SURENDRA KUMAR SHIVHARE Vs. STATE OF M P
HIGH COURT OF MADHYA PRADESH (AT: GWALIOR)
Surendra Kumar Shivhare
STATE OF M P
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Sheel Nagu,J. -
(1.) The instant petition filed u/Art.226 of the Constitution assails Annexure-P/1 dated 27/7/2020 passed by respondent No.2- Collector, Guna by which while exercising power u/Rule 20(2) of M.P. Sand (Mining, Transportation Storage and Trading) Rule, 2019 (for brevity 2019 Rules ), respondent No.2 confiscated the seized vehicle (Truck bearing registration No.MP33-H-1610) and minerals of petitioner and also imposed penalty of Rs. 50,000/-for having indulged in illegal mining and transportation of sand.
(2.) Briefly stated facts of the case are that petitioner is the registered owner of the vehicle in question which was seized in connection with illegal mining and transportation of dust of Gitti (boulders) on 21/7/2020 and offence was registered u/Ss. 379, 414 IPC & Ss. 4(A), 21 (1) of the Mines & Minerals (Development and Regulation) Act, 1957.
(3.) Following two questions arise in this case for consideration of this court:-
(i) Despite availability of alternative remedy of appeal u/R.22 of 2019 Rules, should this court in exercise of writ jurisdiction entertain/decide the legality and validity of impugned order P/1 dated 27/7/2020 passed by respondent No.2-Collector Guna inflicting penalty of Rs.50,000/- against petitioner without affording reasonable opportunity of being heard by issuance of show-cause notice by passing of impugned order or not?
(ii) Other ancillary question which arises is about interpretation of R.20 of 2019 Rules in particular the proviso placed at the end of sub-rule (3) of R.20 in as much as to whether this proviso relates exclusively to R.20(3) or it also relates to R.20(2) of 2019 Rules ?
3.1 It would be appropriate to reproduce R.20 of 2019 Rules in toto for answering the aforesaid two questions which is as follows:-
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:-
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 him.
3.2 It is not disputed at the bar by counsel for the rival parties that prior to issuance of impugned order, the Competent Authority i.e. Collector, Guna, while exercising his power u/R.20(2) of 2019 Rules did not issue any show-cause notice to petitioner.
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