High Court of Punjab and HaryanaCRM-M/23190/2020disposed of

M/S Kc Stone Crushing Co. v. State Of Haryana And ORS

2021-02-04Mr. Justice Gurvinder Singh Gill33 pages

( I ) CRMM231902020 Date of decision : 04.02.2021 M/s K.C. Stone Crushing Co. & others ..........Petitioners

Versus

State of Haryana & others ......Respondents ( II ) CRMM367572020 Date of decision : 04.02.2021 Mohammad Vakil ..........Petitioner

Versus

State of Haryana & others .......Respondents :

Hon'ble Mr. Justice Gurvinder Singh Gill Present :

Mr. Sameer Sachdeva, Advocate, counsel for the Petitioner. (in CRMM231902020) Mr. Anshul Mangla, Advocate, counsel for the Petitioner. (in CRMM367572020) Mr. Ankur Mittal, Addl. A.G., Haryana for State.

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Both the abovementioned petitions are being taken up together, being identical on facts, wherein common questions of law are being raised.

( 2 ) CRM-M-23190-2020 2.

For the sake of brevity, facts of only one of these cases are being noticed i.e. of M/s. KC Stone Crushing Company's case, which may be stated chronologically as follows:

1.3.2020 :

A truck bearing registration no. HR55R8854 was intercepted by Mining Officer in the area of Gurugram, while the same was carrying (tiny pieces of stones or gravel). Since the driver could not produce any document justifying possession and transportation of the aforesaid mineral, the truck in question was seized by the Mining Officer, vide order dated 1.3.2020(Annexure P6) in terms of provisions of Rule 104 of The Haryana Minor Mineral Concession, Stocking, Transportation of Minerals and Prevention of Illegal Mining Rules 2012 (hereinafter called as the Mining Rules 2012). The petitioner was asked to pay an amount equal to 50% of the showroom value of the truck in question for its release in accordance with order dated 5.4.2019 passed in OA No. 360/2015 by National Green Tribunal, New Delhi(hereinafter refered to as NGT). 11.5.

2020 : The petitioner, instead of paying the penalty as imposed, approached this Court by way of filing CRMM121232020 wherein it was interalia contended that he cannot be made to pay an amount to the tune of 50% of the value of the truck as the National Green Tribunal, vide order dated 19.2.2020 had revised the said rates which would be applicable to the case of the petitioner since his truck was seized after 19.2.2020. This Court, vide order dated 11.5.2020 (Annexure P8), disposed of the petition while directing the Director, Department of Mines and Geology, Government of Haryana to look into the matter and to dispose of a representation moved by the petitioner within 10 days.

9.6.2020 :

The representation moved by the petitioner was decided by the Director vide order dated 9.6.2020(Annexure P10). During the course of said proceedings the petitioner had

( 3 ) CRM-M-23190-2020 produced a Transit Pass i.e. dated 1.3.2020 pertaining to transportation of 17 M.T. of . However since the truck in question was found to be carrying 23 M.T. of as against the bill of 17 M.T., the Director held that transporting excess would amount to illegal transportation of the excess mineral and thus the truck, in any case, was liable to be seized. The Director, however ordered that the truck could be got released by paying the penalty under the 2012 Mining Rules 2012 and the compensation amount as per the latest order dated 19.2.2020 passed by NGT.

24.7.2020 : The petitioner challenged the aforesaid order dated 9.6.2020 before Appellate Authority but the said appeal was dismissed vide order dated 24.7.2020(Annexure P1), which has been challenged by way of filing instant petition. 3.

The learned counsel for the petitioner while assailing the impugned order has broadly made the following submissions:

(i) that infact it is not a case of illegal mining as the transitpass i.e. was produced before the authorities by the owner subsequently which is not disputed. It has been submitted that the respondent authorities upon being shown the have later built up a new case of excess loading of mineral though there was no such mention in the Seizure Order dated 1.3.2020(Annexure P6); (ii) that the amount sought to be realised as penalty from the petitioner is extremely on the higher side which the petitioner is unable to pay and that he can not be forced to compound the matter so as to deprive him an opportunity to contest the allegations as he does have a very good case;

(iii) that the act of the respondents in neither releasing the truck in question despite a period of more than 9 months having elapsed nor even lodging any FIR and keeping the matter in limbo is highhandedness on part of the authorities as the truck in question is deteriorating due to

( 4 ) CRM-M-23190-2020 its disuse and vagaries of weather. It has been submitted that had the authorities lodged FIR, the petitioner could not only have contested the allegations but could also have moved an application for release of the truck on

which he can not move now as the Court is not seized of the matter, the FIR/complaint not having filed; (iv) that retention of the truck by the authorities for an indefinite period virtually amounts to confiscation which the authorities concerned are not competent to do as it is only under the orders of the Court that a vehicle may be confiscated in terms of provisions of section 21(4A) of The Mines and Minerals (Development and Regulation) Act 1957 (hereinafter referred to as MMDR Act).

Opposing the petition the learned State counsel has submitted that once the vehicle in question was seized in terms of provisions of Rule 104 of Mining Rules 2012, the petitioner has an option of compounding the offence and in fact the petitioner was extended an offer to get the truck released by way of payment of penalty and compensation in terms of order dated 19.2.2020 passed by NGT, but the petitioner himself has not come forward for getting his truck released. It has been submitted that NGT, taking serious note of the manner in which ecology and environment is being damaged by mining mafia had directed imposition of the deterrent amounts as compensation. It has further been submitted that the orders passed by NGT including order dated 19.2.2020 for imposing deterrent fine have duly been approved by Hon'ble Supreme Court and it has also been clarified that the vehicle in question cannot be released without payment of penalty. It has, thus, been submitted that the petitions deserve to be dismissed.

The rival contentions raised before this Court give rise to the following questions which need to be addressed:

( 5 ) CRM-M-23190-2020 (i) Whether in a case of transportation of mineral in excess of what is authorized as per Transit Pass, the person transporting the same can be proceeded under Rule 104 of Mining Rules 2012 which basically deals with violation regarding mining and not strictly with incorrect weighment or transportation?

(ii) Whether a vehicle seized while carrying mineral illegally can be detained for an unreasonable period or indefinitely upon non payment of the imposed penalty, without initiating proceedings either for prosecuting the offender or for confiscating the vehicle in question?

(iii) Whether release of vehicles on

in such cases is absolutely barred?

6. In order to address the aforesaid issues, the scheme of the Act and the Rules framed thereunder needs to be borne in mind. The Mines and Minerals (Development and Regulation) Act 1957 (hereinafter referred to as MMDR Act) was enacted for the purpose of development and regulation of mines and minerals under the control of the Union. The MMDR Act provides that any excavation of mineral without any valid mineral concession granted by State is illegal mining. It further provides that no mineral shall be transported or stored except in accordance with provisions of the MMDR Act. The general prohibitions are contained in section 4 of the MMDR Act which reads as follows:

#$% &' #( #% )'#$'#* & $ # )$ - (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting license or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder:

that nothing in this subsection shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting license or mining lease granted before the commencement of this Act which is in force at such commencement:

( 6 ) CRM-M-23190-2020 further that nothing in this subsection shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, ][the Atomic Minerals Directorate for Exploration and Research][of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of [clause

(45) of section 2 of the Companies Act, 2013, and any such entity that may be notified for this purpose by the Central Government: also that nothing in this subsection shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union territory of Goa, Daman and Diu.

(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.

(2) No reconnaissance permit, prospecting license or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.

(3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under section 18, undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting license or mining lease.

The penalties for violation of provisions of section 4 are provided in Section 21 of MMDR Act which reads as under +,

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28. The MMDR Act and the Rules, as an effective tool for protecting and preserving environment, need to be meticulously implemented in view of the object to be achieved thereof. However, while ensuring that no offender manages to escape punishment and is dealt with sternly, it also needs to be ensured that the principle of

is observed under all circumstances. The rules of natural justice can not be given an absolute bypass. Deprivation a person of his property without proper procedure could even be infringement of his right of property as guaranteed in Article

( 20 ) CRM-M-23190-2020 300A of the Constitution of India. As such, the rights of the parties are required to be delicately balanced. In case any person is to be deprived of his property, rules of natural justice demand that he should be given an opportunity to be heard so as to enable him to put forth his defence. Retaining a vehicle indefinitely without an order of Court virtually amounts to confiscation without hearing and is a violation of the aforesaid principle. - 7

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31. Opposing the aforesaid contention, the learned State counsel has submitted that a conjoint reading of Section 21(4A) of the MMDR Act read with Rule 101 of Mining Rules 2012 clearly reveals the intent of the legislature and the rule making authority that the inevitable consequence of the seizure of any vehicle would be its confiscation particularly when cost of mineral,

( 22 ) CRM-M-23190-2020 royalty, environment compensation is not paid. It has been submitted that the object of the mining laws will be defeated if the vehicles seized for violation of the provisions of the MMDR Act and Rules are released on +

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"5. Having regard to the above practical difficulty, we modify the orders dated 5.4.2019 and 26.7.2019 as follows :

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) '- )(#' Vehicles/equipments/excavators with showroom value more than Rs. 25 lakhs and less than 5 years old Rs. 4 Lacs Vehicles/equipments/excavators with showroom value more than Rs. 25 lakhs and more than 5 years old but less than 10 years of old.

Rs. 3 Lacs For the remaining vehicles older than years/equipments/excavators which are otherwise legally permissible to be operated and not covered by Sr. No.1 & 2 Rs. 2 Lacs , '

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The following directions are thus issued to the respondents: 5

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( 31 ) CRM-M-23190-2020

!further steps for auctioning the same may be taken immediately instead of retaining the vehicle in the police station where its condition is bound to deteriorate which would be a loss to the State as well as it will not be able to recover much amount from auction of the vehicle on account of deteriorated condition of the vehicle.

All those vehicles, including the vehicles of the petitioners in both the cases, which are presently lying seized by respondent authorities for more than three months, pursuant to inspection carried out in terms of Rule 101 of Mining Rules 2012, and in respect of which the authorities have neither lodged any FIR nor instituted any complaint in the Court and have not even initiated confiscation proceedings shall be dealt with under provisions of Rule 101(10) immediately. The Director, Department of Mines and Geology, Haryana shall ensure that the needful in this regard is done within two weeks from today.

(iii) Upon the respondent authorities either choosing to lodge a FIR/complaint or choosing to move an application under rule 101

(10) of Mining Rules 2012 for confiscation of vehicle, it shall be open to the Court concerned to entertain an application for release of the vehicle on

during the pendency of such proceedings if there is likelihood of delay in conclusion of such proceedings. The Court dealing with such application shall decide the same independently while considering all such pleas as may be raised by the parties. The Court concerned shall, however, endeavour to dispose of such applications at the earliest. (iv) While considering release of vehicle on

2 the Court may choose to impose any such strict conditions as deemed fit. The Court concerned may even direct the applicant to deposit in Court an amount equal to the penalty imposed by the authorities concerned or part thereof, in addition to any other condition. 46.

Further, since some minor errors have been noticed in the Mining Rules 2012, which are there not only in the Rules published by private publishers

( 32 ) CRM-M-23190-2020 but are also present in copy of the notification which was furnished by the learned State counsel, the respondent authorities to consider the feasibility of having a relook at the Rules for carrying out necessary amendments, if deemed appropriate particularly in respect of the following issues which have been noticed :

(i) In Rule 101(5), in the existing rule the authorised officers/officials in charge of a check post are required to take action as provided under rule 104 in respect of any violation pertaining to transit pass or transport permit whereas the consequences for such violations such violations are in fact prescribed in rule 102 and not in 104; (ii) Similarly in Rule 101(8) it is stated that a person found transporting any mineral in contravention of the provision of the rules would be liable for punishment under rule 105 whereas rule 105 does not prescribe any punishment and pertains to liability of all those persons who are Incharge and responsible to the company when an offence is stated to have been committed by company. Thus it needs to be clarified as to whether in terms of Rule 101(8), a person is to be penalized for illegal transportation or illegal mining and under which specific rule;

(iii) While Rule 101(7) refers to certain action to be taken '

, when it is found to be a case of underweighment of the mineral being transported, however there is no specific rule dealing with the penalty to be imposed in case of underweighment of mineral. It needs to be specified as to whether in a case where the mineral being transported is found to be excess of the quantity which is mentioned in 'transit pass', the same has to be taken to be a case of illegal transportation or as to whether a lesser penalty is to be provided;

(iv) There is an element of overlapping/duplicity as regards the provisions pertaining to cognizance inasmuch as there are two rules i.e. Rule 106 and Rule 115, dealing with the same issue. Said rules read as follows:

( 33 ) CRM-M-23190-2020 RULE 106 RULE 115

The aforesaid two rules are identical but for the words

which exist in Rule 106 but are missing in Rule 115 though both are in respect of

. The said duplicity needs to be resolved.

(v) Since it has been informed that the department has taken initiatives for introducing egovernance processes which have led to a much more effective implementation of the Act particularly with the introduction of transit passes/bills, the authorities shall continue with their endeavours of increasing egovernance in every sphere which may even be incorporated specifically and made a part of the rules.

47.

Both the petitions stands disposed of accordingly with the aforesaid directions. However before parting with the judgement, this Court places on record its appreciation for the invaluable assistance rendered by both the learned counsel and also by Shri Parvesh Sharma, State Mining Engineer and Shri R.S. Thakran, Mining Engineer, Department of Mines and Geology, Haryana.

( GURVINDER SINGH GILL ) 04.02.2021 JUDGE 9 Whether reasoned / speaking? $/# Whether reportable? $/#