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2021 DIGILAW 513 (JK)

Krishna Stone Crusher v. Union Territory of J&K

2021-09-29

SANJEEV KUMAR

body2021
JUDGMENT : 1. The petitioner, Vinod Kumar, claims to have established a stone crusher under the name of M/s Krishna Stone Crusher at Sangani, Poonch Road Akhnoor. He is aggrieved and has challenged the order of respondent No. 3 bearing No. DMO/2/seizure/20-21/2394-95, dated 21.12.2020, whereby machinery and minor minerals i.e. crushed bajri approx. 15000 mt, c/dust 1000 mt, Nullah Muck 200 mt and bed mix 5000 mt has been seized and handed over on Supurdnama to Sub Inspector Rashpal Sharma of Police Station, Akhnoor. The petitioner has also assailed the order of respondent No. 2 dated 18.01.2021 passed in an appeal filed by the petitioner challenging the order of respondent No. 3. The order passed by respondent No. 1 dated 08.03.2021 in the second appeal filed by the petitioner is also under challenged in this petition. Two orders passed by respondent No. 2 on 19th April, 2021 and 27th May, 2021 are also subject matter of challenge in this petition. 2. Before adverting to the grounds of challenge urged by learned counsel for the petitioner to assail the impugned orders, it is necessary to notice material facts. 3. On 21.12.2020, the business premises of the petitioner were raided by respondent No. 3 and found that the petitioner had without lawful authority and in contravention to The Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter “the Act” for short) had raised minor minerals of different quantity and was using the machinery contrary to the provisions of the Act and the Rules framed thereunder. Accordingly, vide seizure memo dated 21.12.2020, respondent No. 3 seized the machinery as well as minor minerals unlawfully raised by the petitioner and handed over the same on spurdnama of Sub-Inspector Rashpal Sharma of Police Station, Akhnoor. 4. Feeling aggrieved, the petitioner preferred statutory appeal before respondent No. 2. The appeal was dismissed by respondent No. 2 vide impugned order dated 18.01.2021 being devoid of any merit. 4. Feeling aggrieved, the petitioner preferred statutory appeal before respondent No. 2. The appeal was dismissed by respondent No. 2 vide impugned order dated 18.01.2021 being devoid of any merit. The petitioner approached respondent No.1 by way of second appeal, which was partially accepted and respondent No. 2 was directed to do fair assessment of the seized minor minerals under Rules and expedite the matter in light of the repeal of , 2017 (34) JK STATUTES 36-JK [Mines And Minerals (Development And Regulation) Act, 1957--Jammu and Kashmir Minor Mineral Exploitation And Processing Rules, 2017] SRO 302 and notification of new Rules vide 2021 (49) JK STATUTES 199-JK [Mines and Minerals (Development and Regulation) Act, 1957--Jammu and Kashmir Stone Crushers/Hot and Wet Mixing Plants Regulation Rules, 2021], S.O. 60 of 2021. On remand, the matter came up for consideration before respondent No. 2, who, vide impugned order dated 19.04.2021, constituted a Committee of four officers to carry out spot inspection and assessment of quantity of minor minerals lying at the site of crusher in the presence of the petitioner and District Mineral Officer. The Committee was also called upon to verify the documents as also to certify whether the seized material was freshly extracted/crushed. It is the allegation of the petitioner that respondent No. 2 without waiting for the report of the Committee constituted by him and acting upon the report of District Mineral Officer dated 23.05.2021, requested the Joint Director, Geology and Mining Department to impose penalty on the petitioner as per seizure memo issued on 21.12.2020 at an earliest. 5. The petitioner being aggrieved of the manner in which the respondents have addressed his grievance and has assailed the impugned order, inter alia, on the ground that respondent No. 3, who vide order dated 21.12.2020 effected seizure, could not have directed the petitioner to remain present before the Joint Director, Geology and Mining Department, Jammu on 22.12.2020 for compounding of the penalty when there was no penalty imposed at that time. It is argued that the appeals filed by the petitioner before respondent Nos. 2 and 1, too, were decided by the authorities in a casual and perfunctory manner without addressing the real issues raised by the petitioner. 6. The respondents have filed objections. It is argued that the appeals filed by the petitioner before respondent Nos. 2 and 1, too, were decided by the authorities in a casual and perfunctory manner without addressing the real issues raised by the petitioner. 6. The respondents have filed objections. It is submitted that the State of Jammu & Kashmir now Union Territory with a view to regulate development and mining of minor minerals in tune with the directions of Hon'ble the Supreme Court and acting in the exercise of powers conferred under Section 15 read with Section 23- C of the Act reframed The Jammu and Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 [“the Rules”] notified vide 2016 (27) JK STATUTES 699-JK [Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016], SRO 105 of 2016. Subsequently, the Government of Jammu and Kashmir also promulgated the Jammu & Kashmir Minor Minerals Exploitation and Processing Rules, 2017 vide SRO 302, dated 19.07.2017. It was made mandatory for all existing and fresh units to obtain prescribed license for their operations dealing with minor minerals. It is submitted by the respondents that the petitioner was found to have raised minor minerals of different kinds in violation of SRO 302 and SRO 105, as such, machinery as also the minor minerals stacked at the unit were seized by respondent No. 3. FIR was also recommended against the petitioner for having committed theft of minor minerals, the property of the government. The Appellate Authority found no merit in the appeal of the petitioner and, thus, correctly dismissed it. Respondent No. 1, on receiving the second appeal under Rule 85 of the Rules, constituted a Committee of officers to carry out spot inspection and assessment. The Committee submitted its report on 05.05.2021 and respondent No. 2 on receiving the report from the Committee constituted by him called upon the Joint Director, Geology and Mining Department, Jammu to impose penalty on the petitioner as per the seizure memo issued. This is how the respondents have sought to justify the action taken by them against the petitioner. 7. Having heard learned counsel for the parties and perused the record, it is necessary to notice relevant provisions of the Act governing the controversy in hand. 8. This is how the respondents have sought to justify the action taken by them against the petitioner. 7. Having heard learned counsel for the parties and perused the record, it is necessary to notice relevant provisions of the Act governing the controversy in hand. 8. Section 21 of the Act deals with the penalties that can be imposed on a person contravening the provisions of sub section (1) or sub-section (1-A) of Section 4 of the Act. Sub-Section (4) of Section 21 of the Act, which is invoked by the respondents to effect seizure of the machinery and minor minerals stacked at the unit of the petitioner, reads thus:- “21. Penalties.------- (1) .................... (2) .................... (3) .................. (4) Whenever any person raises, transports or causes to be raised of transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. .......................................” 9. Admittedly, respondent No. 3 is an officer/authority specially empowered by the State Government to exercise the powers under sub-section (4) of Section 21 of the Act and, therefore, no fault can be found with the impugned order dated 21.12.2020. The argument of the learned counsel for the petitioner that respondent No. 3 could not have called upon the petitioner to appear before Joint Director, Geology and Mining Department for compounding of the penalty as there was no penalty imposed on 21.12.2020 and that it would be tantamount to putting cart before the horse, is without any substance and cannot be accepted. Section 23-A of the Act, which provides for compounding of offences, gives power to the person authorized to file a complaint before the competent court for taking cognizance of an offence punishable under the Act, to compound the offence either before or after the institution of the prosecution on payment by the accused person to the credit of the government, such sum as such authorized person may specify, provided that in case of an offence punishable with fine only, such sum shall not exceed the maximum amount of fine that may be imposed for that offence. For ready reference Sections 22 and 23-A of the Act are reproduced hereunder:- Section 22 “22. For ready reference Sections 22 and 23-A of the Act are reproduced hereunder:- Section 22 “22. Cognizance of offences.- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” Section 23-A “23-A. Compounding of offences.- (1) Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorized under Section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify: Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith.” 10. A conjoint reading of Section 21(4) , Section 22 and Section 23-A(1) of the Act would clearly and unequivocally indicate that if a person is found to have contravened the provisions of Section 4(1) and Section 4(1-A) of the Act and has become liable to be prosecuted for such offence, the authorized officer before filing a complaint in the competent court of law and launching prosecution or even after launching of the prosecution can compound such offence on payment of such sum as that authorized person may specify, to the credit of the Government. It is in the light of these provisions, respondent No. 3 after effecting seizure and before filing complaint before the competent court of law provided an opportunity to the petitioner to come forward for compounding of the offence. It is true and there could be no disagreement on the point that it is always left to the discretion of the accused person to either face prosecution or avoid it by resorting to Section 23-A of the Act by seeking compounding of the alleged offence. It is true and there could be no disagreement on the point that it is always left to the discretion of the accused person to either face prosecution or avoid it by resorting to Section 23-A of the Act by seeking compounding of the alleged offence. The impugned seizure memo dated 21.12.2020 and the directions contained therein for appearance of the petitioner for compounding of offence is required to be viewed and appreciated in light of the aforesaid provisions. 11. It appears that the petitioner as also the respondents without appreciating the true import proceeded on the assumption that the provisions of Section 23-A of the Act providing for compounding of the offence on payment of sum were mandatory in nature and that is how the matter was dealt by the first appellate authority, second appellate authority and on remand again by the first appellate authority giving rise to unnecessary and uncalled for litigation. 12. For the foregoing reasons and with a view to set the record straight all impugned orders except seizure memo dated 21.12.2020 and order of respondent No. 2 dated 19.04.2021 to the extent of constitution of Committee of officers by respondent No. 2 for making assessment in a fair and transparent manner are found to be not in consonance with law and, therefore, quashed. The Joint Director, Geology and Mining Department, Jammu, the authorized officer, shall in terms of Section 23-A of the Act give an option to the petitioner in writing as to whether he is willing and interested in the compounding of the offence and in case he expresses his intention for compounding of the offence rather than facing prosecution, the officer authorized in terms of Section 22, shall proceed under Section 23-A and direct the petitioner to pay such sum as he may specify. And, in case of offence punishable with fine only, such sum shall not exceed maximum amount of fine. However, if the petitioner chooses not to accept the offer for compounding of the offence, it shall be open for the authorized officer to file an appropriate complaint before the competent court of law and launch prosecution against the petitioner. The seized material including the machinery shall be dealt with by the competent court in accordance with law. However, if the petitioner chooses not to accept the offer for compounding of the offence, it shall be open for the authorized officer to file an appropriate complaint before the competent court of law and launch prosecution against the petitioner. The seized material including the machinery shall be dealt with by the competent court in accordance with law. Notwithstanding, the aforesaid procedure which ought to be followed by the authorized officer when a person, who is found to have contravened the provisions of Sections 4(1) and 4(1-A) of the Act, it is open to the State Government or the authorized officer, who may have been delegated such powers, to recover from such person the minerals raised in contravention of the provisions of the Act and the Rules framed thereunder or where such minerals had already been disposed of, the price thereof. This is so provided in Section 21(5) of the Act, which for facility of reference is reproduced hereunder:- “(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised or, where such mineral has already been disposed of, he price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.” 13. It is, thus, held that apart from proceeding under Section 22 and 23-A of the Act, the State Government or officer authorized by it under Section 26 of the Act, is entitled to recover the seized mineral, if the same is intact and where such mineral has already been disposed of, the price thereof. With a view to work out the price so recoverable, it shall be incumbent upon the State Government/authorized officer to conduct an enquiry and give an opportunity of being heard to the petitioner. However, if the authorized officer relies upon the report of the Committee constituted by respondent No. 2 for making assessment of the material seized, a copy of the report shall be given to the petitioner and he shall be given a fair opportunity to object to the report as also the assessment proposed to be made by the State Government/authorized officer. These proceedings can proceed independently of the prosecution that may be launched by the authorized officer against the petitioner before competent court of law for committing offence under sub-section (1) of Section 21 of the Act. Needless to say that the petitioner, if aggrieved of the order/orders, if any passed by the respondents, shall be entitled to invoke statutory remedies as may be available to him under the Act and the Rules framed thereunder. 14. With the aforesaid observations and directions, this writ petition is disposed of.