Indrapal Singh Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 6434 MP

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         THE HIGH COURT OF MADHYA PRADESH
                         W.P.No.9664/2021
         (Indrapal Singh Yadav Vs. State of M.P. and others)

Gwalior, Dated:-5.10.2021
      Shri T.C. Narvariya, learned counsel for petitioner.

      Shri M.P.S. Raghuvanshi, learned Additional Advocate General

for respondent/State.

1. The present petition assails order Annexure P/1 dated

20.4.2021 passed by Collector/Mining Officer, Ashok Nagar

confiscating the vehicle bearing registration No.MP08-AB-1740

belonging to the petitioner involved in the offence of illegal

transportation of sand.

2. The case of the petitioner as projected by learned counsel for

petitioner is that for the aforesaid offence the petitioner has paid an

amount of Rs.10,000/- which is compounding fees under Rule 20 (2)

of Madhya Pradesh Sand (Mining, Transportation, Storage and

Trading Rule, 2019 (for brevity "2019 Sand Rules") pursuant to

which the offence stood compounded and the case stood closed

which is evident from Annexure P/4 dated 18.1.2021.

3. It is further submitted that respondent-Collector has no

authority in law to confiscate the vehicle involved in illegal

transportation of sand as no such power is conferred on Collector

by 2019 Sand Rules.

4. The aforesaid question is no more res integra in view of the

decision of this Court in a bunch of petitions including

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

W.P.No.8613/2020 (Rajendra Singh Vs. State of M.P. and others).

The relevant extract of the common judgment passed in a bunch of

petitions including W.P.No.8613/2020 is as follows:

"11. Reverting to the factual matrix in the instant case and the question of law framed in para 4 (supra), it is seen that in all the cases at hand, the minor mineral involved is of sand and the offence is of illegal transportation of sand. The impugned orders challenged herein are all issued by the Collectors of the concerned districts by invoking Rule 53 of 1996 Rules, when the 2019 Sand Rules were in place.

11.1 Indisputably, the 1996 Rules so far as they relate to minor mineral of sand were repealed by the prevailing 2019 Sand Rules as is evident from the repealing clause Rule 27 which for ready reference and convenience is reproduced below:

"27. Repeal.- The provisions related to mineral sand contained in Madhya Pradesh Minor Mineral Rules, 1996, Madhya Pradesh (Prevention of Illegal mining, Transportation and Storage) Rules, 2006 and Madhya Pradesh Sand Rules, 2018 are repealed to the extent where it does not transgress to these rules."

11.2 It is pertinent to mention that the State does not dispute that the expression ".....does not....." found in the last line of Rule 27 is a typographical error for which the State has made a move to delete the said expression so as to bring the language employed in Rule 27 in conformity with the object behind the said Rule.

11.3 The said repealing provision in Rule 27 repeals the earlier 1996 Rules, 2006 Rules & 2018 Sand Rules to the extent these rules transgress the 2019 Sand Rules as regards the minor mineral of sand.

11.4 Whether the subject matter of confiscation

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

expressly available in the 1996 Rules can be borrowed and used in a case of mining offence registered under 2019 Sand Rules would depend upon the correct interpretation of expression "transgress" found in Rule 27 of 2019 Sand Rules.

(a) Expression "transgress" defined in different dictionaries of English language is as follows: Oxford Advanced Learner's Dictionary (New Eighth Edition):

Transgress /verb ~ sth (formal) to go beyond the limit of what is morally or legally acceptable. Collins Cobuild Advanced Illustrated Dictionary:

Transgress/ Verb-If someone transgresses, they break a moral law or a rule of behaviour. New Webster's Dictionary And Thesaurus: Transgress v.t. to overstep a limit; to violate law or commandment; v.i. to offend by violating a law; to sin.

Chambers 21st Century Dictionary (Revised Edition) :

Transgress/ Verb 1. to break, breach or violate (divine law, a rule, etc.) 2. to go beyond or overstep ( a limit or boundary).

(b) Meaning of "transgress" is to overstep the limit prescribed. The limit in the present case is the one which is prescribed by the 2019 Sand Rules which does not vest any power of confiscation in the hands of Competent Authority in cases of illegal transportation of sand. Therefore, to exercise the power of confiscation the Competent Authority will have to travel beyond the statutory limits of 2019 Sand Rules and borrow the said power from the repealed Rules i.e. 1996 Rules or the 2006 Rules or the 2018 Sand Rules. This crossing over into a territory foreign to the 2019 Sand Rules would squarely fall within the expression "transgression".

11.5 More so, the repealing clause u/R.27 of 2019 Sand Rules eclipses 1996 Rules, 2006 Rules

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

& 2018 Sand Rules qua minor mineral of sand and therefore an eclipsed provision is obviously not available to be borrowed. This Court thus agrees with the contention of learned counsel for the petitioners that after repealing 1996 Rules, 2006 Rules & 2018 Sand Rules, the Competent Authority under 2019 Sand Rules cannot assume upon itself the power of confiscation which is expressly not provided under 2019 Sand Rules. Doing so would lead to transgression of the statutory limits prescribed by 2019 Sand Rules and this course is expressly prohibited by the repealing clause u/R.27 of 2019 Sand Rules. 11.6 The other submission of learned counsel for the State that to ensure preservation of ecology which is in jeopardy due to rampant and indiscriminate mining, transportation and storage of sand, the repealing clause u/R.27 ought to be read down to permit the Competent Authority to exercise power of confiscation even in cases of illegal transportation of sand, does not impress this Court. It is too far-fetched an argument which if allowed would lead to vesting the Competent Authority with penal provisions of confiscation in the absence of any enabling provision under the 2019 Sand Rules qua cases of illegal transportation of sand. This obviously would result in an incongruous situation where the cases registered under the 2019 Sand Rules would be governed by procedure under the repealed 1996 Rules, 2006 Rules & 2018 Sand Rules.

11.7 More so, this Court further agrees with the submission of learned counsel for the petitioners that confiscation entails serious adverse consequences of penal nature, power in regard to which cannot be assumed by the Competent Authority by implication or reading down of a provision, unless such power is expressly provided in the relevant Statute.

12. Moreover, the 2019 Sand Rules is a special law and therefore takes precedence over the said two rules 1996 Rules & 2006 Rules which fall in the category of general law since both these rules

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

relate to all kinds of minor minerals whereas 2019 Sand Rules relate exclusively to minor mineral of sand.

13. Learned counsel for the petitioners have referred to various decisions which need not be gone into in view of the above discussion.

Conclusion:

14. Consequent upon the aforesaid, this Court has no manner of doubt that the orders of confiscation impugned in all the writ petitions passed by invoking repealed provisions of 1996 Rules are untenable in the eyes of law and therefore have to fall.

15. Consequently, the impugned orders in all the writ petitions under consideration are quashed.

15.1 If the petitioners are in possession of the vehicles in question then they shall retain the possession and if any security/surety had been furnished earlier for retaining the possession of vehicles then the same stands discharged. 15.2 In case, in any of these writ petitions, if the possession of the vehicle is with the respondents then the same shall be released forthwith in favour of the petitioners. However, release of vehicle shall remain subject to criminal case pending before the court of competent criminal jurisdiction."

5. The State in its return has not denied that the case in question

is of illegal transportation of the sand.

6. However, this Court had raised a query after perusing the

record as to how option was given to the petitioner-defaulter to

choose between payment of compounding fees of Rs.10,000/- or

penalty of Rs.25,000/-. This query was made in the light of absence

of such authority with the Collector to afford such option.

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

6.1 In this regard the reply of the State reveals that in absence of

any mandatory provisions for filing of application for compounding

by the defaulter, the said option was afforded to the petitioner.

6.2 In the considered opinion of this Court, the statue in Rule 20

(2) of 2019 Sand Rules do not confer any such power on the

Collector to afford such an option to the defaulter. For ready

reference and convenience Rule 20 along with the table is

reproduced below:

"20. Penalty and Compounding of cases of Illegal Mining.-

(1) On receipt of information about illegal mining, the Collector or Officer authorised for this purpose, shall seize mineral, vehicle, machine, tools etc. and case shall be submitted, before the Collector. During the pendency or before taking final decision of the registered case, if any application for compounding the case is received, the Collector may dispose of the case after applicant depositing an amount equal to 25 times of royalty of the excavated mineral. During this period, if application/consent is not received, Collector shall impose penalty, 50 times of the royalty of mineral excavated. On deposit of compounding amount or penalty amount, the seized mineral, vehicle, machines, tools, may be released: Provided that if penalty amount imposed is not deposited by the illegal extractor, then Collector or Officer authorised for this purpose may confiscate and auction the seized mineral, vehicle, machines and tools.

(2) Penalty and compounding of cases of illegal transportation- In case of registered cases of illegal transportation, transportation without valid e-tp and transportation with quantity more than the quantity entered in e-tp, the Collector may dispose off cases after deposit of compounding fees or amount of penalty by the illegal extractor, as under:-

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

No. Type of Transportation Transport with Transit Pass Vehicle without valid Transit but quantity is more than Pass quantity entered in Transit Pass

Compoundi Amount Compoundin Amount of ng Fees of g Fees Penalty Penalty

1. Tractor- 10,000/- 25,000/- 5,000/- 10,000/-

trolley 2 Two axle (6 25,000/- 50,000/- 10,000/- 20,000/-

wheeler vehicle) 3 Dumper 50,000/- 1,00,000 25,000/- 50,000/-

      (hydraulic 6                       /-
        wheeler
        vehicle)
 4       3 axle      1,00,000/-       2,00,000   50,000/-     1,00,000/-
      (10wheelerv                        /-
        ehicle)
 5     4-6 axle      2,00,000/-       4,00,000   1,00,000/-   2,00,000/-
      (More than                         /-
      10 wheeler
       vehicle)

Provided, compounding fees or amount of penalty in case of transportation of mineral by 4 wheeler vehicle (Matador, 407, 608 etc) carrying mineral more than the quantity of tractor- trolley, shall not be less than 1.5 times of the amount fixed for tractor-trolley.

(3) Compounding and Penalty in cases of Illegal Storage- The Collector, for disposal of registered cases of illegal storage of sand upon receipt of any application/consent from the date of registration of the case, during the pendency of the case or before taking the final decision, may compound the case after depositing amount equivalent to 25 times of royalty of the stored mineral. If during this period any application/consent is not received then the Collector may impose penalty of amount 50 times of the royalty of the mineral stored:

Provided, no such order shall be passed against the person interested, unless the opportunity of being heard is given to

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

him."

6.3 A bare perusal of Rule 20 (2) reveals that compounding fees

and penalty amount have been separately prescribed for the offence of

illegal transportation of sand without valid transit pass. Similarly for

the offence of illegal transportation of sand with transit pass but

quantity being more than quantity entered in transit pass,

compounding fees and amount of penalty have been prescribed.

The quantum of compounding fees and penalty varies in ascending

order depending upon size of the vehicle transporting the sand.

6.4 As and when case of illegal transportation of the sand is

registered, the Collector is authorised to dispose of the case and close

the same by charging compounding fees provided the defaulter

applies and expresses readiness to compound the offence, failing

which the Collector is obliged to impose penalty as prescribed in the

table and thereafter close the case.

6.5 Thus, the law does not contemplate the Collector to afford any

option to the defaulter to choose between compounding fees or

penalty. Rule 20 (2) makes the process of compounding bilateral,

since compounding can be done by Collector only when defaulter

expresses readiness & willingness to compound. However, the

process of imposing penalty is unilateral, where Collector alone

imposes penalty on failure of defaulter to compound the offence.

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

The grant of option to the defaulter to choose between

compounding fees and penalty would be going against the objective

of the Rule as the defaulter would invariably choose the lesser

amount thereby depriving the Collector to impose penalty.

Pertinently the Collector is not vested with the power of

compounding by charging the compounding fees and also of

imposing penalty. Since these powers are statutorily provided to be

exercised alternatively and not concurrently which is palpable from

the use of expression "or" between the expression "compounding

fees" and "amount of penalty" in Rule 20 (2) of 2019 Sand Rules.

7. In view of aforesaid discussion, impugned order of

Collector/Mining Officer, Ashoknagar Annexure P/1 dated

20.4.2021 confiscating the vehicle involved in illegal transportation

of sand bearing registration No.MP08-AB-1740 is set aside.

8. If the petitioner is in possession of the vehicle in question then

he shall retain the possession and if any security/surety had been

furnished earlier for retaining the possession of vehicles then the

same stands discharged.

9. In case, if the possession of the vehicle is with the respondent

then the same shall be released forthwith in favour of the petitioner.

However, release of vehicle shall remain subject to criminal case

pending before the court of competent criminal jurisdiction.

THE HIGH COURT OF MADHYA PRADESH W.P.No.9664/2021 (Indrapal Singh Yadav Vs. State of M.P. and others)

10. The Collector, District Ashoknagar is directed to ensure that

amount of penalty as contended by the petitioner has been paid by

him.

11. No cost.

E-copy/Certified copy as per rules/directions.

                   (Sheel Nagu)                     (Deepak Kumar Agarwal)
                     Judge                                  Judge
                   05/10/2021                           05/10/2021
Pawar*
    ASHISH PAWAR
    2021.10.05
    18:44:27
    +05'30'