Gujarat High Court
Sandipbhai Jayendrabhai Pathak vs State Of Gujarat on 14 December, 2021
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/13369/2021 ORDER DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13369 of 2021
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SANDIPBHAI JAYENDRABHAI PATHAK
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 14/12/2021
ORAL ORDER
With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue rule, returnable forthwith. Mr. Rohan Shah, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent no.1.
3. By this petition, the petitioner has prayed for quashing and setting aside the action of the respondent no.2 of seizing the Hyundai Excavator R140LC-9 having Chassis No.Q401D01203 (hereinafter referred to as the 'vehicle').
4. The facts are to the effect that the vehicle is the ownership of one Krunal Premshankar Joshi, and the petitioner, has purchased the said vehicle by executing a notarized document dated 16.2.2018. On 14.4.2021, a surprise inspection was carried at the bank of Sabarmati river when, it was found that the vehicle was indulged in illegal excavation over the Government waste land bearing Survey No.303, Village Navapura, Taluka Dascroi, District Ahmedabad. Along with the vehicle, the trucks and dumpers were found to be loaded with ordinary sand. On 14.4.2021, the vehicle was seized by the respondent no.2, followed by issuance of the show cause notice on 18.5.2021.
Page 1 of 5 Downloaded on : Wed Jan 12 10:10:28 IST 2022C/SCA/13369/2021 ORDER DATED: 14/12/2021 4.1 It is the case of the petitioner that the measurement was
taken through GPS machine and as per the map prepared, according to the Surveyor, the total sand which was illegally mined, was to the tune of 31633.63 metric ton. The notice was issued to the petitioner and one Kirankumar Punaji Thakor, requiring them to pay an amount of Rs.1,09,04,821/-. The petitioner, however, expressed his willingness to pay compounding fees of the vehicle by filing an affidavit-cum-reply dated 27.5.2021; however, according to the petitioner, no steps have been taken even after the expiry of 45 days from the date of the seizure. Hence, the present writ petition.
5. Ms. Kruti M. Shah, learned advocate appearing for the petitioner, submitted that the vehicle was found in alleged illegal excavation of the ordinary sand, followed by seizure memo and show cause notice. It is submitted that the petitioner, was willing to pay Rs.2 lakhs towards the compounding fees, however, the respondent authority, has not bothered about the request of the petitioner. The respondent authority, neither filed the complaint as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to the 'Rules of 2017') nor accepted the compounding fees of Rs.2 lakhs, which was offered by the petitioner. Accordingly, owing to the inaction, the petitioner, has been compelled to file the captioned writ petition with the aforementioned prayer.
5.1 It is urged that in view of the action of the respondent no.2 being illegal, the vehicle deserves to be released in view of the principle laid down by this Court in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat, rendered in Special Civil Application No.9203 of 2020.
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6. On the other hand, Mr. Rohan Shah, learned Assistant Government Pleader appearing for the respondent no.1, fairly conceded that the FIR has not been lodged as provided under the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017. It is also fairly conceded that the judgment in the case of Nathubhai Jinabhai Gamara (supra), applies on all fours to the facts of the present case. It is urged that so far as the order dated 15.6.2021 is concerned, the petitioner be relegated to avail of the alternative remedy by way of an appeal and the petition may not be entertained against the order dated 15.6.2021. It is urged that appropriate order be passed for release of the vehicle.
7. Heard the learned advocates appearing for the respective parties and perused the documents available on the record.
8. Pertinently, the vehicle was seized on 14.4.2021 as a result of the inspection carried out by the officers of the respondent no.2. Allegedly, the vehicle was found in the illegal excavation of ordinary sand at the bank of Sabarmati river over the Government waste land bearing Survey No.303 of Village Navapura, Taluka Dascroi, District Ahmedabad. As a result of the inspection, the notice was issued on 18.5.2021, requiring the petitioner and Kirankumar Punaji Thakor to pay an amount of Rs.1,09,04,821/-. The petitioner had also shown willingness to pay the compounding fees of Rs.2 lakhs for the vehicle. However, the request of the petitioner was not acceded to and straightaway, the order dated 15.6.2021, has been passed.
9. Perceptibly and not disputed, the period of 45 days has expired and upon expiry of the 45 days, it is incumbent upon the respondent authority to file a complaint as per the provisions of sub- clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of Page 3 of 5 Downloaded on : Wed Jan 12 10:10:28 IST 2022 C/SCA/13369/2021 ORDER DATED: 14/12/2021 2017. In absence of any complaint or further steps taken as per the provisions of the Rules of 2017, the action of the respondent authority, in continuing with the detention, would be illegal and without authority of law. The judgment in the case of Nathabhai Jinabhai Gamara (supra) applies on all fours to the facts of the present case.
10. This Court, in paragraphs 7, 10 and 11 has held and observed thus:-
"7. Pertinently the competent authority under Rule 12 is only authorized to seize the property investigate the offence and compound it; the penalty can be imposed and confiscation of the property can be done only by order of the court. Imposition of penalties and other punishments under Rule 21 is thus the domain of the court and not the competent authority. Needless to say therefore that for the purpose of confiscation of the property it will have to be produced with the sessions court and the custody would remain as indicated in sub-rule 7 of Rule 12. Thus where the offence is not compounded or not compoundable it would be obligatory for the investigator to approach the court of sessions with a written complaint and produce the seized properties with the court on expiry of the specified period. In absence of this exercise, the purpose of seizure and the bank guarantee would stand frustrated; resultantly the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.
10. The bank guarantee is contemplated to be furnished in three eventualities: (i) for the release of the seized property and (ii) for compounding of the offence and recovery of compounded amount, if it remains unpaid on expiry of the specified period of 30 days; (iii) for recovery of unpaid penalty. Merely because that is so, it cannot be said that the investigator would be absolved from its duty of instituting the case on failure of compounding of the offence. Infact offence can be compounded at two stages being (1) at a notice stage, within 45 days of the seizure of the vehicle; (2) during the prosecution but before the order of confiscation. Needless to say that for compounding the offence during the prosecution, prosecution must be lodged and it is only then that on the application for compounding, the bank guarantee could be insisted upon. In absence of prosecution, the question of bank guarantee would not arise; nor would the question of compounding of offence.
11. The deponent of the affidavit appears to have turned a blind eye on Rule 12 when he contends that application for compounding has been dispensed with by the amended rules inasmuch as; even the amended Rule 12(b)(i) clearly uses the word "subject to receipt of compounding application". Thus the said contention deserve no merits. Thus, in absence of the complaint, the competent authority will have no option but to release the seized vehicle without insisting for bank guarantee. There is thus a huge misconception on the part of the authority to Page 4 of 5 Downloaded on : Wed Jan 12 10:10:28 IST 2022 C/SCA/13369/2021 ORDER DATED: 14/12/2021 assert that even in absence of the complaint it would have a dominance over the seized property and that it can insist for a bank guarantee for its."
It has been held that it would be obligatory for the investigator to approach the Court of Sessions with a written complaint and produce the seized properties with the Court on expiry of the specified period. In absence of such exercise, the purpose of seizure and the bank guarantee would stand frustrated; resultantly, the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.
11. Under the circumstances, the action of the respondent being not in conformity with the provisions of sub-clause (ii) of clause (b) of sub- rule (2) of Rule 12 of the Rules of 2017, deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent, is directed to forthwith release the vehicle. So far as the order dated 15.6.2021 passed by the office of the Geologist, Geology & Mining Department is concerned, it will open to the petitioner to file an appeal against the said order.
12. Needless to say that the Appellate Authority, shall decide the appeal strictly in accordance with law and without being influenced by the observations made in the present order inasmuch as, the present writ petition, has been entertained only for the limited purpose of releasing the vehicle, on the ground that no complaint has been filed and the issue stands covered by the judgment of this Court of Nathubhai Jinabhai Gamara (supra).
13. It is also clarified that it will be open to the authorities to initiate any proceedings for recovery, if permissible and in accordance with law.
14. In view of the aforesaid, the petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extend. No order as to costs.
(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 5 of 5 Downloaded on : Wed Jan 12 10:10:28 IST 2022