Gujarat High Court
Paryavaran Bachav Samity ... vs Secretary (Imd) Government Of Gujarat & ... on 18 September, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/WPPIL/132/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 132 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PARYAVARAN BACHAV SAMITY THR'HPRESIDENT RAJABHAI
BALOCH....Applicant(s)
Versus
SECRETARY (IMD) GOVERNMENT OF GUJARAT & 12....Opponent(s)
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Appearance:
MR NM KAPADIA, ADVOCATE for the Applicant(s) No. 1
MR UTKARSH SHARMA, AGP for the Opponent(s) No. 1 - 4
MR BIREN A VAISHNAV, ADVOCATE for the Opponent(s) No. 10
MR DEVANG VYAS, ADVOCATE for the Opponent(s) No. 13
MS RV ACHARYA, ADVOCATE for the Opponent(s) No. 5 , 7 , 11
NOTICE SERVED for the Opponent(s) No. 6 , 8 , 12
NOTICE SERVED BY DS for the Opponent(s) No. 9
Page 1 of 18
C/WPPIL/132/2012 JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/09/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The petitioner in this public interest petition has made multiple prayers concerning the issues of illegal mining. Since many of these prayers were unconnected, we requested the counsel for the petitioner to confine the prayers to a single issue and raise other issues, if so desired, separately. In response thereto, Mr.Kapadia confined this petition to the prayers made in (A), (B) and (E) of para 12 which read as under:
"(A) Your Lordships be pleased to declare section 23A of Mines and Minerals (Regulations and Development) Act, 1957 and Rule 14 of the Gujarat Minerals (Prevention of Illegal Mining Transportation and Storage) Rules, 2005 as arbitrary, unreasonable and unconstitutional.
(B) in the alternatively, Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to apply provisions of Section 378 and 379 of the IPC in every case of theft of public property in the form of minerals.
(E) Yours Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to reconsider the mining policy / guidelines and to incorporate the prohibition of the grant of lease / E.C. In favour of the party which has earlier violated the relevant mining law."Page 2 of 18
C/WPPIL/132/2012 JUDGMENT The petitioner is permitted to raise other prayers in separate proceedings if so desired.
Here also, we notice that the prayers (A) and (B) pertain to the powers of the Central Government as well as the State Government authorities to compound an offence pertaining to illegal mining. Prayer (E), on the other hand, pertains to a mining policy for laying down guidelines so that the companies or persons who were found to have been involved in illegal mining earlier are not granted fresh mining leases. This issue, in our opinion, is completely unconnected to the question of compounding of offence and is not examined in this petition and would be clubbed along with other prayers for being adjudicated in separate proceedings, if so advised.
In the result, we confine this petition to the challenge to the vires of section 23A of the Mining and Minerals (Development and Regulation) Act, 1957 ('the Act of 1957' for short) and rule 14 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 ( 'the Rules of 2005' for short).
The Act of 1957 was enacted to provide for the development and regulation of mines and minerals under the control of the Union. It contains many provisions to control such activities including grant of licence for mining minerals as would be necessary. Section 21 prescribes penalties for certain contraventions. Section 23A, vires of which are challenged in this petition, pertains to Page 3 of 18 C/WPPIL/132/2012 JUDGMENT compounding of offences. Under sub-section (1) of section 23A, any offence punishable under the Act or any rule made thereunder may be compounded by the person who is authorized to make a complaint with respect to the offence in question on payment of such sum as he may specify. Such powers could be exercised even before the institution of the prosecution. Sub-section (2) of section 23A provides that when an offence is compounded under sub- section (1), no proceeding or further proceeding shall be taken against the offender in respect of the offence so compounded and if he is in custody would be released forthwith.
The case of the petitioner is that the said provisions give unguided and uncanalized powers to the competent authority to compound an offence which is possible of gross discriminatory abuse. According to the petitioner, therefore, the provision is arbitrary and therefore ultra vires Article 14 of the Constitution. In this context, the counsel for the petitioner placed heavy reliance on a decision of the Supreme Court in the case of Air India v. Nergesh Meerza, (1981) 4 SCC 335.
We may notice that rule 14 of the Rules of 2005 makes similar provisions for compounding an offence which is otherwise punishable under the Rules. Rule 14 provides that any offence punishable under the Rules may either before or after the institution of the prosecution be compounded by the authorized officer on payment of such amount as may be decided by the Commissioner of Geology and Mining. As in section 23A, rule 14 further provides Page 4 of 18 C/WPPIL/132/2012 JUDGMENT that when an offence is compounded, no further proceedings shall be commenced and if already commenced, the same shall not be proceeded further and the accused if in custody would be released and the property, if any, seized shall also be released.
On the other hand, the learned counsel for the Union of India as well as the State Government opposed the petition contending that the statutory provisions in question do not suffer from any unconstitutionality. The legislative competence is not in question. The Act and the Rules provide sufficient guidelines. The powers have to be exercised by the competent authorities bearing in mind the object of the Act. Possibility of incorrect order being passed would not render the provisions unconstitutional. In support of this submission, the learned AGP relied on the following decisions:
(i) In the case of Saushil Kumar Sharma v. Union of India, (2005) 6 SCC 281.
(ii) In the case of Sushil Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
With respect to the Rules of 2005, it was further pointed out that the rules have been framed in exercise of the powers under section 23C of the Act of 1957.
It is by now well settled that the legislations, be it enacted by the Union or by the State Legislature carry the presumption of constitutionality. Reference in this regard may be made to a Page 5 of 18 C/WPPIL/132/2012 JUDGMENT decision of the Constitution Bench of the Supreme Court in the case of State of J & K v. T.N.Khosa, AIR 1974 SC 1. It is also a settled position that even a delegated piece of legislation, such as rules framed under the powers of delegated legislation enjoys such presumption. As held by the Supreme Court in the case of Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, a legislation framed by the Parliament or the State Legislature can be called in question only on two grounds, namely, lack of legislative competence or that the statutory provision is opposed to any of the fundamental rights under the Constitution or any other mandatory provisions of the Constitution.
With this background, we may examine the petitioner's challenge to the vires of the said provisions. The Act of 1957 was enacted to provide for the development and regulation of mines and minerals under the control of the Union. Section 4 of the Act of 1957 pertains to prospecting or mining operations under licence or lease. Sub-section (1) thereof provides that no person shall undertake any reconnaissance, prospecting or mining operations in any area except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or mining lease granted under the Act or the rules made thereunder. Section 4A of the Act pertains to termination of prospecting licenses or mining leases. Sub-section (1) thereof, provides, inter alia that where the Central Government after consultation with the State Government is of the opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of Page 6 of 18 C/WPPIL/132/2012 JUDGMENT natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mining or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a mineral in any area and on receipt of such request, the State Government shall make an order making premature termination of such prospecting licence or mining lease.
Section 5 of the Act of 1957 pertains to restrictions on the grant of prospecting licences or mining leases and provides, inter alia, that a State Government shall not grant permit to any person unless the person satisfies such conditions as may be prescribed. Section 6 prescribes a maximum area for which a prospecting licence or mining lease may be granted. The period for which prospecting licences may be granted is governed by section 7 of the said Act. Section 8 prescribes a maximum period for which mining leases may be granted or renewed. Section 9 pertains to royalties to be paid to the holder of a mining lease. Sections 10 to 12 lay down detailed procedure for obtaining prospecting licences or mining leases. Section 13 is the rule making power of the Central Government in respect of minerals. Section 15 empowers the State Government to make rules in respect of minor minerals. Section 18 pertains to mineral development. Sub-section (1) provides that it shall be the duty of the Central Government to take all such steps as Page 7 of 18 C/WPPIL/132/2012 JUDGMENT may be necessary for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations. Section 21, as noted earlier, prescribes penalties. Sub-section (1) thereof provides that 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 one year, or with fine which may extend to five thousand rupees or with both, and in the case of a continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues. Section 22 provides that no court shall take cognizance of any offence punishable under the 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 23A which is under challenge reads as under:
"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 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;
Provided that in 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."Page 8 of 18
C/WPPIL/132/2012 JUDGMENT Section 23C of the Act empowers the State Government to make rules for preventing illegal mining, transportation and storage of minerals.
In exercise of such powers, the State Government has framed the said Rules of 2005. The rules provide detailed mechanism for regulating mining and transportation of minerals. Rule 7 in particular envisages establishment of check posts and barriers and weighment and inspection of minerals in transit. Rule 8 envisages grant of registration, renewal for stocking or storing of minerals. Rule 13 provides penalties. Sub-rule (1) provides that whoever contravenes the provisions of rule 5, 6 and 8 shall be punishable with imprisonment for a term which may extend to one year or with fine which may extent to five thousand rupees or with both and in case of continued contravention, with additional fine which may extent to five hundred rupees every day during which such contravention continues. Rule 14 pertains to compounding of offence which reads as under:
"14. Compounding of offence. Any offence punishable under these Rules may either before or after institution of the prosecution be compounded by the Authorized Officer on payment of such amount as may be decided by Commissioner of Geology and Mining. When an offence is compounded,
(i) no further proceedings shall be commenced against such person;
(ii) if any proceedings have already been commenced against such person such proceedings shall not be further Page 9 of 18 C/WPPIL/132/2012 JUDGMENT proceeded with; and
(iii) the accused person, if in custody shall be discharged and the property seized shall, if it is not to be so retained, be released."
Rule 16 pertains to offence by companies or firms. Rule 17 pertains to seizure of property liable to confiscation.
From the above noted provisions of the Act of 1957, it can be seen that in order to provide for development and regulation of mines and minerals, detailed provisions have been made in the Act. Such provisions include procedure for granting licences for mining, restrictions and controls subject to which such licences could be granted. Provisions have also been made for collection of royalties and dead rent in appropriate cases. Section 4 prohibits a person from undertaking any reconnaissance, prospecting or mining operations without licence or permit. Section 21 provides for the penalties to enforce the various provisions made under the Act. As noted, above, section 22 provides that no court shall take cognizance of any offence under the Act except upon a complaint by the person authorised in that behalf. We may also notice that sub- section (6) of section 21 was introduced by the Amendment Act 37 of 1986, which provides that notwithstanding anything contained in the Code of Criminal Procedure, an offence under sub-section (1) shall be cognizable. The object and reason for introduction of such provision would show that the same was introduced for increasing the quantum of punishment to curb illegal mining activities.
Page 10 of 18C/WPPIL/132/2012 JUDGMENT Various questions pertaining to the offences prescribed under the Act of 1957 came up for consideration before a learned Single Judge of this Court in the case of Vishalbhai R.Khurana v. State, 2010 (3) GCD 2160 (Guj.). In the context of providing bar under section 22 of the Act against taking cognizance of an offence otherwise than by a complaint by the authorized officer, it was observed as under:
"16. Though the object for providing bar under section 22 of the Act is not emerging from the statement of objects and reasons, the purpose behind such provision is not far to seek. The Act deals with complex issues of mining leases and mining operations. These are complex issues of facts and at times echnical and scientific in nature. By very nature of things, large companies would be involved in mining operations and their officers and Directors would be exposed to criminal accusations if proper care is not taken to scan such accusations by an officer who would have special knowledge about such a technical field. Simultaneously, by very nature of things, stakes are likely to be high. State interest would also suffer if investigation is either not satisfactory or is lacking in certain technical aspects. Mining leases and licenses would necessarily be of highly technical nature. Section 22 would serve both the purposes. On one hand, it would filter out frivolous prosecution and on the other, take care of State interest by ensuring that satisfactory investigation has been carried out. It is, therefore, of great importance that the complaint in writing is filed by an officer authorized in this behalf by the State Government before the concerned Magistrate. This would also be in consonance with the purpose for which the said provision has been enacted. This legislative intent can be gathered also from section 23A of the Act whereby any offence punishable under the Act or the Rules made thereunder either before or after the institution of the prosecution may be compounded by the person authorized under section 22 to make a complaint to the Court with respect to that offence. On account of the inherent and intrinsic complexities of such issues, even power of compounding before or even after institution of the prosecution has been retained by the State and such powers are to be exercised by the authorized person alone."Page 11 of 18
C/WPPIL/132/2012 JUDGMENT The said decision of this Court and other decisions of other High Courts came up for consideration before the Supreme Court in a recent decision dated 4th September 2014 in the case of State of NCT of Delhi v. Sanjay. The Supreme Court in the context of importance of regulating the mining activities and the impact of illegal and unregulated mining operations observed as under:
"28. The policy and object of Mines and Minerals Act and Rules have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature.
29. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service report. As per the contents of the report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that Sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our Country.
30. The mining of aggregates in rivers has led to severe damage to river, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from the Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 centimetres a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry Page 12 of 18 C/WPPIL/132/2012 JUDGMENT up when sand mining reaches certain thresholds.
31. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.
32. The report also dealt with the astonishing impact of sand mining on the economy. It states that the tourism may be affected through beach erosion. Fishing, both traditional and commercial -- can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.
33. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors -- beaches themselves.
34. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow-paths."
Section 23A of the Act would, therefore, have to be viewed in the background of the above noted provisions contained in the Act and the observations of the Supreme Court in the case of State of Page 13 of 18 C/WPPIL/132/2012 JUDGMENT NCT of Delhi v. Sanjay (supra). The section itself is a mechanism for compounding an offence punishable under the Act or the Rules made thereunder. Sub-section (1) makes all offences compoundable by the person authorized under section 22 to make a complaint with respect to the offence concerned upon the person concerned paying to the credit of the Government such sum as the authorized officer may specify. Such compounding could be done either before or after the institution of the prosecution. Proviso to sub-section (1) provides in case of an offence punishable with fine only, no such amount shall exceed the maximum amount of fine which may be imposed for that offence. As per sub-section (2) of section 23A, when an offence is compounded under sub-section (1), no proceeding or further proceeding shall be taken against the offender with respect to the offence so compounded.
The section has inbuilt guidelines for exercise of powers by the authorized officer. To begin with, though the proviso limits the maximum compounding fine that can be levied from a person in case of an offence punishable with fine only, in other cases, there is no limit prescribed for collecting the sum from the offender before the offence could be compounded. Once the offence is compounded, no further prosecution would lie against the offender and if he is in custody, he would be released forthwith.
Such powers, therefore, have to be exercised bearing in mind the special provisions made in this respect. While doing so, the authorized officer would be guided by the aims and objects for Page 14 of 18 C/WPPIL/132/2012 JUDGMENT enactment of the statute and other relevant provisions. As noted, section 22 makes cognizance of an offence to be taken only upon a complaint in writing by an authorized person. Looking to the peculiar requirements of the statute and the peculiarity of the offence that would be involved, the statute has provided for cognizance of offence to be taken only upon a complaint by the authorized officer. It is this very officer who is authorized to compound the offence. Thus, the officer who has special technical knowledge and wherewithal would also be applying his mind before deciding to compound an offence and the terms on which the same could be compounded.
Looking to such detailed provisions contained in the Act, it cannot be stated that the powers to be exercised by the authorized officer under section 23A of the Act of 1957 are unguided or uncanalized. By very nature of things, such discretionary powers require some play in the joints. Merely because the section invests the competent authority with discretionary powers, it cannot be stated that such powers are unguided or uncanalized open to discriminatory abuse. Such provisions are not unknown nor uncommon in special statutes such as Forest Act where also similar provisions have been made. We may refer to section 68 of the Forest Act which authorizes the competent authority to compound an offence under the said Act.
In the case of Anant Mills v. State of Gujarat, AIR 1975 SC 1234, the Supreme Court considered the vires of taxing provisions Page 15 of 18 C/WPPIL/132/2012 JUDGMENT contained in the Bombay Provincial Municipal Corporation Act. Section 129 of the said Act which authorizes the Municipal Corporation to levy taxes was also challenged. One of the grounds of challenge was excessive delegation of legislative power. Upholding the vires of the statutory provisions, the Court observed as under:
"38. We are unable to accede to the submission of Mr. Tarkunde that in view of the construction which we are placing upon the proviso to Section 129 (b), the proviso would be violative of Article 14 of the Constitution on account of excessive delegation of legislative power. As already mentioned, the Corporation must keep in view the total expense it would have to incur for the conservancy service before fixing the various rates of conservancy tax. The different rates of conservancy tax have thus to be related to the total cost of conservancy service to be borne by the Corporation. The "opinion of the Corporation" mentioned in clause (b) of Section 129 is formed after budget estimates are view pared in accordance with Sections 95, 96 and 100 of the Corporations Act. According to the above provisions the Commissioner is to make a statement of proposals as to the taxation which would in his opinion be necessary or expedient to impose under the provisions of the Act in the Annual Budget estimate of the next official year. The Standing Committee then considers the estimates and proposals of the Commissioner, and after having obtained from the Commissioner further details and information as they think fit, the Committee frames the budget estimates. The budget estimates contain proposals of rates and extents of municipal taxes. The budget estimates are then printed and the printed copies are sent to municipal councilor. The budget estimates are thereafter laid before the Corporation which then considers the same. In considering the budget estimates the Corporation is entitled to refer them back to the Standing Committee for further consideration or to adopt them as they stand or subject to alterations. The entire procedure provides built in safeguard and lays down adequate guidelines in the matter of taxation. It Page 16 of 18 C/WPPIL/132/2012 JUDGMENT therefore cannot be said trial the legislature has not prescribed any guiding principles for the Corporation for determining the rates of conservancy tax. We agree with the High Court that the proviso to clause (b) of Section 129 does not suffer from the vice of excessive delegation of legislative power."
In the case of State of A.P. v. McDowell and Co., (1996) 3 SCC 709, the Supreme Court held and observed that a law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. No enactment can be struck down on the ground that court thinks it unjustified.
In the case of Air India v. Nergesh Meerza (supra) on which heavy reliance was placed by the counsel for the petitioner, the Supreme Court struck down the regulations framed by the Air India which armed the Managing Director with uncanalized and unguided powers to extend the age of retirement of an air hostess from the normal retirement age of 35 to 45 years. It was in this background it was held that such powers vested with the Managing Director were uncanalized and unrestricted.
The above discussion would cover the validity of the Rules framed by the State Government also. No separate discussion may, therefore, be called for.
Page 17 of 18C/WPPIL/132/2012 JUDGMENT With respect to the applicability of the offence under the Indian Penal Code in a given case even where the offence is one under the Act of 1957 or sometimes even independently, in our view, the entire issue is covered by the decision of the Supreme Court in the case of State of NCT of Delhi v. Sanjay. No separate discussion is, therefore, necessary.
In the result, the petition is dismissed.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) (vjn) Page 18 of 18