State v. Mohd. Azhar), under Section
Case Details
1 Reserved on 12.05.2022 Delivered on 24.05.2022 Court No. - 80 Case :- MATTERS UNDER ARTICLE 227 No. - 5052 of 2021 Petitioner :- Mohd Azhar Respondent :- State of U.P. Counsel for Petitioner :- Krishna Dev Mishra,Javed Alam Counsel for Respondent :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record. 2. The present misc. petition has been preferred under Article 227 of the Constitution of India with a prayer to quash the order dated 18.02.2021 passed by the Additional Chief Judicial Magistrate, Court No. 17, Allahabad in complaint case no. 46 of 2021, (State v. Mohd. Azhar), under Section 4/21 Mines and Mineral (Development And Regulation) Act, 1957 (hereinafter referred to as ‘MMDR Act’) and Section 3/57/70 of U.P. Minor Minerals (Concession) Rules, 1963 as well as to quash the order dated 03.08.2021, passed by the Special Judge, E.C. Act, Allahabad in criminal revision no. 68 of 2021, (Mohd. Azhar v. State of U.P.), police station Naini, district Prayagraj. 3.
Legal Reasoning
Learned counsel for the petitioner has argued that impugned orders are against facts and law and thus, liable to be set aside. The petitioner is registered owner of the tractor in question and that his application for release of tractor has been rejected vide order dated 18.02.2021 by the court of Additional Chief Judicial Magistrate, Court No. 17, Allahabad in an arbitrary manner without considering the relevant facts. The petitioner was not involved in any illegal mining and that his tractor was seized by the officials of mining department in collusion with local police. Against the order dated 18.02.2021 passed by the court of Additional Chief Judicial Magistrate, Court No. 17, Allahabad, petitioner has filed a criminal revision before the Special Judge, E.C. Act, Allahabad but the said revision has also been dismissed vide impugned order dated 03.08.2021, affirming the order of Additional Chief Judicial Magistrate, 2 Court No. 17, Allahabad. Learned counsel submitted that the provisions of Section 70(6) of U.P. Minor Minerals (Concession) Rules, 1963 are not applicable in the instant case and that no offence is made out against the petitioner under Section 4/21 Mines and Mineral (Development And Regulation) Act, 1957 and thus seizure of the tractor under Section 21(4) of MMDR Act is illegal and thus, both the impugned orders are against the facts and law and thus, liable to be set aside. 4. Per contra, it has been argued by learned A.G.A. that there is no illegality or error of jurisdiction in the impugned orders so as to warrant any interference by this Court and that too under Article 227 of the Constitution of India. 5. It is well settled that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 6. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; 3 and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47). 7. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650. 8. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 9. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 10. It is apparent from the above stated pronouncements that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow and even the errors of law cannot be corrected in exercise of such powers. The power enshrined under Article 227 of the Constitution is of judicial superintendence and it cannot be used to upset conclusions of fact, however, erroneous, unless such conclusions are so perversed or unreasonable that no court could have ever reached than. 11. In the instant case, it is apparent from record that the tractor of petitioner was seized by the Mining Officer on the basis that mineral was being transported by the said tractor illegally and it appears that this tractor has been seized by the officials of Mining department in accordance with the provisions of Section 21(4) of MMDR Act. At this stage it would be appropriate to quote the relevant provisions of MMDR Act, which read as under:- 4 "4. Prospecting or mining operations to be under licence or lease.-- "(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 licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder" ; Provided that nothing in the sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Explorations and Research of the Department of Atomic Energy of the Central Government, the Directorate 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 (18 of 2013), and any such entity that may be notified for this purpose by the Central Government. (1-A) 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 licence 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 licence or mining lease. 21. Penalties.-- (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) of Section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area. (2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention. (3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land and for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. 5
Decision
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court. (5) Whenever any person raise, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable. 12. Thus, it is apparent that section 4 of the MMDR Act, and in particular, sub-section (1-A) thereof, puts a total restriction on the transportation or storage of any mineral, otherwise than in accordance with the provisions of the Act and the Rules made thereunder. Section 21 provides for penalties in respect of contravention of the provisions of sub-section (1-A) of Section 4. As per terms of sub-section (4) of Section 21, whenever any person raises, without any lawful authority, any mineral from any land and for that purpose, uses any mineral, tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing, shall be liable to be seized by an officer or authority especially empowered in this behalf. Sub-section (4-A) provides that the articles/vehicles seized under sub-section (4) shall be liable to be confiscated by an order of the Court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such Court. 13. As already noted above, the vehicle owned by the petitioner has been intercepted for illegally transporting the minerals in contravention with the provisions of the MMDR Act and accordingly, the same was seized by the Mines Inspector in exercise of powers referable to sub-section (4) of Section 21 of the Act. Upon seizure of the vehicle under sub-section (4), the same was liable to be confiscated as per terms of sub-section (4-A), by an order of the court competent to take cognizance of the offence under sub-section (1) and was to be disposed of in accordance with the directions to be passed by such court. The cognizance of the offence punishable under the Act or the rules thereunder, in respect of contraventions made, could be taken by the court concerned upon complaint by the District Officer or any officer authorised by him in this behalf. 6 14. In the instant case it is apparent from record that in the impugned order dated 18.02.2021 passed by the Additional Chief Judicial Magistrate, Court No. 17, Allahabad, it has clearly been mentioned that the tractor of the petitioner is being confiscated under Section 21(4)(A) of MMDR Act. As the said court was competent to take cognizance of the case in question, thus, it appears that the tractor of petitioner has been confiscated under Section 21(4)(A) of MMDR Act and therefore the provisions of Section 457 Cr.P.C. would not attract in relation to release of the tractor. The revisional court has also discussed the relevant provisions and facts of the matter and the revision was dismissed by a reasoned order. No such patent illegality or perversity could be shown in the impugned orders so as to invoke the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India. 15. As observed earlier, in the supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. In the instant matter, no such eventuality could be shown so as to interfere with the impugned order. Perusal of record also shows that the court of Magistrate as well as the revisional court have considered entire facts and law. Learned counsel for the petitioner could not show any patent error of law or of jurisdiction in the impugned orders. Considering the facts of the instant case in the light of the above stated legal position, no case for warranting any interference with the impugned orders is made out. Consequently, the present petition is liable to be dismissed. 16. The instant writ petition lacks merit and the same is, accordingly, dismissed. Order Date :- 24.05.2022 Anand