Madhya Pradesh High Court
M/S Venus Mining And Minerals Thr Its ... vs The State Of Madhya Pradesh on 16 September, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
1 WP.16894.2021
The High Court of Madhya Pradesh
WP.16894.2021
M/s Venus Mining and Minerals,
Through its Partner Ravi Goyal
Vs.
State of Madhya Pradesh & Others
Gwalior dated 16.09.2021
Shri N.K. Gupta, learned Senior Counsel assisted by Shri
S.D. Singh Bhadoriya, learned counsel for petitioner.
Shri MPS Raghuvanshi, learned Additional Advocate
General for respondents/State.
Shri Arun Dudawat, learned counsel for respondent No.2.
Learned counsel for the rival parties are heard.
1. This petition u/Art.226 of the Constitution assails the
legality and validity of the order dated 20.07.2021 passed by
Director, Geology & Mines, Bhopal by invoking provisions of
Section 15 of M.P. Sand [Mining, Transportation, Storage and
Trading] Rules, 2019 ["2019 Sand Rules" for brevity].
2. Pertinently, the impugned order dated 20.07.2021 is alleged
to be passed pursuant to a representation dated 31.05.2021
preferred by petitioner, Annexure P-17, by which benefit was
sought under Clause 41 [pertaining to Force Majeure] of the
mining agreement entered into between the State and petitioner
owing to lockdown due to second wave of Covid-19 pandemic.
3. It is contended by learned Senior Counsel Shri N.K. Gupta
along with Shri S.D. Singh Bhadoriya learned counsel for
petitioner that the benefit of said Force Majeure clause has not
2 WP.16894.2021
been extended to petitioner despite compelling circumstances
beyond the powers of petitioner leading to close down of mining
activities during lockdown arising from Covid-19 pandemic
second wave.
3.1 Learned Senior Counsel Shri Gupta has also raised the
ground of impropriety and disrespect of this Court by submitting
that the impugned order is passed without waiting for the outcome
of WP.10667/2021 in which this Court had expected of the
respondents not to precipitate the matter till this Court adjudicates
the said petition. It is submitted that WP.10667/2021 was decided
on 22.07.2021 whereas the impugned order was passed two days
prior to that on 20.07.2021.
4. Bare perusal of the pleadings contained in the petition
reveals that lot many disputed questions of fact are raised.
Moreso, this Court in Contempt Petition No.1614/2021 has
already held that though propriety demanded that when this court
expressed expectation from the official respondents not to
precipitate the matter till decision in WP.10667/2021, the
impugned order ought not to have been passed but this Court has
held that no contempt is made out and has merely sounded a word
of caution to the official respondents to be careful in future while
dealing with judicial orders.
5. Learned counsel for the State points out by referring to Rule
15(3) of 2019 Sand Rules that alternative remedy of preferring an
appeal to the State Government against the order of Director,
3 WP.16894.2021
Geology and Mines is available but has not been availed by
petitioner.
6. Learned Senior Counsel appearing for petitioner, however,
submits that in the absence of any power of grant of interim relief,
this alternative remedy of appeal is not efficacious.
7. Rule 15 of 2019 Sand Rules pertaining to appeal is
reproduced below for ready reference and convenience:
"15. Cancellation of the Contracts.-
(1) The Collector shall, issue show cause notice to the
contractor, on violation of any of the term and condition
of the agreement, non compliance of environmental rules,
excavation out of the sanction area, excavation more
than the permissible quantity or any other serious
mistake. Collector, after examining the reply received
from the contractor regarding violation, shall send
proposal alongwith opinion, to the Director. The Director
may either cancel the contract or duly take any other
decision on the proposal received from the Collector.
(2) No such order of cancellation of the contract shall
be passed against any person interested without giving
opportunity of being heard.
(3) The appeal, against the order passed by the
Director, may be submitted to the State Government.
7.1 From the aforesaid, it is evident that appeal to the State
Government lies from an order passed by Director, Geology and
Mines u/R.15(3) of 2019 Sand Rules.
7.2 However, there is no express power u/R.15 of 2019 Sand
Rules with the State Government to grant interim relief during
pendency of appeal.
4 WP.16894.2021
7.3 The very fact that the remedy of appeal has been expressly
provided by the statute 2019 Sand Rules, the same inherently
carries with it the power to pass all interim and interlocutory
orders related to the merits of the appeal. Merely because the
statute has not expressly provided for the power to grant stay
during pendency of appeal to the appellate authority, does not
mean that the appellate authority is denuded of this power. The
said power of grant or refusal of interim relief during pendency of
appeal is inherent in the provision prescribing the remedy of
appeal. Without such a power of grant or refusal to grant interim
relief during pendency of appeal, the very existence of remedy of
appeal would become non-efficacious. Thus, such a power of
grant or refusal to grant interim relief can be exercised even if the
statute expressly does not provide for the same subject to the
remedy of appeal being expressly available. This view of this
Court is supported by the ratio laid down by the Apex Court in the
case of "Income Tax Officer, Cannanore Vs. M.K. Mohammed
Kunhi [AIR 1969 SC 430]", relevant extract of which is
reproduced below for ready reference and convenience:
"4. There can be no manner of doubt that by the
provisions of the Act or the Income-tax Appellate
Tribunal Rules 1963 powers have not been expressly
conferred upon the Appellate Tribunal to stay
proceedings relating to the recovery of penalty or tax
due from an assessee. At the same time it is significant
that under Section 220 (6) the power of stay by treating
the assessee as not being in default during the pendency
5 WP.16894.2021
of an appeal has been given to the Income-tax Officer
only when an appeal has been presented under Section
246 which will be to the Appellate Assistant
Commissioner and not to the Appellate Tribunal. There
is no provision in Section 220 under which the Income-
tax Officer or any of his superior departmental officers
can be moved for granting stay in the recovery of penalty
or tax. It may be that under Section 225 notwithstanding
that a certificate has been issued to the Tax Recovery
Officer for the recovery of any tax (the position will be
the same with regard to penalty) the Income tax Officer
may grant time for the payment of the tax. In this manner
he can probably keep on granting extensions until the
disposal of the appeal by the Tribunal. It may also be
that as a matter of practice prevailing in the department
the Commissioner or the Inspecting Assistant
Commissioner in exercise of administrative powers can
give the necessary relief of staying recovery to the
assessee but that can hardly be put at par with a
statutory power as is contained in Section 220(6) which
is confined only to the stage of pendency of an appeal
before the Appellate Assistant Commissioner. The
argument advanced on behalf of the appellant before us
that in the absence of any express provisions in Sections
254 and 255 of the Act relating to stay of recovery
during the pendency of an appeal it must be held that no
such power can be exercised by the tribunal, suffers from
a fundamental infirmity inasmuch as it assumes and
proceeds on the premise that the statute confers such a
power on the Income-tax Officer who can give the
necessary relief to an assessee. The right of appeal is a
substantive right and the questions of fact and law are at
large and are open to review by the appellate tribunal.
Indeed the tribunal has been given very wide powers
6 WP.16894.2021
under Section 254(1) for it may pass such orders as it
thinks fit after giving full hearing to both the parties to
the appeal. If the Income-tax Officer and the Appellate
Assistant Commissioner have made assessments or
imposed penalties raising very large demands and if the
appellate tribunal is entirely helpless in the matter of
stay of recovery the entire purpose of the appeal can be
defeated if ultimately the orders of the departmental
authorities are set aside. It is difficult to conceive that
the legislature should have left the entire matter to the
administrative authorities to make such orders as they
choose to pass in exercise of unfettered discretion. The
assessee, as has been pointed out before, has no right to
even move an application when an appeal is pending
before the appellate tribunal under Section 220 (6 ) and
it is only at the earlier stage of appeal before the
Appellate Assistant Commissioner that the statute
provides for such a matter being dealt with by the
Income-tax Officer. It is a firmly established rule that an
express grant of statutory power carries with it by
necessary implication the authority to use all reasonable
means to make such grant effective (Sutherland Statutory
Construction, Third Edition, Articles 5401 and 5402).
The powers which have been conferred by Section 254
on the Appellate Tribunal with widest possible amplitude
must carry with them by necessary implication all
powers and duties incidental and necessary to make the
exercise of those powers fully effective. In Domat's Civil
Law, Cushing's Edition, Vol. 1 at page 88, it has been
stated:
"It is the duty of the Judges to apply the laws,
not only to what appears to be regulated by
their express dispositions but to all the cases
where a just application of them may be made,
7 WP.16894.2021
and which appear to be comprehended either
within the consequences that may be gathered
from it."
Maxwell on Interpretation of Statutes, Eleventh Edition
contains a statement at p. 350 that "where an Act confers
a jurisdiction, it impliedly also grants the power of doing
all such acts, or employing such means, as are
essentially necessary to its execution. Cui jurisdictio
data est, ea quoqe concessa esse vindentur, sine quibus
jurisdictio explicari non potuit." An instance is given
based on Ex Parte, Martin, (1879) 4 QBD 212 at p.491
that "where an inferior court is empowered to grant an
injunction, the power of punishing disobedience to it by
commitment is impliedly conveyed by the enactment, for
the power would be useless if it could not be enforced."
8. Section 255(5) of the Act does empower the Appellate
Tribunal to regulate its own procedure, but it is very
doubtful if the power of stay can be spelt out from that
provision. In our opinion the Appellate Tribunal must be
held to have the power to grant stay as incidental or
ancillary to its appellate jurisdiction. This is particularly
so when Section 220(6) deals expressly with a situation
when an appeal is pending before the Appellate Assistant
Commissioner but the Act is silent in that behalf when an
appeal is pending before the Appellate Tribunal. It could
well be said that when Section 254 confers appellate
jurisdiction, it impliedly grants the power of doing all such
acts, or employing such means, as are essentially necessary
to its execution and that the statutory power carries with it
the duty in proper cases to make such orders for staying
proceedings as will prevent the appeal if successful from
being rendered nugatory.
9. A certain apprehension may legitimately arise in
8 WP.16894.2021
the minds of the authorities administering the Act that if
the Appellate Tribunals proceed to stay recovery of taxes
or penalties payable by or imposed on the assessees as a
matter of course the revenue will be put to great loss
because of the inordinate delay in the disposal of
appeals by the Appellate Tribunals. It is needless to point
out that the power of stay by the Tribunal is not likely to
be exercised in a routine way or as a matter of course in
view of the special nature of taxation and revenue laws.
It wilt only be when a strong prima facie case is made
out that the tribunal will consider whether to stay the
recovery proceedings and on what conditions and the
stay will be granted in most deserving and appropriate
cases where the tribunal is satisfied that the entire
purpose of the appeal will be frustrated or rendered
nugatory by allowing the recovery proceedings to
continue during the pendency of the appeal."
7.4 The Apex Court has further relied and clarified M.K.
Mohammed Kunhi (supra) in "Super Cassettes Industries
Limited Vs. Music Broadcast Private Limited reported in
[(2012) 5 SCC 488]", relevant extract of which is reproduced
below for ready reference and convenience:
"69. It is no doubt true, that tribunals discharging
quasi-judicial functions and having the trappings of a
court, are generally considered to be vested with
incidental and ancillary powers to discharge their
functions, but that cannot surely mean that in the
absence of any provision to the contrary, such tribunal
would have the power to grant at the interim stage the
final relief which it could grant. As also indicated
hereinbefore, such incidental powers could at best be
said to exist in order to preserve the status quo, but not
9 WP.16894.2021
to alter the same, as will no doubt happen, if an interim
compulsory licence is granted. If the legislature had
intended that the Copyright Board should have powers
to grant mandatory injunction at the interim stage, it
would have vested the Board with such authority. The
submission made that there is no bar to grant such
interim relief in Section 31 has to be rejected since the
presence of a power cannot be inferred from the absence
thereof in the statute itself.
75. The considerations relevant for ascertaining
whether there is an implied grant of such powers, as can
be culled out from the various judgments relied upon by
the learned counsel appearing in these matters, which
have been taken note of by my learned Brother Kabir, J.
appear to be:
(1) need to preserve status quo with respect to the subject-matter of the dispute in order to enable the party, which eventually succeeds in the litigation, to enjoy the fruits of the success; and (2) need to preserve the parties themselves, a consideration which weighed heavily with this Court in implying such powers in favour of the Magistrates while exercising the jurisdiction under Section 125 of the Code of Criminal Procedure."
8. In view of the aforesaid discussion, this Court is of the considered view that it cannot be said that the State while considering appeals against orders of cancellation of contract u/R.15(3) of 2019 Sand Rules is bereft of the power of grant of interim relief.
8.1 Admittedly, the impugned order herein is an order of 10 WP.16894.2021 cancellation of mining contract and therefore an appeal against such an order squarely lies u/Rule 15(3) of 2019 Sand Rules.
9. Consequent upon the aforesaid discussion, this Court declines interference on merits and disposes of this petition with liberty to petitioner to avail the remedy of appeal u/R.15(3) of 2019 Sand Rules, which if availed within a period of 15 days from today along with copy of this order shall be entertained and decided by the State on merits without being dismissed on limitation alone.
10. Needless to emphasize that if a prayer is made for grant of interim relief by preferring an appropriate application the same can be considered by the State.
11. This Court hastens to add that no comments on the merits of the matter are made by this Court and the State Government is free to pass orders on appeal and as well as on the interim relief application, if filed, either way.
(Sheel Nagu) (Deepak Kumar Agarwal)
Judge Judge
16.09.2021 16.09.2021
pd
PAWAN
Digitally signed by PAWAN
DHARKAR
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
DHARK
GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474011,
st=Madhya Pradesh,
2.5.4.20=345b3604d572ed9dd1492 AR fe82dc3b1eef67eff2cb59f3ac97e92 0ac264de7828, cn=PAWAN DHARKAR Date: 2021.09.18 15:14:33 +05'30'