Kamlesh Kumar vs State Of Madhya Pradesh & Others

Heard on the question of admission.

This petition has been filed by the petitioner being aggrieved by order dated 20.07.2018 passed by the appellate authority under the provisions of Rule

57(2) of the Madhya Pradesh Minor Mineral Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’) upholding and affirming the order

passed by the Collector, Panna dated 15.11.2017 passed under the provisions of Rule 53 of the Rules of 1996, confiscating Tata Hitachi X-200 LC

JCB Machine which was being used for undertaking illegal mining of sand and extracting the sand from the river in Tahsil Ajaygarh, District Panna.

The learned counsel appearing for the petitioner submits that the order of confiscation passed by the Collector as well as the order passed by the

appellate authority are contrary to law, inasmuch as the authorities have confiscated the vehicle/machine on the first instance of violation instead of

resorting to imposition of penalty as has been held by the Full Bench of this Court in the case of Nitesh Rathore and another vs. State of M.P. and

others, reported in 2018(4) MPLJ 193. He further submits that the authorities should have first resorted to the provisions of Rule 53(6) of the Rules of

1996, for permitting the petitioner to compound the offence rather than going for the confiscation proceedings.

It is also submitted that the orders have been passed by the Collector as well as by the appellate authority without giving any opportunity of hearing to

the petitioner. It is submitted that the petitioner is a resident of Uttar Pradesh and the authorities have made publication of the notice of the

proceedings in the local newspapers at Panna as a result of which the petitioner had no information or knowledge about the proceedings. The learned

counsel for the petitioner submits that as the impugned orders have been passed without giving any opportunity of hearing to the petitioner, therefore,

the same be set aside.

We have heard the learned counsel for the parties at length.

As far as the issue raised by the petitioner regarding imposition of fine instead of confiscating the vehicle/machine on the strength of the decision of

the Full Bench of this Court in the case of Nitesh Rathore (supra) is concerned, the same is meritless in view of the subsequent decision of the Larger

Bench of this Court rendered in the case of Rajkumar Sahu vs. State of M.P. (W.P.No.20831/2018) whereby the conclusion recorded by the Full

Bench in the case of Nitesh Rathore (supra) in respect of issue Nos. 5 & 6 have been overruled and it has been held that the authorities have the

powers to order confiscation at the first instance itself and are not bound to impose penalty and that the powers of confiscation can be exercised

independently or simultaneously alongwith the proceedings for penalty.

The submission of the petitioner regarding giving an opportunity for compounding the offence is also without merit in view of the decision of the Full

Bench in the case of Nitesh Rathore (supra) wherein it has been stated and held that the facility and benefit given under Rule 53(6) of the Rules of

1996, for compounding the offence can be availed of, before the proceedings commence before the authority. Apparently, in the instant case, the

petitioner has not approached the authorities by filing any such application for compounding at the first instance and, therefore, the facility of

compounding, as claimed by the petitioner, is also not available to him in view of the law laid down by the Full Bench of this Court in the case of

Nitesh Rathore (supra).

As far as the contention of the petitioner regarding denial of opportunity of hearing is concerned, it is observed that the machine/vehicle was seized on

14.06.2017, while it was being utilized and used for unauthorized extraction of sand from the river. According to the case set up by the respondents

and not disputed by the petitioner, the driver ran away from the spot leaving the machine/vehicle as it is and thereafter the authorities got a notice

published in the local newspaper on 18.10.2017 giving 15 days’ time to anybody concerned or interested in filing or submitting a response, but

nobody approached the authorities. Apparently, as nobody was traceable from 14.06.2017 for a long period of more than four months, the authorities

had no option but to proceed with the matter and passed the orders. The time interval between the date of seizure of the machine and the date of

passing of the order by the Collector i.e. 15.11.2017 indicates that even if the petitioner was unaware of the proceedings, he did not bother to find out

about the whereabouts of his vehicle/machine for a long period of nearly six months, which is hard to believe and is an unacceptable fact on the

contrary a presumption to the contrary arises. In the circumstances, the Collector has rightly proceeded against the petitioner after getting the notice

published in the local newspaper and that the appellate authority, in such circumstances, has justifiably held that the authorities had given sufficient

opportunity to the petitioner to appear and defend his case, but he did not choose to do so.

In the facts and circumstances of the case, we do not find any illegality or perversity in the orders passed by the authorities. We are also of the

considered opinion that the authority concerned took all possible steps for granting due and proper opportunity of hearing not just to the petitioner, but

to anybody concerned and, therefore, there is no violation of the provisions of the Rules of 1996 or the principles of natural justice in the present case.

The petition filed by the petitioner being meritless is, accordingly, dismissed.