1. In this application under Article 226 of the Constitution of India for the issue of a writ of certiorari for quashing a decision of the Board of Revenue upholding in appeal an order of the Commissioner, Jabalpur Division, the question raised is as regards the Regality of a fine of Rs. 29,784/- imposed on the petitioner Govind Prasad Sharma under Section 228 (7) of the Madhya Pradesh, Land Revenue Code, 1954.
2. The matter arises thus. The petitioner-obtained in 1954 a mining lease for extracting iron ore from an area of 12.59 acres of certain Khasra, numbers including a part of Khasra No. 537 situated in village Pratappur of Sihora tahsil of district Jabalpur. In 1955 the part of the Khasra No. 537 which had not been leased out to the applicant for extraction of iron ore was given to him for purposes subsidiary to mining. On 17th January 1956 the petitioner entered into a contract with one Smt. Sarla Devi Khemka for raising of iron ore from 8.48 acres; out of the total area of 12.59 acres, leased out to him by the State, According to this agreement, Sarla Devi undertook to deliver saleable iron ore above 62 per cent Fe. F. O. R. Sihora at a fixed charge of Rs. 12/-. per ton. The agreement, which was for a duration of three years, inter alia required the raising contractor to 'observe and perform' all the mining rules and regulations and all other labour laws in force and made the contractor alone responsible for payment of damages, loss or liabilities arising out of day to day working of the mine, resulting from neglience or non-observance of the mining rules and regulations or of labour laws in force for the time being. It also prohibited the raising contractor from mining or encroaching on any area outside the area shown in the plan annexed to the contract except for the purpose of stacking material or for building roads and structures.
3. In December 1957 when the petitioner found that the raising contractor and persons working under and on behalf of her were extracting iron ore from area outside the one specified in the plan annexed to the 'raising contract', he brought this fact to the notice of the Collector, Jabalpur, by addressing a letter on 5th December 1957. This has been admitted in the return filed on behalf of the respondents Nos. 2, 3 and 4. An enquiry was then held first by the Naib-Tahsildar and then by the Sub-Divisional Officer, Jabalpur, who submitted a report to the Additional Collector that iron ore from that part of Khasra No. 537, which had not been given to the lessee for the purpose of extracting iron ore, had been extracted by the contractor; that 4,000 tons of iron ore was found lying on the spot that nearly 12,000 tons of iron ore was also found lying at Sihora railway station. The Additional Collector then directed the seizure of this ore; and initiated proceedings against Govind Prasad Sharma and Smt. Sarla Devi under Section 247 (7) of the Madhya Pradesh Land Revenue Code, 1959, In those proceedings the Additional Collector, Jabalpur, finding that there was illegal extraction of iron ore from Khasra No. 537 and that for this both the petitioner Govind Prasad Sharma and the contractor Smt. Sarla Devi were equally responsible, imposed on the petitioner and Smt. Sarla Devi a penalty of Rs. 29,784/- each under Section 247 (7) of the 1939 Code.
4. The petitioner then preferred an appeal before the Commissioner, Jabalpur, Division, contending that as the illegal extraction was done by the raising contractor, he could not be punished for it. The Commissioner found that the petitioner had not specifically permitted the raising contractor Smt. Sarla Devi to extract ore from that part of Khasra No. 537 which had not been leased out to him for extraction of iron ore; that the illegal extraction was done by the contractor; but that the petitioner as the holder of the mining lease was also liable for the illegal extraction as
'it was his duty to ensure that the raising contractor who had the status of his agent did not work in a manner which would jeopardise his interest under the lease held from Government.'
He also observed that the petitioner lessee alone was responsible for any breach of the terms of the lease and that :
'he must accept responsibility for the actions of his agents, in this particular case Smt. Sarla Devi whom he had appointed his raising contractor.'
The Commissioner went on to say that the circumstances of the case suggested that Govind Prasad Sharma and Smt. Sarla Devi were acting in collusion and that they both stood to profit by illegal extraction of iron ore. On this view, the Commissioner came to the conclusion that Govind Prasad had been rightly penalised. The Commissioner, however, added that the Additional Collector should have passed an order of penalty not under Section 247(7) of the 1959 Code but under Section 228(7) of the M. P. Land Revenue Code of 1954. Thus, the petitioner's appeal was dismissed by the Commissioner.
5. The applicant then preferred a second appeal before the Board of Revenue. The learned Member of the Board of Revenue who heard the appeal found that the extraction of iron ore from that part of khasra No. 537 which had not been, leased out to the petitioner for extraction of iron, ore was by Smt. Sarla Devi; and that this was. 'done by her in the course of her employment as an independent contractor', but still the petitioner was liable as the contractor was 'inducted, to the land' by him and the extraction done by Smt. Sarla Devi was in the course of her employment as a contractor of the petitioner. The learned Member of the Board of Revenue endorsed the, observation of the Commissioner that there were circumstances suggesting collusion between the contractor and the petitioner by referring to the circumstances that the petitioner had appointed a Supervisor to look after the work of raising ore done by the contractor, that the applicant did not take any steps to stop illegal extraction by the contractor when he came to know of it; and that it was the petitioner who stood to gain by the sale and disposal of ore illegally extracted by the contractor; and that the applicant had not suggested that 'it was the contractor who was extracting, the ore...... for her own independent purpose and would have disposed of the ore herself independently of him'. The petitioner seeks a writ of) certiorari for quashing the decisions of the Additional Collector, Jabalpur; the Commissioner, Jabalpur Division; and the Board of Revenue.
6. Shri Dabir, learned counsel for the petitioner, argued that the extraction of ore of any mineral from any mine or quarry without lawful authority was made a penal offence under Section 228(7) of the Code and a person could not be found guilty of that offence unless he had a guilty, mind; that mens rea was an essential constituent part of a crime; that the illegal extraction of iron ore was done by the raising contractor contrary to the terms of the contract; that the petitioner) had not given any instructions for the wrongful act; that Section 228(7) did not contain any words imposing a responsibility upon a master for acts of extraction of ore of any mineral of a raising contractor who is not his servant or agent; that Smt. Sarla Devi was not a servant or an agent of the petitioner; but was, as found by Board of Revenue, an independent contractor over whom the petitioner had no right or control in the performance of the work of extraction and consequently the petitioner could not be made liable for the fault of an independent contractor; and that there was no material whatsoever to suggest that the petitioner in any way abetted Smt. Sarla Devi in the illegal extraction of the ore or colluded with her in that.
7. In support of the conclusion he reached, the learned Member of the Board of Revenue has relied, on several statements contained in a book on law of Torts as regards the liability of a master for the acts of his servant done in the course of his employment. It is, therefore, necessary to state first what the law is on the question of mens rea as a constituent element of a crime and the criminal responsibility of a master for acts of his servant committed contrary to his instructions and, without his knowledge. The law is well settled by numerous decisions. The well established rule is that unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the defendant could not be held guilty of an offence under a criminal law unless he has a guilty mind. See Srinivas Mall v. Emperor, AIR 1947 PC 135, and Hariprasada Rao v. State, AIR 1951 SC 204. In Halsbury's laws of England, Volume 10 (Third Edition), the following statement occurs in paragraph 508 on 'Mens rea in statutory offences':
'A statutory crime may of may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute. In some cases, the Courts have concluded that despite the absence of express language the intention of the legislature was that mens rea was ft necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens rea. Instances of this strict liability have arisen on the legislation concerning food and drugs, liquor licensing, and many other matters.' (pages 273 and 274).
Then, again, it has been stated in paragraph 511 of the same volume that:
'Where a particular intent or state of mind is of essence of an offence, the person committing the act is not criminally responsible if he had no mens rea and the act was ordered or procured by another person; but the person who ordered or procured the act is criminally responsible. In general a person is not criminally liable for an act or omission unless he has himself committed,or omitted the act or authorised or known of orshut his eyes to the commission or omission. Consequently a principal or master is not generally.criminally liable for the acts or omissions of his agents or servants whatever his civil liability may be; it is not to be inferred that because he has employed the agent or servant in the conduct of business that he has given him authority to commit crimes, and it is immaterial whether the act or omission is one for which he is liable civilly in an action for damges.' (pages 275 and 276).
8. The exceptions to the general rule about, the existence of mens rea and that a master cannot be made liable criminally for an offence committed, by his servant have been pointed out in the case of Mousell Brothers v. London and North-Western. Rly., (1917) 2 KB 836. In that case Lord Reading C. J. said:
'Prima facie, then, a master is not to be made criminally responsible for the acts of his servant to which the master is not a party. But it may be the intention of the Legislature, in order, to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of, and is not a party to, the forbidden act done by his servant. Many statutes are passed with this object. Acts done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his servant without the knowledge of the master. Under the Food and Drugs Acts there are again instances well known in these Courts where the master is made responsible, even though he knows nothing of the act done by his servant, and he may be fined or rendered amenable to the penalty, enjoined by the law. In those cases the Legislature absolutely forbids the act and makes the principal liable without a mens rea.' (page 844).
Atkin J., while expressing his agreement with Lord Reading, stated the matter thus:
'I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such word as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed and the person upon whom the penalty is imposed.' (page 845).
9. In order, therefore, to determine whether, or not the petitioner was liable for the illegal, extraction done by the raising contractor Smt. Sarla Devi it is necessary to consider the object of Section 228 of the M. P. Land Revenue Code, 1954, and the language of its Sub-section (7). The first sub-section of Section 228 says that unless it is otherwise expressly provided by the terms of a grant made by the Government, the right to all minerals, mines and quarries shall vest in the State Government which shall have all powers necessary for the proper enjoyment of such rights. The second sub-section declares what 'the right to all mines and quarries' comprises of. Sub-section (3) deals with delegation by the Collector of the powers under Sub-sections (1) and (2) to a person whom the Government has assigned its right over any minerals, mines or quarries for the proper enjoyment of such light. Sub-sections (4) and (5) are concerned with the payment of compensation to a person, whose rights are infringed by the occupation or disturbance of the surface of such land by the Government or its assignee. Sub-section (6) provides for the recovery of compensation determined under Sub-section (4). Then Sub-section (7) prescribes:
'Any person who without lawful authority: extracts or removes minerals from any mine or, quarry, the right to which vests in, and has not been assigned by, the Government, shall, without prejudice to any other action that may be taken against him, be liable, on the order in writing of the Deputy Commissioner, to pay penalty not exceeding a sum calculated at double the market value of the minerals so extracted or removed. Provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Deputy Commissioner may impose.'
The last sub-section gives to the Collector, the, power to seize and confiscate any mineral extracted or removed from any mine or quarry the right to which vests in, and has not been assigned by the Government.
10. It is plain from the above provisions of Section 228 that their purpose is to conserve the minerals, mines and quarries of the State and to regulate the extraction of minerals. For this purpose it provides that unless expressly provided by the terms of a grant made by the Government, the right to all minerals, mines and quarries shall rest in the Government; and that no person without lawful authority shall extract minerals from any mine or quarry, the right to which vests in, and has not been assigned by, the Government. Thus, Sub-section (7) of Section 228 forbids absolutely the acts mentioned in that sub-section under a penalty. So also Sub-section (8) further forbids those acts by providing for the seizure and confiscation of any mineral extracted or removed from any mine or quarry by any person the right to which has not been assigned to him by the Government. The offence under Section 228(7) is of a kind what Channell, J. described in Pearks, Gunston and Tee, Ltd. v. Ward, (1902) 2 KB 1 at p. 11 as 'quasi-criminal offences...... where certain acts are forbidden by law under a penalty, possibly even under a personal penalty, such as imprisonment, at any rate in default of payment of a fine' which form exceptions to the rule that a master cannot be made liable criminally for an offence committed by his servant. The acts of extraction or removal of mineral are such as would, normally be performed by servants or employees. Any particular intent or state of mind is not of the essence of the contravention of Sub-section (7) and, therefore, if a servant in the course of his employment extracts or removes mineral without, lawful authority, for his master's benefit even without his knowledge or consent, the master would be liable to penalty under Sub-section (7).
11. This position was not disputed by learned counsel for the petitioner either before us or before the Board of Revenue. What he urged before us, as he did before the Board of Revenue, was that Smt. Sarla Devi was an independent contractor over whom the petitioner had no right of control in the performance of the work of extraction and consequently the petitioner could not be made liable for her fault; and that so to d would amount to making the petitioner criminally liable for the wrongful act of a stranger. Both the Commissioner and the Board of Revenue failed to appreciate this contention advanced on behalf of the petitioner. The Commissioner treated Smt. Sarla Devi as an agent of the petitioner, and it is not clear what exactly he meant when he said that the 'raising contractor had the status of agent'. The Board of Revenue, however, found that Smt. Sarla Devi was an independent, contractor, but held that the petitioner was still, liable for the acts of the independent contractor as the rule that a person could not be vicariously liable for the work of an independent contractor was not an absolute rule.
In taking this view the learned Member of the Board of Revenue overlooked, the distinction between a servant, an agent and an independent contractor, and failed to note, the limited exceptional cases in which the rule that an employer of an independent contractor is not liable for the faults of the contractor does not apply. The distinction between the position of an agent, a servant and an independent contractor is well known and, has been noted by the Supreme Court in Lakshminarayan Ram Gopal and Son Ltd. v. Govt. of Hyderabad, 1955-1 S C R 393 at page 401 : (AIR 1954 SC 364 at page 367) by reference to the statement of the law contained in Halsbury's Laws of England Hailsham Edition--Volume 1 at page 193. That statement of law, which is now contained in paragraph 350 of Halsbury's Laws of England, Simonds Edition, Volume 1, is as follows:
'An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference, and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though, bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such, is not a servant but a servant is generally for some purposes his master's agent, the extent of the agency depending upon the duties or position of the servant, and in some cases an independent contractor may also be an agent.' (pages 145 and 146).
12. The learned Member of the Board of Revenue has not held with reference to the terms of the raising contract that Smt. Sarla Devi, though an independent contractor, was in effect no better than an agent or servant of the petitioner, and that the applicant reserved for himself a right of control or authority over her in the execution of the extraction work. Accepting the position of Smt. Sarla Devi as an independent contractor, the Board of Revenue has found the petitioner liable solely on the reasoning that she was employed by the petitioner, as a raising contractor and that what she did was in the course, of her employment as a contractor. The Board of Revenue clearly went wrong in holding that the above circumstances made the petitioner liable for the acts of Smt. Sarla Devi even though she was an independent contractor,
13. The seized law on the liability of a person employing an independent contractor is that an employer of an independent contractor is not, liable for the faults of the contractor. Ho is liable only in the following cases, namely,--
(a) if he employs a contractor to do an unlawful act;
(b) if the employment of a contractor is improper or negligent, as for example, where a person entrusts a work to an incompetent contractor;
(c) if he has under the common law or statute a duty which is personal to him. If such a duty is cast on him, he cannot escape liability for it by delegating it to a contractor.
Here, the petitioner had not employed the raising contractor for any unlawful act, to wit, extraction of iron ore from that part of khasra No. 537 which had not been leased out to him. On the other hand, Clause 10 of the contract concluded between the petitioner and Smt. Sarla Devi specifically prohibited the contractor from mining or encroaching on any area shown in the plan attached to the contract which clearly demarcated the area of khasra No. 537 leased out to the petitioner for subsidiary purposes, and that part of the khasra where mining operations could be carried out. It has not been suggested that the employment of Smt. Sarla Devi as a raising contractor; was an improper or negligent act on the part of the petitioner as she was an incompetent contractor. Again, neither the terms of the mining lease which the petitioner, obtained from the Government, nor the Mines and Minerals (Regulation and Development) Act, 1948, and the Mineral Concession Rules, 1949, made thereunder cast any duty on the petitioner to see that the contractor employed by him: did not extract minerals from any area not leased out to him or commit any breach of Section 228(7) of the M P. Land Revenue Code, 1954. The Act of 1948, or the Rules of 1949, or the terms of the lease granted to the applicant did not prohibit him, from employing any raising contractor for the extraction of iron ore. They did not even prescribe that if the petitioner-lessee employs an independent contractor for performing the work of extraction, then he would be responsible and liable for, any extraction done by the contractor contrary, to the terms of the lease given to him and would, be liable even, if the contractor during the subsistence of the raising contract does the work of extraction anywhere contrary to the provisions of, Section 228(7). In the absence of such statutory or contractual duty, the petitioner cannot clearly be subjected to penalty under Section 228(7) for the raising contractor's illegal act of extraction contrary to Section 228(7) of the 1954 Code.
14. Both the Commissioner and the Board, of Revenue were inclined to think that there were circumstances suggesting collusion between the contractor and the petitioner. But this was not the footing on which the Additional Collector, Jabalpur, enquired into the matter of illegal extraction done by Smt. Sarla Devi and proceeded to determine the liability of the- petitioner as an abettor or an accomplice. The fact that the petitioner appointed a person to supervise the work of raising, ore done by the contractor is a circumstance far from indicating collusion negatives it. There is no material whatsoever to suggest that the petitioner benefited by the sale and disposal of the ore illegally extracted by the contractor. Again, if he had not taken any steps to prevent the contractor from illegally extracting ore if he came to know of it, that by itself cannot be conclusive of his complicity in the illegal extraction when under, the lease granted to him no duty was thrown on him to see that during the subsistence of the lease no contractor employed by him or no person commits a breach of Section 228(7) of the 1954 Code. In our judgment, the imposition of penalty on the petitioner under Section 228(7) of the M. P. Land Revenue Code, 1954, cannot be upheld on any view of the matter.
15. For the above reasons, this petition is allowed and the decisions of the Additional Collector, Jabalpur; the Commissioner Jabalpur Division; and the Board of Revenue imposing on the applicant a penalty of Rs. 29,784/- under Section 228(7) of the M. P. Land Revenue Code, 1954, are quashed. The petitioner shall have costs of this application. Counsel's fee is fixed at Rs. 150/-. The outstanding amount of the security deposit shall be refunded to the petitioner.