Bombay High Court
Sajid S/O Siraj Khan And Another vs State Of Maharashtra, Through Its ... on 5 January, 2021
Author: Z.A. Haq
Bench: S.B. Shukre, Z.A. Haq, Manish Pitale
wp1325.18 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1325/2018
Sajid S. Khan & anr.
..VS..
State of Maharashtra & ors.
----------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
----------------------------------------------------------------------------------------------
Shri S.P. Bhandarkar, Advocate for the petitioners
Shri A.M. Deshpande, Addl. GP with Ms. N.P. Mehta, AGP for the
respondent nos. 1 to 4
Shri K.P. Mahalle, Advocate for the respondent no. 5
CORAM : SUNIL B. SHUKRE, Z.A.HAQ
& MANISH PITALE, JJ.
RESERVED ON : 10/12/2020
PRONOUNCED ON : 05/01/2021
ORDER (PER : Z.A. HAQ, J.) :-
1] A Division Bench of this Court, expressing its inability to agree with the view taken by another Division Bench of this Court earlier regarding interpretation of Sections 48(7) and 48(8) of the Maharashtra Land Revenue Code, 1966 (for short "the Code of 1966"), requested the Hon'ble Chief Justice to constitute a Larger Bench to consider the point. While referring the matter to the Hon'ble Chief Justice for constitution of the Larger Bench, specific point for reference was not framed, however on reading of the referral order, it is clear that the Division Bench comprising of Shri B.P. Dharmadhikari and Shri Arun D. Upadhye, JJ., expressed its inability to accept the view taken by another Division Bench comprising of Shri R.K. Deshpande and Shri M.G. ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 2 Giratkar, JJ. as recorded in para no. 6 of the judgment delivered in Criminal Writ Petition No. 1105/2017. In para no. 6 of the judgment delivered in Criminal Writ Petition No. 1105/2017, the earlier Division Bench accepted the contention of the petitioner therein that the transporter of mineral (minor mineral) cannot be booked under the provisions of Sections 48(7) and 48(8) of the Code of 1966 if the assignee of rights of extraction of the minor mineral is different from the transporter, unless it is shown that the extraction of sand (minor mineral) by the assignee is unauthorized and illegal. The earlier Division Bench further held that the provisions of Sections 48(7) and 48(8) of the Code of 1966 do not empower the Authorities to seize and confiscate the vehicle carrying minerals (minor mineral) in excess of the weight permitted to be carried by the vehicle.
As the point for consideration by the Larger Bench was not framed in the referral order, after hearing the learned advocates appearing in the matter, by the order dated 24/11/2020, we framed the following points for consideration :-
"(I) Whether the provisions contained in Section 48 of the Maharashtra Land Revenue Code, 1966 would apply to " minor minerals" ?
(II) When any action is to be taken for breach of the provisions contained in Section 48 of the Maharashtra Land Revenue Code, 1966 or those contained in the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 framed under the Mines and Minerals (Development and Regulation) Act 1957 in relation to the unauthorized extraction, removal, transportation etc. of minor minerals, which of the two different sets of provisions as contained in Section 48 of the Maharashtra Land Revenue Code, ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 3 1966 or in Rule 78 of the Rules of 2013, would prevail ?"
Accordingly, the learned advocates made their submissions.
2] The relevant facts are :-
On 01/02/2018, four vehicles alleged to be owned by the petitioners were carrying sand from the sand ghat situated near Rajura, District Chandrapur to Adilabad. The Naib Tahsildar, Rajura stopped the vehicles and though all the relevant documents were produced and were verified by the Naib Tahsildar, the vehicles were detained. The petitioners claim that they are in the business of transport and they were transporting the sand as per the contract with the respondent no. 5 who according to the petitioners was holding valid license for excavation of sand from the ghat at Mudholi Tukum. According to the petitioners, they were having valid permit to transport five brass of sand per day and the action of the Naib Tahsildar in detaining the vehicles on the ground that the sand was being transported in the vehicles in excess of permissible limits, is illegal and unjustified.
According to the respondent - Authorities, the transport permits produced by the drivers of the vehicles did not show the invoice number, period of validity of the transport permits, date of issuance of the transport permits and the date of expiry of the transport permits.
Be that as it may, we are not required to deal with the contentions on merits of the matter and the facts are ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 4 reproduced only to understand the controversy and for answering the reference.
3] Elaborate submissions are made by the learned advocate for the petitioners to urge that the provisions of Sections 48(7) and 48(8) of the Code of 1966 are not attracted if the transporter is found transporting the sand on contract with the holder of mining lease, and consequently action cannot be taken against the transporter under Sections 48(7) and 48(8) of the Code of 1966 on the premise that the transporter has committed breach of those provisions. It is argued that action is not taken against the holder of mining lease at whose behest the sand was being transported, and therefore action only against the petitioners i.e. the transporters is per se illegal and unsustainable in law.
4] To support the contention, reliance is placed on the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (for short "the Act of 1957), specially Sections 4 to 15, 21, 79, 80, 81 and 82 of the Act of 1957. Rule 79 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (for short "the Rules of 2013") is also relied upon.
5] The contentions of the petitioners on the points which we are considering are as follows:-
(i) The Code of 1966 would apply only when question of levy and recovery of the land revenue arises and the provisions cannot be made applicable ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 5 when rights in the government land are assigned to private individual.
(ii) The Act of 1957, and the Rules of 2013 which are made in exercise of the powers conferred by Section 15 of the Act of 1957, are complete code and the provisions thereof deal with the aspects of grant of permits for excavation of minor minerals and the matters related thereto including the transport of excavated minor minerals and the punishments for breach / breaches.
(iii) The Act of 1957 and the Rules of 2013, being the special law for regulating the matters relating to minor minerals, would prevail over the provisions of the Code of 1966 which is a general law in the matter.
Shri S.P. Bhandarkar, Advocate for the petitioners relied on the following judgments :-
(A) The judgment given by the Hon'ble Supreme Court in the case of Suresh Nanda vs. C.B.I. reported in (2008) 3 SCC at page 674.
(B) The judgment given by the Hon'ble Supreme Court in the case of Sharat Babu Digumarti vs. Government (NCT of Delhi) reported in (2017) 2 SCC at page 18.
It is pointed out that the judgment given by the 7 Judges Bench of the Hon'ble Supreme Court in the case of ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 6 India Cement Ltd. and others vs. State of Tamil Nadu and others reported in (1990) 1 SCC at page 12 is referred to the Larger Bench and the issue of competence of the State Legislature to deal with the matters relating to minor minerals is pending before the Larger Bench.
6] Shri A. Waghdhare, Advocate and Shri V.B. Bhise, Advocate though not representing any party in the matter made submissions in-line with the submissions made by Shri S.P. Bhandarkar, Advocate for the petitioners.
7] Shri A.M. Deshpande, learned Addl. GP referred to the provisions of Sections 4 to 15 and 21 of the Act of 1957 and Rules 70, 71 and 78 of the Rules of 2013 and submitted that the Rules of 2013 and the Code of 1966 operate in different situations. It is submitted that Rule 70 of the Rules of 2013 lays down that the procedures for auction, disposal, terms and condition with the auctioneer etc. shall be specified by way of executive instructions by the Government which in the present case as per Rule 2(m) of the Rules of 2013 is the Government of Maharashtra, and accordingly the Government of Maharashtra is issuing executive instructions from time to time laying down the procedures for auction, disposal, terms and condition with the auctioneer etc. It is argued that the executive instructions issued by the Government of Maharashtra in exercise of the powers conferred by Rule 70 of the Rules of 2013 therefore have the force of law.
Learned Addl. GP referred to the judgment given in the case of Quarry Owners' Association vs. State of Bihar and others reported in (2000) 8 SCC at page 655.
ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 7 8] Shri Madhur Deo, Advocate and Shri
Amit Kinkhede, Advocate though not representing any party in the writ petition, also made submissions.
Shri Madhur Deo, Advocate referred to the judgment given by the Division Bench of this Court in W.P. No. 7065/2018 (M/s. Shri Hariom Krishi Kendra vs. State of Maharashtra & ors.) and connected matter on 21/02/2020 in which, on a reference by the learned Single Judge, the Division Bench held that the provisions of Sections 48(7) and 48(8) of the Code of 1966 cannot be construed as a special statute, and therefore the challenge to the order passed under Section 48(8) of the Code of 1966 would not be an order passed under the special statute for the purposes of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 and the petition raising challenge to an order passed under Section 48(8) of the Code of 1966 will have to be considered by the Single Judge of this Court.
It is argued that Section 21 of the Act of 1957 and Sections 48(7) and 48(8) of the Code of 1966 operate in different situations. It is argued that the punishment under Section 21 of the Act of 1957 can be imposed only on conclusion of the criminal trial and when mens rea on the part of the person committing the crime of unlawfully transporting the minerals is established, but for penalizing under Sections 48(7) and 48(8) of the Code of 1966, the element of mens rea need not be established. Relying on the judgment given by the Hon'ble Supreme Court in the case of Karnataka Rare Earth and another vs. Senior Geologist, Dept. of Mines and Geology and another reported in AIR 2004 SC at page 2915, Shri Madhur Deo, Advocate submitted that the penalty of imposition of fine for release of the vehicle seized ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 8 as per the action taken under Sections 48(7) and 48(8) of the Code of 1966 cannot be equated with the punishment inflicted for committing the crime under the Act of 1957 and the Rules of 2013.
Shri Amit Kinkhede, Advocate referred to the judgment given by the Division Bench of this Court in the case of M/s. Modern Builders vs. State of Maharashtra & ors. reported in 2005 (3) ALL MR at page 796 and submitted that the Act of 1957 and the Code of 1966 operate in different and distinct fields, and therefore there is no question of repugnancy between the provisions of Section 21(1) to Section 21(5) of the Act of 1957 and the provisions of Section 48(7) of the Code of 1966.
9] Shri Kuldeep Mahalle, Advocate who is not representing any party to the petition also made submissions. Referring to the judgment given in the case of Shankar Raghunath Jog vs. Talaulicar & Sons Pvt. Ltd. & Anr. reported in 2011 (5) ALL MR at page 803, he submitted that if the statute is found to be obscure, the same must be interpreted having regard to the scheme of the Act and the statute should be read in its entirety.
10] Shri P.V. Ghare, Advocate who is not representing any party to the petition also made submissions supporting the contentions of the petitioners.
11] In Criminal Writ Petition No. 1105/2017 (Neha D/o. Anil Agre vs. State of Maharashtra & ors.) decided by the Division Bench of this Court on 19/12/2017, it was argued that action cannot be taken against the transporter if he is a ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 9 different person / entity, than the assignee of rights of extraction of the minor mineral, if action is not taken against the assignee of rights of extraction of minor mineral i.e. the holder of lease of the sand ghat. This contention was accepted. Para nos. 5 and 6 of the judgment delivered in Criminal Writ Petition No. 1105/2017 are reproduced :-
"5. To deal with the contentions raised by the petitioner, we have to consider as to whether the provisions of sub- sections (7) and (8) of Section 48 of the Code are attracted in the present case. The provisions of sub-section (7) and (8) of Section 48 of the Maharashtra Land Revenue Code, 1966 are reproduced below :
"48. Government title to mines and minerals :
(1) to (6) .........
(7) Any person who without lawful authority extracts, removes, collects, replaces, picks up or disposes of any mineral from working or derelict mines, quarries, old dumps, fields, bandhas (whether on the plea of repairing or construction of bunds of the fields or on any other plea), nallas, creeks, river-
beds, or such other places wherever situate, the right to which vests in, and has not been assigned by the State Government, shall, without prejudice to any other mode of action that may be taken against him, be liable, on the order in writing of the Collector or any revenue officer not below the rank of Tahsildar authorised by the Collector in this behalf, to pay penalty of an amount up to five times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be :
[***] [(8) (1) Without prejudice to the provision in sub- section (7), the Collector or any revenue officer not below the rank of Tahsildar authorised by the Collector in this behalf, may seize and confiscate any ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 10 mineral extracted, removed, collected, replaced, picked up or disposed of from any mine, quarry or other place referred to in sub section (7) the right to which vests in, and has not been assigned by the State Government, and may also seize and confiscate any machinery and equipment used for unauthorised extraction, removal, collection, replacement, picking up or disposal of minor minerals and any means of transport deployed to transport the same.
(2) Such machinery or equipment or means of transport, used for unauthorised extraction, removal, collection, replacement, picking up or disposal of minor minerals or transportation thereof, which is seized under subsection (1), shall be produced before the Collector or such other officer not below the rank of Deputy Collector authorised by the Collector in this behalf, within a period of forty eight hours of such seizure, who may release such seized machinery, equipment or means of transport on payment by the owner thereof of such penalty as may be prescribed and also on furnishing personal bond of an amount not exceeding the market value of the seized machinery, equipment or means of transport, stating therein that such seized machinery, equipment or means of transport shall not be used in future for unauthorised extraction, removal, collection, replacement, picking up or disposal of minor minerals and transportation of the same.]"
6. The aforesaid provisions are not at all attracted in case, where any person extracts or removes mineral i.e. sand in question, with lawful authority. It is attracted where extraction of minor mineral by any person, is without assignment of such right by the State Government. It is attracted if extraction is from the area in excess of one, which is assigned by the State Government. If the transporter of mineral is different than the assignee of rights of extraction then he cannot be booked under the said provisions for unauthorisedly carrying the sand extracted, unless it is shown that the extraction of sand by assignee is unauthorised and illegal. The provision does not empower the respondents to seize and confiscate the vehicle carrying minerals in excess of weight permitted to be carried by the vehicle in question."
ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 11 12] While considering the present writ petition raising same challenge as were raised in Criminal Writ Petition No. 1105/2017, the Division Bench expressed its inability to agree with the view taken while considering Criminal Writ Petition No. 1105/2017 and referred the point for consideration by the Larger Bench. As observed earlier, while making reference, the Division Bench had not specifically framed the point for reference and the points for consideration came to be formulated as per the order dated 24/11/2020.
13] It is relevant to record that in the writ petition, there is no challenge to the legality and / or constitutionality of the provisions of Sections 48(7) and 48(8) of the Code of 1966. It is not the contention of the petitioners that the provisions of Sections 48(7) and 48(8) of the Code of 1966 are illegal or unconstitutional. The contention of the petitioners is that the Act of 1957 and the Rules of 2013 deal with all the situations relating to the regulation of grant of quarry leases, mining leases or other mineral concessions and the Rules of 2013 which are framed in exercise of the powers conferred by Section 15 of the Act of 1957 provide for all the provisions for regulating the extraction of minor minerals, procedure for grant of quarry leases, terms and condition of quarry leases, grant of quarry permits for the minor minerals, grant of concession by way of public auction, stocking and selling of the minor minerals, offences, penalties and prosecution for unauthorized operations in breach of the provisions of the Rules of 2013, appeals, revision and review to the different Authorities. It is contended that the Rules of ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 12 2013 being the complete code, the provisions of Sections 48(7) and 48(8) of the Code of 1966 cannot be invoked by the Authorities to penalize the transporter. The alternate submission is that the Authorities have not taken any action against the holder of lease, and therefore it cannot be said that there is any breach / violation of any provision of the Code of 1966, and consequently action cannot be taken against the petitioners who are the transporters and were transporting the sand under a legal and valid agreement with the lease holder. Though elaborate submissions are made by the learned advocate for the petitioners, we are not convinced with the argument, specially when there is no challenge to the legality and constitutionality of the provisions of Sections 48(7) and 48(8) of the Code of 1966. It is not pointed out as to in which situation and circumstances, the provisions of Sections 48(7) and 48(8) of the Code of 1966 operate. There cannot be a situation that a statutory provision exists but it is in vacuum and is inoperative.
14] In the judgment given in the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra) , Division Bench of this Court has repelled the contention that the provisions of Section 48(7) of the Code of 1966 are ultra vires the Constitution as the State Legislature is not competent to enact any statute on the subject, specially being in List I of the 7 th Schedule to the Constitution and the Central Government being alone competent to enact law on the subject. The Division Bench while deciding the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra) recorded that the Act of 1957 and the Code of 1966 operate in different and distinct spheres. It is laid down that the ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 13 object of the Code of 1966 is revenue administration and it includes the power to assess, charge and collect revenue which includes penalty on account of illegal extraction of minerals vested in the State Government and if such minerals are removed unauthorizedly, the Authorities specified under the Act are required to charge penalty. It is laid down that the penalties provided in sub-sections (1) to (5) of Section 21 of the Act of 1957 are in the form of punishment with imprisonment or with fine or with both, and the provisions of Section 48 of the Code of 1966 empower the Collector to charge penalty for the acts prohibited which penalty is in the nature of damages on account of loss suffered by the State Government because of the unauthorized extractions of the minerals. It is nobody's case that the correctness of the law laid down by the Division Bench of this Court in the judgment given in the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra) has been doubted till date. The judgment given in the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra) was not pointed out to the Division Bench which decided Criminal Writ Petition No. 1105/2017. Even at the time of arguments before us, none of the advocates made any submission, raising doubt about the correctness of the law laid down by the judgment delivered in the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra).
15] In another judgment given by Division Bench of this Court in the case of Hari Construction vs. State of Maharashtra & ors. reported in 1995 (1) Maharashtra Law Reporter at page 679, it is laid down that the Act of 1957 is regarding regulation of mines and minerals by the Union to ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 14 the extent provided under that Act. It is held that the Act of 1957 deals with the minor minerals separately from the other minerals and though the subject of legislation in respect of the minor minerals is covered by the Act of 1957, it is only upto a specified extent, and to that extent the State Legislature would not be competent to enact any law. It is laid down that the object of the Code of 1966 is revenue administration which includes assessment, charging and collecting revenue which would include imposition of penalty for illegal extraction of the minor minerals. It is held that the revenue administration includes the right of a Collector to impose penalty for the unauthorized excavation of the minerals which vest in the State Government and the State Legislature is competent to legislate on the subject as it falls in List II of the 7 th Schedule to the Constitution. Again, none of the advocates who have made submissions, have pointed out that correctness of the judgment given by the Division Bench of this Court in the case of Hari Construction vs. State of Maharashtra & ors. (supra) has been doubted till today and none of the advocates who have made submission before us raised any doubt about the correctness of the law laid down by the Division Bench by the judgment given in the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra).
16] We see no reason to deviate from the view taken by the Division Bench of this Court while deciding the case of Hari Construction vs. State of Maharashtra & ors. (supra) and by the Division Bench of this Court while deciding the case of M/s. Modern Builders vs. State of Maharashtra & ors. (supra), that the Act of 1957 and the Code of 1966 operate in different spheres.
ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 15 17] Section 48(8)(1) of the Code of 1966 empowers the Authorities under the Code of 1966 to seize and confiscate any means of transport, deployed to transport the minor minerals extracted unauthorizedly. Section 48(8)(2) of the Code of 1966 deals with the mechanism to be adopted after seizure of such means of transport used for excavation of the minor minerals unauthorizedly. As recorded earlier, there is no challenge to the legality and / or constitutionality of the provisions of Sections 48(8)(1) and 48(8)(2) of the Code of 1966. Hence, the argument that action cannot be taken against the transporter only, cannot be accepted. Another fallacy in this submission is that a wrongdoer cannot allege that action cannot be taken against him only because action is not taken against another wrongdoer. It would be highly improper and hazardous to set free a wrongdoer, exercising extraordinary jurisdiction under Article 226 of the Constitution of India, only on the ground that action is not taken against the co-wrongdoer. Moreover, exercising the extraordinary jurisdiction under Article 226 of the Constitution of India and setting free a wrongdoer only because action is not taken against the co-wrongdoer will result in aborting the process, and not only setting free a wrongdoer but would also result in protecting the co- wrongdoer against whom action may be taken by the Competent Authority later on also. The petitioners have not been able to point out any provision which casts an obligation on the concerned authority to initiate action against all the wrongdoers simultaneously and if it is not done, action cannot be initiated against one particular wrongdoer. We find that the Division Bench while deciding Criminal Writ Petition ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 ::: wp1325.18 16 No. 1105/2017 failed to examine all these relevant aspects and accepted the submissions made on behalf of the petitioner therein without recording any reasons therefor.
18] Hence, we hold that Sections 48(7) and 48(8) of the Code of 1966 can be invoked against a transporter also, even when assignee is not proceeded against. Whether transporter is liable for penalty prescribed by Section 48(8) of the Code of 1966 would depend on the outcome of adjudication by the Competent Authority under the Code of 1966, depending on the factual aspects regarding breach of any condition of the transport permit by the transporter. We answer the reference accordingly and declare that the proposition in para no. 6 of the judgment delivered in Criminal Writ Petition No. 1105/2017 (Neha D/o Anil Agre vs. State of Maharashtra & ors.) does not lay down the correct position of law.
19] The papers be placed before appropriate Bench for deciding the petition on merits.
(MANISH PITALE, J.) (Z.A. HAQ, J.) (SUNIL B. SHUKRE, J.) ANSARI ::: Uploaded on - 05/01/2021 ::: Downloaded on - 06/02/2021 18:31:35 :::