Allahabad High Court
Pramod Singh And 3 Others vs State Of U.P. And 3 Others on 3 February, 2021
Bench: Sanjay Yadav, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- WRIT - C No. - 1925 of 2021 Petitioner :- Pramod Singh And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vijay Shantam Counsel for Respondent :- C.S.C. Hon'ble Sanjay Yadav,J.
Hon'ble Jayant Banerji,J.
Challenge in this petition under Article 226 of the Constitution is to an order dated 11.07.2020 passed by District Collector for an unauthorized mining and the illegal transportation of minor minerals. Challenge is also to the recovery order dated 16.07.2020 issued in pursuance to order dated 11.07.2020. The order of imposition of penalty is under the provisions of The Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'Act of 1957') and U.P. Minor Mineral (Concession) Rules, 1963 (hereinafter referred to as 'Rules of 1963).
Facts giving rise to the impugned order, briefly are that on 06.06.2020 two JCB machines engaged in digging earth and two tractors with trolleys fled with the earth at Gata No. 70 situated at Village Devsaini, District Aligarh were apprehended. Total 7.425 cubic meters of sand were seized along with the tractors and the JCB machines. As the excavation and transportation were found without permission contemplated under Rule 3 of the Rules of 1963, the JCB machines and the tractors were seized and kept at police station Quarsi on 07.06.2020. The proceedings were drawn under the Rules of 1963. In the meanwhile, petitioners filed application before the Chief Judicial Magistrate, Aligarh for release of vehicle whereon by order dated 29.06.2020, the C.J.M. on the findings that the proceedings under Section 207 of Motor Vehicles Act having been completed, the vehicles were handed over to the petitioner. As the vehicles in question were apprehended engaged in illegal mining, proposals were made for filing criminal revision against the order dated 29.06.2020 passed by the C.J.M. and for imposition of penalty. The said proposal has led to imposition of penalty of Rs. 2,00,000/- vide impugned order dated 11.07.2020. Exception whereof is taken in this petition.
It is urged that the petitioner being not a lessee, the provisions of Rules of 1963 are not applicable. It is further contended that the JCB machines and the tractors were taken on hire for leveling the earth. The petitioner, however, does not disclose the name and details of the person(s) who took on hire the petitioner's JCB machines and the tractors. In absence whereof, the contention that the JCB machines and tractors being hired by private person(s) cannot be accepted and, therefore, negatived.
It is further contended that in case of violation of Rule 3 prosecution is contemplated under Rule 54 of the Rules of 1963 which can only be after taking recourse of Rule 74 of the Rules of 1963 which states that no Court shall take cognizance of any offence punishable under the Rules of 1963 except on a complaint in writing of the facts constituting such offences by the district officer or by any officer authorized by him in this behalf and that no Court inferior to that of a Magistrate of the First Class shall try any offence under the Rules of 1963. Adjudged thereon, it is urged that, the Collector lacks competence to impose the impugned penalty. It is accordingly urged that impugned order being beyond jurisdiction of the District Collector is non est in the eyes of law. On these contentions, petitioners seek quashment of impugned order.
The State has defended the order. It is urged that irrespective of whether it is lessee or a non lessee, no person under the Rules of 1963 can undertake any mining operation in any area within the State of U.P. of any minor mineral except under the terms of mining lease or permit under the Rules and as the petitioner's JCB machines and the tractors were found indulged in illegal mining operation, they were apprehended and were proceeded against for penalty. It is urged that the JCB machines and tractor trolleys being released at the instance of the petitioners left no iota of doubt that they belong to the petitioners. As to competency, it is urged that the provisions contained under the Act of 1957 and the Rules of 1963 empowered the District Collector to impose penalty which being just and proper cannot be interfered with. On these contentions, respondents seek dismissal of the petition.
Considered the rival submissions.
Indisputable, the JCB machines, tractors and trolleys filled with the ordinary earth which also in the minor mineral were apprehended being engaged in excavation and transportation. It is also not in dispute that these JCB machines and tractor trolleys belong to present petitioners as they got it released from the Court of Chief Judicial Magistrate.
As regards to the contentions qua jurisdiction, the Rules of 1963 are framed by the States in exercise of its power conferred under Section 15 of the Act of 1957. That sub-section 1 of Section 4 of 1957 Act mandates 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 license or as the case may be of a mining lease, granted under the Act of 1957 or the rules made thereunder. Furthermore, sub-section (1A) of Section 4 further stipulates that no person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of the Act of 1957 and the rules made thereunder.
That Rule 3 of the Rules of 1963 is in consonance with the parent provisions stipulating that:
"(1) No person shall undertake any mining operations in any area within the State of any minor minerals to which these rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules:
Provided that nothing shall affect any operations undertaken in accordance with the terms and conditions of mining lease or permit duly granted before the commencement of these rules.
(2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules."
In view of these provisions, petitioner though not a lessee cannot exclude himself from the applicability of the provisions of 1957 Act and the rules made thereunder.
That Sub-section (1) of Section 21 of 1957 Act 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 two years, or with fine which may extend to five lakh rupees per hectare of the area. Similarly, Rule 57 of the Rules of 1963 mandates that whosoever contravenes the provisions of Rule 3 shall on conviction be punishable with imprisonment of either description for a term, which may extend up to six months or with the fine which may extend to twenty five thousand rupees or with both.
Irrespective of these provisions, Sub-section (5) of Section 21 empowers the State govt., whenever any persons raise, without any lawful authority any mineral from any land, to 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. The power to recover as conferred under Section 21 (5) of 1957 Act is independent to the measures under Sub-section (1) of Section 21 of 1957 Act. The expression penalty as it appear in the title of Section 21 of 1957 Act came up for consideration in Karnataka Rare Earth and another, Appellants v. Senior Geologist, Dept. of Mines and Geology and another, Respondents AIR 2004 SC 2915 wherein it is held:
?12. Is sub-section (5) of S. 21 a penal enactment? Can the demand of mineral or its price thereunder be called a penal action or levy of penalty?
13. A penal statute or penal law is a law that defines an offence and prescribes its corresponding fine, penalty or punishment. (Blacks Law Dictionary, Seventh Edition, p.1421). Penalty is a liability composed as a punishment on the party committing the breach. The very use of the term 'penal' is suggestive of punishment and may also include any extraordinary liability to which the law subjects a wrong-doer in favour of the person wronged, not limited to the damages suffered. (See The Law Lexicon, P. Ramanatha Aiyar, Second Edition, p.1431).
14. In support of the submission that the demand for the price of mineral raised and exported is in the nature of penalty, the learned counsel for the appellants has relied on the marginal note of S. 21. According to Justice G.P. Singh on Principles of Statutory Interpretation (Eighth Edition, 2001, at p.147) though the opinion is not uniform but the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the section. There is no justification for restricting the section by the marginal note nor does the marginal note control the meaning of the body of the section if the language employed therein is clear and spells out its own meaning. In Director of Public Prosecutions Vs. Schildkamp, (1969) 3 All ER 1640, Lord Reid opined that a side note is a poor guide to the scope of a section for it can do no more than indicate the main subject with which the section deals and Lord Upjohn opined that a side note being a brief precis of the section forms a most unsure guide to the construction of the enacting section and very rarely it might throw some light on the intentions of Parliament just as a punctuation mark.
15. We are clearly of the opinion that the marginal note 'penalties' cannot be pressed into service for giving such colour to the meaning of sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory.?
Thus, even without taking cognizance of an offence, it will be within the competence of the State govt. or the Authority delegated with the powers to impose fine.
In the case at hand, the petitioners having taken the possession of the JCB machines and the tractor trolleys which were seized with the minor minerals stacked therein and that there being no evidence on the record to suggest that the minor mineral is retained by the police or any other Authority, in our considered opinion justify the action by the Competent Authority which cannot be held to suffer jurisdictional error.
Consequently, petition fails and is dismissed.
No costs.
Order Date :- 3.2.2021 Madhurima (Jayant Banerji, J.) (Sanjay Yadav, J.)