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2008 DIGILAW 833 (RAJ)

Ramchandra v. State of Rajasthan

2008-03-18

GIRISH K.PANDEY

body2008
Honble Pandey, M.—Having been aggrieved by the order of Tehsildar, Banera (Bhilwara) dated 31.7.2007 and 22.6.2007, all the three revision petitions have been filed by the revisionist Shankarlal, Ramchandra and Kalla under sec. 84 of The Land Revenue Act 1956 (in short hereinafter referred as L.R. Act.), Since a common question of law arises as to whether on the ground of unauthorised excavation on the government land, the Tehsildar is empowered to impose fine by way of penalty or punishment or not ?, they are being disposed of by this common order. 2. The factual matrix of the petitions are as follows :- Revision Petition 2288/2008 – Ramchandra vs. State The Tehsildar, Banera found unauthorised excavation of 36000 cub. feet of area in khasra no. 710 charagah situated in vill. Raghunathpura by Shri Ramchandra S/o Kana of the same village. Initially the Tehsildar imposed Rs. 192000/- by way of penalty. The revisionist preferred an appeal to Addl. Collector, Bhilwara who by his order dated 12.2.2007 remanded the case back to Tehsildar with a direction to take action under rules 48-52 of the Rajasthan Minor Mineral Concession Rules 1986 (referred as MMC Rules). Consequently the Tehsildar passed his impugned order on 31.7.2007 and imposed penalty of Rs. 1,06,720/-. The revisionist again filed the appeal in the Court of Addl. Collector, Bhilwara but this time the memo of appeal was returned back to the appellant revisionist for proper presentation before the competent appellate forum under MMC Rules. Revision Petition 2289/2008 – Shandar Lal vs. State The facts are similar to those as mentioned above with the difference that on the ground of unauthorised excavation in khasara No. 929 of village Raghunathpura by Shri Shankarlal S/o Kishan of the same village, the Tehsildar imposed Rs. 64,000/- by way of penalty vide his impugned order dated 31.7.2007. The revisionist went in appeal twice like revisionist Ramchandra before the Addl. Collector, Bhilwara but met with the same fate. Revision Petition 2294 /08 – Kalla vs. State The Tehsildar, Banera found trespass over nearly two btighas of land and unauthorised excavation by Shri Kalla S/o Prabhu in Khanara No. 5426 situated in Banera and imposed Rs. 3,76,640/- by way of penalty by his impugned order dated 22.6.2007. Being aggrieved by the said order unlike the above two revisionist Shri Kalla straightway came in revision before this Board. 3. 3,76,640/- by way of penalty by his impugned order dated 22.6.2007. Being aggrieved by the said order unlike the above two revisionist Shri Kalla straightway came in revision before this Board. 3. Heard the learned counsel for the revisionists Shri Madan Lal Gurjar and the learned Dy. Government Advocate Shri Ramjan Mohammad khan at this stage of admission and perused the impugned orders in question. Shri Gurjar vehemently contends that the orders passed are prima-facie on the face of record illegal, perverse and contrary to law as there is no provision in the L.R. Act or MMC Rules authorising the Tehsildar to impose penalty or punishment on the ground of unauthorised excavation over the government land. Shri Gurjar also submits that this is a clear cut transgression of jurisdiction and the Tehsildar exercised the power not vested in him either by virtue of L.R. Act or by virtue of MMC Rules. 4. Shri Ramjan Mohammed Khan appearing on behalf of the State submits that the Tehsildar, Banera acted well within his jurisdiction and exercised the powers vested in him under the MMC Rules. He also submits that the cases of unauthorised excavation over the Govt. land should be viewed strictly and every endeavour should be made to protect the interests of the State as the recovery of a huge amount of govt. revenue is pending owing to unnecessary interventions by the Courts. 5. There are two parallel and independent machineries to deal with the situation of unauthorised excavation over the government land. One machinery of revenue officers with the Collector of the Distt. as its head has been constituted under Sections 89, 90 & 91 of the LR Act. while another machinery in the hands of the officials of Mining Deptt. has been constituted under the MMRD Act and MMC Rules. The relationship between the two independently existing but differently branded provisions has been a matter of controversy again and again and time to time. Before coming to any conclusion and in the fitness of the matter, some of the relevant provisions are reproduced here verbatim. has been constituted under the MMRD Act and MMC Rules. The relationship between the two independently existing but differently branded provisions has been a matter of controversy again and again and time to time. Before coming to any conclusion and in the fitness of the matter, some of the relevant provisions are reproduced here verbatim. 89(7) LR Act "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 his 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." 6. The relevant provisions under Rules 48-53 MMC Rules are as follows :- Offences, Penalties and Punishments 48. Unauthorised working.-(l) No person shall undertake any mining operations except in accordance with the terms and conditions of the mining lease, quarry licence, short term permit or any other permission granted under these rules. 48(3) Any contravention of sub-rule (1) shall be punishable with imprisonment which may extend to one year or with fine which may extend up to Rs. 5000/- or with both, and in case of a continuing contravention, with as additional fine which may extend to Rs. 500/- for every day during which such contravention continues after conviction for the first such contravention. Proviso II 48(5) Provided further that every officer seizing any property or mineral under this rule shall give a receipt of the property so seized to the person from whose possession the property or mineral is so seized and make a report of such seizure to his superior officer and to the Magistrate having jurisdiction over the area to try offence. 48(6) The property other than the mineral seized under sub-rule (5) may be released by the officer who seized the property in the execution of a bond by the trespasser or the owner of the property or any other person to the satisfaction of such officer that the property so released shall be produced at the time and at the place when such production is required by such officer. 48(7) All property seized under this rule shall by liable to be confiscated by an order of Magistrate trying the offence of the rent, royalty or tax or/and cost of the mineral as mentioned above are not paid by the trespasser within a period of 3 months from the date of commission of such offence or when the recoveries are not effected - by that time. 50. Offences cognizable only on written complaint.— No court shall take cognizance of any offence punishable under these rules except upon a complaint in writing made by a person not below the rank of Mines Foreman, Grade-II; Provided that Mines Foreman, Grade I or Grade II shall obtain prior approval of the Mining Engineer/Assistant Mining Engineer before filing any complaint. 7. The relevant notification of the State Government dated 10.6.1992 touching the point is as follows :- MINES (Gr.2) DEPARTMENT NOTIFICATION Jaipur, June 10, 1992 G.S.R. 10. In exercise of powers of powers conferred by Rule 42 of the Rajasthan Minor Mineral Concession Rules, 1986 the State Government hereby directs that the powers under the said rules, in relation to the matters mentioned in column No.1 of the Schedule below shall be exercised by the officers as shown against each in column No.3 of the schedule, namely :-- THE SCHEDULE Matters in relation to which powers may be exercised Relevant provisions of Minor Mineral Concession Rules, 1986 Officers or Authority by whom powers to be exercised 1. To evict any person trespassing on any land where mining operations are carried out without a valid mining lease, quarry licence, short term permit 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 Rule 48 District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 3. To recover the mineral raised without any lawful authority or where such mineral has already been disposed of the cost there of including rent, royalty or tax as the case may be. Proviso to Sub-rule (5) of District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 4. To make complaint in writing before competent Court to take cognizance to offence under Rule 48 Rule 50 Tehsildar with approval of District District Collector / Sub-Divisional Officer. 5. Proviso to Sub-rule (5) of District Collector, Sub-Divisional Officer, Tehsildar within their jurisdiction 4. To make complaint in writing before competent Court to take cognizance to offence under Rule 48 Rule 50 Tehsildar with approval of District District Collector / Sub-Divisional Officer. 5. To Investigate the offence punishable under the rule Rule 52 District Collector, Sub-Divisional Officer and Tehsildar within their jurisdiction. 6. To take evidence on oath Rule 53 District Collector, Sub-Divisional Officer and Tehsildar within their jurisdiction. 8. It is pertinent to mention here two decisions of this Board touching the point in question. In Chunni Lal vs. State, 1998 RRD 124 the learned single member of this board held that MMRD Act being special Act has precedence over the L.R. Act which is a General Act. Order of the Collector was set aside and direction was made to initiate proceedings u/s. 91 of the LR Act and MMC Rules. 9. Being aggrieved by the order, the state Government filed writ petitions No. 3504/98 and 3498/98. The Honble High Court disposed of the writ petition observing that the review petition may be filed before the Board of Revenue. Consequently two review petitions again came up for decision before this Board. 10. The larger bench of this Board in State of Rajasthan vs. Chunnilal RLW 2007(1) Raj. 224 scrutinized the various decisions touching the point of inter-relationship between Sec. 89(7) of the LR Act and rules 48-52 of MMC Rules. The question of precedence of MMRD Act & MMC Rules over 89(7) of the LR Act was also examined and the larger bench of this Board speaking through Honble Kaurani C. summed up the matter in the following words :- "The provisions of Section 89(7) of L.R. 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. 89(7) LR Act" 11. A careful and analytical scrutinising of the provisions contained under rules 48-52 clearly illustrates that the provision comes under the chapter of offences, penalties and punishments. Both statute can function with full vigour side by side in their own parallel channels. Even if they happened to some extent overlap. 89(7) LR Act" 11. A careful and analytical scrutinising of the provisions contained under rules 48-52 clearly illustrates that the provision comes under the chapter of offences, penalties and punishments. Rule 48(3) makes provision for punishment and any contravention under Rule 48(1) is punishable with imprisonment which may extend to one year or fine which may extend to Rs. 5000/- or both. The provisions of rules 48-53 deal with the trial of offence and matters preparatory and incidental thereto. There is no rule which specifically authorises any revenue officer to impose fine or penalty on the ground of unauthorised excavation. When the revenue officers were authorised to deal with the matter of unauthorised excavation by notification 10.6.1992, no one was authorised to impose any fine or penalty as imposed in the revisions in question. 12. The existence of two different machinery under two different provisions to deal with any particular situation or contravention does not necessarily mean that the provisions are contradicting to each other. The controversy raised as to the relationship between Sec. 89(7) of the LR Act and the rules 48-52 of the MMC Rules is imaginary and not real. In my opinion there is no controversy at all. Both the provisions apply in different situation and in different context. Controversy appear to those who are misconceived and who fail to visualise that the provisions of rules 48-53 of MMC Rules deal with the presentation of the complaint, taking the cognizance of the of the offence by the magistrate and the trial of offence and the punishment to be inflicted therefor. 13. Time and again the courts have given direction to Tehsildar to deal with the situation of unauthorised excavation under Rules 48-52 of the MMC Rules. In my opinion all such directions have been made by misreading the various provisions of the rules. 13. Time and again the courts have given direction to Tehsildar to deal with the situation of unauthorised excavation under Rules 48-52 of the MMC Rules. In my opinion all such directions have been made by misreading the various provisions of the rules. Undoubtedly the Tehsildar with the approval of the District Collector and S.D.O. can file a complaint under Rule 50 of the MMC Rules for taking cognizance of the offence by the Magistrate but they cannot himself impose the punishment or penalty, The revenue officers authorised by the notification dated 10.6.1992 may seize the material excava-ted; may recover the amount of the material if already sold; may investigate the case and may file a complaint but cannot try the offence and impose punishment himself. How can a complaint become a judge in his own cause? 14. It may appear to some one that no provision has been made under the relevant rules as to the court by which the offence is to be tried. Our General Criminal Law of the land makes provisions for such in eventuality. Part II of the 1st Schedule of the Code of Criminal Procedure makes the offence under Rule 48(3) of the MMC Rule is triable by a judicial Magistrate Class-I. 15. On the ground of unauthorised excavation on the government land only the Collector of the Distt. can impose penalty under Sec. 89(7) of the LR Act at the rate specified therein. The Tehsildar has no jurisdiction either under LR Act or under MMC Rules to impose penalty by himself. A perusal of the impugned orders dated 31.7.2007 and 22.6.2007 passed by the Tehsildar Banera clearly illustrates that at first he held guilty of the offence and then imposed the penalty therefor. The action of the Tehsildar cannot be supported either by Sec. 89(7) of the L.R. Act or by Rules 48-52 of the MMC Rules. Undoubtedly and unquestionably he acted without jurisdiction and exercised the powers not vested in him. 16. I have heard the parties at this stage of admission. There is an option before me to admit these revisions for hearing and again rehear the case and then to pass a final order. Since the orders passed are prima face on their face illegal and cannot sustain at all, I deem it proper to dispose of the petitions at this very stage of admission. 17. There is an option before me to admit these revisions for hearing and again rehear the case and then to pass a final order. Since the orders passed are prima face on their face illegal and cannot sustain at all, I deem it proper to dispose of the petitions at this very stage of admission. 17. In the result, I accordingly accept all the three revision petitions and set aside the orders of Tehsildar, Banera (Bhilwara) dated 31.7.2007 and 22.6.2007. However, it in made clear that this order shall not operate as a bar for taking action under the relevant provisions of the L.R. Act or under MMC Rules. The copy of the order be sent to the Court below. Order pronounced on dated 18.3.2008 in open Court.