Meghalaya High Court
M/S Trimurty Enterprise vs State Of Meghalaya on 21 May, 2024
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial Nos.14 & 15
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 375/2023 with
MC (WPC) No.222/2023 with
WP (C) No.376/2023 with
MC (WPC) No.223/2023 Date of Decision: 21.05.2024
M/s Trimurty Enterprise, Jamartal, Palashbari, Mirza Dist: Kamrup,
Assam-781125. Represented by: Shri Madan Chandra Das, partner,
Aged about 44 years, Son of Late Haren Chandra Das, Village Mirza,
District: Kamrup, Assam 781125 ..... Petitioner
Vs.
1. State of Meghalaya, represented by the Chief Secretary, Government
of Meghalaya, Meghalaya State Secretariat, Shillong-793001,
Meghalaya.
2. Deputy Commissioner, Government of Meghalaya, Ri-Bhoi District,
Nongpoh, Meghalaya-793102.
3. The Superintendent of Police, Government of Meghalaya, Ri-Bhoi
District, Nongpoh, Meghalaya-793102,
4. Officer-in-Charge, Government of Meghalaya, Police A.D. Camp,
Rani, Ri-Bhoi District, Meghalaya-793102.
..... Respondents
Smt. Purnima Boro aged about 53 years, Wife of Late Hiren Chandra
Boro, Rangapara P.O. Rani, P.S. Palashbari, Dist Kamrup, Assam
784505. ..... Petitioner
Vs.
1. State of Meghalaya, represented by the Chief Secretary, Government
of Meghalaya, Meghalaya State Secretariat, Shillong-793001,
Meghalaya.
2. Deputy Commissioner, Government of Meghalaya, Ri-Bhoi District,
Nongpoh, Meghalaya-793102.
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3. The Superintendent of Police, Government of Meghalaya, Ri-Bhoi
District, Nongpoh, Meghalaya-793102,
4. Officer-in-Charge, Government of Meghalaya, Police A.D. Camp,
Rani, Ri-Bhoi District, Meghalaya-793102.
..... Respondents
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Dr. N. Mozika, Sr.Adv with
Ms. A. Pradhan, Adv
Mr. N. Dasgupta, Adv
Mr. S.D. Upadhaya, Adv
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Ms. R. Colney, GA
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
These two writ petitions being similar and on the same circumstances, are being disposed of by this common judgment and order.
2. In WPC No.375 of 2023, the petitioner is a partnership firm engaged in the business of renting out excavators and in the course of business on 31.03.2023, two excavators were seized whereafter, writ petitioner came to learn that the seizure had been made in connection with their alleged used in illegal mining.
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3. Similarly in WPC No.376 of 2023, a dumper truck of the petitioner was also seized on 30.03.2023 on similar allegations. The above noted petitioners are therefore before this Court, questioning the manner of seizure on the ground that due process of law was not followed.
4. Dr. N. Mozika, learned senior counsel on behalf of the petitioners assisted by Shri N. Dasgupta, submits that on the seizure of the said excavators and dumper truck, the petitioners on 08.05.2023, had prayed for release of the seized articles, and for a copy of the seizure list so that the petitioners could take appropriate legal remedy. However, he submits neither the articles were released, nor a copy of the seizure memo provided. He further submits that the seized articles were also not produced before the jurisdictional Magistrate, which deprived the writ petitioners from filing an application under Section 451 of the Cr.P.C. for release/zimma which left the petitioners remediless.
5. The petitioners he submits, then sought information via applications under the RTI Act, and in the reply thereto dated 06.11.2023, the minutes of a meeting dated 17.04.2023, of a District Level Committee had been enclosed. In the said minutes, it was revealed that a Committee had been constituted by the Deputy Commissioner, Ri-Bhoi District in response to an order of the National Green Tribunal dated 10.01.2022, in the matter of O.A.No.48/2019/EZ - Jitul Deka vs. Union of India & ors. Learned senior 3 counsel would submit that from the minutes of the meeting, they then came to learn that the dumper truck and excavators had been seized on account of alleged engagement in mining activities, and that the same were to be auctioned of in terms of the mandate of the said Committee, under the provisions of Section 69 of the Assam Land Revenue Regulation Act, 1886.
6. From the said minutes itself, learned Senior counsel has submitted that the Committee had observed that since legal complaint would be filed by the DFO, East Khasi Hills and Ri-Bhoi (T) Division, details of the same should be shared with the Committee, as and when the cases were registered. However, he submits there has been no case registered and that the seizure was not under Section 102 (1) of Cr.P.C. as the dumper truck and excavators where never produced nor the seizure reported before a Magistrate as per Section 102 (3) of Cr.P.C., or was the same under Section 49 (1) of the Meghalaya Forest Regulation (Application and Amendment) Act, 1973 as the articles were neither produced nor seizure reported before the Magistrate as required under Section 49 (2). From the minutes of the meeting, it is submitted, only what was revealed was that the articles were attached as per Section 69 of the Assam Land Revenue Regulation Act, 1886. He, therefore, submits that the seizure not being as per law, the articles are liable to be released by the respondents. 4
7. Mr. N.D. Chullai, learned AAG with Ms. R. Colney submits that the action of the respondents was in accordance with law and as per the directions of the National Green Tribunal, and was directed against the illegal operation of stone quarries and crusher units, and since the machines seized had been hired for this activity which was illegal, the same cannot be said to be without any authority, or not as per law. The entire exercise he submits, was done to stop illegal mining and stone crushing units from operating, and to detect illegal movement and transportation of boulder stones from taking place in the District. In this connection he submits, all moveable seized items such as dumpers, JCBs were kept in the custody of the District Magistrate to await further necessary action. The putting up for auction of such the seized machinery and equipment to recover environmental compensation, he submits, had been initiated by the State respondents with due information to the National Green Tribunal. As such he contends that there is no illegality or arbitrariness in the seizure of the dumpers and excavators.
8. Heard learned counsel for the parties.
9. It is correct that the scourge of illegal mining whether it be stone or other minerals, is causing huge environmental degradation to the fragile eco-system of the State. This Court is also aware about the concerted actions that have been undertaken by the State players to arrest this menace 5 in one way or the other. Extensive reference in this regard, from the arguments advanced by the State, have been made to the orders of the National Green Tribunal in the case of Jitul Deka, which has dealt specifically with illegal mining of gravel and stone in Ri-Bhoi District. It is seen that pursuant to the directions of the NGT, a Committee had been constituted comprising of the Deputy Commissioner, Divisional Mining Officer, Divisional Forest Officer, State Pollution Control Board, Senior Scientist from the Ministry of Environment and Forests etc. to monitor the situation. However, it is important to keep in mind that, though the seizure of the said excavators and dumper truck were made from the site where illegal mining activities were being carried out, no matter the nexus, or other considerations, any proceedings emanating therefrom, should necessarily be in accordance with law.
10. At this juncture, it would be expedient to examine the minutes of the District Level Committee dated 17.04.2023, to get a backdrop with regard to the seizure and the proposed manner of disposal by auction by the said Committee, of the excavators and dumper truck of the petitioners. For the sake of convenience, the minutes of the meeting is reproduced hereinbelow:
"Minutes of the meeting of the District Level Committee constituted in connection with Attachment of Property under section 69 of the Assam Land Revenue Regulation Act, 1886 to discuss on seizure of heavy machineries and dumper truck at Rani Jirang Areas by Meghalaya Police A.D. Camp.6
Member present: As per Annexure The Meeting was held under the Chairmanship of Smti. M. Shira Kshir, ADC in charge Revenue Branch (NGT) on 17th of April 2023, who after welcoming the members, requested Shri. B. Lyngdoh, DFO North Khasi Hills (SF) Division Nongpoh cum Member Secretary, District Level Committee to initiate the discussion. The Member Secretary gave a brief account on constitution of the District Level Committee and the term of reference within which the Committee is required to function. He stated that the Committee was constituted by the Deputy Commissioner, Ri-Bhoi District in response to one of the National Green Tribunal's (NGT) order dated 10th January 2022 that was passed in the matter of now disposed case i.e., O.A. No.48/2019/EZ Jitul Deka versus Union of India & Ors. As per order issued by the Deputy Commissioner vide letter No.DCRB (LR) 37/2019/Pt-III/Rev/486 dated 20.01.2022, the Term of reference of the Committee is:
(i) To assess the valuation of the machineries, vehicles, stone crusher plants, DG sets, Excavators etc that have been seized relating to illegal mining/stone crushing activities and attached such properties as per section 69 of the Assam Land Revenue Regulation Act, 1886.
(ii) To prepare Notice Inviting Tender for auctioning of the seized items at (i).
(iii) Issuance of lifting order to successful Bidders on completion of the auction process.
He informed that the Police A.D. Camp stationed at Rani-Jirang had recently seized 1 (one) no. boulder stone loaded Dumper Truck bearing Assam registration no.AS01 LC 9239 at Kabedonga quarry area on 30th March 2023 and 2 (two) nos. Tata Hitachi Excavators engaged in illegal mining at Puran Sukuberia quarry on 31st March 2023 and as per Police report, the dumper truck with boulder stones was brought to Rani-Jirang AD camp for safe custody. Whereas on account of insufficient parking space at Rani-Jirang AD Camp, the two excavators were transported and are presently kept at Byrnihat Police Outpost. Meanwhile the Divisional Forest Officer, East Khasi Hills & Ri Bhoi (T) Division, Shillong had been requested by the Deputy Commissioner to take necessary legal action in respect of the said cases. Simultaneously the Committee is requested to estimate 7 the reserve price of the machineries seized by the Police AD Camp for auction.
Shri. G.F.W. Pariat Functional Manager, representing General Manager, District Commerce & Industries Centre, Ri Bhoi District suggested seeking assistance from the Transport Department for evaluation of reserve price of the seized heavy vehicles. The Chairman thus requested the Member Secretary to ask the District Transport Officer, Ri Bhoi District to assess the reserve price of the two excavators and one dumper truck that are lying in the custody of the police, to have on record the existing price on "as is where is basis" which would be useful for future reference.
Shri. F. Laloo Environmental Engineer, Meghalaya State Pollution Control Board (MSPCB) expressed that there is a need to find out the names of the owners of these seized items in order to crosscheck with the list of violators that had already been sent to the NGT in the matter of Jitul Deka Case. To this request, the Member Secretary suggested that since legal complaint would be filed by the DFO, East Khasi Hills and Ri Bhoi (T) Division, therefore he may be requested to share the details with the Committee as and when the cases are registered. The Chairman requested the Member Secretary to coordinate with the concerned DFO. (Emphasis supplied) The Chairman was of the view that since the Term of reference of the District Level Committee was made specifically for the items seized during the then Jitul Deka case, it is therefore pertinent to seek legal opinion on authority of the Committee with regard to attachment of seized property for auction under Section 69 of the Assam Land Revenue Regulation Act, 1886 for such new cases relating to illegal stone mining and crushing in the District. She stated that Government Pleader's opinion would be sought in this regard by the Committee.
With on other matters to be discussed, the meeting finally ended with vote of thanks from the chair."
11. A perusal of the above quoted minutes, would reflect that the Environmental Engineer, Meghalaya State Pollution Control Board had expressed that there was a need to identify the owners of the seized items, 8 to which request the Member Secretary suggested that since a complaint would be filed by the DFO, East Khasi Hills and Ri Bhoi (T) Division, the same could be obtained when the cases were registered. Apart from the observations, a query was also raised on the authority of the Committee with regard to attachment of seized property for auction, under Section 69 of the Assam Land Revenue Regulation Act, 1886.
12. From the above, coupled with the undisputed facts that no case had been registered under the provisions of the Cr.P.C., the seizure of the articles under Section 69 of the Assam Land Revenue Regulation Act, 1886 seems to be misplaced. This is because Section 69, relates to recovery of arrears of land revenue, which allows the Deputy Commissioner to order for attachment and sale of so much of a defaulter's moveable property to recover the said arrears. This necessarily involves the issuance of demand notices before any coercive measures are taken as provided by Section 68 (2) of the said Act. A perusal of the seizure memo also shows that the seizure was made only on the basis of a GD entry and no FIR had been registered.
13. From the above facts and discussions, it is thus seen that the seizure of the articles was in the absence of any complaint or FIR, and was done purely and ostensibly in furtherance of, and on the strength of the NGT orders, with regard to environmental violations. In this view of the matter 9 therefore, though the intent and object of the respondents was bona fide and correct, due process of law however, was not adopted, as no complaint had been made by the concerned DFO, and no case was registered.
14. In the facts and circumstances of the case therefore, without prejudice to any further action that the State respondents may take; it is hereby directed as follows:
(i) The Deputy Commissioner-respondent No.2 in whose custody the excavators and dumper truck are lying, is directed to release the same to the petitioners, on the production of proper and valid documents showing registered ownership to the satisfaction of respondent No.2.
(ii) The release of the excavators will be subject to the execution of a bond with one surety of Rs.5 lakhs by the petitioner in WP (C) No.375 of 2023, and the dumper truck of Rs.2 lakhs by the petitioner in WP (C) No.376 of 2023, to the satisfaction of respondent No.2, and once released, the same shall remain in the custody of the petitioners and shall not be transferred or assigned in any manner. It is further provided that they shall produce the articles as and when required as part of any legal proceedings, and the release of the same shall be subject to final orders to be passed by a competent Court on the registration of the case.
15. Accordingly, as ordered above, the writ petitions are allowed to the extent indicated above, and are disposed of.
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16. MC (WPC) No.222 of 2023 and MC (WPC) No.223 of 2023 also stand disposed of.
Judge Meghalaya 21.05.2024 "D.Thabah-PS"
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