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2015 DIGILAW 87 (ORI)

Tafzil Sarwar v. Dy. Director, Mines Joda Circle

2015-02-09

S.PUJAHARI

body2015
ORDER S. Pujahari, J. 1. Heard. This writ petition has been filed by the petitioner challenging the order dated 28.10.2014 passed by the learned Additional District Judge, Champua in F.A.O. No. 4 of 2014 impugning the order of confiscation passed against his vehicle by the opposite party-competent authority on 16.04.2014 at Annexure-2 in exercise of the power under Rule-12(4) of the Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 (in short hereinafter referred to as "the Orissa Minerals Rules, 2007"). 2. It appears that the writ petitioner filed an appeal vide F.A.O. No. 4 of 2014 before the learned Additional District Judge, Champua against the order of confiscation passed by the opposite party confiscating his vehicle bearing registration No. OR-09-J-1184 for illegal transportation of iron ore in exercise of the power conferred on him for such confiscation under Rule-12(4) of the Orissa Minerals Rules, 2007 and the learned Additional District Judge, Champua refused to entertain the said appeal holding that against the order of the competent authority, an appeal lies to the Deputy Director, Mines, Joda under Rule-17 of the Orissa Minerals Rules, 2007. The writ petitioner being aggrieved by the same, has challenged the aforesaid order to be illegal in this writ petition with a prayer to direct the opposite party to release the vehicle as the same has been illegally seized and confiscated. 3. It is submitted by the learned counsel for the writ petitioner that since under the provisions of the Orissa Minerals Rules, 2007, an appeal lies to the Court irrespective of the fact that whether the competent authority has confiscated or any other authority has confiscated, the impugned order passed by the learned Additional District Judge, Champua cannot be sustained and liable to be set-aside and the opposite party be directed to release the vehicle in favour of the petitioner as the seizure and confiscation of his vehicle was done illegally and without any materials on record. 4. 4. Learned counsel for the State, however, submits that Sub-rule (7) of Rule-12 of the Orissa Minerals Rules, 2007 being not clear to whom an appeal lies against such order of confiscation, the impugned order of the learned Additional District Judge, Champua cannot be found fault with, but he fairly submits that reliance placed on Rule-17 of the Orissa Minerals Rules, 2007 by the learned Additional District Judge, Champua appears to be misconceived, inasmuch as Rule-17 speaks of an appeal against an order passed by the competent authority in exercise of the power under Sub-rule (1) of Rule-6 and Sub-rule (4) of Rule-10 of the Orissa Minerals Rules, 2007 and the order of confiscation is not an order under the said Rule but an order under Rule-12(4) of the Orissa Minerals Rules, 2007. 5. It appears that the aforesaid statutory Rule has been framed by the State Government in view of the delegation of the Central Legislature under Section 23C of the Mines and Minerals (Development & Regulation) Act, 1957 (in short "the MMDR Act"). Sub-section (4) of Section 21 of the Mines and Minerals (Development & Regulation) Act, 1957 (for short "the MMDR Act") mandates seizure minerals raised or transported without any lawful authority from any land along with the tool, equipment, vehicle or any other thing used for the said purpose by an Officer or authority specially empowered in this behalf. Sub-section (4-A) of Section 21 of the MMDR Act empowers the Court which is competent to take cognizance of the offences under Section 21(1) of the MMDR Act, to confiscate or dispose of the property. 6. The Hon'ble Apex Court in the case of Baijnath v. State of Bihar, reported in AIR 1970 SC 1436 , taking note of the case of State of Orissa v. M.A. Tullock & Co. reported in AIR 1964 SC 1284 have held "............. where a superior legislature evinced an intention to cover the whole field, the enactment of the other legislature whether passed before or after must be held to be overborne. It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation........", 7. It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation........", 7. This Court in the case of M/s. Jai Durga Iron Pvt. Ltd. v. Superintendent of Police, Sundergarh and another, reported in (2006) 34 OCR 655 in paragraphs-12 and 13 has held as follows:-- "12. From the above, it is clear that the State Act legislated by the State Legislature being in relation to Entry 23 of List-II in the 7th Schedule of the Constitution, which is with regard to Regulation of Mines and Minerals Development, the same is subject to the provisions of List-I with respect to Regulation and Development under the control of the Union. Thus, the above State Act was in force as no similar provisions were included in the M.M. (D.&R.) Act which is a Central legislation under Entry 54 of List-I of the 7th Schedule. In view of the declaration made in Section 2 of the M.M.(D&R) Act, the moment similar provisions as contemplated in the State Act were provided for in the M.M.(D&R) Act by way of amendment with effect from 18.12.1999, the said provisions in the State Act became inoperative being occupied by the central legislation. 13. In view of the above amendment brought to the M.M.(D&R) Act by the central legislation with effect from 18.12.1999, in our considered view, the provisions of Section 12 of the M.M.(D&R) Act with regard to penalty which can be imposed on a person who fails to comply with or contravene any of the provisions of the State Act and the provisions of Section 16 of the State Act with regard to seizure of property liable to be confiscated and prosecution for such offences under Section 12 of the State Act can no longer be made applicable to minerals which are covered in the M.M.(D.&R) Act." 8. A Division Bench of this Hon'ble Court placing reliance in the case of Baijnath (Supra) and also M/s. Jai Durga Iron Pvt. Ltd. (supra) in the case of M/s. T.R. Chemicals Ltd. and another v. State of Orissa and another, reported in AIR 2008 Orissa 126 in paragraph-16 held as follows:-- "16. A Division Bench of this Hon'ble Court placing reliance in the case of Baijnath (Supra) and also M/s. Jai Durga Iron Pvt. Ltd. (supra) in the case of M/s. T.R. Chemicals Ltd. and another v. State of Orissa and another, reported in AIR 2008 Orissa 126 in paragraph-16 held as follows:-- "16. The 1999 amendment to the MMDR Act has to be held to be a "declaration" by a superior legislature with the intention to cover the whole field, especially covered under Section 23C and therefore, any enactment of the other legislature whether passed before or after must be held to be inoperative. This judgment of the Apex Court was relied upon by this Court in the case of M/s. Jai Durga Iron Pvt. Ltd. (supra) wherein this Court has come to hold that the moment similar provisions as contemplated in the State Act were provided for in the M.M. (D.& R.) Act, by way of amendment, with effect from 18.12.1999, the said provisions in the State Act became inoperative being occupied by the central legislation. Therefore, after the amendment to the Central Act, 1957, neither the Orissa Act, 1989 nor 1990 Rules framed thereunder have any competence nor were any longer enforceable." 9. Placing reliance on the law laid down in the case of Baijnath v. State of Bihar (supra) so also this Court in the case of M/s. Jai Durga Iron Pvt. Ltd. v. Superintendent of Police, Sundergarh and another & M/s. T.R. Chemicals (Supra), this Court is of the view that when the superior legislation specifically empowers a Court, for disposal of the property seized under Section 21(4) of the MMDR Act, the Rule made by the State Government for disposal of such property authorizing another authority besides the Court competent, is inoperative inasmuch as the same is contrary to the statutory provisions under the MMDR Act and the State Government in its rule making power under Section 23C of the MMDR Act could not have authorized any other authority for confiscation of the same. Therefore, since the competent authority has no power to confiscate the property as aforesaid, the impugned order of confiscation was without jurisdiction, but an appeal against such order of confiscation under Rule-12(7) of the Orissa Minerals Rules, 2007 does not lie to the District Judge. Hence, this writ petition stands allowed and the impugned order of confiscation at Annexure-2 stands set-aside. Hence, this writ petition stands allowed and the impugned order of confiscation at Annexure-2 stands set-aside. The petitioner is at liberty to seek release of his vehicle in question seized by the competent authority before the appropriate forum, i.e., the Court which is empowered to dispose of the property seized in this case by the competent authority.