Andhra Pradesh High Court - Amravati
M/S.Gsr Stone Crushers vs The State Of Andhra Pradesh on 30 September, 2022
IN THE HIGH COURT OF ANDHRA PRADESH
***
W.P.Nos.8390 of 2018 and 12334 of 2021
W.P.Nos. 27815 and 27952 of 2021
W.P.Nos.27903 and 28372 of 2021
And W.P.No.12950 of 2021
W.P.No.8390 of 2022
BETWEEN:
# M/s. GSR Stone Crushers,
Kadakella Village, Veeraghattam Mandal,
Srikakulam District, rep. by its Proprietor
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Assistant Director of Mines & Geology, Santhi Nagar Colony,
Srikakulam- 1, Andhra Pradesh.
... RESPONDENTS
Date of Judgment pronounced on : 30.09.2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2 RRR,J
W.P.No.8390 of 2018 and batch
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.Nos.8390 of 2018 and 12334 of 2021
+ W.P.Nos. 27815 and 27952 of 2021
+ W.P.Nos.27903 and 28372 of 2021
+ And W.P.No.12950 of 2021
% Dated:30.09.2022
W.P.No.8390 of 2018
BETWEEN:
# M/s. GSR Stone Crushers,
Kadakella Village, Veeraghattam Mandal,
Srikakulam District, rep. by its Proprietor
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Assistant Director of Mines & Geology, Santhi Nagar Colony,
Srikakulam- 1, Andhra Pradesh.
... RESPONDENTS
W.P.No.12334 of 2021
BETWEEN:
# M/s. GSR Stone Crushers,
Kadakella Village, Veeraghattam Mandal,
Srikakulam District, rep. by its Proprietor
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Assistant Director of Mines & Geology, Santhi Nagar Colony,
Srikakulam- 1, Andhra Pradesh.
... RESPONDENTS
3 RRR,J
W.P.No.8390 of 2018 and batch
W.P.No.27815 of 2021
BETWEEN:
# P. Venkateswara Rao,
S/o. Late China Vengaiah, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.27952 of 2021
BETWEEN:
# P. Venkateswara Rao,
S/o. Late China Vengaiah, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.27903 of 2021
BETWEEN:
# M/s. VVR Crushers and Constructions
Rep. by its sole Proprietor P. Srinivasa Babu,
S/o. P. Venkateswara Rao, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
4 RRR,J
W.P.No.8390 of 2018 and batch
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.28372 of 2021
BETWEEN:
# M/s. VVR Crushers and Constructions
Rep. by its sole Proprietor P. Srinivasa Babu,
S/o. P. Venkateswara Rao, R/o. HIG-217,
Sector-4, MVP Colony, Visakhapantam, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
2. The Director of Mines and Geology, Andhra Pradesh, Ibrahimpatnam,
Krishna District.
3. The Assistant Director of Mines & Geology, Anakapalli, Andhra
Pradesh.
... RESPONDENTS
W.P.No.12950 of 2021
BETWEEN:
# M/s. Soma Patel ASI (JV)
Moduguvalasa Village, Srikakulam District, A.P.
Rep. by its sole Proprietor P. Srinivas,
S/o. Venkatagiri, R/o. Moduguvalasa Village
Srikakulam District, A.P.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Industries & Commerce (Mines) Department, A.P. Secretariat,
Velagapudi, Guntur District, Andhra Pradesh
5 RRR,J
W.P.No.8390 of 2018 and batch
2. The Assistant Director of Mines & Geology, Srikakulam District,
Andhra Pradesh.
... RESPONDENTS
! Counsel for Petitioner : Sri Hari Sreedhar
(in all the writ petitions)
^Counsel for Respondents : G.P. for Mines and Geology
(respondent in all the writ petitions)
<GIST :
>HEAD NOTE:
? Cases referred:
1. AIR 1964 SC 358
2. (2004) 2 SCC 783
3. 2020 (6) ALT 85 (S.B)
4. 1993 (3) ALT 199
6 RRR,J
W.P.No.8390 of 2018 and batch
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.8390 of 2018 and 12334 of 2021
W.P.Nos. 27815 and 27952 of 2021
W.P.Nos.27903 and 28372 of 2021
And W.P.No.12950 of 2021
COMMON ORDER:
The facts in each of these cases, differ slightly. However, since they
all raise a common question of law, they are being disposed of by way of
this common order, by consent of both sides.
W.P.No.8390 of 2018 & W.P.No.12334 of 2021
2. The petitioner in both these writ petitions is the same. The
petitioner had been granted a quarry lease for road metal and building
stone over an extent of 2.5 hectares in Sy.No.127 of Kadakalla Village,
Veeraghattam Mandal, Srikakulam District. The quarry of the petitioner is
said to have been inspected by the Vigilance and Enforcement
Department, who had thereupon addressed letters to the Mining
Department to take action against the petitioner on the basis of the
inspection report. Pursuant to this communication, a show cause notice
dated 20.01.2018 was issued by the Assistant Director of Mines,
Srikakulam, calling upon the petitioner to show cause as to why certain
penalties etc., should not be collected from the petitioner on the ground of
evasion of seigniorage fee. The petitioner is said to have given his reply
on 12.02.2018 setting out the facts including the contention that the
7 RRR,J
W.P.No.8390 of 2018 and batch
entire exercise had been conducted in the absence of the petitioner.
Thereafter, the Assistant Director of Mines had issued a demand notice
dated 19.02.2018 calling upon the petitioner to pay certain amounts of
money as penalty for infraction of the provisions of the Mines and Mineral
(Development and Regulation) Act, 1957 (for short 'the MMDR Act')and
Rule 26 of the A.P. Minor Mineral Concession Rules, 1966 (for short 'the
Concession Rules'). Aggrieved by the same, the petitioner had approached
this Court by way of W.P.No.3390 of 2018.
3. While the above writ petition was pending, action was again
initiated against the petitioner on the basis of the information said to have
been given by the Vigilance and Enforcement Department by way of of
show cause notice dated 09.04.2021. Thereafter, a demand notice was
issued on 22.04.2021 by the Assistant Director of Mines, Srikakulam
calling upon the petitioner to pay certain amounts of money as penalty
and infraction of the provisions of the MMDR Act and the Concession
Rules. Aggrieved by the same the petitioner has filed W.P.No.12334 of
2021.
W.P.No.27815 of 2021 & W.P.No.27952 of 2021
4. Both the writ petitions have been filed by the same
petitioner. The petitioner had been granted a quarry lease for road metal
and building stone over an extent of 7.05 hectares, in Sy.No.251 of
Seethanagaram Village, Anakapalli Mandal, Visakhapatnam. During the
pendency of the said lease the petitioner had been issued a show cause
8 RRR,J
W.P.No.8390 of 2018 and batch
notice to which a reply had been given. Thereafter, a demand notice
dated 07.08.2021 was issued. The petitioner filed W.P.No.15863 of 2020
before this Court and this Court had remanded the matter back to the
Assistant Director of Mines, Visakhapatnam to re-conduct the entire
exercise after giving necessary information to the petitioner. The Assistant
Director of Mines again issued a demand notice, against which the
petitioner filed W.P.No.25176 of 2020. This Writ petition was dismissed on
the ground that the petitioner had an adequate alternative remedy of
appeal. Aggrieved by the same, the petitioner filed W.A.No.64 of 2021,
which was also dismissed. Thereafter, the petitioner filed an appeal before
the 1st respondent therein, which was dismissed on 21.09.2021 without
setting out any reasons for such a dismissal. Aggrieved by the same, the
petitioner filed W.P.No.27952 of 2021.
5. In W.P.No.27815 of 2021 the petitioner, in relation to the
quarry lease over an extent of 7.05 hectares in Sy.No.251 of
Seethanagaram Village, Anakapalli Mandal, Visakhapatnam District, had
been issued a show cause notice dated 14.07.2020 on the basis of an
inspection report said to have been given by the Vigilance and
Enforcement Department contending that the petitioner had obtained
dispatch permits for road metal beyond what was actually excavated in
the quarry and to show cause as to why penalties should not be levied
against the petitioner. A demand notice was issued after the petitioner
9 RRR,J
W.P.No.8390 of 2018 and batch
had filed a reply asking for information, without such information being
provided.
6. The petitioner filed W.P.No.15888 of 2020 challenging the
said demand notice and this Court had remanded the matter back to the
Assistant Director of Mines with a direction to furnish documents before
passing any order. The Assistant Director of Mines, Visakhapatnam again
issued a demand notice dated 10.11.2020 which was challenged before
this Court by way of W.P.No.25190 of 2020, which was dismissed on the
ground of effective alternative remedy being available. The Writ Appeal
filed against this order was also dismissed and the petitioner had filed an
appeal against the said demand notice. This appeal was dismissed on
21.09.2021. It is the contention of the petitioner that no reasons were
given in the order of dismissal.
W.P.No.28372 of 2021 and W.P.No.27903 of 2021
7. In this case, the petitioner had been granted a quarry lease
for road metal and building stone over an extent of 0.838 hectors in
Sy.No.193 of Seethanagaram Village, Anakapalli Mandal, Visakhapatnam
District. The Assistant Director of Mines, Anakapally had issued a show
cause notice dated 14.07.2020 calling upon the petitioner to show cause
as to why penalties and other amounts should not be levied on the
petitioner as the petitioner was said to have dispatched more material
than what was excavated in the quarry lease. The petitioner gave a reply
dated 28.07.2020 denying the said allegations and asking for certain
10 RRR,J
W.P.No.8390 of 2018 and batch
documents and material. As the Assistant Director of Mines, Anakapally
had issued demand notice dated 10.08.2020, without furnishing
documents and material, the petitioner had approached this Court by way
of the above writ petitions.
8. In W.P.No.27903 of 2021, the petitioner had been granted a
quarry lease for road metal and building stone over an extent of 2.080
hectors in Sy.No.303 of Seethanagaram Village, Anakapally Mandal,
Visakhapatnam District. The Assistant Director of Mines, Anakapally had
issued a show cause notice dated 14.07.2020 calling upon the petitioner
to show cause as to why penalties and other amounts should not be levied
on the petitioner as the petitioner was said to have dispatched more
material than what was excavated in the quarry lease. The petitioner gave
a reply dated 28.07.2020 denying the said allegations and asking for
certain documents and material. The Assistant Director of Mines,
Anakapalli had issued demand notice dated 07.08.2020, without furnishing
documents and material. Aggrieved by the said demand notice, the
petitioner had approached this Court by way of W.P.No.15452 of 2020 and
the same was disposed of by remanding the matter back to the Assistant
Director of Mines to pass orders after furnishing the necessary documents.
Thereafter, the Assistant Director of Mines again issued a demand notice
dated 10.11.2020, which was challenged by way of W.P.No.25292 of 2020
and the same was dismissed on the ground of effective alternative
remedy. However, the appeal filed by the petitioner was dismissed on
11 RRR,J
W.P.No.8390 of 2018 and batch
21.09.2021. The petitioner contends that this appeal was dismissed
without giving any reasons.
W.P.No.12950 of 2021
9. The petitioner had been granted a quarry lease for
road metal and building stone over an extent of 5 hectares in Sy.No.297
of Kondaragolu Village, Hiramandalam Mandal, Srikakulam District. The
Assistant Director of Mines, Srikakulam District, had issued a show cause
notice dated 24.07.2020 calling upon the petitioner to show cause as to
why penalties and other amounts should not be levied on the petitioner,
as the petitioner was said to have dispatched more material than what
was excavated in the quarry lease. The petitioner gave an interim reply
dated 08.01.2021 with an additional reply dated 30.01.2021 denying the
said allegations and asking for certain documents and material. The
Assistant Director of Mines, Srikakulam had issued demand notice dated
03.05.2021, without furnishing documents and material. Aggrieved by the
said demand notice, the petitioner had approached this Court by way of
the present writ petition.
10. Sri Hari Sridhar, learned Counsel appearing for the
petitioner, while highlighting the violation of the principles of natural
justice in all the above cases, either on the ground of non-supply of the
material used against the petitioner or on the ground that the impugned
order is bereft of reasons, has also raised a common question of law.
12 RRR,J
W.P.No.8390 of 2018 and batch
11. It is the contention of Sri Hari Sridhar that the proceedings
under the penal provisions contained under Rules 26 and 34 cannot be
conducted by the officials of the department and the same can only be
filed as a complaint before a regular Criminal Court of competent
jurisdiction and any decision in this regard, relating to the levy of any
penalty, can be done only by the competent Court of criminal jurisdiction.
He relies upon the judgments of the Hon'ble Supreme Court in State of
U.P. vs. Singhara Singh1 (paragraphs 7 & 8); Karnataka Rare
Earth vs. Department of Mines2 (paragraph No.7); and J.M.B.
Rocks vs. State of Andhra Pradesh and Ors.,3.
12. The learned Additional Advocate General appearing for the
respondents submits that the said writ petition is defective in as much as
Rule 26 has not been challenged. He further submits that a Full Bench of
the erstwhile High Court of A.P. in L. Venkateswara Rao and ors., vs.
M/s. Singareni Collieries Company Ltd., rep. by its Managing
Director, Kothagudem & ors.,4 had held that the State has the
authority to levy and recover fines for infraction of the provisions of the
MMDR Act and the Concession Rules and as such Rule 26 is within the
power granted to the State Government and the levy and collection of
AIR 1964 SC 358
(2004) 2 SCC 783
2020 (6) ALT 85 (S.B)
1993 (3) ALT 199
13 RRR,J
W.P.No.8390 of 2018 and batch
penalties, under Rule 26 of the Concession Rules by the officials of the
mines and geology department is also in accordance with law.
13. The learned Additional Advocate General submits that
paragraph 7 of the judgment in Karnataka Rare Earth vs. Department
of Mines relied upon by the learned counsel for the petitioner is actually
in favour of the respondents as Section 21(5) of the MMDR Act empowers
the State to recover the loss incurred by the State on account of illegal
quarrying or violation of any of the provisions of the Concession Rules.
Consideration of the Court:
14. In pursuance of the power granted under Section 15 of the
MMDR Act, 1957, the State Government had issued G.O.Ms.No.1172 dated
04.09.1967 making the A.P. Minor Mineral Concession Rules 1966. Rule 26
of these Rules provides for the levy of penalities for unauthorised
quarrying. A Full Bench, of the erstwhile High Court of Andhra Pradesh, in
L. Venkateswara Rao and ors., vs. M/s. Singareni Collieries
Company Ltd., rep. by its Managing Director, Kothagudem & ors.,
had held that the power to make Rules for levy of penalties can be traced
to Section 15 of the MMDR Act and that rule 26 is within the power of the
state.
15. Rule 26(1) mandates that if any holder of a mining
concession undertakes quarrying operations and transports minor minerals
outside the leased area or within such an area, in contravention of the
14 RRR,J
W.P.No.8390 of 2018 and batch
Rules, the holder of such a concession would be liable to pay 10 times of
normal seigniorage fee as penalty in addition to the normal seigniorage
fee along with the DMF and MERIT amounts on the assessed quantities by
the Assistant Director of Mines and Geology concerned or any officer
authorised in this behalf by the Director of Mines and Geology. Rule 26 (2)
provides that whenever any person, who does not hold a minor mineral
concession, excavates or transport minor minerals, the said person would
be liable to pay 10 times normal seigniorage fee as penalty in addition to
the normal seigniorage fee along with the DMF and MERIT amounts on
the assessed quantities by the Assistant Director of Mines and Geology
concerned or any officer authorised in this behalf by the Director of Mines
and Geology.
16. Sub-rules (1) and (2) of Rule 26 were amended by
G.O.Ms.No.35 I & C (M-III) Dept., dated 01.07.2020. Prior to this
amendment, these Rules also provided for a further penalty of
imprisonment on the person involved in violation of the above Rules.
17. The petitioners are not disputing the power of the state to
levy fines and penalties. The contention of the petitioners is that such a
levy of penalty can be done only by the court of competent criminal
jurisdiction.
18. A learned Single Judge of this Court in J.M.B. Rocks vs.
State of Andhra Pradesh and Ors., after referring to L.
Venkateswara Rao and ors., vs. M/s. Singareni Collieries
15 RRR,J
W.P.No.8390 of 2018 and batch
Company Ltd., rep. by its Managing Director, Kothagudem & ors.,
had held that levy of penalties under Rule 26(3)(ii), including punishment
by imprisonment for a term up to two years cannot be imposed by the
Assistant Director of Mines and Geology as that would be within the
exclusive domain of the Courts only. Consequently, the show cause notice
challenged in the said writ petition was set aside. The said Rules were
further amended on 01.07.2020 even before this judgment had been
delivered.
19. It is the case of the respondents that the aforesaid judgment
of this Court would not be applicable as the punishment of imprisonment
has been removed from the Rules and only fine is sought to be levied by
the Assistant Director of Mines and Geology concerned. A reading of the
judgment would show that the learned Single Judge had taken the view
that the proceedings under Rule 26, for levy of penalty, is a criminal
proceeding which can only be dealt with by Courts of competent
jurisdiction and the same cannot be exercised by the Assistant Director of
Mines and Geology. The learned Judge had taken the view that any
proceedings under Rule 26 would require to be conducted by a criminal
Court and not an official of the department. The said judgment would be
applicable to Rule 26 before the amendment and after the amendment
also. The respondents have not placed any material before me to show
that the said order has been varied or set aside by any higher forum and
as such the said judgment has become final and binding on this Court.
16 RRR,J
W.P.No.8390 of 2018 and batch
20. I would supplement the said judgement with some more
reasons. A review of the provisions of the MMDR Act and the concession
rules would be necessary to ascertain whether, the authorities under the
act, can levy penalties, including fines on the persons violating the
provisions of the MMDR Act and the concession rules.
21. Section 4 (1) of the MMDR Act mandates that no person can
undertake mining operations, in any area, except under a mining lease
granted under the MMDR Act. Section 4 (1A) further mandates that no
person shall transport or store any mineral otherwise than in accordance
with the provisions of the MMDR Act and the Rules made thereunder. In
the present case, the applicable Rules are Concession Rules 1966.
22. Section 21 of the MMDR Act sets out the consequences of
violation of the provisions of the Act and the Rules made thereunder and
provides for imposition of penalties, including imprisonment, recovery of
the cost of mineral, rent, royalty or tax etc., that was lost by the State
Government on account of violation of the MMDR Act and the Concession
Rules. Section 21 of the MMDR Act reads as follows:
21. Penalties.―
(1) 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 five years
and with fine which may extend to five lakh rupees per
hectare of the area.
(2) Any rule made under any provision of this Act may
provide that any contravention thereof shall be punishable
17 RRR,J
W.P.No.8390 of 2018 and batch
with imprisonment for a term which may extend to two
years or with fine which may extend to five lakh rupees, or
with both, and in the case of a continuing contravention,
with additional fine which may extend to fifty thousand
rupees for every day during which such contravention
continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in
contravention of the provisions of sub-section (1) of section
4, such trespasser may be served with an order of eviction
by the State Government or any authority authorised in this
behalf by that Government and the State Government or
such authorised 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
mineral from any land, and, for that purpose, uses any tool,
equipment, vehicle or any other thing, such mineral tool,
equipment, vehicle or any other thing shall be liable to be
seized by an officer or authority specially empowered in this
behalf.
(4A) Any mineral, tool, equipment, vehicle or any other
thing seized under sub-section (4), shall be liable to be
confiscated by an order of the court competent to take
cognizance of the offence under sub-section (1) and shall
be disposed of in accordance with the directions of such
court.
(5) Whenever any person raises, without any lawful
authority, any mineral 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
18 RRR,J
W.P.No.8390 of 2018 and batch
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
sub-section (1) shall be cognizable.
23. The nature of the subsections of Sections 21 and 21 of the
MMDR Act have been considered by the Hon'ble Supreme Court in the
case of Karnataka Rare Earth vs. Department of Mines wherein the
Hon'ble Supreme Court, at paragraph No.7, had held as follows:
7. In our opinion, the demand by the State of Karnataka of
the price of the mineral cannot be said to be levy of penalty
or a penal action. The marginal note of the section --
"penalties", creates a wrong impression. A reading of
Section 21 shows that it deals with a variety of situations.
Sub-sections (1), (2), (4), (4-A) and (6) are in the realm of
criminal law. Sub-section (3) empowers the State
Government or any authority authorized in this behalf to
summarily evict a trespasser. Sub-section (5) empowers
the State Government to recover rent, royalty or tax from
the person who has raised the mineral from any land
without any lawful authority and also empowers the State
Government to recover the price thereof where such
mineral has already been disposed of inasmuch as the
same would not be available for seizure and confiscation.
The provision as to recovery of price is in the nature of
recovering the compensation and not penalty so also the
power of the State Government to recover rent, royalty or
tax in respect of any mineral raised without any lawful
authority can also not be called a penal action. The
underlying principle of sub-section (5) is that a person
19 RRR,J
W.P.No.8390 of 2018 and batch
acting without any lawful authority must not find himself
placed in a position more advantageous than a person
raising minerals with lawful authority.
24. Apart from this, sections 22 and 23A (1) are relevant and are
as follows:
SECTION 22. COGNIZANCE OF OFFENCES-- No court
shall take cognizance of any offence punishable under this
Act or any rules made thereunder except upon a complaint
in writing by a person authorised in this behalf by the
Central Government or the State government.
SECTION 23A. COMPOUNDING OF OFFENCES.-
(1) Any offence punishable under this Act or any rule made
thereunder may, either before or after the institution of the
prosecution, be compounded by the person authorised
under section 22 to make a complaint to the court with
respect to that offence, on payment to that person, for
credit to the Government, of such sum as that person may
specify.
25. Section 4 of the MMDR Act stipulates the need for
excavating and transporting minerals strictly in accordance with the terms
of the necessary lease and permits, respectively, granted by the State.
Any infraction of this requirement is visited with penalties, of
imprisonment and payment of fines, under Section 21(1) and (2) of the
MMDR Act. Apart from this Section 21 (4) and (4A) provides for seizure
and confiscation. These substantive provisions were held to be in the
realm of criminal law, by the Hon'ble Supreme Court, in the above case.
20 RRR,J
W.P.No.8390 of 2018 and batch
26. The necessity, under Section 22, of a complaint, in writing,
from an authorised person before the Court takes cognizance can only
mean that it is the criminal court which can take up the question of
violation of the MMDR Act and the rules. Section 23 A, stipulates that only
a person who can file a complaint before the Court can compound an
offence under the MMDR Act. This would mean that the trial of offences
under the MMDR Act and rules would be conducted by the Court. Further,
any confiscation under Section 21 (4) can be done only by a Court. The
provisions of sections 21, 22 and 23A of the MMDR Act, make it clear that
the culpability of the person accused of violating the provisions of the Act
or rules is to be determined by a court of competent criminal jurisdiction.
27. It is trite to state that, the rules cannot go beyond the
principal Act or be inconsistent with the principal Act. The MMDR Act
contemplates the levy of penalty, under the Act and Concession rules, to
be decided by the Court while the Concession rules name the Assistant
Director of Mines as the authority for this purpose. In view of the clear
contradiction and inconsistency between the MMDR Act and the
Concession rules, Rule 26 has to give way.
28. The learned Additional Advocate General contends that, in
the absence of a challenge to Rule 26, the Petitioners cannot request this
court to ignore the said provision.
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W.P.No.8390 of 2018 and batch
29. The Hon'ble Supreme court considered this very issue and
held, in Shree Bhagwati Steel Rolling Mills v. CCE5, at page 661 as
follows:
28. Shri Aggarwal, in order to buttress his
submission that he ought to be allowed to raise a
pure question of law going to the very jurisdiction to
levy interest, cited before us the judgment
in Bharathidasan University v. All-India Council for
Technical Education [Bharathidasan University v. All-
India Council for Technical Education, (2001) 8 SCC 676
: 1 SCEC 924] and in particular para 14 thereof which
reads as follow : (SCC pp. 688-89)
"14. The fact that the Regulations may have the
force of law or when made have to be laid down
before the legislature concerned does not confer any
more sanctity or immunity as though they are
statutory provisions themselves. Consequently,
when the power to make Regulations is confined to
certain limits and made to flow in a well-defined
canal within stipulated banks, those actually made or
shown and found to be not made within its confines
but outside them, the courts are bound to ignore
them when the question of their enforcement arises
and the mere fact that there was no specific relief
(2016) 3 SCC 643 : 2015 SCC OnLine SC 1243
22 RRR,J
W.P.No.8390 of 2018 and batch
sought for to strike down or declare them ultra vires,
particularly when the party in sufferance is a
respondent to the lis or proceedings cannot confer
any further sanctity or authority and validity which it
is shown and found to obviously and patently lack. It
would, therefore, be a myth to state that the
Regulations made under Section 23 of the Act have
'constitutional' and legal status, even unmindful of
the fact that any one or more of them are found to
be not consistent with specific provisions of the Act
itself. Thus, the Regulations in question,
which AICTE could not have made so as to bind
universities/UGC within the confines of the powers
conferred upon it, cannot be enforced against or
bind a university in the matter of any necessity to
seek prior approval to commence a new department
or course and programme in technical education in
any university or any of its departments and
constituent institutions."
29. It would be seen that Shri Aggarwal is on firm
ground because this Court has specifically stated
that rules or regulations which are in the nature of
subordinate legislation which are ultra vires are
bound to be ignored by the courts when the
question of their enforcement arises and the mere
fact that there is no specific relief sought for to strike
down or declare them ultra vires would not stand in
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W.P.No.8390 of 2018 and batch
the court's way of not enforcing them. We also feel
that since this is a question of the very jurisdiction to
levy interest and is otherwise covered by a
Constitution Bench decision of this Court, it would be
a travesty of justice if we would not allow Shri
Aggarwal to make this submission.
30. This Court, for the above reasons, holds that the Assistant
Director of mines or any other authority of the State cannot determine the
culpability of the person said to be in violation of the MMDR Act or the
Concession rules or levy a penalty and it is only a court of competent
jurisdiction which can go into these questions and levy penalties set out
under rule 26 of the concession rules or under any of the other provisions
of the MMDR Act or the Concession rules.
31. Consequently, the writ petitions are allowed setting aside the
orders impugned in these writ petitions. There shall be no order as to
costs. As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_________________________
R. RAGHUNANDAN RAO, J.
30th September, 2022
Js.
24 RRR,J
W.P.No.8390 of 2018 and batch
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.2390 of 2018 and 12334 of 2021
W.P.Nos. 27815 and 27952 of 2021
W.P.Nos.27903 and 28372 of 2021
And W.P.No.12950 of 2021
30th September, 2022
Js.
