Andhra Pradesh High Court - Amravati
M/S.Gsr Stone Crushers vs The State Of Andhra Pradesh on 30 September, 2022
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH
***
W.P.Nos.8390 of 2018 and 12334 of 2021
W.P.Nos. 27815 and 27952 of 2021
W.P.Nos.27903 and 28372 of 2021
And W.P.No.12950 of 2021
W.P.No.8390 of 2022
BETWEEN:
# M/s. GSR Stone Crushers,
Kadakella Village, Veeraghattam Mandal,
Srikakulam District, rep. by its Proprietor
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Assistant Director of Mines & Geology, Santhi Nagar Colony,
Srikakulam- 1, Andhra Pradesh.
... RESPONDENTS
Date of Judgment pronounced on : 30.09.2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2 RRR,J
W.P.No.8390 of 2018 and batch
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.Nos.8390 of 2018 and 12334 of 2021
+ W.P.Nos. 27815 and 27952 of 2021
+ W.P.Nos.27903 and 28372 of 2021
+ And W.P.No.12950 of 2021
% Dated:30.09.2022
W.P.No.8390 of 2018
BETWEEN:
# M/s. GSR Stone Crushers,
Kadakella Village, Veeraghattam Mandal,
Srikakulam District, rep. by its Proprietor
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Assistant Director of Mines & Geology, Santhi Nagar Colony,
Srikakulam- 1, Andhra Pradesh.
... RESPONDENTS
W.P.No.12334 of 2021
BETWEEN:
# M/s. GSR Stone Crushers,
Kadakella Village, Veeraghattam Mandal,
Srikakulam District, rep. by its Proprietor
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Assistant Director of Mines & Geology, Santhi Nagar Colony,
Srikakulam- 1, Andhra Pradesh.
... RESPONDENTS
3 RRR,J
W.P.No.8390 of 2018 and batch
W.P.No.27815 of 2021
BETWEEN:
# P. Venkateswara Rao,
S/o. Late China Vengaiah, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.27952 of 2021
BETWEEN:
# P. Venkateswara Rao,
S/o. Late China Vengaiah, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.27903 of 2021
BETWEEN:
# M/s. VVR Crushers and Constructions
Rep. by its sole Proprietor P. Srinivasa Babu,
S/o. P. Venkateswara Rao, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
4 RRR,J
W.P.No.8390 of 2018 and batch
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.28372 of 2021
BETWEEN:
# M/s. VVR Crushers and Constructions
Rep. by its sole Proprietor P. Srinivasa Babu,
S/o. P. Venkateswara Rao, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.12950 of 2021
BETWEEN:
# M/s. Soma Patel ASI (JV)
Moduguvalasa Village, Srikakulam District, A.P.
Rep. by its sole Proprietor P. Srinivas,
S/o. Venkatagiri, R/o. Moduguvalasa Village
Srikakulam District, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
5 RRR,J
W.P.No.8390 of 2018 and batch
2. The Assistant Director of Mines & Geology, Srikakulam District,
Andhra Pradesh.
... RESPONDENTS
! Counsel for Petitioner : Sri Hari Sreedhar
(in all the writ petitions)
^Counsel for Respondents : G.P. for Mines and Geology
(respondent in all the writ petitions)
<GIST :
>HEAD NOTE:
? Cases referred:
1. AIR 1964 SC 358
2. (2004) 2 SCC 783
3. 2020 (6) ALT 85 (S.B)
4. 1993 (3) ALT 199
6 RRR,J
W.P.No.8390 of 2018 and batch
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.8390 of 2018 and 12334 of 2021
W.P.Nos. 27815 and 27952 of 2021
W.P.Nos.27903 and 28372 of 2021
And W.P.No.12950 of 2021
COMMON ORDER:
The facts in each of these cases, differ slightly. However, since they all raise a common question of law, they are being disposed of by way of this common order, by consent of both sides.
W.P.No.8390 of 2018 & W.P.No.12334 of 2021
2. The petitioner in both these writ petitions is the same. The petitioner had been granted a quarry lease for road metal and building stone over an extent of 2.5 hectares in Sy.No.127 of Kadakalla Village, Veeraghattam Mandal, Srikakulam District. The quarry of the petitioner is said to have been inspected by the Vigilance and Enforcement Department, who had thereupon addressed letters to the Mining Department to take action against the petitioner on the basis of the inspection report. Pursuant to this communication, a show cause notice dated 20.01.2018 was issued by the Assistant Director of Mines, Srikakulam, calling upon the petitioner to show cause as to why certain penalties etc., should not be collected from the petitioner on the ground of evasion of seigniorage fee. The petitioner is said to have given his reply on 12.02.2018 setting out the facts including the contention that the 7 RRR,J W.P.No.8390 of 2018 and batch entire exercise had been conducted in the absence of the petitioner. Thereafter, the Assistant Director of Mines had issued a demand notice dated 19.02.2018 calling upon the petitioner to pay certain amounts of money as penalty for infraction of the provisions of the Mines and Mineral (Development and Regulation) Act, 1957 (for short 'the MMDR Act')and Rule 26 of the A.P. Minor Mineral Concession Rules, 1966 (for short 'the Concession Rules'). Aggrieved by the same, the petitioner had approached this Court by way of W.P.No.3390 of 2018.
3. While the above writ petition was pending, action was again initiated against the petitioner on the basis of the information said to have been given by the Vigilance and Enforcement Department by way of of show cause notice dated 09.04.2021. Thereafter, a demand notice was issued on 22.04.2021 by the Assistant Director of Mines, Srikakulam calling upon the petitioner to pay certain amounts of money as penalty and infraction of the provisions of the MMDR Act and the Concession Rules. Aggrieved by the same the petitioner has filed W.P.No.12334 of 2021.
W.P.No.27815 of 2021 & W.P.No.27952 of 2021
4. Both the writ petitions have been filed by the same petitioner. The petitioner had been granted a quarry lease for road metal and building stone over an extent of 7.05 hectares, in Sy.No.251 of Seethanagaram Village, Anakapalli Mandal, Visakhapatnam. During the pendency of the said lease the petitioner had been issued a show cause 8 RRR,J W.P.No.8390 of 2018 and batch notice to which a reply had been given. Thereafter, a demand notice dated 07.08.2021 was issued. The petitioner filed W.P.No.15863 of 2020 before this Court and this Court had remanded the matter back to the Assistant Director of Mines, Visakhapatnam to re-conduct the entire exercise after giving necessary information to the petitioner. The Assistant Director of Mines again issued a demand notice, against which the petitioner filed W.P.No.25176 of 2020. This Writ petition was dismissed on the ground that the petitioner had an adequate alternative remedy of appeal. Aggrieved by the same, the petitioner filed W.A.No.64 of 2021, which was also dismissed. Thereafter, the petitioner filed an appeal before the 1st respondent therein, which was dismissed on 21.09.2021 without setting out any reasons for such a dismissal. Aggrieved by the same, the petitioner filed W.P.No.27952 of 2021.
5. In W.P.No.27815 of 2021 the petitioner, in relation to the quarry lease over an extent of 7.05 hectares in Sy.No.251 of Seethanagaram Village, Anakapalli Mandal, Visakhapatnam District, had been issued a show cause notice dated 14.07.2020 on the basis of an inspection report said to have been given by the Vigilance and Enforcement Department contending that the petitioner had obtained dispatch permits for road metal beyond what was actually excavated in the quarry and to show cause as to why penalties should not be levied against the petitioner. A demand notice was issued after the petitioner 9 RRR,J W.P.No.8390 of 2018 and batch had filed a reply asking for information, without such information being provided.
6. The petitioner filed W.P.No.15888 of 2020 challenging the said demand notice and this Court had remanded the matter back to the Assistant Director of Mines with a direction to furnish documents before passing any order. The Assistant Director of Mines, Visakhapatnam again issued a demand notice dated 10.11.2020 which was challenged before this Court by way of W.P.No.25190 of 2020, which was dismissed on the ground of effective alternative remedy being available. The Writ Appeal filed against this order was also dismissed and the petitioner had filed an appeal against the said demand notice. This appeal was dismissed on 21.09.2021. It is the contention of the petitioner that no reasons were given in the order of dismissal.
W.P.No.28372 of 2021 and W.P.No.27903 of 2021
7. In this case, the petitioner had been granted a quarry lease for road metal and building stone over an extent of 0.838 hectors in Sy.No.193 of Seethanagaram Village, Anakapalli Mandal, Visakhapatnam District. The Assistant Director of Mines, Anakapally had issued a show cause notice dated 14.07.2020 calling upon the petitioner to show cause as to why penalties and other amounts should not be levied on the petitioner as the petitioner was said to have dispatched more material than what was excavated in the quarry lease. The petitioner gave a reply dated 28.07.2020 denying the said allegations and asking for certain 10 RRR,J W.P.No.8390 of 2018 and batch documents and material. As the Assistant Director of Mines, Anakapally had issued demand notice dated 10.08.2020, without furnishing documents and material, the petitioner had approached this Court by way of the above writ petitions.
8. In W.P.No.27903 of 2021, the petitioner had been granted a quarry lease for road metal and building stone over an extent of 2.080 hectors in Sy.No.303 of Seethanagaram Village, Anakapally Mandal, Visakhapatnam District. The Assistant Director of Mines, Anakapally had issued a show cause notice dated 14.07.2020 calling upon the petitioner to show cause as to why penalties and other amounts should not be levied on the petitioner as the petitioner was said to have dispatched more material than what was excavated in the quarry lease. The petitioner gave a reply dated 28.07.2020 denying the said allegations and asking for certain documents and material. The Assistant Director of Mines, Anakapalli had issued demand notice dated 07.08.2020, without furnishing documents and material. Aggrieved by the said demand notice, the petitioner had approached this Court by way of W.P.No.15452 of 2020 and the same was disposed of by remanding the matter back to the Assistant Director of Mines to pass orders after furnishing the necessary documents. Thereafter, the Assistant Director of Mines again issued a demand notice dated 10.11.2020, which was challenged by way of W.P.No.25292 of 2020 and the same was dismissed on the ground of effective alternative remedy. However, the appeal filed by the petitioner was dismissed on 11 RRR,J W.P.No.8390 of 2018 and batch 21.09.2021. The petitioner contends that this appeal was dismissed without giving any reasons.
W.P.No.12950 of 2021
9. The petitioner had been granted a quarry lease for road metal and building stone over an extent of 5 hectares in Sy.No.297 of Kondaragolu Village, Hiramandalam Mandal, Srikakulam District. The Assistant Director of Mines, Srikakulam District, had issued a show cause notice dated 24.07.2020 calling upon the petitioner to show cause as to why penalties and other amounts should not be levied on the petitioner, as the petitioner was said to have dispatched more material than what was excavated in the quarry lease. The petitioner gave an interim reply dated 08.01.2021 with an additional reply dated 30.01.2021 denying the said allegations and asking for certain documents and material. The Assistant Director of Mines, Srikakulam had issued demand notice dated 03.05.2021, without furnishing documents and material. Aggrieved by the said demand notice, the petitioner had approached this Court by way of the present writ petition.
10. Sri Hari Sridhar, learned Counsel appearing for the petitioner, while highlighting the violation of the principles of natural justice in all the above cases, either on the ground of non-supply of the material used against the petitioner or on the ground that the impugned order is bereft of reasons, has also raised a common question of law.
12 RRR,J W.P.No.8390 of 2018 and batch
11. It is the contention of Sri Hari Sridhar that the proceedings under the penal provisions contained under Rules 26 and 34 cannot be conducted by the officials of the department and the same can only be filed as a complaint before a regular Criminal Court of competent jurisdiction and any decision in this regard, relating to the levy of any penalty, can be done only by the competent Court of criminal jurisdiction. He relies upon the judgments of the Hon'ble Supreme Court in State of U.P. vs. Singhara Singh1 (paragraphs 7 & 8); Karnataka Rare Earth vs. Department of Mines2 (paragraph No.7); and J.M.B. Rocks vs. State of Andhra Pradesh and Ors.,3.
12. The learned Additional Advocate General appearing for the respondents submits that the said writ petition is defective in as much as Rule 26 has not been challenged. He further submits that a Full Bench of the erstwhile High Court of A.P. in L. Venkateswara Rao and ors., vs. M/s. Singareni Collieries Company Ltd., rep. by its Managing Director, Kothagudem & ors.,4 had held that the State has the authority to levy and recover fines for infraction of the provisions of the MMDR Act and the Concession Rules and as such Rule 26 is within the power granted to the State Government and the levy and collection of 1 AIR 1964 SC 358 2 (2004) 2 SCC 783 3 2020 (6) ALT 85 (S.B) 4 1993 (3) ALT 199 13 RRR,J W.P.No.8390 of 2018 and batch penalties, under Rule 26 of the Concession Rules by the officials of the mines and geology department is also in accordance with law.
13. The learned Additional Advocate General submits that paragraph 7 of the judgment in Karnataka Rare Earth vs. Department of Mines relied upon by the learned counsel for the petitioner is actually in favour of the respondents as Section 21(5) of the MMDR Act empowers the State to recover the loss incurred by the State on account of illegal quarrying or violation of any of the provisions of the Concession Rules. Consideration of the Court:
14. In pursuance of the power granted under Section 15 of the MMDR Act, 1957, the State Government had issued G.O.Ms.No.1172 dated 04.09.1967 making the A.P. Minor Mineral Concession Rules 1966. Rule 26 of these Rules provides for the levy of penalities for unauthorised quarrying. A Full Bench, of the erstwhile High Court of Andhra Pradesh, in L. Venkateswara Rao and ors., vs. M/s. Singareni Collieries Company Ltd., rep. by its Managing Director, Kothagudem & ors., had held that the power to make Rules for levy of penalties can be traced to Section 15 of the MMDR Act and that rule 26 is within the power of the state.
15. Rule 26(1) mandates that if any holder of a mining concession undertakes quarrying operations and transports minor minerals outside the leased area or within such an area, in contravention of the 14 RRR,J W.P.No.8390 of 2018 and batch Rules, the holder of such a concession would be liable to pay 10 times of normal seigniorage fee as penalty in addition to the normal seigniorage fee along with the DMF and MERIT amounts on the assessed quantities by the Assistant Director of Mines and Geology concerned or any officer authorised in this behalf by the Director of Mines and Geology. Rule 26 (2) provides that whenever any person, who does not hold a minor mineral concession, excavates or transport minor minerals, the said person would be liable to pay 10 times normal seigniorage fee as penalty in addition to the normal seigniorage fee along with the DMF and MERIT amounts on the assessed quantities by the Assistant Director of Mines and Geology concerned or any officer authorised in this behalf by the Director of Mines and Geology.
16. Sub-rules (1) and (2) of Rule 26 were amended by G.O.Ms.No.35 I & C (M-III) Dept., dated 01.07.2020. Prior to this amendment, these Rules also provided for a further penalty of imprisonment on the person involved in violation of the above Rules.
17. The petitioners are not disputing the power of the state to levy fines and penalties. The contention of the petitioners is that such a levy of penalty can be done only by the court of competent criminal jurisdiction.
18. A learned Single Judge of this Court in J.M.B. Rocks vs. State of Andhra Pradesh and Ors., after referring to L. Venkateswara Rao and ors., vs. M/s. Singareni Collieries 15 RRR,J W.P.No.8390 of 2018 and batch Company Ltd., rep. by its Managing Director, Kothagudem & ors., had held that levy of penalties under Rule 26(3)(ii), including punishment by imprisonment for a term up to two years cannot be imposed by the Assistant Director of Mines and Geology as that would be within the exclusive domain of the Courts only. Consequently, the show cause notice challenged in the said writ petition was set aside. The said Rules were further amended on 01.07.2020 even before this judgment had been delivered.
19. It is the case of the respondents that the aforesaid judgment of this Court would not be applicable as the punishment of imprisonment has been removed from the Rules and only fine is sought to be levied by the Assistant Director of Mines and Geology concerned. A reading of the judgment would show that the learned Single Judge had taken the view that the proceedings under Rule 26, for levy of penalty, is a criminal proceeding which can only be dealt with by Courts of competent jurisdiction and the same cannot be exercised by the Assistant Director of Mines and Geology. The learned Judge had taken the view that any proceedings under Rule 26 would require to be conducted by a criminal Court and not an official of the department. The said judgment would be applicable to Rule 26 before the amendment and after the amendment also. The respondents have not placed any material before me to show that the said order has been varied or set aside by any higher forum and as such the said judgment has become final and binding on this Court.
16 RRR,J W.P.No.8390 of 2018 and batch
20. I would supplement the said judgement with some more reasons. A review of the provisions of the MMDR Act and the concession rules would be necessary to ascertain whether, the authorities under the act, can levy penalties, including fines on the persons violating the provisions of the MMDR Act and the concession rules.
21. Section 4 (1) of the MMDR Act mandates that no person can undertake mining operations, in any area, except under a mining lease granted under the MMDR Act. Section 4 (1A) further mandates that no person shall transport or store any mineral otherwise than in accordance with the provisions of the MMDR Act and the Rules made thereunder. In the present case, the applicable Rules are Concession Rules 1966.
22. Section 21 of the MMDR Act sets out the consequences of violation of the provisions of the Act and the Rules made thereunder and provides for imposition of penalties, including imprisonment, recovery of the cost of mineral, rent, royalty or tax etc., that was lost by the State Government on account of violation of the MMDR Act and the Concession Rules. Section 21 of the MMDR Act reads as follows:
21. Penalties.― (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable 17 RRR,J W.P.No.8390 of 2018 and batch with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention. (3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (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.
(4A) 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.
(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, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the 18 RRR,J W.P.No.8390 of 2018 and batch period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable.
23. The nature of the subsections of Sections 21 and 21 of the MMDR Act have been considered by the Hon'ble Supreme Court in the case of Karnataka Rare Earth vs. Department of Mines wherein the Hon'ble Supreme Court, at paragraph No.7, had held as follows:
7. In our opinion, the demand by the State of Karnataka of the price of the mineral cannot be said to be levy of penalty or a penal action. The marginal note of the section --
"penalties", creates a wrong impression. A reading of Section 21 shows that it deals with a variety of situations. Sub-sections (1), (2), (4), (4-A) and (6) are in the realm of criminal law. Sub-section (3) empowers the State Government or any authority authorized in this behalf to summarily evict a trespasser. Sub-section (5) empowers the State Government to recover rent, royalty or tax from the person who has raised the mineral from any land without any lawful authority and also empowers the State Government to recover the price thereof where such mineral has already been disposed of inasmuch as the same would not be available for seizure and confiscation. The provision as to recovery of price is in the nature of recovering the compensation and not penalty so also the power of the State Government to recover rent, royalty or tax in respect of any mineral raised without any lawful authority can also not be called a penal action. The underlying principle of sub-section (5) is that a person 19 RRR,J W.P.No.8390 of 2018 and batch acting without any lawful authority must not find himself placed in a position more advantageous than a person raising minerals with lawful authority.
24. Apart from this, sections 22 and 23A (1) are relevant and are as follows:
SECTION 22. COGNIZANCE OF OFFENCES-- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon a complaint in writing by a person authorised in this behalf by the Central Government or the State government.
SECTION 23A. 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 authorised 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.
25. Section 4 of the MMDR Act stipulates the need for excavating and transporting minerals strictly in accordance with the terms of the necessary lease and permits, respectively, granted by the State. Any infraction of this requirement is visited with penalties, of imprisonment and payment of fines, under Section 21(1) and (2) of the MMDR Act. Apart from this Section 21 (4) and (4A) provides for seizure and confiscation. These substantive provisions were held to be in the realm of criminal law, by the Hon'ble Supreme Court, in the above case.
20 RRR,J W.P.No.8390 of 2018 and batch
26. The necessity, under Section 22, of a complaint, in writing, from an authorised person before the Court takes cognizance can only mean that it is the criminal court which can take up the question of violation of the MMDR Act and the rules. Section 23 A, stipulates that only a person who can file a complaint before the Court can compound an offence under the MMDR Act. This would mean that the trial of offences under the MMDR Act and rules would be conducted by the Court. Further, any confiscation under Section 21 (4) can be done only by a Court. The provisions of sections 21, 22 and 23A of the MMDR Act, make it clear that the culpability of the person accused of violating the provisions of the Act or rules is to be determined by a court of competent criminal jurisdiction.
27. It is trite to state that, the rules cannot go beyond the principal Act or be inconsistent with the principal Act. The MMDR Act contemplates the levy of penalty, under the Act and Concession rules, to be decided by the Court while the Concession rules name the Assistant Director of Mines as the authority for this purpose. In view of the clear contradiction and inconsistency between the MMDR Act and the Concession rules, Rule 26 has to give way.
28. The learned Additional Advocate General contends that, in the absence of a challenge to Rule 26, the Petitioners cannot request this court to ignore the said provision.
21 RRR,J W.P.No.8390 of 2018 and batch
29. The Hon'ble Supreme court considered this very issue and held, in Shree Bhagwati Steel Rolling Mills v. CCE5, at page 661 as follows:
28. Shri Aggarwal, in order to buttress his submission that he ought to be allowed to raise a pure question of law going to the very jurisdiction to levy interest, cited before us the judgment in Bharathidasan University v. All-India Council for Technical Education [Bharathidasan University v. All-
India Council for Technical Education, (2001) 8 SCC 676 : 1 SCEC 924] and in particular para 14 thereof which reads as follow : (SCC pp. 688-89) "14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make Regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief 5 (2016) 3 SCC 643 : 2015 SCC OnLine SC 1243 22 RRR,J W.P.No.8390 of 2018 and batch sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that the Regulations made under Section 23 of the Act have 'constitutional' and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions."
29. It would be seen that Shri Aggarwal is on firm ground because this Court has specifically stated that rules or regulations which are in the nature of subordinate legislation which are ultra vires are bound to be ignored by the courts when the question of their enforcement arises and the mere fact that there is no specific relief sought for to strike down or declare them ultra vires would not stand in 23 RRR,J W.P.No.8390 of 2018 and batch the court's way of not enforcing them. We also feel that since this is a question of the very jurisdiction to levy interest and is otherwise covered by a Constitution Bench decision of this Court, it would be a travesty of justice if we would not allow Shri Aggarwal to make this submission.
30. This Court, for the above reasons, holds that the Assistant Director of mines or any other authority of the State cannot determine the culpability of the person said to be in violation of the MMDR Act or the Concession rules or levy a penalty and it is only a court of competent jurisdiction which can go into these questions and levy penalties set out under rule 26 of the concession rules or under any of the other provisions of the MMDR Act or the Concession rules.
31. Consequently, the writ petitions are allowed setting aside the orders impugned in these writ petitions. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ R. RAGHUNANDAN RAO, J.
30th September, 2022 Js.
24 RRR,J W.P.No.8390 of 2018 and batch HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO W.P.Nos.2390 of 2018 and 12334 of 2021 W.P.Nos. 27815 and 27952 of 2021 W.P.Nos.27903 and 28372 of 2021 And W.P.No.12950 of 2021 30th September, 2022 Js.