MMDR Act| Deputy Commissioner Has No Power To Initiate & Decide Confiscation Proceeding: Jharkhand HC

The Jharkhand High Court has declared Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 as ultra vires to the Mines and Minerals (Development and Regulation) Act, 1957 i.e., the parent Act.

The Court held that the Deputy Commissioner of the District has no power to initiate and decide a confiscation proceeding.

The Court held thus in a batch of writ petitions, seeking to declare Rule 11(i) read with Rule 11(iv) and Rule 12 of the Rules, 2017 as ultra vires the parent Act to the extent it provides for seizure of mineral tools, equipments, and vehicles.

A Division Bench of Justice Ananda Sen and Justice Subhash Chand observed, “As we have already declared the Rule 11(v) as ultra vires, any confiscation proceeding by the Deputy Commissioner of any district within the State of Jharkhand under the Rules is illegal and is without any authority of law and is beyond jurisdiction. Similarly, in these cases, initiation of proceeding.......is hereby held to be without any authority of law and is accordingly quashed and set aside, with the liberty to proceed for confiscation before the Court having power to take cognizance of the offence.”

The Bench enunciated that the Officer nominated under Rule 11(1) of the Rules is empowered to search and seize tools, equipments, vehicles, but the confiscation proceeding is to be initiated and concluded by the Court, who is empowered to take cognizance, i.e., the Special Court or the Judicial Magistrate First Class as provided in the parent Act.

Advocate Indrajit Sinha represented the petitioners while AAG II Sachin Kumar represented the respondents.

Background -

The petitioners prayed to declare Rule 11(i) read with Rule 11(iv) and Rule 12 of the Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 as ultra vires the Mines and Minerals (Development and Regulation) Act, 1957 (which is the parent Act) to the extent it provides for seizure of mineral tools, equipments, and vehicles. Further, a prayer was made to declare Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 which provides for confiscation of mineral tools, equipments and vehicles by the Deputy Commissioner of concerned district, as the same, according to the petitioners was ultra vires the Mines and Minerals (Development and Regulation) Act.

Further declaration was sought for from the Court to the effect that the Deputy Commissioner of any district is not empowered to confiscate minerals, tools, equipment and vehicles under the Rules 2017. Moreover, a prayer was made to quash the order whereby exercising powers under Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, the Deputy Commissioner, Dumka in Confiscation Case had seized the vehicle of the petitioners.

The High Court in the above regard noted, “From what has been discussed and held above, we find that there are two authorities prescribed as the Confiscating Authority : one under the parent Act and one under the Rules. As it has been held that the power search, seize and confiscate under the Act and the Rules are not different and rather are the same and the Rules derives power from the parent Act, thus, there is a clear inconsistency in the aforesaid provision. The parent Act does not confer the State to promulgate a Rule and empower a different authority than prescribed under the Act to be the Confiscating Authority.”

The Court added that when under the Act the authority to confiscate is specified and is identifiable (as the Court taking cognizance), the Rules giving power to the Deputy Commissioner is nothing but an excessive delegation.

“When the authority is not specified, it is well within the ambit of delegated legislation to name and prescribe the authorised authority. The same has been done here in the Rules, when the authorised authority has been nominated/named as per Rule 11(i), but so far as the Confiscating Authority is concerned, Act specifies the same to be the Court taking cognizance, thus, the State legislature is denuded of its power to nominate the Deputy Commissioner of each district to be the confiscating authority”, it further said.

The Court elucidated that the delegated legislation, i.e., the Rules herein, so far as nominating the Deputy Commissioner of each of the districts as confiscating authority, has travelled beyond the delegation of the parent Act and that this legislation, i.e., the Rules, so far as this particular provision is concerned is inconsistent with the provisions of the parent Act and is an excessive delegation.

“Thus, considering the judgments of the Hon’ble Supreme Court as cited above, on the point of ultra vires, and in view of the principle of occupied field, we are of the opinion that Rule 11(v) of the Rules is ultra vires the Act and cannot stand the test of consistency with the parent Act. Thus, Rule 11(v) of the Rules, so far as it gives power to the Deputy Commissioner of each district to be the Confiscating Authority, is held to be ultra vires the parent Act and the Constitution and is thus, struck down”, it held.

The Court also observed that the parent Act does not specify as to who would be those authority and since the parent Act does not envisage or specify any particular authority, there is no inconsistency with the parent Act so far as Rule 11(1) nominating the authorised officer is concerned.

“Similarly, the authority to seize have also not been prescribed under the Act. Thus, the Officer nominated under Rule 11(1) of the Rules is empowered to search and seize tools, equipments, vehicles, but the confiscation proceeding is to be initiated and concluded by the Court, who is empowered to take cognizance, i.e., the Special Court or the Judicial Magistrate First Class as provided in the parent Act”, it added.

The Court, therefore, summarised the following conclusions –

i. Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 is a delegated legislation and cannot travel beyond the power delegated by the parent Act, i.e., the Mines and Minerals (Development & Regulation) Act, 1957.

ii. The phrase “court taking cognizance” is the Special Court constituted in terms of Section 30-B of the Mines and Minerals (Development & Regulation) Act and where there is no such Special Court constituted, it will be the Judicial Magistrate First Class.

iii. It is only the “court taking cognizance”, who is the “confiscating authority” under the Act and the Rules. The Deputy Commissioner of each District has got no power to initiate and decide a confiscation proceeding, as the same is in conflict with the parent Act, thus, Rule 11(V) is ultra vires to the parent Act.

iv. “Confiscation” under the Mines and Minerals (Regulation and Development) Act and the Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 are same and cannot be differentiated. “Confiscation” prescribed under the Rules cannot be read independently and the Rules does not give any independent power to any authority to confiscate.

v. Rule 11(1) only nominates and identifies the authority authorised or authority authorized referred under Section 21(3) of the Mines and Minerals (Regulation & Development) Act.

vi. The authority, to seize the minerals and other materials, tools including vehicles, is the authority prescribed under Rule 11(1) of the Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017.

Accordingly, the High Court allowed the writ petitions.

Cause Title- M/s Aditya Enterprises & Ors. v. The State of Jharkhand & Ors.

Appearance:

Petitioners: Advocates Indrajit Sinha, Rahul Kumar, and Richa Lal.

Respondents: AAG II Sachin Kumar and AC Surbhi.

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