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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
M/s. Mahadev Enclave Pvt. Ltd. - Appellant
Versus
The State of Bihar – Respondent
Criminal Writ Jurisdiction Case No.2267, 2282, 2288 of 2018
Decided on : 27-02-2019
Mines and Minerals (Development and Regulation) Act, 1957 – Section 22 – Bihar Minor Mineral Concession Rules, 1972 – Rule 40 – Environment (Protection) Act, 1986 – Sections 15 and 19 – Allegation in all FIRs is that petitioner being settlee of sand Ghats was carrying on mining activities in violation of conditions of mining plan and environment clearance – Quashing petition – Petitioner is a settlee – Its mining activities were being conducted under valid lease – Unless a person is charged for contravening provisions of sub-section (1) or (1-A) of Section 4 of MMDR Act, 1957, he cannot be prosecuted for any cognizable offence under MMDR Act, 1957 – There is no allegation that petitioner was carrying mining activities without a valid lease – Under Section 22 of MMDR Act, 1957 there is an express bar on court to take cognizance of any offence punishable under said Act or any rule made thereunder except upon a complaint in writing made by a person authorized in that behalf by Central Government or State Government – Even if sub-section (6) of Section 21 of MMDR Act, 1957 makes an offence committed under sub-section (1) cognizable, cognizance of offence cannot be taken on a police report submitted under Section 173(2) Cr.P.C. – Neither under MMDR Act, 1957 nor under 1972 rules cognizance of any offence committed under said Act or Rules can be taken on the basis of a police report under Section 173 (2) of Cr.P.C. – Similarly, In view of restrictions imposed on court to take cognizance of any offence except upon a complaint made by Central Government or any authority or officer authorized or any person who has given notice of not less than sixty days under Section 19 of 1986 Act, institution of FIRs, in question, under Section 15 of 1986 Act, is patently bad in law – In any case where mining activities were being carried out in violation of mining plan or environmental laws, prosecution could have been launched only by way of filing complaint in accordance with law and not otherwise – In a case instituted before police under Section 154 of Cr.P.C., Magistrate cannot take cognizance of offence – FIRs quashed. (Paras 9, 25, 26, 27, 28, 30, 33, 34, 42 and 43)
Criminal Procedure Code, 1973 – Section 4(2) – Provisions prescribed under Special Statute shall prevail over provisions of Cr.P.C. – If a Special Statute lays down procedure, procedure laid down under general statute shall not be followed. (Paras 35 and 36)
Criminal Procedure Code, 1973 – Section 173(2) – A police report cannot be treated as a complaint – Since a complaint does not include police report, filing of police report pursuant to completion of investigation into FIRs, in question, would be an exercise in futility. (Paras 40 and 41)
JUDGMENT :
Heard Mr. Gautam Kumar Kejriwal, learned counsel for the petitioner, Mr. Gyan Prakash Ojha, learned counsel for the State and Ms. Kalpana, learned counsel for the Department of Mines.
2. The petitioner is a company incorporated under the Indian Companies Act.
3. The respondent Department of Mines and Geology, Government of Bihar vide notification dated 2887 dated 22.07.2014 expressed its decision to invite tenders for settlement of sand ghats located in different districts of the State of Bihar for the period 2015-2019, which included the sand ghats in Nalanda district as well. The petitioner participated in the tender and having made highest bid in the auction was declared successful bidder for settlement of sand ghats of Nalanda district for the period 01.01.2015 to 31.12.2019. A mining lease deed was executed in Form ‘O’ by the respondent Department of Mines and Geology for the year 2015-2016 and 2017-2018. A team consisting of some officers from the district inspected the mining sites settled in favour of the petitioner. In view of the irregularities found in course of inspection, on the basis of written reports submitted by one Reyazul Haque, Inspector of Mines, three first information reports (for short ‘FIRs’), vide Manpur P.S. Case No.25 of 2018, Asthawan P.S. Case No.31 of 2018 and Sare P.S. Case No.14 of 2018 were registered against the petitioner on 21.02.2018 under Section 15 of the Environment (Protection) Act, 1986 (for short ‘1986 Act’) and the Rule 40 of the Bihar Minor Mineral Concession Rules, 1972 (for short ‘1972 rules’)
4. Cr.W.J.C No. 2267 of 2018 has been filed by the petitioner for quashing the FIR of Manpur P.S. Case No. 25 of 2018, Cr.W.J.C No. 2288 of 2018 has been filed by the petitioner for quashing the FIR of Sare P.S. Case No.14 of 2018 and Cr.W.J.C No. 2282 of 2018 has been filed by the petitioner for quashing the FIR of Asthawan P.S. Case No.31 of 2018.
5. Since the petitioner and the respondents are common in all the cases and the essential facts and law involved are also identical, the writ petitions have been heard together and are being disposed of by a common order.
6. In Manpur P.S. Case No.25 of 2018, it has been alleged by the informant in his written report that in course of inspection of site of Tetrama sand ghat conducted by the inspecting team on 20.02.2018, it was noticed that mining activities were being carried out in violation of conditions of mining plan and environment clearance.
7. In Sare P.S. Case No.14 of 2018, the informant has alleged that in course of inspection of site of Maulanabigha sand ghat conducted by the inspecting team on 21.02.2018 it was found that the mining activities were being carried out in violation of conditions of mining plan and environment clearance.
8. In Asthawan P.S. Case No.31 of 2018, the informant has alleged that in course of inspection of site of Jier sand ghat conducted by the inspecting team on 21.02.2018 it was found that the mining activities were being carried out in violation of conditions of mining plan and environment clearance.
9. Thus, basically the allegation in all the FIRs is that the petitioner being settlee of the aforesaid sand ghats was carrying on mining activities in violation of conditions of mining plan and environment clearance.
10. Mr. Gautam Kumar Kejriwal, learned counsel for the petitioner has contended that in view of Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short MMDR Act, 1957) since cognizance can be taken by a competent authority only on a private complaint preferred by a person authorized by the Central/State Government, the provision of the Code of Criminal Procedure (for short ‘Cr.P.C.’) stands excluded and, therefore, an FIR cannot be registered by the police. According to him, there is no provision under the MMDR Act, 1957 or the 1972 rules conferring any power upon the police authority to investigate any case.
11. Mr. Kejriwal has submitted that similarly Section 19
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