2019 Supreme(MP) 283

IN HIGH COURT OF MADHYA PRADESH AT JABALPUR
S.K. SETH, R.S. JHA, NANDITA DUBEY, RAJEEV KUMAR DUBEY, SANJAY DWIVEDI, JJ.
Rajkumar Sahu - Appellant
Versus
State Of M.P and others - Respondents
Writ Petition No.20831 of 2018
Decided On : 28-03-2019

The discretion vested in the competent authority under Rule 53(2) and 53(3) of the M.P. Minor Mineral Rules, 1996, is not unguided, uncontrolled or unfettered.

Headnote:

MINES AND MINERALS - M.P. Minor Mineral Rules, 1996 - Rule 53 - Forfeiture of minerals in cases of illegal extraction and transportation - Forfeiture/discharge of the seized machines, tools and vehicles - Discretion of the Competent Authority - Whether the discretion is unguided, uncontrolled and unfettered - Whether the Full Bench of the High Court was right in restricting the exercise of powers of forfeiture under Rule 53(2) and 53(3) to only those cases where penalty in terms of Rule 53(1) is not paid - Whether the Full Bench was right in interpreting the provisions of Rule 53, to hold that “it is only when default in terms of sub-rule 1 of Rule 53 is not paid; the question of forfeiture will arise. Such process alone will save sub-rule (2) of Rule 53 from the vice of discrimination and arbitrariness. Therefore, in question no.5 it is held that without giving an opportunity to the violator to pay penalty in terms of sub rule (1) of Rule 53 of the Rules of 1996, the forfeiture cannot be resorted to. Similarly, in the light of the discussion in respect of question no.5, the forfeiture of seized tools, machines and vehicle etc. in terms of clause (a) of sub rule (3) of Rule 53 can be resorted to only when penalty in terms of sub rule (1) of Rule 53 is not paid.” - Held, no.

Fact of the Case:

The Full Bench of the High Court had held that the complete discretion to forfeit in one case and to impose penalty in another case in the absence of any guidelines suffers from the vice of arbitrariness, and, therefore, it is necessary to restrict the exercise of powers of forfeiture under Rule 53(2) and 53(3) to only those cases where penalty in terms of Rule 53(1) is not paid.

Finding of the Court:

The Larger Bench of the High Court held that the discretion vested in the competent authority under Rule 53(2) and 53(3) can be said to be totally unguided and uncontrolled inspite of the fact that the order passed by the competent authority under the aforesaid Rules is subject to scrutiny in appeal by a higher authority under Rule 57 of the Rules of 1996, and further revision by the State Government under Rule 58 of the Rules of 1996. The power to take an appropriate decision vested in the competent authority under Rule 53(2) and 53(3) regarding forfeiture and discharge, is totally unguided, unfettered and absolute.

Issues: 1. Whether the decision of the Division Bench of this Court in the case of Ram Kumar Sahu vs. State of M.P., 2018 (4) MPLJ 171, upholding the constitutional validity of Rule 53 of the M.P. Minor Mineral Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’), as inserted and amended by notification dated 18.5.2017, still remains good law or stands impliedly over-ruled by the Full Bench decision in the case of Nitesh Rathore (supra)? 2. Whether conferral of discretion upon the competent authority to pass orders of forfeiture or discharge under Rule 53(2) and 53(3) is perse violative of Article 14 of the Constitution of India, and, therefore, it is necessary to restrict the same by issuing guidelines to save it from the vice of arbitrariness as has been done by the Full Bench in the case of Nitesh Rathore (supra)? 3. Whether the discretion vested in the competent authority under Rule 53(2) and 53(3) can be said to be totally unguided and uncontrolled inspite of the fact that the order passed by the competent authority under the aforesaid Rules is subject to scrutiny in appeal by a higher authority under Rule 57 of the Rules of 1996, and further revision by the State Government under Rule 58 of the Rules of 1996? 4. Whether the power to take an appropriate decision vested in the competent authority under Rule 53(2) and 53(3) regarding forfeiture and discharge, is totally unguided, unfettered and absolute? 5. Whether the Full Bench of this Court in the case of Nitesh Rathore (supra), after recording a finding that the complete discretion to forfeit in one case and to impose penalty in another case in the absence of any guidelines suffers from the vice of arbitrariness, has rightly restricted the exercise of powers of forfeiture under Rule 53(2) and 53(3) to only those cases where penalty in terms of Rule 53(1) is not paid? 6. Whether the Full Bench in the case of Nitesh Rathore (supra) has rightly interpreted the provisions of Rule 53, to hold that “it is only when default in terms of sub-rule 1 of Rule 53 is not paid; the question of forfeiture will arise. Such process alone will save sub-rule (2) of Rule 53 from the vice of discrimination and arbitrariness. Therefore, in question no.5 it is held that without giving an opportunity to the violator to pay penalty in terms of sub rule (1) of Rule 53 of the Rules of 1996, the forfeiture cannot be resorted to. Similarly, in the light of the discussion in respect of question no.5, the forfeiture of seized tools, machines and vehicle etc. in terms of clause (a) of sub rule (3) of Rule 53 can be resorted to only when penalty in terms of sub rule (1) of Rule 53 is not paid.” 7. Whether in view of the only exceptions carved out and specifically mentioned in the proviso to Rule 53(3)(b) and Rule 53(6) regarding confiscation, providing for and laying down guidelines and reading something more into the provisions of Rule 52(2) and 52(3) as has been done by the Full Bench in the case of Nitesh Rathore (supra) is justified. In other words, whether reading something more into the Rules is permissible when its language is otherwise clear and unambiguous? 8. Whether the conclusion recorded by the Full Bench in the case of Nitesh Rathore (supra) relating to Rule 53(3)(b) and the proviso to the effect that “in respect of a vehicle carrying mineral extracted/transported without any transit pass, the violator can offer to pay penalty in terms of sub-rule (1) for the defaults three times but it is only in the case of default at the fourth time, the vehicle would be liable to be forfeited. Therefore, in the case of vehicles, transporting or extracting mineral without any transit pass, the forfeiture can be ordered after three defaults whereas, in case of other situations, the forfeiture can be ordered after four defaults, finds any basis in Rule 53 or infact runs contrary to its clear and unambiguous language?

Ratio Decidendi: The power of forfeiture/confiscation can be exercised by the competent authority as and when it takes an appropriate decision in this regard under Rule 53(2) or 53(3) irrespective of the fact that the contravention is made by the defaulter for the first time. In other words, the power of forfeiture vested in the competent authority under Rules 52(2) and 52(3) can be exercised in isolation, simultaneously or collectively with the power to impose penalty and would not depend upon payment of penalty by the offender and that even in cases where the offender pays the penalty imposed upon him under Rule 53(1) the competent authority has the power and would be competent to pass orders of forfeiture and that the said power is not circumscribed by the provision of or the fact of payment of penalty.

Final Decision: The conclusion recorded in respect of issue nos.5 & 6 by the Full Bench in the case of Nitesh Rathore (supra) is overruled and modified in terms of the orders passed by this Larger Bench.