Vijay Luniya & Anr vs State Of Mp & Others

P. K. Jaiswal, J

This order shall govern the disposal of R.P. No.597/2018, R.P. No.599/2018 and R.P. No.600/2018 also. For the sake of convenience, the facts are

borrowed from R. P. No.595/2018.

The Division Bench of this Court vide order dated 08.03.2018 passed in W. P. No.1313/2018 allowed the writ petition of the present petitioner and

other three petitioners in part. Paras-19 to 21 of the order dated 08.03.2018 are relevant, which reads as under :-

It is also well settled that if the new Act affect the matters of procedure only then, prima facie, it applies to all the actions pending as well as

future. The Rules of 1996 prescribed particular procedure to compound the offence by imposition of penalty. The Writ Petition No.1313/2018 &

connected procedure has been altered by subsequent amendment during the pendency of proceedings. The petitioners certainly have a right to dispose

of their cases of un-authorized extraction and transportation of minerals by levy of penalty on the basis of rules inforce at the time of inspection made

by the mining authorities, but they have no vested right to follow the procedure prescribed on that date on which inspection was made. Since, there is

no such vested right, all pending cases of illegal extraction is to be disposed of as per procedure prescribed under the amended provisions of the law.

The amendments, no doubt introduced certain additional conditions and power has been given to the Collector or any officer authorized by him not

below the rank of Deputy Collector, which one intended for public good and due regulation of the mining activity in the light of vital concerns with

regard to protection of illegal extraction and transportation of minerals.

In the present case, by amendment dated 18.5.2017, the power has also been delegated to the Sub Divisional Office to initiate proceeding under

Rule 53 and impose fine / penalty under the aforesaid provision, but also enhance a penalty of minimum thirty to maximum seventy times of the royalty

of illegal extracted / transported minerals whereas as per unamended provision the penalty was ten times of the market value of the mineral and thus,

we are of the view that the amending provisions of Rule 53 would apply in the case in hand in the matter of procedural only because no person has a

vested right in any course or procedure. He has only the right of defence in the manner prescribed for time being by or for the authority, which the

case is pending and, if, by amendment the mode of procedural is altered, he has no other right then to proceeding according to the altered mode. A

change of forum (from the court of Collector to Sub-Divisional Officer) is a Writ Petition No.1313/2018 & connected matter of procedure and,

therefore, if an amended Rules requires or give authority to Sub-Divisional Officer instead of Collector, the said authority is competent to consider the

question and decide it in accordance with law.

For the above mentioned reasons, we are of the view that the Sub-Divisional Officer is competent to pass the impugned order, but he has acted

illegally and the penalty has been imposed on the basis of amended Rule 53 of Rules of 1996, treated it to have retrospective operation and, therefore,

we quash that part of the order and remit the matter back to the learned Sub-Divisional Officer to reconsider the same and decide the question of

imposition of penalty as per the Rules, which was prevailing on the date of joint inspection made by the joint inspect team and the same has to be dealt

with under amended provisions (only procedural part) and decide it a fresh, after giving opportunity of hearing to the petitioner in accordance with law,

preferably, within a period of sixty days from the date of filing of the certified copy of the order.

Learned Senior Counsel for the review petitioner has submitted that it is true that no litigant has any vested right in the matter of procedural law but

where the question is of change of forum, it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right and that

vested right will be continued in respect of amendment made on 18.05.2017 under Rule 53 of the M. P. Minor and Mineral Rules, 1996 (in short

“the Rules of 1996â€) and thus, this Court has wrongly directed that the question of imposition of penalty as per the rules which was prevailing on

the date of joint inspection made by the joint inspect team and the same has to be dealt with under amended provisions of the Rules of 1996. He has

also drawn our attention to the law laid down by the Apex Court in the case of Commissioner of Income Tax, Orissa vs. Dhadi Sahu reported in 1994

Supp (1) SCC 257, wherein it has been held as under :-

Section 274(2) as it stood prior to April 1, 1971 required the Income Tax Officer to refer the case to Inspecting Assistant Commissioner if the

minimum penalty impossible Section 274(2) exceeded Rs.1000. The Inspecting Assistant Commissioner on a reference made by the Income Tax

Officer got jurisdiction to impose penalty in such cases. The jurisdiction on Inspecting Assistant Commissioner was conferred by virtue of the

reference. The reference was validly made by the Income Tax Officer before April 1, 1971. The question is did the amendment to Section 274 divest

the Inspecting Assistant Commissioner of his validly acquired jurisdiction or the amendment ousted his jurisdiction merely because the amount of

concealed income did not exceed Rs 25,000 and the case did not satisfy the requirement of as amended.

It will be noticed that the amending Act did not make any provision that the references validly pending before the Inspecting Assistant

Commissioner shall be returned without passing any final order if the amount, of income in respect of which the particulars have been concealed did

not exceed Rs.25,000. This supports the inference that in pending references the Inspecting Assistant Commissioner continued to have jurisdiction to

impose penalty. The previous operation of Section 274(2) as it stood before April 1, 1971, and anything done thereunder continued to have effect

under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass orders imposing penalty in pending

references. In our opinion, therefore, what is material to be seen is as to when the references were initiated. If the reference was made before April

1, 1971, it would be governed by Section 274(2) as it stood before that date and Inspecting Assistant Commissioner would have jurisdiction to pass the

order of penalty.

It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a

question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular

forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by

express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different

tribunals or forums.

In the case of Himachal Pradesh State Electricity Regulatory Commission & another vs. Himachal Pradesh State Electricity Board reported in

2014 (5) SCC 219, it has been held that;

In Dhadi Sahu (supra), it has been held thus:-

“18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions

unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of

proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.

It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a

question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular

forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by

express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different

tribunals or forums.â€​

At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily

prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights

are affected. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the

provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the

said right is taken away by the Legislature by an express provision in the Statute by necessary intention.

With the aforesaid submissions, he prayed that the order impugned which has been mentioned in these review petitions be

modified accordingly.

Per contra, Shri Vivek Patwa, learned Government Advocate has submitted that the amended provisions of Rule 53 of the Rules of 1996 would

apply in the case in hand in the matter of procedure. The petitioner has the vested right of defence in the manner prescribed for time being by or for

the authority and he has no other right than to proceedings according to the altered mode. By impugned order, learned Writ Court quashed the order

impugned therein and remitted the matter back to the Sub-Divisional Officer for reconsideration and decide the question of imposition of penalty as per

the rules which was prevailing on the date of joint inspection. He further submitted that earlier, prior to amendment, the Collector was empowered to

pass the order in a proceeding under Rule 53 of the Rules of 1996 but after amendment made on 18.05.2017, power has been delegated to number of

other authorities (not in below the rant of Deputy Collector), as mentioned therein and, thus the Sub-Divisional Officer is competent to decide the

matter afresh. He further submitted that at that relevant point of time, period of lease of the petitioner had expired and during pendency of the renewal

application, present petitioner was having no jurisdiction to carry out mining operation under the Rules of 1996, there is no provision of deemed

renewal during pendency of the renewal application and the provisions of deemed permission of extraction of mineral, which was earlier there in

respect of major minerals under The Mineral Concession Rules, 1960 has been struck out by the Apex Court and, thus, extraction which was made by

the review petitioner after expiry of the period of quarry lease is illegal and unauthorized.

The law on the subject is well settled. As per Section 247 of the M. P. Land Revenue Code, 1959 (in short “the Codeâ€), the right to all

minerals, mines and quarries shall vest in the State Government. The State Government shall have all the powers necessary for the proper enjoyment

of such rights as declared under sub-section (1) of Section 247 of the Code. The Government is free to assign any bodies its rights over any minerals,

mines or quarries. Even if the land belongs to the private persons, then the said land owner is entitled only for payment of compensation wherein rights

of any person are infringed. In terms of sub-section (1) of Section 247 of the Code, right to all minerals, mines and quarries vests in the State

Government. There is nothing otherwise in the Code that the Bhumiswami has any right in respect of minerals. The grant of quarry lease for

extraction of minerals (minor minerals) is governed by the Rules of 1996. As per sub-section (7) of Section 247 of the Code, the Sub-Divisional

Officer is competent to prove the illegal extraction of minerals and, therefore, on 08.12.2017, the Sub-Divisional Officer who has passed the impugned

order was competent to take appropriate proceedings in respect of illegal extraction of minerals and, thus, there is no merit in any of the contention

raised by the review petitioner. He lastly submits that there is no error apparent on the face of the record and prays for dismissal of all the review

petitions.

In the case of Commissioner of Income Tax, Orissa (supra), the assessment orders were passed on 28.02.1970. The Income Tax Officers initiated

proceedings for imposition of penalty under Section 271(1)(c) of the Income Tax Act, 1961 (in short “the Act of 1961â€) and the matter was

referred to the Inspecting Assistant Commissioner under Section 274(4) of the Act of 1961. On 28.02.1970 i.e., on the date of the assessment orders,

Section 274(2) of the Act of 1961 provided as follows :-

Notwithstanding anything contained in clause (iii) of sub- section (1) of Section 271 if in a case falling under clause (c) of that sub-section the

minimum penalty impossible exceeds a sum of Rupees one thousand, the Income Tax Officer shall refer the case to the Inspecting Assistant

Commissioner, who shall, for the purpose, have all the powers conferred under this chapter for the imposition of penalty.

From the aforesaid, it is clear that till 01.04.1997, the Income Tax Officer had no jurisdiction to impose penalty, under Section 271(1)(c) of the Act

if the minimum penalty impassable exceeded Rs.1,000/- and in such a case he was bound to make a reference to the Inspecting Assistant

Commissioner, who, on such reference exercise all the powers conferred under Chapter XXI for the imposition of penalty. From 01.04.1971, the

Income Tax Officer could impose penalty under Section 271 (1)(c) if the amount of income in respect of which the particulars were concealed or

inaccurate particulars were furnished did not exceed Rs.25,000/-. If the amount of such income exceeded Rs.25,000/- the Income Tax Officer was

required to refer the case to the Inspecting Assistant Commissioner who then got jurisdiction to impose penalty. The amending Act did not make any

provision that the references validly pending before the Inspecting Assistance Commissioner shall be returned without passing any final order if the

amount of income in respect of which the particulars have been concealed did not exceed Rs.25,000/-. The previous operation of Section 274(2) as it

stood before 01.04.1971, and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the

Inspecting Assistant Commissioner to pass orders imposing penalty in pending references. Therefore, the Inspecting Assistant Commissioner to whom

the case was referred prior to 01.04.1971 had jurisdiction to impose the penalty. Considering the aforesaid, we are of the view that the decision of the

Apex Court in the case of Commissioner of Income Tax, Orissa (supra) is distinguishable on facts.

In the case in hand, the Sub-Divisional Officer was empowered to initiate proceedings for illegal extraction of minerals under the provisions of

Section 247(7) of the Code and the order which was impugned in the writ petition was passed by the Sub-Divisional Officer after amendment under

Rule 53 of the Rules of 1996, which came into force w.e.f. 18.05.2017 and, thus, both the decisions cited are distinguishable and will not apply in the

present case nor any order for review, as prayed is made out.

For these reasons, the review petitions filed by the review petitioners have no merit. All the review petitions are dismissed accordingly. A copy of

this order be kept in the other connected matter also. No costs.