Madhya Pradesh High Court
Shri Vishwa Mangal Associate vs The State Of Madhya Pradesh on 18 July, 2018
1
THE HIGH COURT OF MADHYA PRADESH
M.P. Nos.1850/2018, 1852/2018, 1853/2018, 1985/2018, 1987/2018,
2012/2018, 2013/2018, 2017/2018, 2020/2018, 2022/2018, 2030/2018,
2165/2018, 2408/2018, 2499/2018, 2502/2018, 2528/2018, 2817/2018,
2819/2018, 2820/2018, 2821/2018, 2856/2018, 2941/2018, 3048/2018,
3190/2018, 3191/2018, 3197/2018, 3223/2018, 3304/2018, 3305/2018
W.P.Nos.8970/2018, 14225/2018, 14230/2018
Jabalpur, Dated: 18.07.2018
Shri Naman Nagrath, Senior Advocate with Shri Qasim Ali,
Advocate, Shri Shekhar Sharma, Shri M.K.Verma, Shri Pradeep
Bhargava, Shri Ranjeet Dwivedi, Shri Harish Chandra and Shri
A.K.Jain, Advocates for the petitioners in the respective petitions.
Shri Pushpendra Yadav, Dy. Advocate General for the
respondents/State.
Learned counsel for the petitioners argued that Rule 53 of the M.P. Minor Minerals Rules, 1996 (for short 'the Rules') as substituted on 18.5.2017 contemplates imposition of penalty in respect of illegal mining and transportation in a graded manner in terms of sub-rule (1) of Rule 53 of the Rules.
Sub-rule (2) of Rule 53 of the Rules deals with forfeiture of minerals in cases of illegal extraction and transportation. It contemplates that the seized minerals shall not be discharged till the penalty as contemplated in sub-rule (1) is not paid. It is thus argued that the forfeiture will not follow, if the penalty in terms of sub-rule (1) is paid. Only in the event of failure to pay penalty in terms of sub- rule (1), the forfeiture can be affected in terms of sub-rule (1).
Sub-rule (3) of the Rules deals with forfeiture/discharge of the seized machines, tools and vehicles. Sub-rule (3)(a) contemplates that the tools, machines, vehicles and other material so seized shall not be discharged till the penalty imposed in terms of sub-rule (1) is paid. It is only thereafter, forfeiture can be affected. Sub-rule (3)(b) is in respect of mineral extracted or transported without any transit 2 pass, which again has to be dealt with in the same manner i.e. after imposition of the penalty four times in terms of Rule 53(1) of the Rules, there can be forfeiture. Second Proviso in fact permits the vehicles to be forfeited on fourth default as against the penalty which is payable even on fourth default in terms of sub-rule (1).
It is contended that the forfeiture cannot be resorted to at the first instance without imposition of penalty in terms of sub-rule (1) either in the case of mineral or in the case of machines, tools and vehicles.
It is argued that the order of this Court in Writ Petition No.20686/2017 (Nihal Khan Vs. The State of M.P.) decided on 25.4.2018, has not noticed the Scheme of the Rules in a correct perspective.
On the other hand, Mr. Yadav argued that the Competent Authority has a liberty to either forfeit or to impose penalty. Therefore, on account of illegal extraction and transportation of mineral, there can be forfeiture.
We are doubtful about the arguments by Shri Yadav raised. There cannot be total discretion to the Competent Authority to impose penalty in his choice or to resort to forfeiture as per his discretion.
We find that the view taken by this Court on 25.4.2018 in Nihal Khan's case (supra) requires reconsideration. Therefore, we deem it appropriate to refer these matters to a Larger Bench.
List before the Larger Bench on 8.8.2018.
The State may file reply in the meantime, if chooses so. Interim order to continue.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
C.
Digitally signed by CHRISTOPHER PHILIP
Date: 2018.07.20 13:15:23 +05'30'