Jammu & Kashmir High Court
Ashish Sharma And Another vs State Of J&K & Ors on 9 February, 2021
Author: Pankaj Mithal
Bench: Chief Justice, Ali Mohammad Magrey
Sr. No. 101-111
HIGH COURT OF JAMMU AND KASHMIR & 112
AT JAMMU
CJ Court
Case: PIL No. 19 of 2012 &
PIL No. 7 of 2014
Ashish Sharma and another
...Petitioner(s)
Through: Sh. Sunil Sethi, Amicus curiae
Sh. Parimoksh Seth, Advocate.
v/s
State of J&K & ors.
.... Respondent(s)
Through: Sh. F. A. Natnoo, AAG for 1& 4 to
6
Sh. Vishal Sharma, ASGI for
respondent nos. 2 and 3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
ORDER
PANKAJ MITHAL, CJ:
1. Heard Sh. Sunil Sethi, learned Amicus curiae assisted by Sh. Parimoksh Seth, Advocate; Sh. F. A. Natnoo, learned Additional Advocate General for respondent nos. 1, and 4 to 6 and Sh. Vishal Sharma, learned Assistant Solicitor General of India for respondent nos. 2 and 3.
2. Scores of miscellaneous applications are coming up before this court every day in relation to release of motor vehicles seized by the authorities on account of unauthorizedly carrying minor minerals allegedly without permission/challan from the competent authority. 2 PIL No. 19 of 2012 & PIL No. 7 of 2014
3. The aforesaid illegal mining is ordinarily carried out from the river bed of Tawi which is said to be a life line for the city of Jammu. In respect of such unauthorised mining, encroachments, sewage problems and creation of artificial lakes, three writ petitions in public interest, namely, PIL No. 7 of 2014, Dewakar Sharma and another vs. State of J&K and others; PIL No. 19 of 2012 Ashish Sharma and another vs. State of J&K and others and PIL No. 27 of 2014 Inderjeet Khajuria vs. State of J&K and others are drawing the attention of this Court.
4. The main Public Interest Litigation for removal of encroachments from river Tawi and to check illegal mining is PIL No. 7/2014 of Dewakar Sharma.
However an order has come to be passed in PIL No. 19/2012 of Ashish Sharma on 17th November 2016 observing that so far the menace of extraction of minor minerals from the river Tawi is concerned, the same is continuing unabated and, therefore, State is directed to immediately stop the same. The said order further provides that in connection with the extraction of minor minerals Senior Superintendent of Police, Jammu shall deploy some manpower to check illegal extraction and to seize the vehicles transporting the same without permission/challan from the concerned authorities. It also makes clear that the vehicles so seized carrying/transporting minor minerals without permission/challan from the concerned authority shall not be released by any court or authority unless directed by this Court. The relevant part of the aforesaid order is reproduced herein below:
"It is made clear here that seized vehicles,
carrying/transporting extracted minor minerals without
permission/challan from the concerned authority, shall not be released by any court/authority, unless directed by this Court." 3 PIL No. 19 of 2012 & PIL No. 7 of 2014
5. It is on account of the aforesaid order of this Court passed in PIL No. 19/2012 which probably ought to have been in PIL No. 7/2014 of Dewakar Sharma, that on the seizure of the vehicles transporting minor minerals unauthorizedly without proper permission/challan that applications for the release of the seized vehicles are being filed in this court every day.
6. The release of vehicles so seized is a ministerial act but is consuming enormous precious time of the court. The Mines and Minerals (Development and Regulation) Act 1957 (hereinafter referred to as 'the Act') vide Section 21 provides for the penalties to be imposed for the contraventions of the provisions of the Act. Sub-section 4 of Section 21 of the Act inter alia provides for the seizure of the vehicle used in the transportation of the minor minerals without any lawful authority and Sub-section 4-A provides that such a vehicle shall liable to be confiscated by an order of the competent court and shall be disposed of in accordance with the directions of the court. The aforesaid Sub- section 4 and Section 4-A of Section 21 of the Act which are relevant for our purposes are reproduced herein below for the sake of convenience:
"21 [(4) Whenever any person raises, transports or causes to be raised or 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.
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section(4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.]" 4 PIL No. 19 of 2012 & PIL No. 7 of 2014
7. In addition to the aforesaid statutory provisions, vide SRO 105 of 2016 dated 31.03.2016 there exist Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 (herein after referred to as 'the Rules') which have been framed in exercise of powers under Section 15 read with Section 23-C of the aforesaid Act.
8. Rule 81 of the aforesaid Rules also provides for the penalties for illegal or unauthorized mining. It provides that for the first time violation, the tools, equipments and vehicles etc. are liable to be seized if they are found to be in unauthorized operation and may be released only after recovery of price of minerals along with royalty and fine of not less than ₹ 10,000/- (Rupees Ten Thousand). In case of second time violation, the release would be on recovery of price of minerals along with royalty and a fine of not less than ₹ 20,000/- (Rupees Twenty Thousand). It further provides that where a person is found indulging in such an offence for the third time or more, the officer concerned shall lodge an FIR and handover such tools, equipments and vehicles used for unauthorized operations to the Police, which shall entail their confiscation for a minimum period of thirty (30) days or more with pecuniary penalty and punishment as provided under Section 21, 23-A and Section 23- B of the Act.
9. Rule 83 of the Rules, additionally, provides that cognizance of any offence punishable under the Rules shall be taken by the court only upon a complaint in writing made by the Director or any other officer authorized by Government in this behalf not below the rank of Assistant Mineral Officer provided the complaint is made within three months on the date on which the said offence is alleged to have been committed.
5 PIL No. 19 of 2012 &PIL No. 7 of 2014
10. The aforesaid Rule 81 and 83 of the Rules read as under:
"81. Penalties (1) Any act of illegal or un-authorized mining shall be liable to the following:-
(i) for a first time violation, the said mineral shall be liable to be seized along with the impounding of all such tools, equipments, vehicles or any other things used for such un-authorized operation, which may be released only after recovery of price of mineral along with its royalty and a fine not less than Rupees ten thousand.
(ii) for a second time violation, the said mineral shall be liable to be seized along with the impounding of all such tools, equipments, vehicles or any other things used for such un-authorized operation for a minimum period of seven days which may be released only after recovery of price of mineral along with its royalty and a fine not less than Rupees twenty thousand.
(iii) wherever a person is found to be indulging in such offence for the third time or more, the officer concerned shall lodge an FIR and handover all such tools, equipments, vehicles or any other things used for such un-authorized operation to the police. Any such offence shall entail.-
(a) Confiscation of all such tools, equipments, vehicles or any other things used for such un- authorized operation for a minimum period of thirty days or more; and
(b) Pecuniary penalty and punishment for the offence as provided under Section 21, Section 23-A & Section 23-B of the Act 6 PIL No. 19 of 2012 & PIL No. 7 of 2014
83. Cognizance of any offence No court shall take cognizance of any offence punishable under these rules except upon a complaint in writing made by the Director or any other officer authorized by the Government in this behalf not below the rank of Assistant Mineral Officer within three months of the date on which said offence is alleged to have been committed."
11. A conjoint reading of Section 21(4) and (4-A) of the Act and Rules 81 and 83 of the Rules would reveal that a vehicle carrying or transporting minor minerals without any lawful authority is liable to seizure and confiscation. In the event of first time violation and second time violation, the vehicle is liable to be released on recovery of price of mineral along with royalty and fine of ₹ 10,000 or 20,000/- as the case may be whereas in respect of third time violation or more, the seized vehicle is liable to confiscation for a minimum of thirty (30) days or more and an FIR is liable to be lodged. Moreover, the Director or any other officer authorized by the Government not below the rank of Assistant Mineral Officer is obliged to lodge a complaint within three months of the commission of such an offence before the competent court.
12. In view of the above machinery provided under the Act and Rules for seizure, confiscation and for taking cognizance of an offence by the court as also of the lodging of the FIR, we fail to understand the justification for the applicants to come up before this court for the release of vehicles except for the direction contained in order dated 17th November 2016 passed in PIL No. 19/2012. At the same time, we also are at a loss to understand why the Government is unable to control the menace of unauthorized mining from the 7 PIL No. 19 of 2012 & PIL No. 7 of 2014 river bed of Tawi and other similar places and despite seizure of large number of vehicles, the crime is continuing unabated.
13. It may also be noteworthy to refer to Section 457 of the Code of Criminal Procedure (Cr.P.C.) which provides for the procedure to be followed by the Police upon seizure of the property. It provides that whenever the seizure of property by any Police Officer is reported to the Magistrate, he may make such order as he thinks fit respecting disposal of the or the delivery of such property to the person entitled to its possession. Thus, in view of the power of seizure and penalties provided under the Act and the Rules coupled with the fact that the procedure for dealing with such seized property is provided under the Cr.P.C., we are of the opinion that order dated 17th November 2016 needs a little modification to unburden this court from the task of dealing with such large number of applications for the release of vehicles and to delegate the said power to the Magistrate concerned, on the analogy or principle contained in the above provisions, to consider such applications in accordance with the procedure set out as above.
14. Accordingly, we direct that henceforth all applications for the release of vehicles on the ground of illegal or unauthorized mining shall be moved before the competent Magistrate who shall deal with all such application independently on merits on the analogy of the above referred provisions and may pass suitable orders but no such vehicle shall in the case of first time violation shall be released otherwise than realising a composite amount of ₹50,000/-; in case of second time violation a composite amount of ₹ 1.00 lac and, in the case of third time violation or more, confiscate the vehicle and may not release it unless the investigation pursuant to the FIR or the proceedings on the complaint referred to under Section Rule 83, if any, are completed. 8 PIL No. 19 of 2012 & PIL No. 7 of 2014
15. It is needless to say that in the cases of third time or more violations, it shall be the responsibility of the officer concerned to lodge an FIR and it will be the duty of the Police to complete the investigation forthwith. It shall also be obligatory for the Director or any officer so authorised in this behalf to make a complaint in writing within time of the offence alleged to have been committed regarding the illegal or unauthorized mining before the Magistrate concerned.
16. Learned Amicus curiae as well as some counsel for the other parties pointed out that there may be connivance of the officers of Department of Geology and Mining and the Police in allowing illegal activity of transporting minor minerals from the river bed without proper permission/challan.
17. It is shameful if any such illegal activity is being permitted due to the connivance of the public officers. We expect such practice to be stopped immediately and mandate that the department in lodging FIR and complaints against the person operating unauthorizedly would also name therein the officers of any of the department found to be prima facie involved so that investigation may also be conducted with regard to the role if any played by them.
18. The Divisional Commissioner, Jammu, is directed to ensure that a monthly report is placed before the court on affidavit of a senior officer giving in a tabulation form the district-wise number of vehicles seized for unauthorizedly carrying minor minerals and those released by the Magistrates concerned and also to inform if any pubic officer is involved in abatement of such illegal activities.
9 PIL No. 19 of 2012 &PIL No. 7 of 2014
19. As regards, all applications which have been filed before this court and are listed today for the release of vehicle seized on account of illegal or unauthorized use for mining purposes, they stand disposed of with the direction that in the case of first time violation, the vehicles shall be released on payment of composite amount of ₹50,000/- (Rupees Fifty Thousand) and in case of second time violation on composite payment of ₹ 1.00 lac (Rupees One Lac) whereas in respect of third time violation or more, the vehicle shall not be released and the authorities are directed to proceed in accordance with Rule 81 and 83 of the Rules without loss of any time.
20. All following miscellaneous applications stand disposed of.
S.No. CM No. & PIL No. Police Station Challan / FIR
No.
01. 446 of 2020 in Police Post Chatta Challan No.
PIL No. 19 of 2012 (Sunjwan), Jammu 979551
02. 531 of 2020 in Police Post Challan No.
PIL No. 19 of 2012 Chinore, Jammu 44149
03. 767 of 2020 in Police Station Challan No.
PIL No. 19 of 2012 Satwari, Jammu 6228
04. 782 of 2020 in Police Post Chatha, Challan No.
PIL No. 19 of 2012 Jammu 946203
05. 783 of 2020 in Police Post Challan No.
PIL No. 19 of 2012 Gardigarh, Jammu 72951
06. 1488 of 2020 in Police Station Challan No.
PIL No. 19 of 2012 Gandhi Nagar, 8361
Jammu
07. 1541 of 2020 in Police Post Canal Challan No.
PIL No. 19 of 2012 Road, Jammu 50019
08. 1572 of 2020 in Police Post Pouni Challan No.
PIL No. 19 of 2012 Chak, Jammu 8588
09. 1589 of 2020 in Police Post Phallan Challan No.
PIL No. 19 of 2012 Mandal, Jammu 723875
10. 1594 of 2020 in Police Post Pouni Challan No.
Chak, Jammu 994801
10 PIL No. 19 of 2012 &
PIL No. 7 of 2014
PIL No. 19 of 2012
11. 1739 of 2020 in Police Post Tiki, Challan No.
PIL No. 19 of 2012 Udhampur 322430
12. 8009 of 2020 in Police Station FIR No.
PIL No. 7 of 2014 Domana, Jammu 330/2020
13. 6064 of 2020 in PIL No. Police Post Challan No.
7 of 2014 Panjtirthi, Jammu 0652
14. 7310 of 2020 in PIL No. Police Post Beli Challan
7 of 2014 Charana, Jammu No.17563
21. Let a copy of this order be placed on the records of PIL Nos. 7/2014, 19/2012 and 27/2014.
22. Let PIL No. 19/2012 be listed on 5th March 2021 and PIL No. 7/2014 be listed on 17th February 2021, the dates already fixed in the matters.
23. In the meantime, learned Amicus curiae will come out with the suggestions in writing so that effective orders may be passed to check, control and stop all illegal mining of minor minerals within a week with an advance copy to the other side.
24. Sh. F. A. Natnoo, learned Additional Advocate General and Sh. Vishal Sharma, learned Assistant Solicitor General of India may file objections to the suggestions so filed and may make further suggestions by the next date.
(ALI MOHAMMAD MAGREY) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
09.02.2021
Sunita
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/No
SUNITA KOUL
2021.02.11 11:57
I attest to the accuracy and
integrity of this document