Gopal Ganwa vs Mines And Geology Department

In this writ petition under Article 226 Constitution of India, the petitioner is challenging the order dated 26.05.2018 passed by the appellate authority in

order dated 12.02.2018 passed by District Collector, Alirajpur, whereby the learned authority has found that the petitioner was illegally transporting

sand in their vehicle without any authority or without any valid transpiration.Â

During inspection, the vehicle was seized and after show cause notice, action was initiated under Rule 53 of M.P. Minor Mineral Rules, 1996 and

after considering the reply filed by the petitioner the final order has been by the Collector, Alirajpur. The appellate authority affirmed the order of

Collector and dismissed the appeal.

Learned counsel for the petitioner has submitted that the learned authority has passed the order in violation of Rule 53 of M.P. Minor Mineral

Rules, 1996 . He further submitted that at the time of initiation of proceedings the request was made by the petitioner for compounding the offence

which has not been considered by the authority. In support of his contention he has drawn our attention Annexure P-5.

The issue involved in this writ petition has already been considered by this Bench and passed the detailed order in W.P.No.120071/2018 dated

25.07.2018 which reads as under:-

“2. By this writ petition under Article 226 of the Constitution of India, the petitioner is challenging the order dated 28.02.2018 (Annexure-P/1)

passed by the Appellate Authority (Director of Geology and Mining, Government of M.P.) and order of Collector, Dewas dated 13.07.2017

(Annexure-P/2) by which the learned Authority initiated the proceedings under Section 53 of M.P. Minor Mineral Rules, 1996 and passed an order for

confiscation of the vehicle.

Learned counsel for the petitioner has drawn our attention toRule 53 sub-Rule 6 of M.P. Minor Mineral Rules, 1996, which was amended on

18.05.2017 and submitted that during pendency of the appeal before the Director of Geology and Mining, he exercised his right to pay the penalty in

lieu of confiscation as per Clause (a) of Sub-rule 6 of Rule 53 of M.P. Minor Mineral Rules, 1996 but the learned Authority, though admitted the

aforesaid fact but dismissed the appeal and affirmed the order passed by the Collector on 13.07.2017. He further submitted that if there was first

violation then at the most the Competent Authority may ask for 25 time of royalty of unlawfully excavated / transported minerals or rupees 10,000/-

whichever is more.

In the present case on 24.06.2017, when petitioner wastransporting the Sand in his Tractor â€" Trolley bearing registration No.MP-41-AB-2357, his

vehicle was intercepted and during inspection, it was found that he is not having any valid transit pass to transport the Sand.

Considering the aforesaid, after issuing show cause notice andafter granting opportunity to the petitioner, order dated 13.07.2017 has been passed

by the Collector, which has been affirmed by the Appellate Authority.

The only contention advanced by the learned Counsel for thepetitioner is that he is ready to pay compounding charges/penalty as per Rule 53(6)(a)

of M.P. Minor Mineral Rules, 1996 and submitted that impugned orders be set aside and matter be remitted to the Collector, Dewas for taking

appropriate action, in accordance with the aforesaid provisions. To support the aforesaid, he has drawn our attention to the order dated 03.05.2018

passed by this Court in the case of Arjun Singh Versus Mineral Resources Department and others, relevant part of the order reads as under:-

Learned counsel for the petitioner has drawn our attention to the order dated 26.02.2018 (Shivshankar Vs. State of Madhya Pradesh & Others)

passed in M.P.No.874/2018 and submitted that in view of the Rule 53 of the M.P. Minor Mineral Rules, 1996 (hereinafter referred to as “Rulesâ€)

the request of the petitioner for compounding has to be considered by the learned authorities and in case if petitioner in respect of first time

contravention, penalty of minimum 30 times of a royalty of illegal extracted/transported minerals shall be imposed but it shall not be less than

Rs.10,000/-. The said reads as under:

“ The challenge in the present petition is to an order passed by the Collector on 18.09.2017, whereby the request of the petitioner for compounding

was not considered and the vehicle was confiscated. An appeal against the said order was dismissed on 15.01.2018.

The argument of the learned counsel for the petitioner is that the vehicle was seized on the ground that it is involved in illegal extraction of minor

mineral, but in the case of first default, only penalty can be imposed in terms of Rule 53 of the M.P.Minor Mineral Rules, 1996 (hereinafter referred to

asâ€​Rules) and confiscation of the vehicle is not contemplated in terms of the said Rule.

Mr. Amit Seth, learned counsel for the State,refers to the stand filed in the return that the request for compounding to be accepted or not is the

discretion of the authority. Though the authority was obliged to assign reasons for exercising the discretion, but no such reason has been assigned in

the order passed on 18.09.2017.Â

In view of Rule 53 of the Rules, the request of the petitioner for compounding has not been considered admittedly by the Collector in the order passed.

Therefore, we set aside the order passed by the Collector and by the Commissioner in appeal, and direct the Collector to pass fresh orders after

considering the request of the petitioner for compounding the offence. Necessary orders be passed within two weeks,as the vehicle is in custody of

the State for the last more than six months.

Accordingly, the petition stands disposed of.â€​

Learned Government Advocate for the respondents State has raised a preliminary objection regarding maintainability of the writ petition on the

ground that statutory remedy of revision is provided before the State Government under Rule 58 of M.P. Minor Mineral Rules, 1996 and, therefore,

the present writ petition is not maintainable.

In the present case, the order has been passed inviolation of Sub-rule 6 of Rule 53 of M.P. Minor Mineral Rules, 1996 and, therefore, there is no

bar in entertaining the writ petition.

He further submitted that in identical matters, theDivision Bench of Principal Seat of this Court affirmed the order and dismissed the writ petition.

In reply, learned counsel for the petitioner hassubmitted that in subsequent matter while entertaining the writ petition, an interim order has been

passed directing the respondents to release the vehicle by which compounding was permitted.

On due consideration of the aforesaid so also theamended provision of Rule 53 of M.P. Minor Mineral Rules, 1996, we quash the impugned orders

dated 28.02.2018 and 13.07.2017 and direct the Collector to pass fresh order after considering the request of petitioner for compounding the offence

within a period of thirty days (30 days) from the date of receipt of certified copy of this order.

Accordingly, writ petition is allowed and disposed of.

In view of the aforesaid, so also the fact that the provisions of Rule 53 of M.P. Minor Mineral Rules, 1996Â is very clear, in case, the petitionerÂ

prays for compound the offence, then the learned authority has to compounding the offence, and if petitioner fails to pay the compounding fees of the

penalty, then an action can be initiated by the authority against the petitioner for confiscation of the vehicle.

With the aforesaid, the writ petition is disposed of.