Legal provisions permitting compounding of offences under mining law are constitutionally valid, not arbitrary, and guided by sufficient statutory framework.

JUDGEMENT

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The petitioner in this public interest petition has made multiple prayers concerning the issues of illegal mining. Since many of these prayers were unconnected, we requested the counsel for the petitioner to confine the prayers to a single issue and raise other issues, if so desired, separately. In response thereto, Mr.Kapadia confined this petition to the prayers made in (A), (B) and (E) of para 12 which read as under:

“(A) Your Lordships be pleased to declare section 23A of Mines and Minerals (Regulations and Development) Act, 1957 and Rule 14 of the Gujarat Minerals (Prevention of Illegal Mining Transportation and Storage) Rules, 2005 as arbitrary, unreasonable and unconstitutional.

(B) in the alternatively, Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to apply provisions of Section 378 and 379 of the IPC in every case of theft of public property in the form of minerals.

(E) Yours Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to reconsider the mining policy / guidelines and to incorporate the prohibition of the grant of lease / E.C. In favour of the party which has earlier violated the relevant mining law.”

The petitioner is permitted to raise other prayers in separate proceedings if so desired.

Here also, we notice that the prayers (A) and (B) pertain to the powers of the Central Government as well as the State Government authorities to compound an offence pertaining to illegal mining.

Prayer (E), on the other hand, pertains to a mining policy for laying down guidelines so that the companies or persons who were found to have been involved in illegal mining earlier are not granted fresh mining leases. This issue, in our opinion, is completely unconnected to the question of compounding of offence and is not examined in this petition and would be clubbed along with other prayers for being adjudicated in separate proceedings, if so advised.

In the result, we confine this petition to the challenge to the vires of section 23A of the Mining and Minerals (Development and Regulation) Act, 1957 (‘the Act of 1957’ for short) and rule 14 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 ( ‘the Rules of 2005’ for short).

The Act of 1957 was enacted to provide for the development and regulation of mines and minerals under the control of the Union.

It contains many provisions to control such activities including grant of licence for mining minerals as would be necessary. Section 21 prescribes penalties for certain contraventions. Section 23A, vires of which are challenged in this petition, pertains to compounding of offences. Under sub-section (1) of section 23A, any offence punishable under the Act or any rule made thereunder may be compounded by the person who is authorized to make a complaint with respect to the offence in question on payment of such sum as he may specify. Such powers could be exercised even before the institution of the prosecution. Sub-section (2) of section 23A provides that when an offence is compounded under sub- section (1), no proceeding or further proceeding shall be taken against the offender in respect of the offence so compounded and if he is in custody would be released forthwith.

The case of the petitioner is that the said provisions give unguided and uncanalized powers to the competent authority to compound an offence which is possible of gross discriminatory abuse. According to the petitioner, therefore, the provision is arbitrary and therefore ultra vires Article 14 of the Constitution. In this context, the counsel for the petitioner placed heavy reliance on a decision of the Supreme Court in the case of Air India v. Nergesh Meerza, (1981)