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2017 DIGILAW 1544 (PAT)

Puspa Singh v. State of Bihar

2017-11-27

ANIL KUMAR UPADHYAY, RAJENDRA MENON

body2017
ORDER Even though we had proposed to deal with the matters and decide the petitions finally, but on going through the detailed arguments advanced by various counsels for the petitioners and considering the submissions made by the learned Advocate General and on going through various provisions of the impugned Rule in question, prima facie, we find that many of the provisions of the Rule have been incorporated in contravention to not only Section 15 of the M.M.R.D. Act, the law laid down by the Hon'ble Supreme Court in the case of State of T.N. vs. M.P.P. Kavery Chetty, 1995(2) SCC 402 , we find that provisions in the statutory rule regulating the sale and trade have been incorporated which directly contravenes the law laid down by the Hon’ble Supreme Court in the case of Kavery Chetty (supra). We further find that the provisions pertaining to penalty, i.e. Chapter-9, Rule-75, provides for imposing punishment for a period of five years with fine whereas under the M.M.R.D. Act and the provisions for penalty contemplated under Section 21 thereof, the maximum term for imprisonment can be only two years or with fine. The term of imprisonment of five years, prima facie, seems to be contrary to the provisions of the M.M.R.D. Act. Similarly, Section 77 of the Act, which permits drawing of presumption with regard to commission of offence and shifting of the burden on the offender, seems to be contrary to the provisions of the Evidence Act. That apart, under Rule-89, the offences have been made non-compoundable, whereas under the M.M.R.D. Act all offences under the Act are compoundable and various other regulatory measures incorporated in the Rule, has the effect of taking away the rights available to a person under the Code of Criminal Procedure and Indian Penal Code and various other statutory provisions and, therefore, even punishments imposed in most of the provisions are contrary to the provision for penalty contained in the M.M.R.D. Act. 2. That being the position, we deem it appropriate to hear the parties at length on various issues involved in the matter and, prima facie, being satisfied that the Rule in question violates various provisions of the M.M.R.D. Act and even the doctrine of severity may not apply in the facts and circumstances of the case. 3. 2. That being the position, we deem it appropriate to hear the parties at length on various issues involved in the matter and, prima facie, being satisfied that the Rule in question violates various provisions of the M.M.R.D. Act and even the doctrine of severity may not apply in the facts and circumstances of the case. 3. We admit this appeal and direct for stay of the new Bihar Minor Mineral Rules, 2017 in its totality until further orders. 4. Immediately after pleadings are completed, learned Counsel for the parties are granted liberty to mention the matter and we shall take up the case for final hearing out of turn. 5. In view of the stay of the New Rules, i.e. Bihar Minor Mineral Rules, 2017, the other existing Rules will come into force for the time being.