(1.) PETITIONER, Kailash Auto Builders Co. Pvt. Ltd. has filed the instant writ petition assailing the orders (P-5, P-6 and P-7) passed respectively by the collector, Commissioner and Board of Revenue imposing penalty under section 247 (7) of the M. P. Land Revenue Code for excavation of Muram and stones to the extent of Rs. 20,038/ -.

(2.) SHOW-CAUSE notice (P-l) was issued on 9-6-1987 to Shri Iqbal ahmed, Manager Kailash Auto Pvt. Ltd. and Shri J. S. Dadwal, Supervisor, kailash Auto Pvt. Ltd. on the basis of the report of Mining Inspector dated 19-5-1987. The quantity of excavated stone was 1731 tons and that of Muram was 2413 tons, which were having the market value of Rs. 36,614/ -. Penalty of rs. 73,228/- was proposed to be imposed. Reply (P-2) was filed on behalf of the petitioner taking categorical stand that none of the employees of Kailash auto Builders ever excavated minerals from the Government Land of Village dobhi, Tehsil Niwas, District Mandla. Shri Iqbal Ahmed is the only supplier of building materials at Udaipur who has supplied all the building materials required by M/s Kailash Auto Builders Pvt. Ltd. situated at Udaipur, District mandla. Against bills for all materials supplied payments were made by the petitioner by account payee crossed cheques making the transaction complete bona fide and legal, in all respects. Photocopies of the bills, cheques through which amount was paid were also submitted. Collector, Mandla examined witnesses namely; D. C. Mehrotra, Chironjilal and Jameel Ahmed and in defence petitioner examined Shri Krishna Bhave, Shri J. S. Dadwal and colonel S. P. Tiwari and Shri Iqbal Ahmed also examined himself. Collector as per order (P-5) passed on 26-9-1988 came to the conclusion that petitioner has utilized the stones and Muram which were of the Government land and was excavating out of Survey Nos. 13/5,16/1 and 45/1 and it was excavated by shri Iqbal Ahmed. In spite of giving finding that Shri Iqbal Ahmed excavated collector imposed the liability on the petitioner on the ground that Shri Iqbal ahmed acted on behalf of the petitioner. The Collector held that he was simply a labourer and if penalty is imposed he may not be able to pay, as such Kailash auto Builders, therefore, may bear the burden of imposition of penalty of Rs. 20,038/- against the royalty which was payable on the quantity of stones and muram excavated.

(3.) PETITIONER preferred an appeal against order (P-5) before the commissioner, Jabalpur. The Commissioner dismissed the appeal on the finding that Shri Iqbal Ahmed acted on behalf of the petitioner. The petitioner knew it very well that supply made by Shri Iqbal Ahmed was not proper. The board of Revenue also dismissed the appeal filed by the petitioner. Hence, the present writ petition has been filed before this Court.

(4.) I have gone through the evidence in minute details. In my opinion the finding recorded by the Collector, Commissioner and the Board of Revenue are such which can not be allowed to stand. Shri D. C. Mehrotra, witness examined on behalf of the respondents has clearly stated that the muram and Stones were supplied by Shri Iqbal Ahmed. He used to supply the material for the last about three years. He had not seen any of the officer of the petitioner excavating nor they were found at any point of time of the lifting of material. Other witness; Chironjilal examined on behalf of respondent No. 1 stated that he has not seen anybody excavating. He was not aware whether shri Iqbal Ahmed used to supply the material. Shri Jameel Ahmed is another witness examined on behalf of the respondent No. 1. He has stated that Shri iqbal Ahmed was working on the basis of commission. In Para 5 he has stated that the stones and Muram were supplied by Shri Iqbal Ahmed to Kailash Auto builders.

(5.) SHRI Iqbal Ahmed himself has been examined as a witness. His deposition is P-4 which is material and clinches the issue. He has stated that he has started supply of building materials from 1984. He did the work of supply for about three years and he had supplied Muram and Stones to M/s Kailash auto Builders. He had supplied Muram worth Rs. 33,000/- and Stones worth rs. 35,000/- to M/s. Kailash Auto Builders, which amount was paid to him by a cheque. Same amount was disbursed in cash also. He had made supply of muram at the rate of Rs. 115/- per cubic feet and stones at the rate of Rs. 220/-per cubit feet. He has given other details of the expenditure which were incurred by him and payment received.

(6.) ON behalf of the petitioner Shri Krishna Bhave has been examined. His deposition is P-3-D. He has stated that supply was made by Shri iqbal Ahmed. Statement of supply has been produced. Payment was made by account payee cheques. Bills have also been produced. Counter-foil of the cheques (Ex. D-4) has been produced which bears the signatures of Shri Iqbal ahmed, which have been proved by the said witness. Shri J. S. Dadwal is other witness examined by respondent No. 1. He has also stated that the supply was made by Shri Iqbal Ahmed, payment of which was made. Similar is the statement of Colonel S. P. Tiwari witness No. 3 examined on behalf of the petitioner. His Deposition is P- 3-F. He had passed the bills for payment to shri Iqbal Ahmed and payment was made by account payee cheques to Shri iqbal Ahmed. Similar is the finding recorded by the Commissioner, which has not been disturbed by the Board of Revenue. It is clear that excavation and the supply both were made by Shri Iqbal Ahmed. Thus, the finding recorded that he excavated on behalf of the petitioner is not only perverse, but, is contrary to the admission made by Shri Iqbal Ahmed. Shri Iqbal Ahmed has clearly stated that he made supplies and received payment from the petitioner by account payee cheques. It is not the case of Shri Iqbal Ahmed that he acted on behalf of the petitioner. He acted independently in making the supply. He made the supply for about 3 years, for the act in question he himself is responsible.

(7.) SECTION 247 (7) of the M. P. Land Revenue Code reads thus :-

"247. Governments title to minerals.- (7) Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in, and has not been assigned by, the Government shall, without prejudice to any other action that may be taken against him be liable, on the order in writing of the Collector, to pay penalty not exceeding a sum calculated at double the market value of the minerals so extracted or removed : provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose. "

(8.) IT is clear from above quoted provision that any person who without lawful authority extracts or removes minerals from any mine or quarry, he is the person responsible on whom the penalty has to be imposed.

(9.) IN view of the finding recorded by the Collector and Commissioner which is finding of fact that excavation and the supply both were made by Shri Iqbal Ahmed, in my opinion, when Shri Iqbal Ahmed admitted that he had made the supply in his own independent right, he did not act on behalf of the petitioner though supply may have been received by the petitioner, liability can not be fastened on the petitioner. Liability is that of Shri Iqbal Ahmed. The reason employed by the Collector that Shri Iqbal Ahmed is poor and it would not be possible for to recover the amount from him, is no ground to impose the liability on the petitioner.

(10.) THUS, in my opinion, imposition of liability on the petitioner is bad in law. Writ petition is allowed. The impugned orders (P-5, P-6 and P-7)imposing the liability on the petitioner are quashed. Costs on parties. Misc. Petition allowed.