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2005 DIGILAW 1448 (RAJ)

State of Raj v. Chunni Lal

2005-05-13

P.C.BALAI

body2005
Honble KAURANI, C.—The facts in brief, are that the Additional Tehsildar, Bijoliya found Chunni Lal and Nathu Lal excavating mineral from the Government land without any permission from the Collector or any other authority. As the excavation of mineral was made from the government land as such proceedings were instituted under Section 89(7) of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the LR Act) and penalty was imposed. Against the above noted order, the aggrieved party went in appeal before the Revenue Appellate Authority, Bhilwara who rejected the appeals. The second appeals ere filed before the Board of Revenue for Rajasthan, Ajmer, which were allowed and the order of both the courts below were set-aside. 2. Being aggrieved of the above noted order of the Board of Revenue, the State Government filed writ petition No.3504/98 and 3498/98. The Honble High Court disposed of the writ petitions observing that the review petition may be filed before the Board of Revenue as a result of which the two review petitions LR/46/99/Bhilwara and LR/51/99 Bhilwara came up for decision before the Single Bench of the Board of Revenue. 3. The learned Government Advocate argued that proceedings can be taken under Section 89(7) of the LR Act in respect of excavation of mineral from government land. he further submitted that the The Rajasthan Minor Mineral Concession Rules, 1959 and the Rajasthan Minor Mineral Concession rules, 1986 (hereinafter refer as the MMC Rules) are applicable relating to unauthorised excavation fo mineral in general whereas section 89(7) of LR Act applies to unauthorised excavation of mineral from government land. He also drew the attention of the Court to the words "without prejudice to any other action that may be taken against him, be liable on the order in writing of the Collector to pay a penalty" appearing in Section 89(7) of L.R. Act and submitted that regarding government land additional provision has been made and action could be taken under Section 89(7) of LR Act as such the review should be accepted. 4. 4. The learned counsel for the non-applicant during the course of arguments submitted that the decision of Chunni Lals case reported in 1998 RRD 124 is based on the division of the Honble Rajasthan High Court delivered in Ramesh Kumar vs. State of Rajasthan 1996 DNJ(II) Raj 631 wherein the High Court has placed reliance on the judgment reported in AIR 1970 SC 1436 . In fact the review deserves to be dismissed. Learned Government Advocate has misread the judgment of High Court delivered in writ petition No.432/2000, 438/ 2000 and 441/2000. 5. Honble Single Member of the Board of Revenue held that a large number of cases have been decided by various Benches of the Board of Revenue list of which has been marked as Annexure-A. Most of the judgments are inconsistent to each other as such it would be in the interest of justice to place the review petitions before the Larger Bench. Thus, these review petitions have come up for decision before us. 6. The learned counsel appearing on behalf of the State Government urged that the decision delivered in Ramesh Kumar vs. State of Rajasthan 1996 DNJ (ii) Raj 630 is distinguishable on facts. The dispute in the case of Ramesh Kumar was regarding construction of a building on the area covered by mining lease for mineral masonary stones near Village Bada Bagh Distt. Jaisalmer as it was in the leased area as a result of which it ceased to be agriculture land and the Honble High Court rightly quashed the proceedings taken by the Tehsildar under Section 91 and 89 of the LR Act. But in the instant case the position in otherwise, unauthorised excavation of mineral was made in government agricultural land regarding which action could be taken only by revenue authorities and the review petitions deserves to be allowed. the learned Government Advocate further submitted that there were two judgments of the Honble High Court delivered in (1) Ramesh Kumar vs. State of Rajasthan, 1996 DNJ (ii) Raj. 630 and decisions delivered in writ petition No.432/2000, 438/2000 and 441/2000 on 10.9.2001. Both the judgments are contradictory to each other. In the later judgment the Honble High Court has held that proceedings can be instituted under Section 89(7) of the LR Act relating to unauthorised excavation of mineral in Government land and the board should follow the later judgment. 630 and decisions delivered in writ petition No.432/2000, 438/2000 and 441/2000 on 10.9.2001. Both the judgments are contradictory to each other. In the later judgment the Honble High Court has held that proceedings can be instituted under Section 89(7) of the LR Act relating to unauthorised excavation of mineral in Government land and the board should follow the later judgment. He placed reliance on, 1994 WLC (1) 78, 1995 WLN 668 and 1988(2) RLW 106. Shri Onkar lal Dave who appeared as intervener, has also supported this argument. 7. The learned counsel for the respondent Shri Madan Lal Gurjar, has urged that the learned Government Advocate is trying to distinguish the decision delivered in Ramesh Kumar without any distinction. The revenue authorities have no jurisdiction to deal with matters covered by the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter refer to as MMRD Act) and MMC Rules made there under from time to time. The LR Act is the State Act of the year 1956 and MMRD Act was enacted by the Parliament in 1957 and came into force on 1.6.1958. It being a subsequent Act and also being enacted by the Parliament it prevails and the provisions of LR Act do not apply to the dispute covered by MMRD Act and he placed reliance on RRD 2004 page 27 and RRD 1998 Page 124. 8. The intervener Shri Y.D. Sharma submitted that as there are two conflicting judgments of the Honble High Court, to resolve this controversy reference should be made to the Honble High Court for constituting a Larger Bench so that law may be laid down once for all and he place reliance on 1993 RLR 195 . The intervener, Shri Sohan Pal Singh Choudhary submitted that question should be referred to the Honble High Court under Section 12 of the LR Act. The intervener, Shri S.P. Ojha said that the reference itself is not maintainable because these are two views of Honble High Court, as such the matter ought to have been directly referred to Honble High Court instead of deciding the matter by Board. Intervener Shjri J.S. Sankhla submitted that the decision of Chunnilals case reported in RRD 1998 page 124 has laid down the correct law as it is based on the decision reported in AIR 1970 SC 1436 . Intervener Shjri J.S. Sankhla submitted that the decision of Chunnilals case reported in RRD 1998 page 124 has laid down the correct law as it is based on the decision reported in AIR 1970 SC 1436 . He further submitted that the judgments delivered in the writ petitions No.432/2000 and 438/2000 and 441/2000 on 10.9.2001 have not taken note of the decision delivered in Ramesh Kumar vs. State of Rajasthan, reported in DNJ 1996 Raj. 631. As the Honble High court while deciding the above noted writ petitions have neither distinguished the case of Ramesh Kumar nor has dealt with that case and the Ramesh Kumars decision is based on the decision of the Supreme Court, it should be followed by the Board of Revenue and previous judgment shall prevail. The learned intervener Shri Ashok Nath said that the decision given in the writ petitions number 432/2000, 438/2000 and 441/2000 on 10.9.2001 is per in curium and is not binding on Board of Revenue and placed reliance on case reported in RRD 1978 page 1. 9. We have given thoughtful consideration to arguments advanced by the learned counsels of both the parties and interveners. 10. At the time of pronouncement of judgment by the Honble High court in writ petition No.3498/98 the State of Rajasthan vs. Nathu Lal and writ petition No.3504/98 the State of Rajasthan vs. Chunni Lal, the learned counsel for the State of Rajasthan i.e. petition requested that the Board of Revenue be directed to entertain the review petition on merits as by now the same would be time barred. The learned counsel appearing for Nathu Lal and Chunni Lal i.e. respondents stated that he has no objection if the Board of Revenue decides the review petition on merits after condoning the delay in filing the review petition late. The advocate appearing for the Government of Rajasthan has filed an application under Section 5 supported by an affidavit to condone the delay in filing the review petition. The other party has not controverted it by counter affidavit. The cause of delay shown is sufficient. In the facts and circumstances of the cases we consider it to be in the interest of justice to condone the delay in filing the review petitions. 11. The other party has not controverted it by counter affidavit. The cause of delay shown is sufficient. In the facts and circumstances of the cases we consider it to be in the interest of justice to condone the delay in filing the review petitions. 11. A perusal of the decision delivered in writ petition No.432/2000, 438/2000 and 441/2000 shows that the decision delivered by the Single Bench of the Rajasthan High Court in Ramesh Kumars case was not referred by the arguing counsel nor was placed before the Honble Court. The Honble High Court observed it is not disputed that illegal excavation of mineral was done. The counsel for the respondents also do not dispute the amount of penalty imposed upon the respondents. In view of these facts the Court cannot appreciate the technical approach made by the Board of Revenue. With these observations the Honble High Court reversed the judgments of the Board of Revenue Rajasthan and upheld the judgment of the Revenue Appellate Authority wherein it was held that against the trespassers excavating mineral from the government land proceedings can be instituted under Section 89(7) of the L.R. Act. 12. In our considered opinion the question of making a reference to the Honble High Court under Section 12 L.R. Act, 1955 to resolve the conflict the decisions delivered in Ramesh Kumar vs. State of Rajasthan, 1996 DNJ (ii) Raj. 630 and in the writ petitions No. 432/2000, 438/2000 & 441/2000 does not arise. The cases in hand came before the Single Bench of Board of Revenue in pursuance to the order passed by Honble High Court on 8.9.1999 in the writ petitions No.3498/98 and 3504/98 and the single bench has referred the cases before the larger bench vide order dt. 10.9.2003. 13. The arguments raised before us as there are two inconsistent judgments delivered by the Rajasthan High Court in Ramesh Kumar vs. State of Rajasthan, 1996 DNJ (ii) Raj. 630 in writ petition No.432/2000, 438/2000 and 441/2000. As such the case should be referred to the Honble High Court for constituting a larger bench to settle the controversy once for all cannot be raised in this review petition. It was a matter for the Honble High Court to refer or not to refer the judgments of the coordinate benches to the Larger Bench. As such the case should be referred to the Honble High Court for constituting a larger bench to settle the controversy once for all cannot be raised in this review petition. It was a matter for the Honble High Court to refer or not to refer the judgments of the coordinate benches to the Larger Bench. These cases have come to the Board of Revenue on filing review petitions by State of Rajasthan and decision is required to be given on merits on the review petitions. 14. Moreover it will not be out of place to mention here that the law of the land is that in cases of decisions of coordinate benches later judgment is required to be followed by the courts and tribunals subordinate to the High Court. In this view of the matter we stand supported by the full bench decision of the Karnataka High Court delivered in Govinda Naik G. Kalaghatigi vs. West Patent Press Co. Ltd. and another AIR 1980 Karnataka page 92, the relevant portion appears at para 12 which reads as under:— "In view of the majority opinion, the answer to the question referred to this Full Bench, is as follows:— If two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench while the other is by a smaller Bench the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other courts." 15. The same view has been taken in Vasant Tatoba Hargude and others vs. Dikkaya Muttaya Pujari AIR 1980 Bombay page 34. The Division Bench of the Bombay High Court has held:— "In the event of there being clear conflict, the decision of such later Bench would be binding on us." 16. The same view has been taken by Rajasthan High Court in Board of India Medicine Rajasthan vs. Radheyshyam Sharma, 1994(1) WLC 78. The Division Bench of the Bombay High Court has held:— "In the event of there being clear conflict, the decision of such later Bench would be binding on us." 16. The same view has been taken by Rajasthan High Court in Board of India Medicine Rajasthan vs. Radheyshyam Sharma, 1994(1) WLC 78. The Division Bench of the Rajasthan High Court has held:— "Constitution of India — Art. 141 — Precedents — Divergent views in decisions — Decisions of larger Bench to be followed — In case of equal number of judges, later view to be followed — Question if arising before Bench of Supreme Court itself, Bench consisting of larger number of Judges can overrule decision — To overrule a decision, specific observations to that effect have to be made." In view of the above noted judgments we are of the considered opinion that later decision is to be followed. 17. Section 89 of the L.R. Act provides that right to all minerals, mines and quarries vest in the State Government and the State Government shall have all powers necessary for enjoyment of such a right. Sub-Section 7 of Section 89 of the LR Act read as under:— 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 State 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 a penalty not exceeding a sum calculated at the rate of fifty rupees per ton, or a fraction thereof, 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. 18. The MMC Rules have been promulgated by the Rajasthan Government under the provisions of Section 15 of MMRD Act. Rule 48 appearing in Chapter VII of the MMC Rules deals with offences, penalties and punishments. It is settled position of law that while interpretating the two provisions a harmonious construction is required to be taken. Under the MMC Rules the Government of Rajasthan issued GSR 10 dated 10th June, 1992 whereby under the schedule revenue offices have been authorised to exercise the powers under MMC Rules. It is settled position of law that while interpretating the two provisions a harmonious construction is required to be taken. Under the MMC Rules the Government of Rajasthan issued GSR 10 dated 10th June, 1992 whereby under the schedule revenue offices have been authorised to exercise the powers under MMC Rules. The Schedule reads as under:— Matters in relation to which powers may be exercised Relevant provisionsof MinorConcession Rules, 1986 Officers orAuthority by whompowers to beexercised. 1. To evict any person trespassing on any land where mining operations are carried out without a valid mining lease, quarry license, short term permit or anyother permission granted under these rules. Sub-Rule (4)of Rule 48 District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 2. To seize mineral, tool, equipment, vehicle or any other thing in respect of raising mineral without any lawful authority Sub-Rule (5)of Rule 48 District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 3. To recover the mineral raised without any lawful authority of where such mineral has already been disposed of the cost thereof including rent, royalty on tax as the case may be Proviso toSub-Rule (5) of District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 4. To make complaint in writing before cognizance to offence under Rule 48 Rule 50 District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 5. To investigate the offence punishable under the rules Rule 52 District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 6. To take evidence on oath Rule 53 District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 19. The careful perusal of the schedule noted supra along with Section 89 of the L.R. Act indicates that the same officers have been authorised to exercise same powers under MMC Rules which they are authorised to exercise under the LR Act. 20. It is undisputable that from the record it stands proved that Chunni Lal has unauthorisedly excavated 639325 sq. ft. of mineral weighing 42422 tonnes and Nathu Lal has unauthorisedly excavated 168000 sq. ft. of mineral weighing 11200 tonnes and the recovery cases are pending since 1987 and 1986 respectively and they have been able to avoid the payment of cost or mineral as well as penalty by virtue of appeals after appeals. 21. ft. of mineral weighing 42422 tonnes and Nathu Lal has unauthorisedly excavated 168000 sq. ft. of mineral weighing 11200 tonnes and the recovery cases are pending since 1987 and 1986 respectively and they have been able to avoid the payment of cost or mineral as well as penalty by virtue of appeals after appeals. 21. It will be too technical to say that the order will be correct if under the signature of the same revenue officer the seal of mining department is put and would be wrong if the seal of the revenue department is put under the signature of the same officer, substantial justice is required to be done. When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred for no party can claim to have vested right in injustice being done. 22. Section 89 of the LR Act has not been struck down in any judgment of the Honble High Court or Honble Supreme Court. Harmonious is required to be applied to Section 89 of the LR Act and MMC Rules. The legislature does not waste words and proper meaning is required to be given to the words without prejudice to any other action that may be taken against him. 23. Trespassers and unauthorised excavation of minerals on government land not assigned can be dealt with under Section 89(7) of the LR Act, 1956 as well as MMC Rules viz., action can be taken under either of the two provisions of law. The provisions of Section 89(7) of LR Act and MMC Rules are supplementary and cumulative in their operation and they can stand together. The legislature did not intend by promulgating MMC Rules by the State of Rajasthan to repeal the provisions of Section 89(7) of LR Act. Both statute can function with full vigour side by side in their own parallel channels. Even if they happened to some extent overlap, Section 26 of the General Clauses Act, 1897 fully protects the guilty parties against double jeopardy or double penalty. Both statute can function with full vigour side by side in their own parallel channels. Even if they happened to some extent overlap, Section 26 of the General Clauses Act, 1897 fully protects the guilty parties against double jeopardy or double penalty. Section 26 of the General Clauses Act, 1897 reads as under:— "Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." 24. The words without prejudice to any other action appearing in Section 89(7) of LR Act clearly negative any legislative impediment or implied repeal. In this view of ours we stand supported by the decision of the Honble Supreme Court delivered different context in Municipal Corporation of Delhi vs. Shiv Shanker AIR 1971 SC page 815. 25. On the basis of the above discussion it can be safely said that unauthorised excavation of mineral by the trespassers on the government land can be dealt with and punishment awarded both under Section 89(7) of the LR Act as well as MMC Rules but action is required to be taken either of the two provisions to avoid double jeopardy. 26. The review petitions are allowed and the judgment of the Board of Revenue Rajasthan delivered in appeal No. 103/95/LR/Bhilwara, Chunni Lal vs. State of Rajasthan and Appeal No. 41/96/LR/Bhilwara Nathulal vs. State of Rajasthan are set aside. The judgments of the Revenue Appellate Authority and orders passed by the Subordinate Officers are upheld. The parties are ordered to bear their own costs. One copy of this judgment is order to be placed on the file of Review LR No. 46/99/Bhilwara and Review LR No.51/99 Bhilwara and appeal No. 103/95 and appeal No. 41/96. 27. Pronounced in the Open Court.