IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2632 of 2009 Decided on: May 11, 2010. Harbhajan Singh ….Petitioners Versus State of H.P. and others …Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting? Yes / No For the Petitioner: Ms. Jyotsna Rewal Dua, Advocate For Respondents No. 1 to 3: Mr. R.K. Bawa, Advocate General, with Mr. J.K.Verma, Deputy Advocate General. For respondent No. 4: Mr. Anil Chauhan, Advocate For respondent No. 5: Mr. Deepak Kaushal, Advcocate Justice Kurian Joseph, C.J. (Oral) This petition has been filed apparently in public interest, though the petitioner submits that the petitioner has filed this writ petition in his individual capacity as well. 2. Issue raised in this writ petition generally pertains to the illegalities and irregularities in the matter of realization of compounding fee, as it has emerged during the pendency of the writ petition. The writ petition contains the following prayers: i) For writ of mandamus or any other appropriate writ to the respondents for taking strict action in accordance with applicable laws/rules against the illegal mining & stone crushing pertains going on in Damtal area in District Kangra, in respect of existence of which fact finding report is already there with the recommendations made in B.C. Negi Report-annexure P-6, report is already there with the respondent Department in form of annexure-P-11. ii) For writ of mandamus or any other appropriate writ to the respondents for strictly adhering to the recommendations made in B.C. Negi Report annexure P-6, report of respondents-annexure P- 8, notification dated 26.7.2005-anexure P-9, report submitted in CWP No. 635/2006-annexure P-12. iii) For a writ of mandamus or any other appropriate writ to respondents to take action against the erring officials who failed to discharge their official duties in checking and curbing the manace of illegal mining and stone crushing operations in Damtal area of District Kangra, which are going on, in patent violation of recommendations made in various reports submitted in this regard. iv) For a writ of mandamus or any other appropriate writ to the respondents to ensure stern and drastic action against the offenders who indulge in illegal mining and stone crushing operations so that petitioner who are undertaking legal and lawful mining and stone crushing operations do not suffer in their business because of such illegal activities. v) For direction to the respondents to bring the record of the case specifically the record pertaining to quantity of illegally extracted material and compounding fee realized till date in each case of violation. vi) For directing the respondents to seal the premises of defaulting units till full compounding fee is paid by them ad realized by the department. vii) For passing any appropriate order, interim order or direction in furtherance of the relief claimed. viii) Any other order or direction as deemed just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner. 2. When the case was argued before this Court for some time, it has come out that there is an issue of larger public interest involved in the matter of levy of compounding fee. To put it in nutshell, we have shockingly realized in the case of unauthorized mining of minerals in the State of Himachal Pradesh, one time compounding fee of Rs. 5,000/- alone was realized. For continuing contravention, they have already implemented penalty of Rs. 500/- per day and in addition to that one rupee extra per ton of mineral alone is recovered. When the situation was pointed to the State, it appears that the State has taken the stand that it is helpless to realize any other penalty in the absence of enabling guidelines/regulations/rules. It is in that view of the matter, we are constrained to examine the provisions and see whether effective checks and measures are provided under the existing guidelines/regulations/rules. 3. Section 23-A introduced w.e.f. 12.9.1972 provides for compounding of offences. It reads as follows:- “(1) Any office punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorized under Section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify: Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under sub- section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be released forthwith.” 4. The matter is governed by the provisions of the Mines and Minerals (Development and Regulation) Act, 1957. Sections 15 (1) (d) and (j) provide that the State Government is empowered to make rules .............. “(d) pertains to the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed; ....... (j) pertains to the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred”. 5. The State has framed The Himachal Pradesh Minor Minerals (Concession) Revised Rules, 1971 by virtue of powers under Section 15 of the Act. Rules 53 and 54 read as follows: “53. Unauthorised Working: (1) No person shall undertake any mining operations in any area, except under and in accordance with the terms and conditions of the mining lease, contract or permit granted under these rules. (2) Any contravention of sub-rule (1) shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both and in case of a continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which the contravention continues after conviction for the first such contravention. 54. Offences cognizable only on written complaint: No court shall take cognizance of any offence punishable under these rules except upon a complaint in writing made by the Director or any other officer authorized by him in this behalf within six months of the date on which said offence is alleged to have been committed.” 6. We find that the State Level Committee constituted by the State of Himachal Pradesh on 20.2.2007 had taken several steps for preventing illegal mining and for streamlining the mining. The rates for the illegal mining have been prescribed by them only on the violation of Rules 53 and 57. We find from the records that the State Level Committee has prescribed that if illegal extraction is detected, the following penalty shall be imposed :- “A. Violation of Rule 53 1. Mules/horses not less than Rs.200/- + Royalty etc. 2. Light Motor Vehicles such not less than Rs.3000/- + Royalty etc. as Tractor/Mazda etc. 3. Trucks not less than Rs.5000/- + Royalty etc. 4. If illegal extraction is not less than Rs.5000/- + Royalty etc. detected at spot If only illegal transportation is being done. If illegal transportation is detected, provided there is documentary evidence that the minerals being carried are legally extracted and supported by bill/cash memo of mineral concession holder. 1. Mule/horses not less than Rs.200/- 2. Motor Vehicle not less than Rs.1000/- Committee approved the suggestion of the State Geologist and decided that the guidelines may be circulated in the field and steps to enhance penalty provisions provided under rule 53(2) and 57(6) from Rs. 5000/- to Rs. 10,000/- and from Rs. 1000/- to Rs. 5000/- respectively be taken up by carrying amendments in the rules.” 7. The provisions, as extracted above, would show that a person is entitled to undertake any mining operation only in accordance with the terms and conditions of the Mining lease/contract or permit, granted under the rules. In the event of any contravention of any of the terms of the lease/contract or permit, the same shall be punishable with imprisonment for a term, which may extend to one year or with a fine, which may extend to Rs. 5,000/-. In the case of continuing contravention, an additional fine, which may extend upto Rs. 500/- for every day during which the contravention continues after the conviction for the first such contravention is also to be levied. In other words, the levy of an additional fine of Rs. 500/- is permissible only if a lessee or a guarantee continues the contravention after the conviction. Therefore, in a case where an offence has been compounded and if still the contravention continues, it is doubtful whether for the continuing contravention a levy at the rate of Rs.500/- per day is permissible. 8. Be that as it may. Under Section 23-A in the matter of compounding of offence, it is clear that only in a case which is punishable with fine alone, the compounding can be limited to the maximum of fine, which may extend to Rs. 5,000/- (as prescribed). It is also clear from the provision that once an offence is compounded, no further proceedings shall be taken against the offender in respect of the offence, so compounded. 9. The simple question is, what is the offence committed by a grantee or lessee in the case of a continuing contravention of the provisions of the grant/contract or lease, and what is the fine to be levied, if the same is compounded. 10. Before dealing with the above question, we may also deal with one vehement submission made by the learned Advocate General as well as the learned counsel for the private respondent that the above issue may not be examined at the instance of a person, who himself is engaged in a similar industry and in whose case there are several violations. We are only in the process of analyzing a grave issue of serious public interest and of high stake for the State as well, where the State is apparently helpless and the law is stated to be powerless to effectively check the illegal mining at the hands of the lessee. Therefore, we are unable to be persuaded by the persuasive submissions made by the learned counsel for the respondents that the petitioner is to be non-suited and this court may not go into any further question arising out of a writ petition, filed by a person, like the writ petitioner. 11. It is seen from the stand taken in the affidavit of the State Geologist, dated 10th May, 2010 that even if a guarantee or lessee indulges in illegal mining beyond the permitted date and beyond the permitted quantity, the penalty levied, as on today, is only as follows - `One time compounding fee of Rs. 5,000/-, irrespective of the fact as to whether the illegal mining continued for days or weeks or months and irrespective of the fact whether the quantify thus illegally extracted is one tonne or several lacs of tonnes plus Rupee 1/- per tonne in addition to the royalty in respect of the quantity thus illegally extracted.’ 12. It is also stated in the affidavit that steps are taken to recover an amount of Rs. 500/- per day of such continuing contravention in terms of Rule 52. The guidelines, State Level Committee has issued, which we have extracted above, shows that the penalty has to be recovered in respect of the quantity as measured in terms of the vehicles which have transported those minerals. 13. Learned counsel for the respondents, however, point out that levy of the penalty per truck or per vehicle etc. can be levied only if the transporter is found transporting the minerals illegally. In other words, such levy is permissible only if a truck and the material or the vehicle and the materials are seized by the authorized officer. Technically, the learned counsel is right. But, what is the intention of the Legislature in the above circumstances which we have analyzed, is the question. In having admittedly paid the extra royalty at the rate of Rs. 1/- per tonne of the unauthorized mining, it cannot be disputed that the quantity for which the extra amount has been paid had not been transported. Therefore, if the law has to be understood, analyzed and applied logically to the situation, it has to be held that for the unauthorized quantity mined and transported, the guarantee, lessee are liable to be visited with the penalty in terms of the amounts prescribed by the State Level Committee for the transportation of the unauthorizedly mined minerals. 14. Learned counsel for the respondents and the learned Advocate General point out that in terms of the action already taken in respect of the mines of the respondents, it may not be possible for the State to re-work the penalty in terms of the judgment and at the best it can only be implemented prospectively. We are afraid that submission also cannot be appreciated since we are informed that the parties, who have been granted the lease, have filed affidavits to the effect that the levy of any further amounts for compounding of offence would be subject to the outcome of the decision in this case, namely CWP No. 2632 of 2009. Even otherwise, according to us, it is a hyper technical objection, in the sense that once the persons, who have been engaged in unauthorized mining, are found liable to pay the penalty and compounding fee, as prescribed under law and in case the penalty has not been appropriately levied, it will always be open to the State to protect its interest by taking steps to levy the same in accordance with law. 15. In the above circumstances, this writ petition is disposed of directing the State Geologist and the competent authority to take fresh steps in the light of the law laid down by this court in this judgment, with notice to the parties concerned. By way of abundant caution, we make it clear that the petitioner shall also not be spared in case the petitioner himself is to be proceeded against in the light of the above judgment. It is also made clear that this would apply to all those grantees/lessees engaged in unauthorized mining and minerals, be they are parties in this writ petition or not. The needful action in this regard shall be taken by the State/competent authority within three months of receipt of the copy of this judgment. 16. The petition stands disposed of. (Justice Kurian Joseph), Chief Justice May 11. 2010(K/s) ( Justice R.B. Misra ), Judge