Orissa High Court
Naba Apot vs State Of Orissa And Anr. on 19 May, 2006
Equivalent citations: 2006(II)OLR21
Author: M.M. Das
Bench: L. Mohapatra, M.M. Das
JUDGMENT M.M. Das, J.
1. As both the writ petitions arise out of similar facts and involve the same point of law and have been filed by the same petitioner, both the petitions are disposed of by this common judgment.
2. The petitioner in W.P.(C) No. 2373 of 2006 has called in question the order dated 10.1.2006 passed by the Competent Authority-cum-Deputy Director of Mines, Joda in Confiscation Proceeding No. 50 of 2005 under Section 16(3) of the Orissa Minerals (Prevention of Theft, Smuggling and Ors. Unlawful Activities) Act, 1989 (for short 'the State Act'). By the said order dated 10.1.2006, the Competent Authority-cum-Deputy Director of Mines directed confiscation of the vehicle (Tipper) bearing registration No.OR-04-D-3035. Similarly, in W.P.(C) No. 2377 of 2006, the petitioner phallenges the order dated 10.1.2006 of the same authority in Confiscation Proceeding No. 51 of 2005 directing confiscation of the vehicle (Tipper) bearing Registration NO. OR-09D-6322.
3. The factual allegations made in both the writ petitions are similar. It appears that in both the writ petitions, the Mines Squad headed by one Shri R. C. Mahallik, Mining Officer, Joda, on getting information regarding the offence said to have been committed under the provisions of the State Act proceeded towards Nuagaon area and found both the aforesaid Tippers were loading iron ore lumps at the spot and it is further alleged that seeing the arrival of the said Squad, the labourers and drivers of both the Tippers fled away into the jungle.
4. The Mining Officer seized both the aforesaid Tippers and iron ore lumps from the spot but took the vehicles to the office premises, leaving the iron ore lumps seized at the spot
5. Notices dated 10.10.2005 in both the writ petitions were issued to the petitioner requesting him to appear before the Deputy Director of Mines on 8.11.2005 and produce the documents relating to the vehicles in question. On the same day, notices were also issued to the petitioner in both the writ petitions, which have been annexed as Annexure-2 to the writ petitions in Form - 'O' intimating the petitioner that the vehicles being involved in offence committed under the State Act will be confiscated by the said Competent Authority-cum-Deputy Director of Mines and in the event the petitioner in both the writ petitions wanted to be heard in the matter in person, he may do so by intimating his intention in writing within fifteen days from the date of issue of the said notices. It appears that the petitioner in both the writ petitions, filed separate applications under Section 17 of the State Act for interim release of the aforesaid vehicles (tippers) which have been annexed as Annexure-3 to both the writ petitions and also filed statements of defence which have been annexed as Annexure-4 to both the writ petitions.
6. By the impugned orders passed on 10.1.2006 in both the aforementioned confiscation proceedings bearing Confiscation Proceeding Nos. 50 and 51 of 2005, the Competent Authority-cum-Deputy Director of Mines directed as follows:
XXX XXX XXX With the above observation the Competent Authority is not in favour of release of the vehicle in favour of the owner and in exercise of powers conferred under Section 16(3) of The Orissa Minerals (P.T.S. & O.U.A.) Act 1989 do hereby order that the seized tipper bearing registration No. OR 09D-6322 loaded with three tons of iron ore lump iron ore of 61.26% Fe grade is confiscated to State. The aggrieved person may prefer appeal before the Appellate Authority within the Statutory period as provided U/s 16(7) of the said Act failing which action be taken for auction sale of the confiscated property with due observation of the formalities.
7. Mr. B.C. Das, learned Counsel appearing for the petitioner in both the writ petitions, placing strong reliance on the decision in the case of Manoj Kumar Swain v. State of Orissa and Ors. 2005 (II) OLR 672 contended that this Court in the said decision has categorically held that while disposing of an application under Section 17 of the State Act for interim release of the seized vehicle, if the competent authority thought of disposing of the entire confiscation proceeding, he can do so by following the procedure as provided under Section 16(4) of the said Act which specifically provides that no order confiscating any property shall be made under Sub-section (3) of Section 16 of the State Act unless the person from whom the property was seized is given a notice in writing informing him the grounds on which it is proposed to confiscate such property and giving him an opportunity for making a representation in writing within a reasonable period as may be specified in the notice and further a reasonable opportunity of being heard. Mr. Das further contended that in the absence of such a notice, the orders impugned in both the writ petitions cannot be sustained.
8. Learned counsel for the State, on the other hand, contended that the notices issued under Annexure-2 to both the writ petitions satisfy the requirement provisions of Section 16(4) of the State Act.
9. On perusal of the decision in the case of Manoj Kumar Swain (supra), we find the contention of Mr. Das is supported by the ratio of the said decision and the Competent Authority-cum-Deputy Director of Mines, Joda could not have passed the impugned orders without complying with the provisions of Section 16(4) of the State Act.
10. But, however, in the judgment dated 17.5.2006 passed in W.P.(C) No. 11396 of 2005 in the case of M/s. Jai Durga Iron (P) Ltd. and Anr. v. Superintendent of Police, Sundargarh and Ors., a question with regard to applicability of the provisions of Section 16 of the State Act with respect to the alleged offences committed under the said Act and confiscation of the seized vehicles and goods in case of minerals which are covered under the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the M.M. (D. & R.) Act, 1957) after its amendment with effect from 18.12.1999, arose for consideration. A Bench of this Court on analysing the relevant provisions of both the State Act and the M.M. (D & R) Act, 1957 and on examining the questions raised therein has categorically found that after insertion of similar provisions like Sections 12 and 16 of the State Act in the M.M. (D & R) Act, 1957 by way of its amendment with effect from 18.12.1999, the said provisions are no more applicable to the cases involving minerals which are covered under the M.M. (D & R) Act, 1957. Admittedly, in both these writ petitions, mineral involved was iron ore lumps, which is covered under the M. M. (D & R) Act, 1957.
11. In view of the above, we are not inclined to enter into the question as to whether the provisions of Section 16(4) of the State Act were adhered to or not. But applying the principles as decided by a Bench of this Court in the case of M/s. Jai Durga Iron (P) Ltd. (supra), we find that as the mineral involved in the present case was iron ore lumps and covered by the provisions of M.M. (D & R) Act, 1957, no proceeding for confiscation of minerals/vehicles could have been initiated nor seizure of the same could have been effected under the provisions of the State Act. We, therefore, have no hesitation in concluding that both the aforementioned confiscation proceedings bearing Confiscation Proceeding Nos. 50 and 51 of 2005 are without jurisdiction and the seizure of the Tippers and the iron ore lumps is also without any authority of law.
12. In the result, we direct the Competent Authority-cum-Deputy Director of Mines, Joda- opp. party No. 2 to release the seized iron ore lumps as well as both the seized tippers bearing Registration Nos. OR-04-D-3035 and OR-09D-6322 in the aforementioned confiscation proceedings to the petitioner in both the writ petitions immediately upon communication of this order.
13. Thus, both the writ petitions are allowed. But in the circumstances, without costs.
L. Mohapatra, J.
14. I agree.