Gujarat High Court
Zaverbhai Nanubhai Devani vs State Of Gujarat on 25 April, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/3847/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3847 of 2018
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ZAVERBHAI NANUBHAI DEVANI
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the PETITIONER(s) No. 1
MR. KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER, NOTICE
SERVED(4) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 25/04/2018
ORAL ORDER
1. The present petition is filed under Article 226 of the Constitution of India for seeking following relief.
(a) This Hon'ble Court may be pleased to admit and allow this petition;
(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direct respondent no. 2 and 3 to weigh the vehicle and the sand from the C.J.S.A. Weigh Bridge, Dhamasiya, Taluka Nasvadi, District: Chhotaudepur;
(c) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for quashing and setting aside the action of the respondent no. 2 and 3 in seizing the vehicle i.e. Truck bearing No. GJ-05-BV-4148 under the Provision of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation ) Rules, 2017;Page 1 of 13 C/SCA/3847/2018 ORDER
(d) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondent no. 2 and 3 to immediately release the vehicle i.e. Truck bearing No. GJ-05-BV-4148;
(e) Pending admission final hearing and disposal of this petition, direct the respondent no. 2 and 3 to release the vehicle i.e. Truck bearing No. GJ-05-BV-
4148 upon such terms and conditions as this Hon'ble Court may deem fit;
(f) Grant such other and further relief as though fit in the interest of justice."
2. It is the case of the petitioner that the petitioner is original owner and occupier of the vehicle i.e. Truck bearing No. GJ-05-BV-4148. The said truck was intercepted by the respondent no. 2 on 27.02.2018, which was carrying on the ordinary sand material and was transiting after measured by the Government approved weigh machine. It is further the case of the petitioner that the petitioner was having a valid royalty pass. Despite the aforesaid circumstance, as per the case of the petitioner, the respondent no. 3 authority has seized the said vehicle at about 06:30 AM on 27.02.2018 by exercising the powers under the Provisions of Provision of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation ) Rules, 2017, ('the Rule of 2017", for short) mainly on the ground that the vehicle in question was overloaded. The seizer memo in Form No. J has also been provided along with weighing-slip. In the background of this fact, it is the case of the petitioner that the respondent no. 2 authority has illegally detained Page 2 of 13 C/SCA/3847/2018 ORDER the vehicle by alleging that the vehicle in question is involved in illegal transportation of mineral and was overloaded. Hence, by alleging the violation of the Rules, 2017, seizer action has been initiated, which has brought the petitioner before this Court by way of present petition under Article 226 of the Constitution of India for the purpose of seeking release of vehicle in question.
3. Upon perusal of the aforesaid stand taken by the advocate of the petitioner, this Court has issued notice on 26.03.2018 and pursuant to which, the learned Assistant Government Pleader has received instruction from the respondent authority. Hence, the matter is taken up for hearing.
4. Ms. Kruti M. Shah, learned Advocate appearing for the petitioner has contended that the vehicle in question was in transit with a valid royalty pass. It was also brought to the notice that through Government weighing machine, the material and the truck was weighed and only thereafter it has been put to transit and therefore there is no illegality of any nature committed by the petitioner, which would necessitate the authority to exercise the powers of seizing the vehicle. Ms. Shah, learned advocate has further contended that there is absolute no authority with the respondent in the background of this fact to resort to the powers of seizer under Rules, 2017. Hence, the relief prayed for deserves to be granted. Additionally, Ms. Shah has further Page 3 of 13 C/SCA/3847/2018 ORDER contended that overloading was the allegation on the basis of which the authority has assumed that it is illegal transportation of sand material despite the valid royalty pass having been issued by the authority itself and therefore, the action of seizing vehicle is absolutely unjust, arbitrary and without the authority of law.
5. Additionally, Ms.Shah, learned advocate has further contended that while seizing the vehicle and by continuing the seizer, the Rules, which are of mandatory in nature having been observed by the authority and therefore their action of continuous of seizing vehicle is absolutely without the authority of law, which in no circumstance possible to be branded as valid action. Additionally, it has also been contended that the allegation of overloading is merely on the basis of weighing the truck at a private weigh bridge, which is not approved by the Government authority and as such this is not the case in which action of the respondent authority can be said to be justified. To strengthen the submission made by the learned advocate, the reliance is placed on the decision of Division Bench of this Court rendered in Letters Patent Appeal No. 397 of 2018 dated 18.04.2018 and relying upon the interpretation of Rule 12 an attention is drawn of this Court that this continuance of seizer is absolutely without the authority of law. It has also been contended that by virtue of effect of Rule 12 after completion of a period of 15 days with immediate effect the custody of vehicle ought to have been released Page 4 of 13 C/SCA/3847/2018 ORDER and after the lapse of 15 days to detain the vehicle is not the power of the authority. As a result of this true construction of Rule 12 as interpreted by the Division Bench of this Court is normally applicable in the present background of fact. Hence, considering this proposition as well, action of the respondent authority is required to be corrected . No other submissions have been made.
6. To meet with the contention raised by the learned advocate appearing for the petitioner, Mr. Krutik Parikh, learned Assistant Government Pleader has vehemently contended that the petitioner is in the business of illegal transportation of Mineral and was violating the mandate of the Rules and as such action of the seizing vehicle can not be said to be illegal in any manner. It has been contended that when the weighing machine was applied to the vehicle in question, it was found specifically that it was overloaded. As a result of this, the seizer memo was also issued and as such the action of seizing vehicle can not be said to be arbitrary or without the authority in any manner. Additionally, Mr.Parikh, learned Assistant Government Pleader has contended that simply because the petitioner is armed with a valid royalty pass that would not justified to contend that action of seizing of vehicle involved in illegal transportation is void ab-initio. In fact, when the authority found that the vehicle in question is overloaded the action of seizing vehicle can not be held to be invalid in any manner. Mr.Parikh, learned Assistant Government Pleader has further Page 5 of 13 C/SCA/3847/2018 ORDER contended that the Division Bench of this Court has analysis Rule 12 in a different set of circumstance altogether and therefore, can not apply as straight jacket formula. An attempt is made by learned Assistant Government Pleader to distinguish the proposition delivered by the Division Bench of this Court but then ultimately having found limitation on it, the issue is left as it is by the Learned Assistant Government Pleader on construction of Rule 12. Learned Assistant Government Pleader has further contended that it is immaterial that weigh measured by Government approved weigh machine or a private weigh machine but in fact it has been found undisputedly that there is a difference and as such taking note of such excess load measured on a weighing machine, the action is justified and therefore, no order can be passed but even then after considering the ratio laid down by the Division Bench of this Court the matter is left to the discretion of this Court. No other submissions have been made.
7. Now, under the circumstances and having gone through the stand taken by the learned advocate appearing for the petitioner and the learned Assistant Government Pleader, the details of controversy in the light of the documents to be looked into and for that purpose, the royalty pass is seen by the Court which is reflecting on page No. 13 which was issued on 26.02.2018 at 10:51 pm. Now the validity of this royalty pass is not in controversy nor any dispute raised by the Page 6 of 13 C/SCA/3847/2018 ORDER learned Assistant Government Pleader upon instructions and as such, the petitioner can be said to be armed with a valid royalty pass. Additionally, if the government approved weigh bridge particulars are to be seen reflecting on page No. 14, the private weighment slip issued on 26.02.2018 at about 22:47:53 has indicated gross weight as 32,500kg, Tyre weight as 14,500Kg and net weight as 18,000 Kg. Now this government approved weigh bridge has measured the weight on 27.02.2018 at 00:04 hours has reflected only marginal difference, in which, gross weight as 32,690Kg, Tyre weight as 14,500Kg., and net weight as 18,190Kg and as such this Government approved weighment-slip has indicated no substantial difference in weigh of the mineral in any way. The next documents, which is visible is a notice regarding seizer of property notice in form No. J. The authorized officer has issued this Form No.7 reflecting on page 15 of the petition compilation as in remark on column No. 8 mentioned "Overload" and this seizer memo is indicating the place, time and date which is reflecting in column no. 1(a) i.e. at 06:30 hours. Now for the purpose of issuance of this Notice in form no. J what has been relied upon is a weighment slip after seizer of the vehicle on 27.02.2018 at about 06:30 hours at Kilpetro Computerized weigh bridge and the weighment slip contains merely a gross weight of 33,475 Kg. Now on the basis of this weigh bridge, which is not government weigh bridge is indicating overloading of substantial difference, Page 7 of 13 C/SCA/3847/2018 ORDER which if to be compared with weighment slip of a government weigh bridge prima-facie raises a serious doubt about it and as such the contention raised by the learned advocate appearing for the petitioner is having some force to believe. Apart from this even reply which has been given to the authority on 01.03.2018 to the notice dated 27.02.2018 has also indicated specifically that overloading issue is altogether disputed as also specifically contended that it was measured note on government approved weigh bridge and has also contended that contents might have generated moisture on account of which there must be difference in weight but then has requested specifically that there is absolutely no objection if it is to be measured again by the government approved agency. But it appears that the respondent authority has set tight over this request of 01.03.2018 and has not released the vehicle in question.
8. Now, in the background of aforesaid situation, if the Rules, which are applicable to be looked into the Rule 12 of the Rules specifically postulated a specific step be taken by the respondent authority while seizing the vehicle and for bare perusal, Rule 12 of the Rules, 2017 is reproduced hereinafter.
"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, Page 8 of 13 C/SCA/3847/2018 ORDER 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 subrule (2) of this rule.
(2) Every Authorized Officer seizing any property under these rules shall photograph the property and place on such property a mark in such manner as may be prescribed, 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;
(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; or
(ii) a preliminary investigation and shall produce the property seized before a court empowered to determine commission of such offence, if compounding is not permissible under rule 22 or if no application for compounding is received pursuant to clause (a) above, upon the expiry of fifteen days from the date of seizure or upon completion of the investigation, whichever is earlier.
(3) Where any property seized under subrule (1) is produced before a court under sub clause
(ii) of clause (b) of sub-rule (2) and the court is satisfied that offence has been committed in respect thereof, the court may order confiscation of the property under sub-section Page 9 of 13 C/SCA/3847/2018 ORDER (4A) of Section 21 of the Act.
(4) No order for confiscating any property shall be made under sub-rule (3) unless the person from whom the property is seized is given:
(a) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and
(b) a reasonable opportunity of being heard in the matter.
(5) Upon expiry of fifteen days from the date of seizure of the property under subrule (2) and prior to:
(a) payment for compounding the offence under sub-clause (i) of clause (b) of sub- rule (2); or
(b) completion of the investigation by the Authorised Officer under sub-clause (I) of clause (b) of sub-rule (2); or
(c) a determination under sub-rule (3), The Authorised Officer may release the property on the furnishing of a non interest bearing security deposit or a bank guarantee.
(6) The bank guarantee issued under subrule (5) shall be valid for an initial period of one year and shall be renewed from time to time until payment for compounding the offence under sub-clause (i) of clause (b) of sub-rule (2) or a determination under sub-rule(3), as applicable, is made. The non-interest bearing security deposit or bank guarantee shall be for an amount equivalent to ten times of the Page 10 of 13 C/SCA/3847/2018 ORDER market value of the mineral seized or for such other amount as may be specified by the Government through a notification, subject to a minimum of rupees two lakh:
Provided that, if upon a determination under sub-rule (3), a penalty for an amount exceeding the amount of non-interest bearing security deposit or bank guarantee is levied and the penalty amount is not paid, then the penalty amount may be recovered in the same manner as if it were an arrear of land revenue.
(7) The property seized under this rule shall be kept in the custody of the Authorised Officer, any other third party, nearest police station or Government premises until:
(a) payment for compounding the offence is maid; or
(b) a bank guarantee is provided pursuant to sub-rule (5); or
(c) an order of the court directing its disposal is received by the Authorised Officer."
9. In view of the aforesaid, effect of Rule, if action of respondent authority in the aforesaid set of circumstance if to be viewed, it appears that there is violation of Rule 12 and the procedure contained therein and as such the Court is of the opinion that the analysis of this Rule, which has been made by the Division Bench of this Court, the same has to be adopted accordingly without much dwelling on its interpretation from a different angle as a part of the judicial discipline, this Court is of the view that the view taken by the Division Bench of this Court Page 11 of 13 C/SCA/3847/2018 ORDER must be given predominance and hence and the same is clearly attracted in the background of the fact.
10. On the basis of interpretation of Rule 12, the Division Bench of this Court has clearly opined in following terms.
"10. From the aforesaid provisions coupled with the facts of the present case, it is clear that after the seizure of the truck, notice was issued. However, thereafter, the respondent authority has not followed the provisions contained in Rule 12(2)(b)(ii) of the Rules of 2017. As per the said provision, if the application for compounding of offence is not received, the vehicle so seized shall be produced before the Court empowers to determine commission of such offence, upon expiry of 15 days from the date of seizure or upon completion of investigation, whichever is earlier.
11. In the present case, after completion of 15 days from the date of seizure, when application for compounding of offence is not submitted by the petitioner, it was the duty of the respondent authority to produce the said vehicle before the concerned Court. In absence of production of such vehicle before the competent Court, the petitioner has lost his right to file an application Page 12 of 13 C/SCA/3847/2018 ORDER under Section 451 of the Code of Criminal Procedure, 1973, for release of the vehicle.
12. Thus, in view of the aforesaid discussion, we are of the view that the respondent authorities have failed to justify the reason for seizure of the truck in question. When the respondent authorities have failed to follow the procedure prescribed under the Rules of 2017, we are of the view that this is fit case where the action of seizure of the truck in question taken by the respondent authorities is required to be quashed and set aside and direction is required to be given to the respondent authorities to release the truck in question forthwith."
11. In view of aforesaid background of fact and the observations made by the Division Bench of this Court, the Court is of the view that the vehicle in question deserves to be released forthwith and accordingly, the respondent authorities are directed to release the vehicle in question forthwith, if not required, in any other violation of the Rules or the Act. With this observations the petition stands allowed. Direct Service is permitted.
(A.J. SHASTRI, J) VISHAL MISHRA Page 13 of 13