Nileshbhai Somabhai Raval vs State Of Gujarat on 25 September, 2018

[Cites 2, Cited by 3]

Gujarat High Court

Nileshbhai Somabhai Raval vs State Of Gujarat on 25 September, 2018

Bench: Bela M. Trivedi

       C/SCA/10635/2018                                       CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10635 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS.JUSTICE BELA M. TRIVEDI                           Sd/-

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?                                               NO

2     To be referred to the Reporter or not ?
                                                                       YES
3     Whether their Lordships wish to see the fair copy of the
      judgment ?                                                       NO

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any     NO
      order made thereunder ?

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                          NILESHBHAI SOMABHAI RAVAL
                                    Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
MR TIRTHRAJ PANDYA, AGP for the State Respondents
==========================================================

    CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

                               Date : 25/09/2018

                                CAV JUDGMENT

1. The petitioner, by way of the present petition, has sought direction to quash and set aside the Page 1 of 22 C/SCA/10635/2018 CAV JUDGMENT initiation of the proceedings against the petitioner under the provisions contained in Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 and 2017, and has sought further direction for release of his vehicle bearing Dumper No.GJ-6- ZZ-6741, by quashing and setting aside the order dated 23.5.2018 issued by the respondent No.2 - the Geologist, Mines and Mineral Department, Vadodara.

2. As per the case of the petitioner, he is the owner of the vehicle in question. The said vehicle was seized by the respondent No.2 vide the Seizure Memo dated 8.10.2017. The petitioner was also served with the Notice dated 9.10.2017, calling upon him to show cause as to why the proceedings under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 (hereinafter referred to as "the Rules of 2005") should not be initiated for the illegal transportation of the simple sand carried in the said vehicle. According to the petitioner, the petitioner had Page 2 of 22 C/SCA/10635/2018 CAV JUDGMENT a valid royalty pass, and therefore, had made application under Rule 18 of the said Rules of 2005 to release the said vehicle, however, the same was not released. The petitioner, therefore, filed a petition being Special Civil Application No.19276 of 2017, seeking direction against the respondents to release the said vehicle. The Court vide the order dated 17.10.2017 disposed of the said petition, directing the respondent authority to consider and decide the application of the petitioner for release of the vehicle in question under Rule 18 of the said Rules 2005 and directed the petitioner to furnish the bond as per Form-L as required under the said Rules. It was clarified that the proceedings of penalty recoverable under the Mines and Mineral (Regulation and Development) Act, 1957 and the Rules of 2005 shall continue against the petitioner in accordance with law. Accordingly, the petitioner executed the bond in the prescribed Form-L and submitted before the respondent authority. However, in the meantime, i.e. before this Court passed the order on Page 3 of 22 C/SCA/10635/2018 CAV JUDGMENT 17.10.2017, the respondent No.2 rejected the petitioner's application vide the order dated 16.10.2017 and directed the petitioner to pay the penalty of Rs.46,450/- within three days.

3. According to the petitioner, the said order dated 16.10.2017 was passed by the respondent No.2 without considering the fact that the petitioner was already holding a valid and legal royalty pass for transportation of the sand in question. The respondent No.2 thereafter passed another order on 25.10.2017 pursuant to the order dated 17.10.2017 passed by this Court in Special Civil Application No.19276 of 2017, again rejecting the application of the petitioner for release of the vehicle under Rule 18 of the said Rules of 2005, on the ground that as per the new Rules of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as "the Rules of 2017"), the petitioner was required to pay the penalty or furnish the bank guarantee as per Rule 12(6) thereof for release of the vehicle. The petitioner being aggrieved Page 4 of 22 C/SCA/10635/2018 CAV JUDGMENT by the said order, therefore, filed Special Civil Application No.21959 of 2017, challenging the order dated 25.10.2017. The Court vide the order dated 14.5.2018 disposed of the said petition, directing the petitioner to approach the respondent authority forthwith and directing the respondent authority to take decision within three days after examining and complying with the prevailing Rules. The respondent No.2 thereafter passed the impugned order on 23.5.2018, directing the petitioner to pay the penalty for compounding the offence as per Rule 12 or furnish the bank guarantee under Rule 12(6) of the said Rules of 2017. Being aggrieved by the said order, the present petition has been filed.

4. The petition has been resisted by the respondent No.2 by filing affidavit-in-reply contenting inter alia that the petition was not maintainable as alternative efficacious remedy of preferring appeal before the Additional Direction was available to the petitioner. It is further contended that the vehicle of the Page 5 of 22 C/SCA/10635/2018 CAV JUDGMENT petitioner was involved for unauthorized transportation, and therefore, it was seized after issuing seizure memo. According to the respondent No.2, the respondent No.2 had received an application on 13.10.2017 filed by the petitioner under Rule 18 of the Rules of 2005 for compounding the offence or furnishing the bond, however, the said application was rejected on 16.10.2017 as per the Rules of 2005. Thereafter, on 25.10.2017 the petitioner was informed for compounding of the offence by payment of amount of penalty or production of bank guarantee. The said order having been challenged by the petitioner before this Court, the impugned order was passed accordingly under the Rules of 2017.

5. Learned Advocate Ms.Kruti Shah for the petitioner has vehemently submitted that this is the third round of litigation filed by the petitioner on account of the adamant approach on the part of the respondent No.2 in not releasing the vehicle in question, though the petitioner was holding a valid royalty pass on the date of Page 6 of 22 C/SCA/10635/2018 CAV JUDGMENT seizure of the vehicle. Pressing into service the provisions contained in Rule 12 of the Rules of 2017, she submitted that though the vehicle in question was seized referring the Rules of 2005, assuming that the Rules of 2017 were applicable, then also the respondent No.2 had no authority to continue the custody of the vehicle with him, after the expiry of 15 days of the seizure inasmuch as upon the expiry of 15 days from the date of seizure, the respondent No.2 had to produce the said vehicle before the Court empowered to determine commission of offence, if any, under the said Rules. According to her, in any case, the petitioner had already furnished the bond as directed by this Court in earlier petition, and had again approached the respondent No.2 with the hope that the respondent No.2 would decide the application for release of the vehicle in accordance with the Rules. She also submitted that the impugned order is without any authority of law and also without jurisdiction, and therefore, the petitioner has approached this Court without exhausting the alternative remedy of filing the Page 7 of 22 C/SCA/10635/2018 CAV JUDGMENT appeal.

6. However, learned AGP Mr.Tirthraj Pandya for the respondents submitted that though the vehicle was seized as per the prevailing Rules of 2005, by the time this Court passed the order in Special Civil Application No.19276 of 2017, the new Rules of 2017 had come into force, and therefore, the respondent No.2 had passed the order on 25.10.2017. The said order having been challenged by the petitioner before this Court by filing Special Civil Application No.21959 of 2017, the respondent No.2 has again decided the matter as directed by the Court as per the new Rules 2017. If the petitioner was aggrieved by the said order, he should have preferred an appeal under Rule 18 of the Rules of 2017.

7. Having regard to the submissions made by the learned Advocates for the parties and to the documents on record, more particularly the orders passed by the respondent No.2 as well as by this Court in earlier petitions, it appears that the petitioner was required to approach this Court time and again because of the Page 8 of 22 C/SCA/10635/2018 CAV JUDGMENT ignorance of law on the part of the respondent No.2 authority while initiating the proceedings against the petitioner for the alleged illegal transportation of simple sand by seizing the vehicle on 8.10.2017 under the Rules of 2005, though at the relevant time, the new Rules of 2017 had already come into force w.e.f. 26.9.2017. The show-cause notice was also issued referring the Rules of 2005. Even if the issue as to whether the petitioner was having valid royalty pass for the transportation of the simple sand on the date of seizure or not, is not examined, then also it transpires that the proceedings initiated by respondent No.2 invoking the Rules of 2005 for seizure of the vehicle and also for issuance of the show-cause notice were absolutely in ignorance of law. The order dated 16.10.2017 passed by the respondent No.2 rejecting the petitioner's application for release of vehicle, under the Rules of 2005 was also without verifying the facts and the law. The respondent No.2 being the authorized officer was expected to have proper legal knowledge as to under which Rules he was exercising his Page 9 of 22 C/SCA/10635/2018 CAV JUDGMENT powers.

8. It further appears that when the Court passed the order on 17.10.2017 in Special Civil Application No.19276 of 2017, directing the petitioner to execute the bond as per Form-L of the Rules of 2005 and directing the respondent No.2 to decide the application of the petitioner filed under Rule 18 of the said Rules, at that time also neither the petitioner's Advocate, nor the learned AGP was aware about the new Rules of 2017 having come into force. It further appears that the learned Advocate for the petitioner as well as the learned AGP were also not aware about the order passed by the respondent No.2 on 16.10.2017, and therefore, the order dated 17.10.2017 came to be passed by the Court in Special Civil Application No.19276 of 2017. Thereafter, the respondent No.2 passed the order on 25.10.2017 pursuant to the said order passed by the Court in Special Civil Application No.19276 of 2017, rejecting the application of the petitioner received by him on 13.10.2017 on the ground that as per Rule Page 10 of 22 C/SCA/10635/2018 CAV JUDGMENT 22 of the Rules of 2017, the petitioner was required to pay the penalty for compounding the offence or furnish bank guarantee under Rule 12(6) of the said Rules. The petitioner having again approached this Court by filing Special Civil Application No.21959 of 2017, this Court vide the order dated 14.5.2018 directed the respondent No.2 to take decision within three days as per the Rules of 2017. The respondent No.2, therefore, passed the impugned order, directing the petitioner to pay the amount of penalty under Rule 22 or furnish bank guarantee under Rule 12(6) of the Rules of 2017.

9. From the afore-stated state of affairs, it clearly transpires that the respondent No.2 was bent upon rejecting the application of the petitioner for release of the vehicle for one reason or the other. It is unfortunate that though the new Rules of 2017 had already come into force in September 2017, the respondent No.2 had initiated the proceedings by issuing show-cause notice on 9.10.2017, referring the old Rules of 2005. He also rejected the Page 11 of 22 C/SCA/10635/2018 CAV JUDGMENT application of the petitioner received by him on 13.10.2018, vide the order dated 16.10.2017 under the old Rules of 2005 and directed the petitioner to pay the amount of penalty. While passing the order on 25.10.2017, the respondent No.2 did not refer to the earlier order passed on 16.10.2017, nor did he mention in the said order as to how much amount of penalty the petitioner was required to pay under Rule 12 of the Rules of 2017. In the impugned order passed on 23.5.2018 also he has not referred about the order dated 16.10.2017, nor has he examined the matter on merits under the Rules of 2017 or recorded his subjective satisfaction, as to whether the petitioner was holding any valid royalty pass or not, and how much amount of penalty the petitioner was liable to pay.

10. At this juncture, the relevant Rule 12 of the Rules of 2017 is reproduced herein for beneficial reference:-

"12. Seizure of property liable to confiscation: Page 12 of 22 C/SCA/10635/2018 CAV JUDGMENT (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, 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 Authorised 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 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.

Page 13 of 22 C/SCA/10635/2018 CAV JUDGMENT

(3) Where any property seized under sub rule (1) above is produced before a court under subclause (ii) of clause

(b) of subrule (2) and the court is satisfied that offence has been committed in respect thereof, the court may order confiscation of the property under subsection (4A) of section 21 of the Act.

(4) No order for confiscating any property shall be made under subrule (3) unless the person from whom the property 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 or 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 subclause (i) of clause (b) of subrule (2); or

(b) completion of the investigation by the Authorised Officer under subclause

(i) of clause (b) of subrule (2); or

(c) a determination under subrule (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 sub rule (5) shall be valid for an initial Page 14 of 22 C/SCA/10635/2018 CAV JUDGMENT 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 subrule (2) or a determination under subrule (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 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 subrule (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 made; or

(b) a bank guarantee is provided pursuant to subrule (5); or

11. It is required to be noted that Rule 12 of the Rules of 2017 empowers the authorized officer to seize the tool, equipment or vehicle Page 15 of 22 C/SCA/10635/2018 CAV JUDGMENT whenever any person raises or transports or causes to be raised or transported without lawful authority any mineral from any land using such tool, equipment, vehicle. The authorized officer seizing the vehicle after completing the formalities as contemplated in Sub-rule (2), has to issue notice in Form-J, intimating the person from whom the property is seized about the seizure of such vehicle, and conduct an investigation. 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 he may deem appropriate. If the compounding is not permissible under Rule 22 of the said Rules or if no application for compounding is received by the authorized officer, he may conduct preliminary investigation and produce the property or vehicle seized before a Court empowered to determine commission of such offence, upon expiry of 15 days from the date of seizure or upon completion of investigation, whichever is Page 16 of 22 C/SCA/10635/2018 CAV JUDGMENT earlier as per the provisions contained in Sub- rule (2) of Rule 12 of the said Rules. Thus, the authorized officer has to produce the property seized before the competent Court on the expiry of 15 days from the date of seizure of the property in question, if the compounding is not permissible under Rule 22 or no application for compounding is received by him within the said period.

12. Now, as per Sub-rule (5) of Rule 12, upon expiry of 15 days from the date of seizure of the property and prior to payment for compounding offence or completion of investigation by the authorized officer as contemplated in Sub-rule (2) or a determination of confiscation of property by the Court under Sub-rule (3), the authorized officer may exercise his discretion for the release of the property on the furnishing of a non-interest bearing security deposit or a bank guarantee. Though the provisions of Rule 12 do not seem to be happily worded, on the conjoint reading of Sub-rule (2) and Sub-rule (5) of Rule 12, it Page 17 of 22 C/SCA/10635/2018 CAV JUDGMENT appears that the authorized officer could exercise the powers for release of the property seized in the eventualities stated in Sub-rule (2) or Sub-rule (5), as the case may be, only till the expiry of fifteen days from the date of seizure.

13. Having regard to Sub-rule (3) of Rule 12, it appears that where any property seized is produced before the Court under Sub-clause (ii) of Clause (b) of Sub-rule (2), and where the Court is satisfied that offence has been committed in respect thereof, the Court may order confiscation of the property under Sub- section (4A) of Section 21 of the Act. As per Sub-rule (7) of Rule 12, the property seized would remain in custody of the authorised officer, or of any other third party, or of a nearest police station or of Government premises until, the payment for compounding the offence is made, or a bank guarantee is provided pursuant to Sub-rule (5) or an order of the Court directing its disposal is received by the authorised officer. In any case, the authorised Page 18 of 22 C/SCA/10635/2018 CAV JUDGMENT officer would not have any authority to release the property seized upon the expiry of 15 days from the date of such seizure. It is pertinent to note that any person aggrieved by an order issued by the authorised officer may within 30 days from the date of communication of such order to him file an appeal against such order, to the Additional Director (Appeal), as provided under Rule 18 of the said Rules.

14. In the instant case, as stated herein above, though the proceedings were initiated by the respondent No.2 under the Rules of 2005, though Rules of 2017 had already come into force, even if the proceedings are deemed to have been initiated under the Rules of 2017, then also respondent No.2 as an authorized officer was expected to follow the procedure as laid down under Rule 12 of the said Rules. Apart from the fact that there was no order passed under Sub- rule (2) of Rule 12 recording subjective satisfaction that the compoundable offence has been committed, there was no order passed under the said Rule requiring the petitioner to pay Page 19 of 22 C/SCA/10635/2018 CAV JUDGMENT the amount of penalty for compounding the offence. Since the respondent No.2 had issued show-cause notice under the Rules of 2005, the petitioner also appears to have pursued the proceedings under the said Rules of 2005 and furnished the bond as required under Form-L of the Rules of 2005, which even otherwise was directed by this Court to furnish while disposing of the petition being Special Civil Application No.19276 of 2017.

15. As stated herein above, there is no satisfaction recorded by the respondent No.2 about the commission of compoundable offence as required under Clause (b) of Sub-rule (2) of Rule 12 of the Rules of 2017 nor any order has been passed by the respondent No.2 requiring the petitioner to pay the amount of penalty for compounding the offence. The respondent No.2 also did not produce the vehicle before the Court upon the expiry of 15 days of its seizure. The impugned order dated 23.5.2018 passed by the respondent No.2 pursuant to the order dated 14.5.2018 passed by the Court in Special Civil Application Page 20 of 22 C/SCA/10635/2018 CAV JUDGMENT No.21959 of 2017, also appears to be absolutely vague and incomprehensible. Hence, having regard to the peculiar facts and circumstances of the case, the petition is being entertained and allowed, though there was an alternative remedy of filing Appeal and Revision available to the petitioner under Rule 18 of the said Rules.

16. In that view of the matter, the impugned order dated 23.5.2018 passed by the respondent No.2 being dehors the Rules of 2017 is required to be quashed and set aside and is accordingly set aside. As more than about one year has already elapsed to the seizure of the vehicle in question, the respondent No.2 is directed to release the vehicle in question forthwith.

17. Before parting, it is observed that the officers authorized by the Government to perform the functions under the Rules of 2017 are neither adhering to the time limit specified in the Rule 12 after the seizure of the property/vehicle, nor are following the procedure laid down under the said Rule, which Page 21 of 22 C/SCA/10635/2018 CAV JUDGMENT results into unwarranted litigations in the Courts. Hence, it is expected that the respondent No.1 i.e. Secretary, Geology and Mining Department shall look into the matter and issue necessary directions for the due compliance of the Rules of 2017 and take action for noncompliance of the Rules.

18. The office is directed to send the copy of this order to the Secretary, Geology and Mining Department, Sachivalaya, Gandhinagar, forthwith.

(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 22 of 22

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