Gujarat High Court
Upendra Sundarjibhai Adhara vs State Of Gujarat Thro on 26 March, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
UPENDRA SUNDARJIBHAI ADHARAV/SSTATE OF GUJARAT THRO COMMISSIONER C/SCA/1701/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1701 of 2013 =========================================================== UPENDRA SUNDARJIBHAI ADHARA & 2....Petitioner(s) Versus STATE OF GUJARAT THRO COMMISSIONER & 5....Respondent(s) ================================================================ Appearance: MR PJ KANABAR, ADVOCATE for the Petitioner(s) No. 1 - 3 MR.BHAUMIK DHOLARIYA, ADVOCATE for the Petitioner(s) No. 1 MR. BHARAT VYAS, AGP for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 6 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 26/03/2013 ORAL ORDER
Present petition has been filed by the petitioner under Articles 14, 19(1)(g), 226 and 227 of the Constitution of India as well as under
the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005 read with Mines and Minerals (Regulation and Development) Act, 1957 for the following prayer:
(D) Pending admission, hearing and final disposal of this petition Your Lordships may be pleased to direct respondent No.3 to release the Truck No.GJ-21-V-1311 forthwith in terms of Rule 18 of the Rules to meet with the ends of justice;
Heard Learned Counsel Shri P.J.Kanabar for the petitioner.
Learned Counsel Shri P.J.Kanabar has referred to the papers and pointedly referred to the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005 and the provisions of Mines and Minerals (Regulation and Development) Act, 1957. He submitted that the seizer itself is not legal and has also referred to Section 21(4)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 in support of his submissions that such a vehicle used for transportation of mines and minerals in contravention of these Rules or the lease, the order of the Competent Court is required, where as the vehicle has been seized by officer in purported exercise of powers under the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005.
He has referred to the judgment of the Hon ble Division Bench of the High Court in case of Jayeshbhai Kanjibhai Kalathiya V. State of Gujarat through Principal Secretary and others, reported in 2011 (2) GLR 935 and submitted that the Court has incidentally considered the statutory provisions of the Act and the powers under the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005, which have been made in exercise of powers under Section 23(C) of the Act. He, therefore, submitted that when there is a statutory provision that seizer could be made only by the order of the Court, the subsequent Rules for seizer by the officer as per the Rules, is not permissible. He has also referred to the judgment of the Hon ble Division Bench of the High Court in case of Rishikesh R. Shahi V. State of Gujarat through Secretary and others, reported in 2012 (3) GLH 837, for release of vehicle.
Learned AGP Shri Bharat Vyas has strongly resisted the petition and has pointedly referred to Rule 6 read with Rule 13 of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005 and submitted that these Rules are made in exercise of powers under the Mines and Minerals (Regulation and Development) Act, 1957, which empower the officer to seize the vehicle and therefore it cannot be said that it is without any jurisdiction or authority. He further stated that when the vehicle in question has been seized and the order of confiscation has been passed, the observations made in the order passed by the Hon ble Division Bench in a judgment reported in 2012 (3) GLH 837 would not apply. It was submitted that it was referring to the interim custody of such vehicle pending the confiscation proceedings. He, therefore, submitted that this judgment has no application to the present petition. He submitted that the petitioner is indulging illegal transportation of mines and minerals on the basis of fake permit and weighing receipts.
In view of the rival submissions, having regard to the observations made by the Hon ble Division Bench in a judgment reported in 2011 (2) GLR 935 interpreting the Rules of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005 vis-a-vis the Mines and Minerals (Regulation and Development) Act, 1957 and considering the observations made by the Hon ble Division Bench in a judgment reported in 2012 (3) GLH 837, the matter requires consideration. Further, in the said judgment the observations are made that pending the confiscation proceedings, the same criteria can be relevant for the purpose of considering the interim relief. Hence, following order is passed:
Rule.
In the present case, considering the totality of the facts and circumstances, interim relief in terms of Para No.11(D) is granted, on the condition that the petitioner shall execute a bond as required under Rule 18 of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2005 with the Respondent Authority, at the time of release of vehicle in question.
It is also directed that the petitioner shall give an undertaking, at the time of release of vehicle, to the Respondent Authority that he shall not transfer the vehicle in any manner to anybody, nor he shall make any alteration till the final disposal of this petition. The petitioner shall also file an undertaking to that effect before this Court within a period of one week before he approaches to the Respondent Authority for release of the vehicle alongwith the bond. Direct Service is permitted.
(RAJESH H.SHUKLA, J.) Tuvar Page 5 of 5