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Madhya Pradesh High Court · body

2018 DIGILAW 287 (MP)

Vijay Luniya v. State of M. P.

2018-03-08

P.K.JAISWAL, VIRENDER SINGH

body2018
ORDER 1. Since a common question of law is involved in these writ petitions therefore, they are being heard together and are being disposed of by this common order. For the sake of convenience the facts are borrowed from W.P. No. 1313/2018. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner is challenging the order dated 13.10.2017, passed by the respondent No. 3 – Sub Divisional Officer (Revenue), Ratlam, in a proceeding under the provisions of rule 53 of M.P. Minor Minerals Rules, 1996 (hereinafter referred as 'the Rules of 1996') whereby, the learned authority has imposed the penalty under sub-rule (5) of rule 53 of Rules of 1996 read with section 247(7) of MPLR Code, 1959 to the writ petitioner. 3. This order has been assailed by the petitioner, on the ground that, Sub-Divisional Officer (R), Ratlam, was having no jurisdiction to impose the penalty under rule 53(5) of the Rules of 1996. The aforesaid provision provides for composition of the matter and not for imposition of the penalty. The penalty could have been imposed under sub-rule (1) of rule 53 of 1996 and that too by the Magistrate and not by the Sub-Divisional Office concerned. 4. Per contra, Shri H.Y. Mehta, learned Govt. Advocate for the respondents – State though supported the impugned order on the ground that by the said order, the petitioner could have invoked the jurisdiction of appellate authority by challenging the impugned order in appeal under rule 57 of the Rules of 1996. It is also submitted that the Government of M.P. in exercise of the powers conferred under sub-section (1) of section 15 of the Mines and Minerals (Development and Regulations) Act, 1957, makes further amendments in the M.P. Minor Mineral Rules, 1996, which came into force w.e.f. 18.5.2017 and as per sub-rule (1) of rule 53 of the Rules of 1996, the Collector or any officer authorÁed by him not below the rank of Deputy Collector shall determines that such person has exported/transported the minerals in contravention of the provisions of these Rules and as per the amended Rules, the Sub-Divisional Officer is empowered to impose the penalty and pass the impugned order. 5. 5. On merit, he submits that before the imposition of penalty, the area in question was inspected by team of Mining and Revenue Department in presence of the petitioner, who at the time of inspection was present, but refused to sign the panchnama prepared at the spot. On the basis of the aforesaid panchnama, a detailed notice was issued to the petitioner and after receipt of reply and affording a reasonable and proper opportunity of hearing, a detailed order was passed, in accordance with law. The new amended Rules, which came into force w.e.f. 18.5.2017, specifically empowers the SDO to impose the penalty after issuance of show cause notice, which has been done in the present case and prayed for dismissal of the writ petition. 6. To appreciate the controversy involved in this writ petition, we narrate the few facts, which are relevant in this writ petition. 7. A quarry lease was granted to petitioner – Vijay Lunia, over an area of four hectares in village – Bibdodh, patwari halka No. 63 at Survey No. 126, for a period of ten years for extraction of minor mineral, commencing from 18.12.2007 to 17.12.2017. After grant of quarry lease, area was demarcated and possession of the said demarcated area was handed over to the petitioner for extraction of minor mineral. As per Rules of 1996 and terms and conditions of lease deed, he was permitted to carry out mining over the leased area. The permission was given to him by the department. One year prior to completion of lease period, he applied for renewal of quarry lease on 16.12.2016. The Superintendent, land record of District Ratlam, District Mining Officer and Mining Inspector, on the basis of applications of all the petitioners, constituted a team on 12.8.2016 and inspected the grant area of the petitioner and in presence of the lessee, the area of the petitioner was demarcated by them. During demarcation, they found that though area of four hectares of Survey No. 126 of village – Bibdodh was granted to the petitioner, but he was carrying out mining operation outside of the grant and demarcated area. It is also observed that he was in possession of 1.130 hectares, which is outside of the grant area. They also found that the petitioner illegally extracted the mineral outside of the grant area. It is also observed that he was in possession of 1.130 hectares, which is outside of the grant area. They also found that the petitioner illegally extracted the mineral outside of the grant area. On the basis of the aforesaid inspection, a show cause notice dated 13.10.2017 was issued under rule 53(5) of Rules of 1996 by the Sub-Divisional Officer for imposition of penalty of the alleged offence of illegal mining activities carried out by the petitioner. A show cause notice was issued to the petitioner to show cause as to why the petitioner be not punished with penalty of ten times of the market value under rule 53(5) of Rules of 1996 read with section 247 (7) of MPLR Code and why the petitioner be not prosecuted and seÁed mineral be not forfeited. 8. A detailed reply was filed and on opportunity of hearing he submitted that he has not illegally extracted the aforesaid minerals and he being lessee, no action can be taken against him. The SDO (R), after going through the reply found that there was violation of sub-rule (I) of Rule 53 and directed imposition of penalty to the tune of ten times of the market price of the mineral. The SDO found that he illegally extracted 16504 cubic meters of stone and the value of the said mineral is Rs. 16,50,400/-. After imposing the fine and considering the fact that market value was Rs. 24,75,600/- and ten times of the market value comes to Rs. 24,75,600/-, proposed to impose fine of Rs. 3,30,08,000/- and after following the due procedure, passed the order dated 8.12.2017. 9. To appreciate the aforesaid contention the provisions as contained in sub-rule (1) and (5) of rule 53 of 1996, may be referred which reads as under : 53. Penalty for Un-authorised Extraction and Transportation. – (1) Whenever any person is found extracting or transporting minerals or on whose behalf such extraction or transportation is being made otherwise than in accordance with these rules, shall be presumed to be a party to the illegal extraction of minerals and every such person shall be punishable with simple imprisonment for a minimum term of three months which may extend to two years or with fine which may extend to fifty thousand Rs. or with both. or with both. (5)..........The Collector/Additional Collector/Joint Director/Deputy Director/ Mining Officer or Officer authorised by Zila/Janpad/Gram Sabha may either before or after the institution of the prosecution, compound the offence so committed under sub-rule (1) on payment of such fine which may extend to ten times the market value of mineral so extracted but in no case it will be less than Rs. one thousand or twenty times of royalty of minerals so extracted whichever is higher. Provided that in case of continuing contravention Collector / Additional Collector / Deputy Director/Mining Officer in addition to the fine imposed may also recover an amount of Rs. 500/- for each day till such contravention continues. 10. Amended rule 53 of M.P. Minor Mineral Rules, which came into force w.e.f. 18.5.2017 read thus : “53. (1) Penalty for un-authorÁed extraction and transportation - Whenever any person is found extracting or transporting minerals or on whose behalf such extraction or transportation is being made otherwise than in accordance with these rules, shall be presumed to be a party to the illegal mining / transportation, then the Collector or any officer authorÁed by him not below the rank of Deputy Collector shall after giving an opportunity of being heard determines that such person has extracted/transported the minerals in contravention of the provisions of these rules, then he shall impose the penalty in the following manner, namely : (a) On first time contravention, a penalty of minimum 30 times of the royalty of illegally extracted / transported minerals, shall be imposed but it shall not be less than ten thousand rupees. (b) On second time contravention a penalty of minimum 40 times of the royalty of illegally extracted/ transported minerals shall be imposed but it shall not be less than twenty thousand rupees (c) On third time contravention, a penalty of minimum 50 times of the royalty of illegally extracted/ transported minerals shall be imposed but it shall not be less than thirty thousand rupees. (d) On third time or subsequent contravention, a penalty of minimum 70 times of the royalty of illegally extracted/ transported minerals, shall be imposed but it shall not be less than fifty thousand rupees. (d) On third time or subsequent contravention, a penalty of minimum 70 times of the royalty of illegally extracted/ transported minerals, shall be imposed but it shall not be less than fifty thousand rupees. (2) Forfeiture of minerals in cases of illegal excretion and transportation.- In respect of the Forfeiture/discharge of the mineral extracted/ transported illegally the Collector or any other officer authorÁed by him not below the rank of the Deputy Collector shall take an appropriate decision. Provided that seÁed minerals shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture, the seÁed mineral shall be disposed of through a transparent auction/tender procedure as prescribed by the State Government. (3) Forfeiture/Discharge of the seÁed tools, machines and vehicles etc. and disposal of forfeited material through Auction/ Tender.- (a) In case of illegal extraction, the Collector or any other officer not below the rank of a Deputy Collector, authorÁed by him shall take an appropriate decision in respect of forfeiture/discharge of tools, machines and vehicles used. Provided that the tools, machines, vehicles and other material so seÁed shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture, the seÁed materials shall be disposed of through a transparent auction/tender procedure as prescribed by the State Government. (b) In respect of Forfeiture/Discharge of vehicle carrying mineral extracted/transported without any transit pass the Collector or any other officer not below the rank of Deputy Collector authorÁed by him shall take an appropriate decision. Provided that tools, machines, vehicles and other materials shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture the seÁed material shall be disposed off through a transparent auction/tender procedure as prescribed by the State Government : Provided that the vehicle carrying minerals in excess as mentioned in transit pass, shall not be forfeited on doing so for first three times but the vehicle shall only be discharged on payment of penalty as imposed above. On repetition for the fourth time vehicle shall be liable to be forfeited. On repetition for the fourth time vehicle shall be liable to be forfeited. (4) Action and compounding cases of un-authorÁed extraction/transportation : Whenever any person is found involved extracting/transporting of the minerals in contravention of provisions of these rules, the Collector/Additional Collector/Deputy Collector/Chief Executive Officer of Zilla Panchayat/Chief Executive Officer of Janpad Panchayat/Deputy Director (Mineral Administration)/Officer in charge (Mining section)/Assistant Mining officer/Mining Inspector/officer in charge (Flying Squad)/Sub Divisional officer (Revenue)/Tehsildar/Naib Tehsildar and any other officer not below the rank of class-III executive authorÁed by the Collector from time to time shall proceed to act in the following manner : (a) to initiate case of unauthorÁed extraction/transportation by preparing Panchnama on spot; (b) to collect necessary evidences (including video-graphy) relevant to un-authorÁed extraction/transportation; (c) to seÁe all tools, devices, vehicles and other materials used in excavation of miner mineral in such contravention and to handover all material so seÁed to the persons or lessee or any other person from whose possession such material was seÁed on executing an undertaking up to the satisfaction of the officer seÁing such material, to this effect that he shall forthwith produce such material as and when may be required to do so : Provided that where the report is submitted under sub-rule (3) above to the Collector or any other officer not below the rank of a Deputy Collector authorÁed by him, the seÁed property shall only be discharged by the order of the Collector or the officer authorÁed by him. (d) Officer as mentioned above shall inform the Collector or any other officer not below the rank of Deputy Collector, authorÁed by him about the incident within 48 hours of coming in to notice of the same. (e) Officers as mentioned above shall make a request in writing to the concerning police station/seeking police assistance, if necessary and police officer shall provide such assistance as may be necessary to prevent unlawful excavation/transportation of the mineral. (e) Officers as mentioned above shall make a request in writing to the concerning police station/seeking police assistance, if necessary and police officer shall provide such assistance as may be necessary to prevent unlawful excavation/transportation of the mineral. (5) Rights and powers of the investigating officer.- During the investigation of the cases of illegal extraction/transportation of the minerals, in contravention of these rules, the investigation officer shall have the following rights and powers, namely : (a) to call for person concern to record statement; (b) to seÁe record and other material related to the case; (c) to enter into place concern and to inspect the same; (d) all powers as are vested in an in-charge of a police station while investigation any cognÁable offence under Code of Criminal Procedure; and (e) all other powers as are vested under Code of Civil Procedure to compel any person to appear or to be examined on oath or to produce any document. (6) Submitting application by illegal extractor/transporter to compound and its disposal.- Before initiating or during the operation of the case, if the extractor/transporter is agree to compound the case, he shall have to submit an application of his intention to do so before the Collector/Additional Collector/Deputy Collector/Sub Divisional Officer (Revenue)/ Deputy Director (Mineral Administration)/ Mining officer/Officer-in-charge (Mining section)/Assistant Mining Officer/ Officer in charge (Flying Squad) and he shall proceed to compound in the case. Provided that to avail the benefit of compounding the violator shall have to deposit the amount as determined here under as fine, namely : (a) For the first time violation 25 time of royalty of unlawfully excavated/transported minerals or Rs. 10,000/- (Ten Thousand) whichever is more, (b) For the Second time violation 35 time of royalty of unlawfully excavated/ transported minerals or Rs. 20,000/- (Twenty thousand) whichever is more. (c) For the third time violation 45 time of royalty of unlawfully excavated/ transported minerals or Rs. 30,000/- (Thirty Thousand) whichever is more, and (d) For the fourth time or subsequent violation minimum 65 time of royalty of unlawfully extracted/transported. Provided that it should not be less than Rs. 50,000/- (Fifty thousand). On being compounded, the seÁed mineral, tools machinery/and other materials shall be discharged. 30,000/- (Thirty Thousand) whichever is more, and (d) For the fourth time or subsequent violation minimum 65 time of royalty of unlawfully extracted/transported. Provided that it should not be less than Rs. 50,000/- (Fifty thousand). On being compounded, the seÁed mineral, tools machinery/and other materials shall be discharged. (7) Action against contravention of conditions of extract trade quarry/quarry lease/permit or the provisions of this rules : If during the enquiry of any illegal extraction/transportation a fact comes into the knowledge that any lease holder/contractor/permit holder, in order to evade the royalty from any sanctioned quarry lease/trade quarry/permit area is involved in dispatching/selling of minerals in excess quantity by showing less quantity of minerals in transit pass/defective transit permit/blank transit permit, then the Collector of the concerned district may suspend the quarrying operation in such quarry lease/trade quarry permit by issuing show cause notice for violating the conditions of the agreement and after providing an opportunity of being heard may cancel the such lease/trade quarry/ permit. The additional royalty may be recovered after making the assessment of the quantity dispatched or sold in order to evade the royalty : Provided that during the inspection if it is found that illegal minerals transporter by securing the transit pass from the lease holder in order to evade the royalty has made overwriting or tempered the pass then the officer of the minerals department/Mineral Inspector may registered a case against the person concerned. 2. In rule 68, sub-rule (5) shall be omitted." 11. Amended sub-rule (1) of rule 53, specifically provides that whenever any person is found extracting or transporting minerals or the transportation is being made otherwise than in accordance with the Rules shall be presumed to be a party to the illegal extraction of minerals and every such person shall be liable to pay penalty, which may extend to 30 to 70 times of royalty of illegal extracted minerals but in no case it will be less than Rs. ten thousand to fifty thousand Rs. so extracted whichever is higher. 12. The aforesaid amended provision provides that the Collector or any officer authorised by him not below the rank of Deputy Collector is empowered to impose penalty upto seventy times of the royalty of the mineral but it nowhere provides for imposition of the fine as was imposed by the impugned order. 13. so extracted whichever is higher. 12. The aforesaid amended provision provides that the Collector or any officer authorised by him not below the rank of Deputy Collector is empowered to impose penalty upto seventy times of the royalty of the mineral but it nowhere provides for imposition of the fine as was imposed by the impugned order. 13. From the un-amended rule 53(1) and sub-rule (5) of the Rules, 1996, the authority to impose fine is Collector and not SDO. As per show cause notice, the details of the place from where the mineral was extracted, the quantity extracted, the market price of the mineral extracted were given and joint panchnama was also prepared to show that it was extracted without lawful authority. Under sub-section (7) of section 247, the maximum penalty is four times, the market value of the mineral so extracted. Under the unamended provision of sub-rule (1) and sub-rule (5) of the rule 53 of Rules of 1996, the Collector is empowered to compound the offence by imposing the penalty upon ten times of the value of the mineral, but it nowhere provide for imposition of the fine as was imposed by the Sub-Divisional Officer (R) by the impugned order. Only on filing the application or approaching to the Collector to compound the matter, the Collector could have exercised such power. Admittedly, in this case, the petitioner herein had not moved to the Collector for compounding the matter, so the SDO was not empowered to invoke the power under sub-rule (5) of rule 53. So far as, the stand of the State Government that after amendment in rule 53 of the Rules of 1996, the SDO is empowered to impose the fine against the petitioner. 14. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. There is a presumption of prospectivity articulated in the legal maxim 'nova constitutio futuris forman imponere debet non praeteritis', i.e. ' a new law ought to regulate what is to follow, not the past', and this presumption operates unless shown to the contrary by express provision in the statute or is otherwise discernible by necessary implication. 15. There is a presumption of prospectivity articulated in the legal maxim 'nova constitutio futuris forman imponere debet non praeteritis', i.e. ' a new law ought to regulate what is to follow, not the past', and this presumption operates unless shown to the contrary by express provision in the statute or is otherwise discernible by necessary implication. 15. In M/s. Rai Bahadur Seth Shreeram Durgaprasad v. Director of Enforcement, AIR 1987 SC 1364 , the apex Court considered the effect of amendment introduced to Foreign Exchange Regulations Act, 1947 on certain previous actions. It was held that proceedings could be initiated for adjudication under the amended law even in regard to a violation which took place prior to the amendments since the provision has retrospective operation. In Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209 , it was held that section 113-A of the Evidence Act which lays down a presumption, being only a matter of procedure of evidence would be retrospective in operation. The Court referred to the following passages in Halsbury's Laws of England (Fourth Edition), Vol.44 pages 570 and 574 respectively : “The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.....” “The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. 16. The decision in State of T.N. v. M/s. Hind Stone, AIR 1981 SC 711 , is almost on point. 17. The rules under consideration in the case State of T.N. v. M/s. Hind Stone, AIR 1981 SC 711 , were Tamilnadu Minor Mineral Concession Rules, 1959. Rule 8C was introduced by notification issued on 2.12.1977. It prescribed the procedure and the forum. Application of the respondent in the case was pending even before incorporation of rule 8C. It was contended that the disposal was delayed and the application should be disposed of under the preexisting rule. Rule 8C was introduced by notification issued on 2.12.1977. It prescribed the procedure and the forum. Application of the respondent in the case was pending even before incorporation of rule 8C. It was contended that the disposal was delayed and the application should be disposed of under the preexisting rule. The Court held as follows : “While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an application for a lease with a right to have the application disposed of on the basis of the rules in foce at the time of making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant of renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in any one an application for a lease has necessarily to be dealt with according to the rules in force on the date of disposal of the application despite the fact that there is a long delay since the making of the application.” (Emphasis supplied) 18. In the case in hand, by the impugned order the SubDivisional Officer imposed the penalty on the basis of panchnama dated 27.8.2016 and notice (Annexure P-3) dated 9.12.2016, on the basis of joint demarcation done by the mining authorities in presence of the petitioner. As per para 1 of the impugned order, a joint inspection team was constituted on 12.8.2016 and thereafter, they in presence of the petitioner and mining department inspected the area on 27.8.2016 and 28.8.2016, respectively whereas, the rule 53 of the Rules of 1996 was amended w.e.f. 18.5.2017. The apex Court in the case of State of Punjab and othersv. Bhajan Kaur and others, [ AIR 2008 SC 2276 ], has held that amendment increasing compensation for no fault liability in section 140 of the Motor Vehicles Act, 1988 is not retrospective. 19. It is also well settled that if the new Act affect the matters of procedure only then, prima facie, it applies to all the actions pending as well as future. The Rules of 1996 prescribed particular procedure to compound the offence by imposition of penalty. 19. It is also well settled that if the new Act affect the matters of procedure only then, prima facie, it applies to all the actions pending as well as future. The Rules of 1996 prescribed particular procedure to compound the offence by imposition of penalty. The procedure has been altered by subsequent amendment during the pendency of proceedings. The petitioners certainly have a right to dispose of their cases of un-authorÁed extraction and transportation of minerals by levy of penalty on the basis of rules inforce at the time of inspection made by the mining authorities, but they have no vested right to follow the procedure prescribed on that date on which inspection was made. Since, there is no such vested right, all pending cases of illegal extraction is to be disposed of as per procedure prescribed under the amended provisions of the law. The amendments, no doubt introduced certain additional conditions and power has been given to the Collector or any officer authorÁed by him not below the rank of Deputy Collector, which one intended for public good and due regulation of the mining activity in the light of vital concerns with regard to protection of illegal extraction and transportation of minerals. 20. In the present case, by amendment dated 18.5.2017, the power has also been delegated to the Sub-Divisional Office to initiate proceeding under rule 53 and impose fine/penalty under the aforesaid provision, but also enhance a penalty of minimum thirty to maximum seventy times of the royalty of illegal extracted/transported minerals whereas as per unamended provision the penalty was ten times of the market value of the mineral and thus, we are of the view that the amending provisions of rule 53 would apply in the case in hand in the matter of procedural only because no person has a vested right in any course or procedure. He has only the right of defence in the manner prescribed for time being by or for the authority, which the case is pending and, if, by amendment the mode of procedural is altered, he has no other right then to proceeding according to the altered mode. He has only the right of defence in the manner prescribed for time being by or for the authority, which the case is pending and, if, by amendment the mode of procedural is altered, he has no other right then to proceeding according to the altered mode. A change of forum (from the Court of Collector to Sub-Divisional Officer) is a matter of procedure and, therefore, if an amended Rules requires or give authority to Sub-Divisional Officer instead of Collector, the said authority is competent to consider the question and decide it in accordance with law. 21. For the above mentioned reasons, we are of the view that the Sub-Divisional Officer is competent to pass the impugned order, but he has acted illegally and the penalty has been imposed on the basis of amended rule 53 of Rules of 1996, treated it to have retrospective operation and, therefore, we quash that part of the order and remit the matter back to the learned Sub-Divisional Officer to reconsider the same and decide the question of imposition of penalty as per the Rules, which was prevailing on the date of joint inspection made by the joint inspect team and the same has to be dealt with under amended provisions (only procedural part) and decide it a fresh, after giving opportunity of hearing to the petitioner in accordance with law, preferably, within a period of sixty days from the date of filing of the certified copy of the order. 22. In the result, the writ petitions are allowed in part, to the extend as indicated hereinabove, but with no costs.