Gujarat High Court
Umarfaruk Abbasbhai Bavan vs State Of Gujarat on 5 November, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13280/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13280 of 2020
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UMARFARUK ABBASBHAI BAVAN
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MS.ASMITA PATEL, AGP(99) for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 05/11/2020
ORAL ORDER
In the facts of the case and having regard to the consent and request of the parties appearing through their respective learned advocates, the petition was taken up for final consideration.
1.1 Rule, returnable forthwith. Learned Assistant Government Pleader Ms. Asmita Patel waives service of rule on behalf of the respondent State.
1.2 Heard learned advocate Ms. Kruti Shah for the petitioner and learned Assistant Government Pleader.
2. It is with two principal prayers that the jurisdiction of this Court under Article 226 of the Constitution is invoked. The first prayer is to get set aside the order dated 30.9.2020 passed by respondent No.2 - the Geologist, Geology and Mining Department, Himmatnagar. The second prayer is for setting aside the action on part of the respondent No.2 in seizing the Page 1 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020 C/SCA/13280/2020 ORDER vehicle being JCB bearing No.GJ-09-DA-0022 under the provisions of Gujarat Mineral (Prevention of illegal Mining, Storage, Transportation) Rules, 2017. It is prayed to immediately release the vehicle- the JCB in question.
2.1 Order dated 30.9.2020 passed by the Geologist - the respondent No.2 whereby in respect of the alleged illegal mining undertaken by the petitioner under the Gujarat Mineral (Prevention of illegal Mining, Storage, Transportation) Rules, 2017, concession and penalty to the total amount of Rs.5,22,867/- is imposed on the petitioner requiring the petitioner to deposit the same within the stipulated time.
3. It appears that the JCB machine of the petitioner was hired by the panchayat for removal of unauthorized construction in the survey No.353 of village Savgadh, Taluka Himmatnagar. It appears that checking was undertaken and the allegations were levelled against the petitioner about unauthorized excavation.
4. As far as the first part of the challenge to order dated 30.9.2020 passed by the respondent No.2-the Geologist is concerned, learned advocate for the petitioner does not press the same in order to avail the alternative remedy before the forum created by the State Government. In view of not pressing of the said prayer, the petition is dealt with only with regard to the second limb of the prayer about release of the vehicle as ordered above.
4.1 In the aforesaid view, the petition is not entertained qua the first prayer. It will be open for the petitioner to approach the State Government by exhausting the remedy available to him Page 2 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020 C/SCA/13280/2020 ORDER and agitate his rights in respect of the order dated 30.9.2020 passed by the Geologist.
5. While pressing the second prayer about release of vehicle - JCB which was seized as per seizure memo dated 22.9.2020, learned advocate for the petitioner relied on Rule 12 in particular of Gujarat Mineral (Prevention of illegal Mining, Storage, Transportation) Rules, 2017. The said Rule deals with seizure of property liable to confiscate.
5.1 The relevant portion of the said Rule is reproduced herein below for ready consideration.
"12. Seizure of property liable to confiscation.-
(1) 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 other thing (hereinafter referred to as "property") shall be liable to be seized by the Government in the manner specified in sub-rule (2) of this rule.
(2) [Every Authorised Officer seizing any property under these rules shall photograph the property and place on such property a mark in such manner as may be determined, indicating that the same has been so seized and shall:
(a) issue a notice in Form J informing the person from whom the property is seized of the property so seized, and release the property so seized upon receipt of a bank guarantee for an Page 3 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020 C/SCA/13280/2020 ORDER amount equal to-
(i) the penalty payable under rule 21, in case of transportation of, or causing to transport, mineral without lawful authority; or
(ii) the written down value of the property, in case of illegal mining or illegal storage of mineral:
Provided that, release under clause (a) of sub-rule (2) shall be without prejudice to and shall not in any manner affect the conduct of investigations and other actions contemplated under clause (b) of sub-rule (2).
Explanation: Under these rules property is seized as a security against the amount of penalty due to the Government and to ensure the presence of the alleged offender before the Government if the case is at notice stage.]
(b) [conduct,
(i) an investigation and if he is satisfied that a compoundable offence has been committed in respect of the property, he may, subject to receipt of a compounding application, order payment of such amount for compounding the offence as may be deemed appropriate, which amount, if not paid within thirty days, may be recovered by invocation of the bank guarantee furnished under clause (a) of sub-rule (2); or
(ii) a preliminary investigation, and if compounding is not permissible under rule 22 or if he is satisfied that the offence committed in respect of the property is not compoundable, upon the expiry of forty-five days from the date of seizure or upon completion of the investigation, whichever is earlier, shall Page 4 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020 C/SCA/13280/2020 ORDER approach by way of making a written complaint, before the Court of Sessions.
Explanation: Any offence under these rules shall be tried by the Court of Sessions in accordance with the Procedure laid down under the Code of Criminal Procedure, 1973;] (3) [Where the court is satisfied that an offence has been committed and is punishable under these rules, the court may order for,-
(a) penalty in accordance with rule 21,
(b) confiscation of the property under sub-section (4A) of section 21 of the Act, where the property seized under sub-rule (1) above is produced before a court under subclause (ii) of clause (b) of sub-rule (2).] (4) No order for confiscating any property shall be made under sub-rule (3) unless the person from whom the property seized is given:
(a)....
(b)....
(5)....
(6)....
(7)...."
5.2 The Rule thus provides about the manner and mechanism of seizing any mineral, tool, equipment, vehicle which may be seized by the Government in the manner specified in sub-rule (2) of the Rule. As could be seen from above quoted sub-rule (2), Page 5 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020 C/SCA/13280/2020 ORDER after seizure, the authorized officer is entitled to conduct an investigation. The process of compounding etc. may be undertaken and if the application for compounding is not received pursuant to Clause (a) of sub-rule (2), upon expiry of 45 days from the date of seizure of the vehicle, upon completion of investigation, whichever is earlier, the vehicle etc. could be released by the authorized officer.
5.3 In respect of the action sought to be taken against the petitioner as above for the alleged conduct of the petitioner, the investigation was undertaken by the competent authority. It is not disputed by other side, rather it is an admitted fact that such investigation is already over. No further investigation is to be carried out.
5.4 In view that the investigation is over, the court does not find any impediment in releasing of the vehicle-JCB of the petitioner, however, since action against the petitioner is proposed, in order to balance the rights of the parties at this stage, it is considered expedient that release of the vehicle would be subject to certain conditions.
5.5 It may also be mentioned that not only the investigation is over, the period of 45 days mentioned in 12(2)(b)(ii) is almost over and 45 days would stand completed on 6.11.2020.
6. In the aforesaid view, the respondent authorities are directed to release the vehicle-JCB bearing registration No.GJ- 09-DA-0022 of the petitioner upon petitioner's furnishing before the competent authority the bank guarantee to the extent of Rs.1,50,000/- of a nationalized bank for a period of one year. It Page 6 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020 C/SCA/13280/2020 ORDER is further provided by way of condition that until the proceedings before the competent authority against the petitioner are not concluded, the vehicle-JCB shall not be transferred. It is also observed that if the released vehicle is found to be put for use by the petitioner for any illegal mining or any other illegal activity, not only the same shall be liable to be seized by competent authority, the competent authority would be justified in taking strict view of the matter.
6. It is made clear that this Court has not expressed any opinion nor has gone into the merits of the case of either side in relation to the aforementioned order dated 30.9.2020 in respect of which the petitioner proposed to avail alternative remedy as above.
6.1 It is further observed that even the order of releasing the vehicle-JCB which is passed in the context of operation of Rule above and upon conditions as mentioned, would not have any reflection on the merits for consideration of the order dated 30.9.2020 before the alternative forum.
7. The petition is partly allowed in the above terms. Rule is made absolute to the said extent.
(N.V.ANJARIA, J) MARY VADAKKAN/ Manshi Page 7 of 7 Downloaded on : Thu Nov 05 23:47:48 IST 2020