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HIGH COURT OF MADHYA PRADESH
S. K. Seth, CJ, R. S. Jha, Smt. Nandita Dubey, Rajeev Kumar Dubey and Sanjay Dwivedi, JJ.
Rajkumar Sahu v. State of M.P. and others
Writ Petition No. 20831 of 2018 and others (Jabalpur); Decided on 18.3.2019.
(1) Minor Mineral Rules, 1996 (M. P.) -- R. 53 (as inserted and amended by notification dated 18.5.2017) -- proceedings for imposition of penalty and confiscation -- are validly enacted -- not in conflict with, but are in addition to and are apart from the provisions of criminal prosecution and punishment of offender indulging in illegal extraction or transportation of mineral as contemplated and provided under IPC, Forest Act, Wild Life (Protection) Act, M. P. Van Upaj (Vyapar Viniyaman) Adhiniyam, M. P. Land Revenue Code, or any other statutory provisions that provide for penalty and forfeiture in such cases. (2014) 9 SCC 772, (2016) 3 SCC 183, (1985) 4 SCC 573, (2002) 1 SCC 495, (2004) 4 SCC 448 and (2017) 14 SCC 502 followed. AIR 1995 MP 1 relied on. 2018 (4) MPLJ 771 affirmed. 2018 (3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) 2018 MPLJ Online 6 referred to. [Paras 8 to 11
(2) Minor Mineral Rules, 1996 (M. P.) -- R. (2) and 53 (3) (as inserted and amended by notification dated 18.5.2017) -- Constitution of India -- Art. 14 -- discretion to pass orders of forfeiture or discharge -- whether per se violative of Art. 14 of the Constitution -- mere possibility of abuse and arbitrary exercise of discretion vested in an authority cannot be a ground to invalidate it -- where discretion is vested in an authority, no assumption or presumption can be drawn that it would be exercised arbitrarily or discriminately -- more so as action taken by the authority in exercise of discretion can be assailed and subjected to judicial review -- provisions conferring discretion cannot be found fault with. 2018(3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) overruled. AIR 1986 SC 1323, 1989 Supp. SCC 744, (2006) 8 SCC 613, In Re the Special Courts Bill, 1978 (1979) 1 SCC 380 and (2016) 5 SCC 1 followed. [Para 19
(3) Minor Mineral Rules, 1996 (M. P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017), 57 and 58 -- exercise of discretionary powers conferred upon competent authority under R.53 (2) and 53(3) -- is subject to appeal and revision under Rr. 57 and 58 -- cannot be held to be unguided, uncontrolled or discriminatory. AIR 1956 SC 676, (1974) 4 SCC 43, AIR 1960 SC 424 and (2014) 4 SCC 329 followed. 2018 (3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) overruled. [Para 23
(4) Minor Mineral Rules, 1996 (M. P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017) -- deposit of penalty before permitting discharge -- pre-condition of deposit relates to and applies only to those cases where authority takes a decision to discharge seized goods, vehicle, material, etc. and does not apply to or relate to cases where an order of forfeiture is passed. 2018(3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) overruled. [Para 29
(5) Minor Mineral Rules, 1996 (M. P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017) -- "illegal mining", "illegal transportation", "necessary evidence", "opportunity of hearing", "determine" i.e. taking an "appropriate decision", "unauthorized extraction and transportation" -- are all terms having definite connotation and meaning -- no vagueness or confusion in the definitive meaning of these terms which emphatically guide and regulate exercise of discretion conferred upon competent authority while passing orders of forfeiture. (1994) 2 SCC 691 followed. [Para 31
(6) Minor Mineral Rules, 1996 (M. P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017) -- while taking decision to either forfeit or discharge, authority can also take into consideration all relevant factors like manner of commission of illegal extraction and transportation, number of times that violator has indulged in the same, value and type of minerals involved, its quantity, area or place from which illegal extraction or transportation is undertaken, provisions of Act and Rules defining illegal mining and illegal transportation, violation of other statutory provisions
-- this list is only illustrative and not exhaustive -- these and other factors are all relevant guiding factors -- these factors would differ from case to case and, therefore, entitle authority to pass order of forfeiture in one case and discharge in another. [Paras 32 & 33
(7) Minor Mineral Rules, 1996 (M. P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017) -- order of forfeiture or discharge -- would depend on facts and various factors involved in a particular case -- orders in each case could and would necessarily be different -- therefore, discretion to pass different orders in each case has rightly been conferred upon competent authority -- power or discretion to take "appropriate decision" inherently and necessarily bestows and carries with it the power to take a decision for or against a person -- cannot be said to be uncanalised or controlled only on this ground, specially where it is guided and prompted by several guiding principles and factors. [Para 33
(8) Minor Mineral Rules, 1996 (M.P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017) -- power vested in competent authority under R.53 (2) and 53 (3) regarding forfeiture and discharge -- scheme of R. 53 read and understood in the backdrop of Rules of 1996, Rules of 2006 and MMDR Act as well as the detailed procedure for search, seizure and investigation, opportunity of hearing and taking an appropriate decision -- manifestly clear that there are sufficient and adequate safeguards and guidelines contained in the Rules for exercising discretion vested in competent authority -- same cannot be said to be uncontrolled, unguided and unfettered -- even if such guidelines had been absent in R. 53 of Rules of 1996, the fact that order passed by competent authority was and is subject to appeal and revision, is in itself sufficient and adequate safeguard against arbitrary exercise of discretionary powers. [Paras 35 & 36
(9) Minor Mineral Rules, 1996 (M. P.) -- Rr. 53 (as inserted and amended by notification dated 18.5.2017) -- R. 53 (2) and 53 (3) nowhere states or requires that order of forfeiture can be passed only in cases where penalty under R. 53 (1) is imposed -- the two powers, i.e. of penalty and forfeiture, are distinct and can be exercised collectively or individually in appropriate cases -- orders imposing penalty and forfeiture can be passed simultaneously, collectively or in isolation depending upon facts of each case.
Held : As a consequence thereof, it is held that 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. (1973) 3 SCC 428, (1984) 4 SCC 612 and (2009) 16 SCC 208 distinguished. 2018 (3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) overruled.
(10) Minor Mineral Rules, 1996 (M. P.) -- R. 53 (as inserted and amended by notification dated 18.5.2017) -- forfeiture -- only two exceptions and relaxations carved out in R. 53 (3) (b) proviso and R. 53 (6) where forfeiture may not be ordered in the first and fourth instance, respectively -- in other words, except in respect of cases falling under R. 53 (3) (b) proviso and R. 53 (6), forfeiture can be ordered even in the first instance or violation of Rules.
Held : We are also of the considered opinion that in view of the clear language of the Rules, forfeiture under Rule 53 (2) and 53 (3) can be ordered even in case of first instance of violation by the violator and the conclusion to the contrary recorded by the Full Bench in the case of Nitesh Rathore (supra), is hereby overruled. It goes without saying that the power to order forfeiture would be subject to the provisions of Rule 53 itself, namely, exception and relaxation that have been mentioned in the proviso to Rule 53 (3) (b) and Rule 53 (6), depending upon the facts of each case. Nitesh Rathore 2018 (3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) overruled.
(11) Minor Mineral Rules, 1996 (M. P.) -- R. 53 (as inserted and amended by notification dated 18.5.2017) -- interpretation -- provision of R. 53 is apparently meant to act as a deterrent for those indulging in illegal extraction or transportation of minerals -- in case liberal approach and interpretation is upheld, it would encourage, instead of preventing, violators to continue to indulge in illegal extraction and transportation of mineral by repeatedly paying small amount of penalty -- this would defeat the very purpose and object of the Rules. 2018 (3) JLJ 599 = 2018 (2) RN 266 = 2018 (4) MPLJ 193 (FB) overruled. [Paras 43 & 44
(12) Interpretation of Statutes -- words clear, plain and ambiguous -- susceptible to only one meaning -- Courts are bound to give effect to that meaning irrespective of consequences -- Court cannot adopt any other construction even on the ground that such construction is more in line with the policy of the Act. [Para 45
(13) Minor Mineral Rules, 1996 (M. P.) -- R. 53 (as inserted and amended by notification dated 18.5.2017) -- not permissible or possible to read the words "only in cases where penalty is not paid" in the provision relating to forfeiture -- that would amount to reframing the Rules, which is not permissible or possible. [Para 46
(14) Interpretation of Statutes -- Court has no power to legislate -- words can be read into a statute only in cases of obvious drafting errors, that too only after abundantly making sure about intent and purpose of statute or provision in question -- departure from the rule of literal construction by adding or reading words into statute can only be resorted to in exceptional circumstances where not doing so would deprive the provision, as it exists, of all meaning or render certain provisions redundant and otiose -- reading of the words "into a statute" can be done by adopting the mischief rule or purposive construction only when there is no doubt about the purpose and object which the law-makers intended to achieve. Principles of Statutory Interpretation by Justice G. P. Singh (14th Edition) relied on. [Para 46
(15) Minor Mineral Rules, 1996 (M.P.) -- R. 53 (as inserted and amended by notification dated 18.5.2017) -- language clear and unambiguous -- clearly provides for only two instances of relaxation to general rule of forfeiture that are specifically mentioned in R.53(3) (b) proviso and R.53 (6) -- no further words can be read into the Rules -- conclusion recorded by Full Bench in 2018 (3) JLJ ?? that benefit of default on first three occasions provided to those transporting mineral in excess of quantity mentioned in transit pass under R. 53(3) (b) is also available even to those who are transporting mineral without any transit pass, is apparently erroneous and contrary to unambiguous and clear provisions of R.53(3) (b) -- Full Bench could not have read the words "only in case penalty is not paid" into R.53 (2) and 53(3) (b) as it has changed the meaning of the Rules and rendered certain provisions otiose and redundant, and has resulted in defeating the very purpose and object of the Rules. 2018(3) JLJ 599 = 2018 (2) RN 266 = 2018(4) MPLJ 193 (FB) overruled. [Paras 47 to 49
Jha, J. -- 1. This petition has been referred to a Larger Bench to reconsider the conclusions recorded by the Full Bench of this Court in the case of Nitesh Rathore and another v. State of M.P. and others, [2018(4) MPLJ 193], in respect of Issue Nos. 5 and 6 framed and answered thereunder, which are as follows :
“(5) Whether in terms of sub-rule (2) of rule 53 of the 1996 Rules, which deals with forfeiture of minerals in cases of illegal extraction and transportation and in terms of sub-rule (3)(a) and (b) of rule 53 thereof, which deals with forfeiture/discharge of the seized machines, tools and vehicles, the Competent Authority has a discretion for forfeiture of tools, machines, vehicles and other material so seized, without giving an opportunity to the violator to pay penalty in terms of sub-rule (1) of rule 53 of the 1996 Rules? (6) Whether in view of sub-rule (3)(b) of rule 53 of the 1996 Rules in respect of minerals extracted or transported without any transit pass, forfeiture can be ordered in the first instance though penalty is payable in terms of sub-rule (1) of rule 53 of the said rules?”
2. Having heard the learned counsel for the parties and having perused the judgment in the case of Nitesh Rathore (supra), it is observed that several issues have been raised and are required to be considered by this Larger Bench for determining whether question Nos.5 and 6 have been rightly decided or not by the Full Bench in the case of Nitesh Rathore (supra). The following questions/issues that arise are as under :
(I) “Whether the decision of the Division Bench of this Court in the case of Ram Kumar Sahu v. 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 t
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