Santosh Singh vs State of M.P. and Others

Sujoy Paul, J.—These petitions are similar in nature and, accordingly, on the joint request of the parties, are taken up analogously and decided by this common order.

The facts are taken from Writ Petition No. 5378/2013.

In this petition filed under Article 226 of the Constitution, the petitioner has called in question the legality of order dated 9.7.2013 (Annexure P/9) passed by the Collector/respondent No. 2. By this order, the petitioner''s truck is seized under rule 53 of Madhya Pradesh Minor Mineral Rules, 1996 (hereinafter called as "1996 Rules"). In addition, a fine of Rs. 5.00 lacs is imposed on the petitioner.

Shri Arvind Dudawat, learned counsel for the petitioner submits that the entire proceedings under 1996 rules are bad in law. In fact, the petitioner''s truck was standing on a "Dhaba" and not on river bank as mentioned in the order (Annexure P/9). It is contended that a loaded truck requires 4-5 hours to release 30 cubic meter sand stored in it. To elaborate, it is submitted that by the impugned order, Annexure P/9, it is stated that during alleged inspection 30 cubic meter sand was found in the truck and the truck driver released the sand and left the place and truck. He submits that it is practically impossible to release the said amount of sand within a short span of time and, therefore, the whole story is without any basis. In addition, he submits that notice has not been served and before service of notice imposition of fine is impermissible. By placing reliance on rule 53(5) of 1996, it is contended that since the petitioner was not noticed and did not appear before the Collector, there was no occasion for him to admit his guilt and, therefore, by no stretch of imagination, the provision with regard to compounding the offence, as mentioned in rule 53(5), can be invoked. It is further contended that the petitioner was only supplied with Annexure P/9 initially and later notices and documents filed with the return are prepared later on as after thought. Lastly, by placing reliance on Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, it is contended that petitioner''s only source of livelihood is his truck business. He is required to repay the loan/EMI for the said truck and in these circumstances, he should not be relegated to avail the alternative remedy.

Per Contra, Shri Praveen Newaskar, learned Deputy Government Advocate submits that it is incorrect to submit that the vehicle was not at the place where it is mentioned in Annexure P/9. He submits that the administration has recorded the entire episode of seizure by way of video recording and the said recording shows that the allegations of the petitioner are factually incorrect. He further submits that the order is appealable and, there is no infirmity in the order. He submits that the notices are actually served on the petitioner. He also relied on the order passed by this Court in Writ Petition No. 7611/2012 (Rajesh Sharma vs. State of MP and another), which was affirmed by the Division Bench.

I have heard learned counsel for the parties and perused the record.

This is not in dispute between the parties that there exists a statutory alternative remedy under rule 57(2) of 1996 Rules. The said provision reads as under:-

Appeal, Review and Revision.--(1) xxx

(2) Where any power is exercisable by the Collector/Additional Collector under these rules, in relation to any matter an appeal lie, from every order passed or deemed to have been passed under these rules to the Director.

Thus, the basic question is whether this petition should be entertained or else the petitioner should be relegated to avail the alternative remedy.

There cannot be two opinions on the principle laid down in Rajesh Sharma (supra). However, a minute reading of this judgment and subsequent judgments on this point delivered by Supreme Court will make it clear that the question of entertaining a writ petition despite availability of alternative remedy is a matter of policy and discretion. The writ Court can entertain a writ petition despite availability of alternative remedy. This is a matter of discretion and not of compulsion. It is noticeable that in the present case the competence of the Collector, who has proceeded against the petitioner and passed Annexure P/9, is not under challenge. It is alleged that the principles of natural justice are violated. However, on this point also there is a dispute between the parties. The petitioner submits that notices have not been served whereas the respondents submit that the notices were served. Whether or not, the petitioner''s truck was engaged in illegal mining of sand, is also a disputed question of fact. Since the competence of Collector is not in question, in the considered opinion of this Court, the appellate authority under rule 57(2) of 1996 Rules is best suited to address the points raised by the petitioner.

The petitioner has not shown any reason if he is relegated to avail the alternative remedy under the Statute, it will cause any prejudice to him. Putting it differently, if the petitioner is directed to avail the appellate remedy and this petition is not entertained, it is not established that it will cause any palpable injustice to the petitioner. It is apt to quote the judgment of Supreme Court in this regard as under:-

U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another,

Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.

(Emphasis added)

As per the judgment in R.S. Pandey (supra), it is clear that the Apex Court in specific words have stated that the High Court should not entertain the writ petitions unless it is shown that the order is passed by an officer, who had no jurisdiction and relegating to avail an alternative remedy will cause injustice.

Apart from this, this Court in Rajesh Sharma (supra) passed the order dated 17.12.2012. The petition challenging an order which was appealable under rule 53 of 1996 Rules was not entertained by reserving liberty to avail the appellate remedy. The Division Bench in Writ Appeal No. 21/2013 did not entertain the appeal and affirmed the order passed by this Court.

Considering the aforesaid, in my opinion, the petitioner must be relegated to avail the alternative remedy under 1996 Rules. Hence, these petitions are not entertained by reserving the aforesaid liberty to the petitioners. It is made clear that this Court has not expressed any opinion on the merits of the case.