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2008 DIGILAW 624 (ALL)

RAMDHANI JAISWAL v. STATE OF UTTAR PRADESH

2008-03-18

JANARDAN SAHAI, S.P.MEHROTRA

body2008
JUDGMENT By the Court.—The petitioner was granted a mining lease after approval of the State Government on 20.5.2003. The lease deed was executed for a period of three years. The petitioner moved an application for cancellation of the lease on 8.11.2004. The District Magistrate issued a notice for recovery of four month’s royalty and for forfeiture of the security amount. Aggrieved by the said order, the petitioner filed an appeal before the Commissioner. The Commissioner by an order dated 12.5.2006 set aside the order of the District Magistrate and directed the petitioner to file a representation and the District Magistrate was directed to decide the matter afresh after giving opportunity to the petitioner. In consequence of the order of the Commissioner, the District Magistrate decided the matter afresh and passed the impugned order forfeiting security and directing the petitioner to pay royalty for the third semester 2004-05 (September). The order of the District Magistrate has been challenged by the petitioner. 2. It is submitted by the learned Counsel for the petitioner that under Rule 58 of U.P. Minor Mineral (Concession) Rules, 1963, no order for forfeiture of security furnished by the petitioner can be passed and that the respondents are not entitled to royalty because the petitioner has not done mining work after September 2004 and has rather submitted an application for cancellation/surrender of the mining lease. A preliminary objection has been raised regarding the maintainability of this petition as an appeal under Rule 77 of U.P. Minor Mineral (Concession) Rules, 1963 lies before the Appellate Authority. Learned Counsel for the petitioner submitted that the remedy of appeal is not an efficacious remedy. On the other hand, learned Standing Counsel submitted that the remedy of appeal is quite efficacious and that the appellate authority has also the power to grant stay during the pendency of the appeal. 3. We have considered the preliminary objection and in our opinion the preliminary objection has merit. Rule 77 of the U.P. Minor Mineral Concession Rules is quoted below : “77. Appeal.—An appeal against an order passed under these rules by the District Officer of the Committee shall lie to the Divisional Commissioner within a period of sixty days from the date of communication of such order to the party aggrieved.” 4. Rule 77 of the U.P. Minor Mineral Concession Rules is quoted below : “77. Appeal.—An appeal against an order passed under these rules by the District Officer of the Committee shall lie to the Divisional Commissioner within a period of sixty days from the date of communication of such order to the party aggrieved.” 4. It is well settled that the powers of the appellate authority unless circumscribed by the statute are co-extensive with those of the authority of first instance whose order is under challenge in appeal. While it is true that an appellate authority not being a Court does not have inherent power to grant a stay order but it is equally well settled that the appellate authority is possessed of all such powers as may be required for effective exercise of the appellate power. In Income Tax Officer, Cannanore v. M.K. Mohammad Kunhi, AIR 1969 SC 430 , it was held that “it is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat’s Civil Law, Cushing’s Edition, Vol. 1 at page 88, it has been stated : “It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.” 5. Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse vindenture, sine quibus jurisdictio explicari non potuit”. Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse vindenture, sine quibus jurisdictio explicari non potuit”. An instance is given based on Ex parte, Martin, (1879) a QBD 212 at p. 491 that “where an inferior Court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment for the power would be useless if it could not be enforced.” 6. Rule 77 provides for an appeal to the Divisional Commissioner. It does not limit the scope of the appellate jurisdiction of the Commissioner. The Commissioner would therefore have all powers incidental and ancillary for the exercise of the appellate power. In Mohd. Kunhi (supra) the Apex Court referred to the provisions of Section 64 (2) of the Motor Vehicles Act, which did not expressly confer a power on the authority to pass an interim order of stay and observed that in the cases referred to by the High Court in its order, which was the subject matter of appeal to the Apex Court it was held that the power to stay was a necessary corollary to the power to entertain an appeal or revision, “Swarnambiker Motor Service v. Wahita Motor Service, 1958 (2) Mad LJ (SN) 12; Themmalpuram Bus Transport Ltd. v. Regional Transport Officer, Malabar; A.I.R. 1957 Ker 142. In Mohd. Kunhi’s case reference was made to the decision of Burhanpur Tapti Mill Ltd. v. Board of Revenue, Madhya Pradesh, 1955 (6) STC 670 (Nag) in which it was observed that since the Board of Revenue had the power to adjudge the correctness of an order passed by the Commissioner under Section 22B reopening an assessment the Board had also the power to stay the fresh assessment proceedings started by the Assistant Commissioner in pursuance of that order. It was said that the general principle was that in a taxing statute there was no room for what could be called the equitable construction, but that principle applied only to the taxing part of the statute and not to the procedural part. It was said that the general principle was that in a taxing statute there was no room for what could be called the equitable construction, but that principle applied only to the taxing part of the statute and not to the procedural part. It has further been observed that where the legislature invests an Appellate Tribunal with powers to prevent an injustice, it impliedly empowers it to stay the proceedings which may result in causing further mischief.” 7. On a consideration of the provisions of Rule 77 and of the decisions referred to above it appears to us that the Divisional Commissioner also has the power in an appeal to grant stay in a proper case. The scope of the appellate power of the Commissioner is not circumscribed by any words imposing restriction. An order of the District Officer or of the Committee under the Rules is appealable. The rule does not restrict the filing of an appeal to a particular category of orders. All orders of the District Officer can be challenged in appeal. Some of the orders have serious consequence. Thus appeal may lie against order granting or refusing lease; cancelling a lease, demanding of royalty, forfeiture of security; imposition of penalty etc. In some cases the demand may be arbitrary and exorbitant and it is difficult to conceive that the legislature did not intend to confer the power of stay in an appeal under Rule 77. In our opinion the power of stay is available as an ancillary power for the effective exercise of the appellate jurisdiction. 8. It is open to the petitioner to avail the remedy of filing an appeal before the Appellate Authority and in the appeal the petitioner may also file an application for grant of stay. If any such appeal alongwith stay application is filed by the petitioner, the stay application of the petitioner shall be considered in accordance with law preferably within a period of two weeks from the date the same is filed before the appellate authority. 9. With the aforesaid observations, the writ petition is finally disposed of. ————