Balram Sharma v. The State Of Madhya Pradesh

1 W.P.15/16 (Balram Sharma Vs. State of MP & Ors.) 11.05.2016 Shri N.K.Gupta, learned senior counsel with Shri Gaurav Mishra and Shri Mridul Gyani, learned counsel for the petitioner. Shri Arvind Dudawat, learned Additional Advocate General for the respondents/State. With the consent of parties, matter is heard finally. In this petition, under Article 226 of the Constitution of India, the petitioner has assailed the validity of the order dated 15.12.2015 passed by the Sub Divisional Officer (Revenue) by which a penalty of Rs. 1.5 lakhs equivalent to the market value of the mineral has been imposed on the petitioner and in case of default of non payment of the penalty within seven days, the same is directed to be recovered as arrears of land revenue. When the matter was taken up today, learned senior counsel for the petitioner submitted that the impugned order has been passed in flagrant violation of Rule 18(5) of the Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 ( hereinafter referred to as the Rules). It is further submitted that the petitioner is not prepared for compounding of the offence and, therefore, the only course which was left open to the competent authority was to make a report to the Magistrate having jurisdiction to try such offence. In support of aforesaid submission, learned senior counsel placed reliance on a decision

2 W.P.15/16 (Balram Sharma Vs. State of MP & Ors.) of the Division bench of this Court in W.A. No.1320/2011 dated 21.3.2012. On the other hand, learned Additional Advocate General has submitted that against the aforesaid order, an appeal lies under Rule 19 of the Rules and, therefore, the petitioner should be relegated to the alternative remedy of the appeal. It is further submitted that since the vehicle in question was found to be overloaded and, therefore, the decision relied upon by the learned counsel for the petitioner in W.A. No. 1320/2011 has no application to the fact situation of the case. Alternatively it is submitted that the impugned order be quashed and the matter be remitted to the competent authority, namely, Sub Divisional Officer to consider the matter afresh in accordance with law. We have considered the submissions made by learned counsel for the parties. A Division Bench of this Court vide order dated 21.3.2012 passed in W.A. No. 1320/2011, after taking note of the provisions of Rule 18 of the Rules has held as under:-

From the reading of the above quoted rule, it is clear that the order under sub-rule (5) can be passed by the Collector only as a measure to compound the offence punishable under sub-rule (1) and the appellant cannot be compelled to compound the offence. Further, on the non-payment of penalty imposed, the only course left to the Collector is to make a report to the Magistrate having jurisdiction to try such offence.

In view of aforesaid enunciation of law by the

3 W.P.15/16 (Balram Sharma Vs. State of MP & Ors.) Division Bench, it is evident that the petitioner cannot be compelled to compound the offence. In the instant case, the petitioner on express terms has stated that he is not willing to compound the offence. Thus, the only course which was left to the Sub Divisional Officer was to make a report to the Magistrate having jurisdiction to try such offence. The impugned order is, therefore, per-se without jurisdiction. It is well settled in law that if any impugned order is per-se without jurisdiction, the aggrieved person can be permitted to by-pass the alternative remedy which may be available to him under law. [See: Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others , (1998) 8 SCC 1 and 2003) 2 SCC 107 (Harbans Lal Sahnia v. Indian Oil Corporation). So far as the contention raised by learned Additional Advocate General that since the vehicle in question was found to be overloaded, therefore, the decision rendered in W.A. No. 1320/2011 does not apply to the facts situation of the case, also does not deserve acceptance, as the impugned order has been passed under Rule 18 of the Rules and in case the vehicle was found to be overloaded, the respondents would be at liberty to take action against the petitioner in accordance with law. In view of preceding analysis and for the reasons assigned by the Division Bench by order

4 W.P.15/16 (Balram Sharma Vs. State of MP & Ors.) order 21.3.2012 passed in W.A. No. 1320/2011, the impugned order dated 15.12.2015 passed by the Sub Divisional Officer, Dabra is hereby quashed. Needless to state that the competent authority would be at liberty to take action against the petitioner in accordance with law. Since in compliance or ad-interim order passed by the Division Bench the vehicle belonging to the petitioner has already been released, the same shall remain in the custody of the petitioner till an appropriate action is taken by the competent authority in accordance with law. The amount deposited by the petitioner shall be refunded to the petitioner. With the aforesaid directions, the petition is disposed of. Certified copy as per rules. (Alok Aradhe) (Vivek Agarwal) Judge Judge