any other person in the report, it appears to be 5 2025:UHC:2194-DB per se arbitrary. Be that as it may, the scope of the petition is limited to the manner in which the appeal has been dealt with whereby it has been dismissed for want of prosecution or, in other words, dismissed in default for non-appearance of appellant or his counsel. The above sought discussion would demonstrate that there are severe lacunas in the report and based on such report revenue recovery orders have been issued. It stares at us that whether in the absence of any evidence, is it permissible to penalize a person for an offence, the commission of which is not proved. The report, prima facie, appears to be vitiated by arbitrariness. Be that as it may, the contention that the appellate authority could have adjourned the hearing to another date is not without substance, especially in the background that we have recorded above. 12) In that view of the matter, we are of the considered opinion, that the writ petition could be disposed of by setting aside the order dated 28.08.2024 dismissing the appeal for want of prosecution, and order dated 20.02.2025, and directing the appellate authority to consider the appeal afresh, and while so considering, the appellate authority may also keep in consideration the prima facie observations made by this Court. Accordingly, both the orders impugned are set aside. The appeal is directed to be restored to the file of the appellate authority, and the 6 2025:UHC:2194-DB 7 appellate authority shall issue notice of hearing to the party. The party shall appear before the appellate authority on 25.04.2025, at 02:00 P.M., thereupon, it is open for the appellate authority to fix the date of hearing as per its convenience. 13) The writ petition stands disposed of, accordingly. ________________ G. NARENDAR, C.J. ____________ ALOK MAHRA, J. Dt: 25TH MARCH, 2025 Negi HIMANS HU NEGI Digitally signed by HIMANSHU 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 Date: 2025.04.08 12:24:48 +05'30'