Madhya Pradesh High Court
Bakir Ali vs The State Of M.P. on 12 May, 2015
1
Writ Petition (PIL) No.2592/2006
12 .0
5
.2015
Shri P.K. Saxena, learned Senior Counsel with Shri L.R.
Bhatnagar, advocate for the petitioner.
Shri Manoj Dwivedi, Additional Advocate General for
respondents No.1 to 3 / State.
Ms. Priti Waghmare, advocate for respondent No.6. Shri Atul Shreedharan, advocate for respondent No.9. None for other respondents.
Heard.
Learned Senior Counsel for the petitioner submits that by order dated 20.04.2015, considering the report dated 17.04.2015, this Court has observed that there is specific provision under the Mines and Minerals (Regulation & Development) Act, 1957 and Madhya Pradesh Minor Minerals Rules, 1996 for taking action against the persons who are carrying out illegal mining, but the Collector, Ujjain and Mining Officer, Ujjain, have proposed to take action under Section 247 (7) of the Madhya Pradesh Land Revenue Code, 1959. He has also drawn our attention to the affidavit dated 30.04.2015 of the Collector, Ujjain.
As per paragraphs No.3 and 4 of the affidavit, the Collector, Ujjain has stated that proceedings under Section 2 247 (7) of the Madhya Pradesh Land Revenue Code, 1959 are less time consuming process, whereas the proceedings under the Act of 1957 and the Rules of 1996 are lengthy in nature, and therefore, it is more convenient for him to initiate proceedings and take action against such unauthorized persons under the provisions of Section 247 (7) of the MPLRC, 1959.
Learned Additional Advocate General submits that notices have been issued for 28.04.2015 under Section 247 (7) of the MPLRC, 1959 against the aforesaid unauthorized persons, and therefore, it would be appropriate for the Authority to proceed further under Section 247 (7) of the Code.
Rule 53 of the Madhya Pradesh Minor Mineral Rules, 1996, reads as under: "53. Penalty for unauthorized extraction and transportation. (1) Whenever any person is found extracting or transporting minerals or on whose behalf such extraction or transportation is being made otherwise than in accordance with these rules, shall be presumed to be a party to the illegal extraction of minerals and every such person shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. (2) Whenever any person is found extracting or transporting mineral in contravention of the 3 provisions of these rules the Collector / Additional Collector / Joint Director / Deputy Director / Mining Officer / Assistant Mining Officer, or any officer authorized by him or Zila / Janpad / Gram Sabha may seize the minor minerals and its products together with all tools, equipments and vehicles used in committing such offence. (3) The officer seizing illegally extracted or transported mineral or its product, tools, equipments and vehicles shall give a receipt of the same to the person from whose possession such things were so seized and shall make report to the Magistrate having jurisdiction to try such offence. (4) The property so seized under subrule (2) may be released by the officer who seized such property on execution of a bond to the satisfaction of the officer by the persons from whose possession such property was seized. It shall be produced at the time and at the place when such production is asked for by such officer:
Provided that where a report has been made to the Magistrate under subrule (3) then the seized property shall be released only under the orders of such Magistrate.
(5) The Collector / Additional Collector / Joint Director / Mining Officer or Officer authorized by Zila / Janpad / Gram Sabha may either before or after the institution of the prosecution, compound the offence so committed under subrule (1) on payment of such fine which may extend to double the market value of mineral no extracted but in no case it will be less than rupees one thousand or ten times of royalty of minerals so extracted whichever is higher.
Provided that in case of continuing contravention 4 Collector / Additional Collector / Deputy Director / Mining Officer in addition to the fine imposed may also recover an amount of Rs.500/ for each day till such contravention continues.
(6) Any person who trespasses on any land in contravention of these rules, such trespasser may be served with an order of eviction by the Collector / Additional Collector.
(7) All property seized under subrule (2) shall be liable to be confiscated by an order of the Magistrate trying the offence if the amount of the fine and other sums imposed are not paid within a period of one month from the date of the order:
Provided that on payment of such sum within one month of the order all property so seized except the mineral or its products shall be released and the mineral or its products so seized under subrule (2) shall be confiscated and shall be the property of the State Government.
(8) The authorities empowered to take action under this rule may if deem necessary, request to the police authority in writing for the help of police and the police authorities shall render such assistance as may be necessary to enable the officer to exercise the powers conferred on them by this rule to stop illegal extraction and transportation of minerals. (9) (i) Subject to such conditions as may be specified, the Collector / Additional Collector may authorize either generally or in respect of particular case or class of cases any officer not below the rank of Assistant Mining Officer to investigate all or any offence punishable under this rule.
(ii) Every officer so authorized shall in conduct of such investigation exercise the powers conferred 5 upon the officerincharge of a police station by the Code of Criminal Procedure for the investigation of a cognizable offence.
(iii) The investigation officer for the purposes of this rule shall exercise the powers of the Code of Civil Procedure in respect of the following matters:
(a) Enforcing the attendance of any person and examining him on oath or affirmation.
(b) Completing production of documents."
Rules of 1996 have been framed in exercise of powers conferred by Section 15 of the Act of 1957. Section 21 of the Act of 1957 is relevant which reads, as under: "21. Penalties. (1) Whoever contravenes the provisions of subsection (1) or subsection (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twentyfive thousand rupees, or with both.
(2) Any rule made under any provision of this Act may provide that any contravention thereof 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 after conviction for the first such contravention.
(3) Where any person transpasses into any land in contravention of the provisions of subsection (1) of Section 4, such trespasser may be served with an 6 order of eviction by the State Government or any authority authorized in this behalf by that Government and the State Government or such authorized 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 material from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral officer or authority specially empowered in this behalf.
(4A) Any material, tool, equipment, vehicle or any other thing seized under subsection (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under subsection (1) and shall be disposed of in accordance with the directions of such court. (5) Whenever any person raises, without any lawful authority, any material 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 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 subsection (1) shall be cognizable."
It is not in dispute that the Collector is authorized in this behalf by the State Government. The Act of 1957 and 7 the Rules of 1996 have been enacted by the Parliament, and therefore, the Act of 1957 and the Rules of 1996 will prevail over the Madhya Pradesh Land Revenue Code, 1959. Earlier in the old Act of 1957 and Rules of 1961, there was no provision to take any action against the persons, who were carrying on illegal mining, and therefore, under Section 247 (7) of the MP Land Revenue Code, 1959, the State Authorities take actions against them. Now, Rules of 1996 has been framed by the State Government. Similarly, Section 21 of the Act of 1957 has been amended and thus, the Collector and Mining Officer are duty bound to take action under the aforesaid provisions of the Act of 1957 and the Rules of 1996.
Considering the aforesaid, we direct the Collector, Ujjain and Mining Officer, Ujjain to take appropriate action under Section 21 of the Act of 1957 or under Rule 53 of the Rules of 1996 against such persons, who lifted the mineral illegally over the area in question from the date of prohibitory order passed by this Court in this public interest litigation and submit a detail report within a period of two months from today.
Copy of order be sent to the Chief Secretary of the Government of Madhya Pradesh and Principal Secretary, 8 Mineral Resources Department, Government of Madhya Pradesh, Bhopal, for kind information and suitable action at their end.
List the matter in the second week of July, 2015. C. c. as per rules.
(P.K. Jaiswal) (Jarat Kumar Jain)
Judge Judge
rcp