HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT - C No. - 13071 of 2026 Court No. - 29 HON'BLE ARINDAM SINHA, J. HON'BLE SATYA VEER SINGH, J. (Per Arindam Sinha, J.) 1. Petitioner says he undertook excavation activity for leveling of his land to enable agriculture. He has challenged order dated 13th September, 2024 passed by respondent no. 3 (the District Magistrate) imposing Rs. 5,00,000/- as penalty. The order was confirmed by also impugned appellate order dated 28th January, 2026 passed by respondent no. 2 (the Commissioner). Mr. Brijesh Kumar Pandey, learned advocate appearing for petitioner submits, under Government Order (GO) dated 28th March, 2018, no royalty is payable for excavating soil. He reiterates, his client did it for purpose of leveling his land for agriculture. 2. Dr. Rajeshwar Tripathi, learned advocate, Chief Standing Counsel, appears on behalf of State. He hands up his instruction dated 20th April, 2026 with copy to Mr. Pandey. He submits, the penalty was duly imposed on finding by the District Magistrate and confirmed by the Commissioner. He had earlier referred to rule-58 in U.P. Minor Mineral (Concession) Rules, 2021. He also relies on sections 21, 22 and 23-A in Mines and Minerals (Development and Regulation) Act, 1957. 3. Mr. Rajesh Kumar, learned advocate appears on behalf of intended intervener and submits, his client was complainant. He hands up his client's application. On query he submits, it is on his client's complaint, the State authorities moved against petitioner. There should not be interference. Versus Counsel for Petitioner(s) : Brijesh Kumar Pandey Counsel for Respondent(s) : C.S.C. Mohan Singh .....Petitioner(s) State Of U.P. And 3 Others .....Respondent(s) 4. The writ petition was moved on 7th April, 2026. Paragraph-4 from order made that day is reproduced below. "4. State has to satisfy on petitioner having been convicted for imposition of the penalty. Furthermore, to enforce and recover, State has also to demonstrate depth of excavation and the measurement made, upon notice to petitioner." As things stand, State appears to have taken cognizance of complainant's complaint and moved to impose the penalty. The Commissioner has confirmed the imposition. 5. Rule-58 is reproduced below. "58. Penalty for unauthorized mining-Whoever contravenes the provisions of Rule 3 shall on conviction be punishable with imprisonment of either description for a term which may extend up to five years or with fine which shall not be less than of 2 lacs rupees per hectare and which may extend to five lacs rupees per hectare of the area, or with both." We have also seen explanation following the proviso in rule-3. The explanation and proviso are reproduced below. "Rule-3 Mining operations to be under a mining lease or mining permit- ... Explanation-For the purposes of this rule digging manual digging or manual extraction of ordinary clay, ordinary earth for making bricks and pottery shall not be treated as mining operations: Provided that pit created by such digging or extraction should not be deeper than two meters." 6. State's answer is reliance on sections 21, 22 and 23-A in the Act of 1957. Section 21 provides for penalties. Relied upon sub-sections are sub- sections (4), (4-A) and (5). Section 21 (4) and (4-A) talks about, inter alia, raising any mineral from any land, to provide for seizure of the mineral and all tools used in the raising. Section 21 (5) talks about WRIC No. 13071 of 2026 2 recovery of the minerals raised or, where it is disposed of, the price thereof. Section 22 talks about cognizance of offences. The power is with the administrative authority as the section bars Court from taking cognizance. Section 23-A provides for compounding of offences. Dr. Tripathi points out rule 72, for compounding. We do see it is the procedure following substantive provisions in section 23-A. 7. Rule-58 provides for imposition of penalty on conviction. Materials on record show that there was report prepared by the Mines Inspector and other officers put their signature on it. It appears to have been placed before respondent no. 3 (the District Magistrate), who made endorsement imposing penalty of Rs. 5,00,000/-. This was confirmed by respondent no. 3 (the Commissioner). There is no indication of conviction nor compounding. The provisions in the rules and Act, relied upon by State, are in no way applicable to the facts. State, through its functionaries must make proper enquiry to demonstrate that the excavated material is mineral and not soil as provided in rule-3. Depth of the excavation is also to be ascertained. It is only after proper enquiry, there can be a charge made, for purpose of prosecution and conviction. Of course on charge being made there can also be compounding. 8. Impugned order of the District Magistrate as confirmed by the Commissioner (respective orders dated 13th September, 2024 and 28th January, 2026) are set aside and quashed. 9. In view of aforesaid, the intervention application is treated on day's list. It be registered and numbered. The writ petition is allowed and alongwith the application, disposed of. May 5, 2026 Shiraz WRIC No. 13071 of 2026 3 (Arindam Sinha,J.) (Satya Veer Singh,J.) Digitally signed by :- SHIRAZ ALI High Court of Judicature at Allahabad