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10. Then again the question of arbitrary exercise of the power to compound, being exercised by the authorities, indiscriminately determining the compounding fees came up before this Court. The situation arose for reason of the authorised authorities in different parts of the State determining the compounding fees in an indiscriminate manner, favouring some with nominal amounts and distressing others with astronomical fees. The owners of the vehicles, who were the alleged offenders claimed before this Court that the stipulation in the compounding provision is only to the effect that the maximum amount imposed shall be the maximum penalty. The then Rules provided only a penalty of Rs.5,000/- and the MMDR Act again a penalty of Rs.25,000/-., with imprisonment as an option. This Court in Sivakumar v. State of Kerala and Another [2013 KHC 2757] found that the special provision in the MMDR Act would govern the issue and not the general provision in the Rules. It was specifically noticed that the maximum fine as per the provision for compounding is restricted to the penalty only in respect to the offences which are liable to be punished by fine only. The penalty provisions as it stood then would clearly  connected cases indicate that it contemplates imprisonment and/or fine. It was noticed that, considering the scope of the provision for compounding and the probable amount that could be imposed as compounding fee, in many of the cases vehicles were directed to be released on satisfaction of a sum of Rs.25,000/- before the authority. Significant is the fact that by amendment of the MMDR Act, the penalty provision, Section 20(1), provides now imprisonment and penalty. So a successful prosecution necessarily entails imprisonment and the proviso to Section 23 in the MMDR Act, becomes redundant.

12. On the basis of the afore-cited decisions, the learned counsel appearing for the petitioners would urge that all the writ petitions may be disposed of, directing Rs.25,000/- paid as per the interim orders of this Court to be the compounding fees and close all further proceedings against the petitioners herein and their vehicles. The petitioners also contend that as a matter of practise such orders were being consistently issued. This Court is unable to countenance any such declaration in either of the two decisions. The two learned Judges who considered the issue separately, did not at all lay down that the maximum fine should be the maximum compounding fee. The provision also does not commend such a declaration, as was found specifically in Sivakumar (supra). The discretion is conferred on the authorities and it would not be proper for this Court to usurp such discretion. But this Court definitely could examine the plea of arbitrary exercise of the power of compounding and the vast disparity in determination of the fees payable, as determined by various officers acting in their various jurisdictions within the State. This is only due to the fact of there  connected cases being no guidelines in the rules to regulate such exercise of power. The allegations of unbridled discretion on the authorities has to be tested against the intention behind the statute.

14. This Court is persuaded to consider the aforesaid issue only on the plea made by the learned counsel that the vesting of absolute power on the authorised authorities, to determine the compounding fees, leads to widespread disparity in the fees determined in different parts of the State. While in some districts the offence is compounded for Rs.10,000/-, in some others it is much lower or a lot higher. That gives rise to widespread corruption too. Further, in determining such compounding fees, the mineral intercepted which is extracted  connected cases illegally, would have some bearing in determining the compounding fees, especially since the royalty for various minerals as provided in the Rules are at different rates. This Court is in full agreement with the submissions made by the learned counsel for the petitioners.

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28. The petitioners are directed to produce the Registration Certificates of the vehicles seized, before the Senior Geologist, the authority competent to file a complaint before the jurisdictional Magistrate's Court as notified by the State Government, and the said authority shall compound the offence on payment of Rs.50,000/- [Rupees fifty thousand only] together with double the amount of royalty and price of the mineral as determined by the Geologist on an assessment of the maximum quantity that could be transported in the goods vehicle. The amounts so determined, after deducting the amount paid as per the interim order of this Court [Rs.25,000/-] shall be accepted by the authority as the compounding fee under Section 23A of the MMDR Act and Rule 111 of the KMMC Rules of 2015. The seizure and compounding has to be endorsed in the Registration Certificate and communicated to the Motor Vehicles Department. As far as the JCBs seized in the second batch of cases, the compounding fee shall be Rs.75,000/- [Rupees seventy five thousand only], on payment of which the procedure as in the case of goods vehicle, shall be followed. The writ petitions in the 1st and 2nd batch are disposed of accordingly.