Gangadhar S/O Krishnaji Bhoyar vs State Of Maharashtra, Through ... on 16 August, 2018

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Bombay High Court

Gangadhar S/O Krishnaji Bhoyar vs State Of Maharashtra, Through ... on 16 August, 2018

In all these petitions, common question involving the provisions contained in Sections 48[7] and 48[8] of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the MLR Code" for short] and the Maharashtra Land Revenue (Extraction and Removal of Minor Minerals) Rules, 1968, hereinafter referred to as "the Rules" framed thereunder, arise for consideration. Other set of Rules with which we are concerned are the Maharashtra Minor Mineral Extraction (Development and Regulation) Amendment Rules, 2013 as amended in 2017. These Rules are referred to as "the 2017 Rules" in this judgment. ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 :::

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2. Shri A.B. Patil and Shri K.A. Kothari, learned Counsel have advanced arguments on behalf of petitioners and Shri N.R. Patil, learned A.G.P. on behalf of respondents has opposed their contentions. With their consent, and considering the controversy placed for consideration, matters are taken up for final disposal. Hence, we issue Rule in all these petitions and make the same returnable forthwith.

3. The bare facts show that the Vehicle - Truck belonging to respective petitioners is claimed to be caught while carrying sand illegally. Sand therefore, is seized and penalty therefor has been levied under Section 48(7). Similarly, for use of truck, the truck also has been seized and penalty as prescribed under the Rules has been charged or is being charged under Section 48(8). Basic contention therefore, was this constituted double jeopardy.

4. We need to point out that prayers made in the Writ Petitions challenge the order levying penalty under Section 48[7] of the MLR Code for illegal excavation of sand; demanding royalty and equal amount as penalty; market value of sand and amount of Rs. 2 lakh for illegal use of transport vehicle under Section 48(8) thereof, is assailed in all the petitions. There is no challenge to any ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 7 statutory provisions.

5. Facts in Writ Petition No. 3105/2018 have been used and pressed into service by all to support legal submissions. In this petition, the order impugned is dated 24.05.2018, and it is passed by respondent Sub Divisional Officer. Its' perusal shows that on 19.05.2018, Tipper bearing No. MH-40/AK-5691 was used for transporting sand illegally. It was caught at Mouza Taregaon Khurd, and a seizure memo/ japti nama was prepared. At that time, statement of driver - Gajanan Gawade, was recorded. The said driver accepted that he was not having transport permit for transporting sand, and it was being carried in said truck illegally. Sand was then measured and was found to be 4.46 brass. Hence, action under Section 48[7] of the MLR Code and Rules as amended on 12.01.2018, has been taken. The relevant Rule is Rule 9(1)(2). Respondent Sub Divisional Officer found that illegal transport of sand established and therefore, he has charged an amount of Rs.35,680/- towards illegal excavating of sand; an amount of Rs.1784/- towards Royalty. Thus, total amount of Rs. 37,464/- has been levied. Thereafter, action under amended Rule 9[1][2] (supra), has been taken, and petitioner has been asked to pay penalty of Rs. 2 lakhs. The impugned order mentions that after ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 8 these amounts are deposited, separate orders shall be passed for releasing the vehicle.

6. Petitioners submit that illegal excavation of sand has not been established at all. Material on record does not show that the sand came from sand ghat or other place not assigned by the State Government, and it has not been established that the said sand was therefore, vesting in State Government. Hence, Section 48[7] of the MLR Code itself is not applicable. It is contended that Section 48[7], is not at all attracted in case of persons like petitioners, who are only operating as transporters and in no way excavate the sand.

7. It is further contended that as Section 48[7] is not applicable, Section 48[8] is also not attracted, hence, the impugned order asking petitioners to pay penalty under Section 48[7] as also Section 48[8], is bad.

8. It is claimed that in present facts, due to contentions urged to demonstrate that ingredients of Sub-section (7) are not attracted, even independently Section 48[8], is also not applicable since the petitioners have neither removed nor excavated the sand.

9. Other submission is, levying of 5 times the market value of Mineral as penalty along with Royalty is itself a punishment. ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 :::

Judgment wp3105.18 9 Therefore, either fine or penalty under Section 48[8][2], for releasing the vehicle is unwarranted and it constitutes double jeopardy.

10. Petitioners have relied upon a judgment reported at 2010 (1) Mh.L.J. 9363 (Vijay Dashrath Shirbhate .vrs. State of Maharashtra and another), (paragraph nos. 9 and 13).

11. Petitioner has by amendment brought on record details of Ghat (river bed) from which he collected the sand for transporting. On the basis of these details, petitioner submits that as no action has been taken against the person to whom that sand ghat is assigned, the action against petitioners alone is not sustainable. They rely upon an unreported judgment of this Court dated 19.12.2017 in Criminal Writ Petition No. 1105/2017.

12. Inviting attention to the non-obstante clause with which Section 48[8] begins, it is submitted that the clause therefore, cannot be interpreted in a wider sense and dehors the context of Section 48[7]. Even otherwise, being penal provision, Sections 48[7] and 48[8] must be interpreted strictly.

13. By inviting attention to the reply placed on record, it is submitted that though respondents rely upon a notification dated ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 10 12.01.2018, the transport permit is not issued in proforma prescribed therein till date. It is urged that, therefore, on the basis of such a document, action either under Section 48[7] or Section 48[8], is not permissible.

14. Learned A.G.P. appearing on behalf of the respondent State and its officers, submits that the vehicle - Trucks in all these petitions were not having transport permit. Entire stock of sand by virtue of Section 48[1] of the MLR Code, vests in State Government, hence, finding any sand or minor mineral at a place without legal documents, casts burden upon persons like petitioners to explain its illegal custody. He relies upon the statement of object and reasons of the Maharashtra Ordinance No.XII of 2015, by which provisions of Sections 48[7] and 48[8] have been suitably amended. Our attention is also drawn to said Sections to point out that there after in Sub-rule, clause [19], consequential amendment is also carried out. They submit that petitioners have been rightly asked to pay 5 times the market value, as penalty, Rs. 2 lakhs towards vehicle and single amount of royalty. They submit that none of the petitioners challenge constitutional validity and even did/do not object to levy of single royalty. They argue that Sections 48[7] and 48[8], form part of the Scheme evolved to protect Minor Minerals and ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 11 Environment. They are complementary to each other. Burden is upon petitioners to bring on record source of sand.

15. Inviting attention to provisions contained in Rules, particularly Rule 78, they submit that absence of transport permit, statutory presumption of illegal transport arises. The amendment effected to Rules on 12.01.2018, does not change the legal position. They submit that respondents have taken action for separate wrongs against sand and against vehicle independently as per provisions of law. They also point out that view expressed in Writ Petition No. 1325/2018, is already referred to Larger Bench on 17.04.2018.

16. Shri Kothari, learned Counsel appearing for petitioners in reply points out that in Writ Petition No. 3230/2018, seizure is on 22.06.2018, and the notice issued by the Tahsildar, does not specify any legal provision. Petitioner therein gave reply to that notice on 29.05.2018, and then the impugned order has been passed only under Section 48[7]. There is no order as yet under Section 48[8]. However, if Sub Divisional Officer passes further orders, it will be double jeopardy. He submits that in paragraph no.10 of the Writ Petition, Government Resolution dated 12.01.2018, amending Rules is claimed to be void. He therefore, prays for allowing Writ ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 12 Petitions.

17. The prayer clauses in petition mostly end in challenging the orders passed by the concerned Sub Divisional Officer. In Writ Petition Nos. 3105, 3024, 3103, 3104, 3233, 3229 of 2018 there is at least a prayer to quash and set aside the notification dated 12.01.2018. There is no such prayer in Writ Petition Nos. 3230 and 3232 of 2018. There is no prayer for amendment also in these two writ petitions. Though Civil Applications seeking leave to amend are moved in other matters, additional grounds sought to be raised are about the power exercised under Section 48[7] of the MLR Code. The amendment has been partially allowed on 23.07.2018. Thus, there is no challenge to the constitutionality or otherwise of Section 48[7] or Section 48[8] of the MLR Code.

18. Notification dated 12.01.2018 is in respect of amendment to the Rules and known as Maharashtra Land Revenue (Extraction and Removal of Minor Minerals) (Amendment) Rules, 2017. The notification is issued in exercise of powers conferred by Sub-section [9] of Section 48, and sub-section [1] of clause XIX of sub-section [2] of Section 328 read with sub-section [2] of Section 329 of the MLR Code. This amendment vide its Clause 6 substitutes Rule 8 for earlier Rule 8. As per amended and substituted Rule 8, ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 13 for breach of Rules, penalty of an amount not more than 5 times the amount of royalty on such Minor Mineral or Rs. 1000/-, which ever is more, can be imposed.

19. Vide Clause 7, this notification adds Rule 9, and it prescribes penalty under sub-section [8] of Section 48. It contains a table and in that table, type of vehicle or equipments used for violating Section 48[7] and proportionate penalty accordingly has been stipulated. Penalties ranging from Rs. 25,000/- to Rs.7,50,000/- are prescribed. This table has not been questioned before us by anybody.

20. The Amendment Rules, 2017 published by notification dated 12.01.2018, therefore emanate from a right statutorily conferred by Section 48[9]. Section 48(7) governs the situation when the wrong is done even manually while Section 48(8) deals with more aggravated form of wrong where the gadgets or vehicles are used to commit it. This legislative wisdom does not impinge upon any fundamental or legal right of the wrongdoers. There is no challenge to any of the sections mentioned supra, in petitions before us. In absence of any such challenge, bald prayer to quash and set aside the notification dated 12.01.2018, as in breach of principles of double jeopardy, cannot be sustained. The Hon'ble ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 14 Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, at page 760 in para 255 mentions that the crucial requirement of either Article 20 of the Constitution or Section 26 of the General Clauses Act is that the offences are the same or identical in all respects. It relies upon its earlier view in State of Bihar v. Murad Ali Khan : (1988) 4 SCC 655 at p. 668, (paras 30-31) where Hon'ble Court has observed that "Though Section 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but, rather on the ingredients which constitute the two offences with which a person is Even if charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.' When the object of Section 48 and adverse impact of its violation on environment and public at large is kept in mind, the powers given to the executive by the legislature are not arbitrary at all. Even presuming that any other view is possible or if there be any scope for doubt, these provisions call for an interpretation in favour of the Administration and advantage thereof can not be conferred on the wrongdoers. ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 :::

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21. It is important to mention here that petitioners have not even attempted to explain the relevance of principles of double jeopardy in present matters. None of the petitioners claim to have any lease of sand ghat from state Government. They were also not having transport permit and still their vehicles were carrying sand. In view of Section 48[1] of the MLR Code, that sand vests with the State Government. If petitioners wish to claim any interest in said sand, they have to establish their legal title to its ownership or possession. If they are possessing a licence to operate sand ghat, and sand is extracted from it, and is being transported as per law, burden is upon them to demonstrate necessary facts for this purpose. When petitioners before us are not claiming any such lease of sand ghat and argue that they are plain transporters, necessary documents to support that role also needed to be produced by them. Such documents may show a contract with the specific sand ghat lease holder to transport that sand to a particular destination or then it may be a contract with the purchaser of sand to deliver it to him at a particular address. Necessary receipts and transport permit could have demonstrated this. Petitioners do not possess any such documents. They remain satisfied by contending that respondents have not shown custody of sand with petitioners in respective trucks, to be illegal.

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22. This argument overlooks the impact of Maharashtra Minor Mineral Extraction (Development and Regulation) Amendment Rules, 2017. This amendment amends the parent rules i.e. the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 which are framed under Section 15 of the Mines & Minerals (Development and Regulation) Act, 1957. 2017 Rules amend Rule 66(14) and substitutes Rule 78 of the parent 2013 Rules. As per Rule 66(14), the vehicle transporting the sand must carry the transit pass. It is prepared in duplicate and the original goes to the purchaser of sand. This sub-rule declares that in absence of the transit pass, the minor mineral carried in the vehicle is treated as "illicit and unlawful", to be dealt with as per the prevailing provisions of the applicable law. Rule 78 substituted by of the 2017 amendment, is on same lines. Thus, absence of transit pass or transport permit renders the sand in respective vehicle of the petitioners illicit and unauthorized. It therefore, attracts Section 48(7) as also Section 48(8) of the MLR Code. This entire scheme in the MLR Code and the Rules looked into by us supra, give birth to a full-proof mechanism. Lacuna therein, if any, must be interpreted by us keeping in mind the purpose and object as also the possible injury to the environment. A wrongdoer can not be permitted to ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 17 benefit thereby.

23. The contention of petitioners noted supra shows that they are putting cart before the horse. Sand found with them is not for their personal use. They claim it and attempt to justify their possession contending that they were transporting it. Thus, when they claim sand to be for their business purposes, burden is upon them to explain its source and prove their right to possess it. In absence of this, presumption that they are holding sand illegally i.e. contrary to Section 48 of Code follows. The provisions in Rules also mandate possession of transport permit with the person carrying the sand and drawing of adverse inference, if it be not there. Petitioners therefore, have failed to discharge their burden. Not only this, they have also not approached either the Authorities or this Court with clean hands and are trying to take roving pleas and for that purpose invoke various technicalities. We find their endeavor unsustainable.

24. They have relied upon reported judgments. Division Bench judgment in case of Vijay Dashrath Shirbhate .vrs. State of Maharashtra and another (supra), considers the scope and applicability of Section 48[7]. It holds that the said provision is not attracted when person excavates with lawful authority. It also holds ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 18 that even if such excavation be without royalty, if it is from a place assigned to him by the State Government, Section 48[7] is not attracted. Facts in that judgment show that the petitioner had excavated 545 brass from an area not included in his lease and action under section 48[7], was taken only in relation to this 545 brass sand. It was not for balance 664 brass extracted by him from leased area. This judgment, therefore, does not apply in present matter. Here, petitioners have not demonstrated that the sand has been excavated from the area assigned to them by lease or from leased area of any other allottee. This judgment also does not hold that Section 48[7], is not attracted when such unaccounted Minor Mineral is found being transported without proper documentation.

25. Judgment in Criminal Writ Petition No.1105/2017 (Neha Anil Agre .vrs. State of Maharashtra and others), in paragraph no.6 holds that Sections 48[7] and 48[8], are not attracted when person extracts sand with lawful authority. It also holds that if the transporter of Mineral is different than the assignee of rights of extraction, the transporter cannot be booked for unauthorisedly carrying sand unless it is shown that the extraction of sand by assignee himself was unauthorised and illegal. It is held that these provisions do not empower the Revenue Authorities to ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 ::: Judgment wp3105.18 19 seize and confiscate the vehicle carrying Mineral in excess of weight permitted to be carried in it. These observations appear to be in relation to "carrying capacity" of that vehicle in terms of Motor Vehicle Legislation. The sand ghat owner in said matter was not given any show cause notice. Facts do not show that the transporter in case of Neha Anil Agre .vrs. State of Maharashtra and others (supra), was not having transport permit for transporting the sand and because of transport permit with him, the sand ghat owner could have been traced out. This judgment, therefore, considers case where a petitioner can establish himself to be only a bonafide transporter. This is not the position in present matters. None of the petitioners before us have established their status only as transporters.

26. When petitioners avoided to disclose source of sand, due to Section 48[1] of the MLR Code, its excavation in violation of Section 48[7], stands established. Under Section 48[7], words with wide import are employed. Thus, even picking up or removal of sand by an unauthorized person is prohibited. Words "Extracts, Removes, Collects, Replaces, Picks-up or Dispose of" cannot be seen as synonymous. Operation like "Replacement" or "Removal" or "Dispose of" or "Picking up" take within its fold even transporting. ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:53:43 :::

Judgment wp3105.18 20 Under Section 48[8], power is given to the Government to seize and confiscate the machinery and equipments used for unauthorized operations prohibited under Section 48[7]. Clause 2 of sub-section [8], expressly permits seized vehicle to be dealt with in a manner prescribed therein. When a vehicle like truck is loaded with stolen sand and the sand is being carried away, action against the person who is transporting it for excavation and/or for transportation is definitely envisaged under Section 48[7] read with Section 48[8] of the MLR Code. Petitioners cannot contend that though illegal sand was found in their trucks, no action can be taken against the said truck. Learned A.G.P. is right in submitting that the trucks have been used to accomplish the clandestine operation prohibited by Section 48[7]. The truck, therefore, becomes a property in the prohibited operation and hence, separate action against it cannot be said to constitute double jeopardy.

27. We therefore, find no substance in these Writ Petitions. The same are accordingly dismissed. Rule discharged. No cost.

                         JUDGE                   JUDGE
                                               

  Rgd.




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Writ Petition Nos. 3105, 3104, 3024 and 3103 of 2018.

28. In all these Writ Petitions, interim orders are operating and hence, Advocate Patil seeks continuation of it for further period of three weeks. Request is being opposed by Shri N.R. Patil, learned AGP.

29. In the interest of justice, we continue interim orders for further period of three weeks and same shall cease to operate automatically thereafter.

                         JUDGE                   JUDGE
                                               

  Rgd.




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