Madhya Pradesh High Court
Nihal Khan vs The State Of Madhya Pradesh on 25 April, 2018
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WP-20686-2017
HIGH COURT OF MADHYA PRADESH
WP-20686-2017
(NIHAL KHAN VS THE STATE OF MADHYA PRADESH)
Jabalpur, Dated 25-04-2018
Shri Adarsh Goswami, Advocate for the petitioner.
Mr. Amit Seth, Government Advocate for the
respondents/State.
The petitioner in the present petition is aggrieved against forfeiture of Vehicle No. MP 04 K 8796 in terms of Rule 53 (3) (b) of M.P. Minor Minerals Rules, 1996 (for short "the Rules"). The vehicle has been ordered to be forfeited for the reason that the vehicle was engaged in illegal extraction of mineral.
2. The petitioner admits that the Driver has not paid the amount of royalty though the amount was given to him. Therefore, it is beyond dispute that the vehicle in question was carrying illegal extracted mineral. The argument of learned counsel for the petitioner is that vehicle can be forfeited only if the penalty as contemplated in sub- rule (1) of Rule 53 of the Rules is not paid. Therefore, the forfeiture of vehicle without imposition of penalty is contrary to scheme of the Rules as amended on 18th May, 2017.
3. Learned counsel for the petitioner relies upon Division Bench judgment of this Court in Writ Petition No.18818/2017 (Ramkumar ...2...
WP-20686-2017 Sahu vs. The State of M.P. And others) wherein the legality and validity of Rule 53 substituted vide notification dated 18 th May 2017 has been upheld. The argument of the petitioner is that the judgment has upheld the Rules for the reason that the graded amount of penalty is imposed with each subsequent violation of the Rules and that the forfeiture of the vehicle in the very first instance is not contemplated.
4. We have heard learned counsel for the parties and find no merit in the petition.
5. Rule 53 of the Rules is reproduced below:
"53. (1) Penalty for un-authorized extraction and transportation.- Whenever any person is found extracting or transporting minerals or on whose behalf such extraction or transportation is being made otherwise then in accordance with these rules, shall be presumed to be a party to the illegal mining/transportation, then the Collector or any officer authorized 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.
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WP-20686-2017
(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 authorized by him not below the rank of the Deputy Collector shall take an appropriate decision. Provided that seized minerals shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture, the seized mineral shall be disposed of through a transparent auction/tender procedure as prescribed by the State Government.
(3) Forfeiture\Discharge of the seized 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, authorized 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 materials so seized shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture, the seized materials shall be disposed of through a transparent auction/tender procedure as prescribed by the State Government.
(b) In case 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 authorized 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.
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WP-20686-2017 In case of forfeiture the seized 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." (emphasis supplied)
6. The substituted Rule 53 has three sub-clauses, which are relevant for the present case. Sub-rule (1) of Rule 53 contemplates the penalty for un-authorized extraction and transportation. Such Rule deals with imposition of penalty for the first time contravention being minimum 30 times of the royalty of illegally extracted minerals; whereas on second time contravention, a penalty 40 times of the royalty of illegally extracted mineral and on the third time contravention, penalty 50 times of royalty of illegally extracted minerals is provided. Thereafter, the penalty of minimum 70 times of the royalty of illegally extracted minerals is contemplated to be imposed.
7. Sub-Rule (2) of Rule 53 of the Rules deals with forfeiture of minerals in case of illegal extraction and transportation. It contemplates that illegally extracted mineral shall not be discharged till the amount of penalty imposed is not paid.
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WP-20686-2017
8. Sub-Rule (3) of Rule 53 of the Rules deals with forfeiture/discharge of the seized tools, machines and vehicles. Sub- clause (a) of sub-rule (3) contemplates that the tools, machines and vehicles seized shall not be discharged till the penalty imposed is paid, in case of illegal extraction. Sub-clause (b) of Rule 53 (3) deals with a situation of forfeiture or discharge of a vehicle carrying mineral extracted and transported without any "transit pass". Thus, as per Rule 53 (3) (b) the illegally extracted mineral without transit pass cannot be discharged without payment of penalty.
9. However, the second proviso to Rule 53 (3) (b) puts a restriction on forfeiture of a vehicle carrying minerals "in excess as mentioned in transit pass". Therefore, the bar against forfeiture is only in respect of vehicles carrying minerals in excess of the transit pass but where the vehicle is carrying illegally extracted mineral without any transit pass, the vehicle can be forfeited. The condition of imposition of penalty is applicable in respect of excess extraction or transportation of minerals but not in case of illegal extraction of mineral without any transit pass.
10. The vehicle of the petitioner was not carrying any transit pass but has illegally extracted minerals. Therefore, it is not a case of excess extraction or transportation of minerals but the entire ...6...
WP-20686-2017 consignment was illegal for which the vehicle was being used. Therefore, the vehicle has been rightly forfeited.
11. In Ramkumar Sahu (supra) the clause of forfeiture of the vehicle has been found to be legal as a step to stop illegal extraction of natural resources. This Court has held as under:
"20. ....... Therefore, the penalty as contemplated under Section 21 of the Act is a punishment whereas confiscation under Rule 53 of the Rules cannot be termed to be a punishment. Thus, the prosecution as contemplated under Section 21 of the Act is a separate and distinct offence than confiscation of the extracted minerals and the vehicles which is not punishment, which provisions are with the view to ensure that the vehicles which are frequently put to use of illegally transporting mineral are kept out of circulation."
12. In view of the said fact, we do not find any illegality in the forfeiture of the vehicle by the Collector. Thus the present petition stands dismissed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
vivek
Digitally signed by VIVEK KUMAR TRIPATHI
Date: 2018.04.28 12:22:19 +05'30'