Gujarat High Court
Khodiyar Construction Through Its ... vs The Geologist on 22 December, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/8959/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8959 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8960 of 2020
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KHODIYAR CONSTRUCTION THROUGH ITS PROPRIETOR CHANDUBHAI
K. SHIYAL
Versus
THE GEOLOGIST
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Appearance:
MR. NIKHIL R OZA(9911) for the Petitioner(s) No. 1
MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 22/12/2020
COMMON ORAL ORDER
1. Both these petitions under Article 226 of the Constitution of India are filed for the purpose of essentially for release of excavator machine and the dumper respectively. Since the petitions have been clubbed by order dated 04.12.2020 passed in Special Civil Application No. 8960 of 2020, both have been placed for consideration before this Court.
2. The case of the petitioner in Special Civil Application No. 8959 of 2020 is to the effect that the petitioner is the owner of vehicle i. e. excavator machine JCB J -5140. The same was used for the construction of the road between Mahuva to Kagavadar since the petitioner was a sub-contractor. This work was being carried pursuant to the permission having been granted by the Gram Panchayat. But then, without any opportunity of hearing and without issuance of seizure memo, respondent No.2 has seized the vehicle in question on 28.01.2020 and simultaneously, after four months, a show cause notice came to be issued on 22.05.2020. On 19.06.2020, the petitioner gave a written application that the manner in which the vehicle is seized is Page 1 of 5 Downloaded on : Wed Feb 24 14:44:49 IST 2021 C/SCA/8959/2020 ORDER illegal and as such, requested to release the same. However, on 22.06.2020, respondent No.1 authority rejected the request of the petitioner, as a result of which, the appeal was filed, however for the purpose of similar request for release of vehicle in question, a petition came to be filed before this Court. Simultaneously, a prayer is made to the effect to set aside the impugned order as well as show cause notice which has been issued by the authority as indicated above.
3. So far as another petition being Special Civil Application No. 8960 of 2020 is concerned, this petition under Article 226 of the Constitution of India is filed challenging the illegal action of respondent No.1 authority in seizing the dumper bearing No. GJ-14-X-7768 as also an order dated 22.06.2020. This vehicle was also used for the purpose of construction of road between Mahuva to Kagavadar which work was being carried with the permission of the respective Gram Panchayat, but then in the very same manner, the vehicle came to be seized. Here also, a request was made to release the vehicle and the authority has rejected the request. As a result, a petition came to be filed before this Court for release of dumper in question as well as for setting aside the order and the notice issued upon the petitioner.
4. With the aforesaid background, when the petitions came to be taken up for hearing, learned advocate Ms. Kruti Shah appearing for the petitioners with learned advocate Mr. N. R. Oza, has contended that the seizure in question of both these vehicles was not in accordance with the requirement of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation), Rules 2017 [hereinafter referred to as "Rules, 2017" for short] and has pointed out that the several orders have been passed, when moment it has been found that the seizure is not in consonance with Rule 12 of Rules and the respective vehicles have been released.
Page 2 of 5 Downloaded on : Wed Feb 24 14:44:49 IST 2021 C/SCA/8959/2020 ORDER4.1 It has been submitted that even recently, the High Court passed an order in case of Umarfaruk Abbasbbhai Bavan vs. State of Gujarat vide order dated 5.11.2020 rendered in Special Civil Application NO. 13280 of 2020 and while balancing the rights of the petitioner on one hand and the State Government's interest on the other hand, the Court directed to release the vehicle in favor of the owner upon furnishing before the competent authority a bank guarantee of a Nationalized Bank and as such, has urged that similar order be passed.
4.2 For substantiating her submissions, learned advocate has drawn the attention of this Court and placed the order dated 18.12.2020 passed in Special Civil Application No. 16037 of 2012 and order dated 06.11.2020 passed in Special Civil Application No. 12291 of 2020 and thereby, has requested to pass similar order since the petitioners of both the petitions are ready to furnish the bank guarantee to the extent of Rs.2 Lacs and has reiterated that since the question about effect of Rule 12 is at large before the Court, the petitions may be admitted to be heard with other cognate matters and by way of ad-interim relief, the vehicles in question seized by the authority be released upon furnishing the bank guarantee before the competent authority.
5. As against this, learned Assistant Government Pleader has submitted candidly that several orders have been passed and the petitions are at large before the Court for interpretation of Rule 12 of Rules 2017 and has left it to the discretion of the Court since on the very same term, the petitioners are ready to furnish the bank guarantee of a Nationalized Bank.
6. In view of aforesaid situation which is prevailing on record and in view of the fact that identical matters are very much at large before the Court, the Court would like to consider the case of the petitioners for release by way of interim measure of the vehicles which Page 3 of 5 Downloaded on : Wed Feb 24 14:44:49 IST 2021 C/SCA/8959/2020 ORDER are seized by the authority while admitting the petitions. Hence, Rule returnable on 15.02.2021. To be heard with Special Civil Application No. 16037 of 2020 and Special Civil Application No. 12291 of 2020.
7. By way of ad-interim relief, in view of aforesaid background of fact, the respondent authorities are directed to release the vehicles in question in favor of the petitioners subject to outcome of the petitions and any further order that may be passed in the captioned proceedings. Such vehicles are ordered to be released in favour of the petitioners on following conditions:-
(I) The respondents authorities are directed to release the vehicles in question i . e. excavator machine bearing No. JCB J - 5140 of the petitioner upon furnishing bank guarantee to the extent of Rs.2 Lacs of a Nationalized Bank for a period of one year to be furnished before the competent authority in case of Special Civil Application No. 8959 of 2020 and the dumper bearing No. GJ-14-X-7768 be released in favour of petitioner in case of Special Civil Application No. 8960 of 2020 only on furnishing a bank guarantee of Rs.2 Lacs of a Nationalized Bank for a period of one year to be furnished before the competent authority.
(II) Until the aforesaid proceedings before the competent authority are concluded, the vehicles in question shall not be transferred or alienated till the final disposal of present petitions as well.
(III) If the vehicles in question are found to be used by the petitioners for any illegal activity including illegal construction or mining, etc. the same shall be liable to be Page 4 of 5 Downloaded on : Wed Feb 24 14:44:49 IST 2021 C/SCA/8959/2020 ORDER seized by the competent authority with a liberty to forfeit the bank guarantee with immediate effect.
Direct service is permitted.
(ASHUTOSH J. SHASTRI, J) NAIR SMITA V./CMK Page 5 of 5 Downloaded on : Wed Feb 24 14:44:49 IST 2021