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LPA/236/2010 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 236 of 2010
WITH
CIVIL APPLICATION No. 1424 of 2010
IN
SPECIAL CIVIL APPLICATION No. 216 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=============================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================
CHANDRAKANT
KODIDAS (KHODIDAS)PATEL, PARTNER OF JAY BHAVANI & 1 -
Appellant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=============================================
Appearance :
MR
CL SONI for Appellant(s) : 1 - 2.
MS TRUSHA PATEL AGP for
Respondent(s) : 1,
None for Respondent(s) : 2 -
4.
=============================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 10/02/2010
ORAL
JUDGMENT
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
matter relates to seizure of Hitachi 110 earth moving vehicle owned
by the 1st appellant. Learned Single Judge having passed
conditional order for release, the present appeal has been preferred.
2. The
case of the appellants is that the 1st appellant is the
owner of the vehicle rented in favour of the 2nd
appellant, who is the holder of lease granted on 30.09.2008 for
excavating the sand. The 3rd and 4th
respondents having seized the vehicle on 26.12.2009, followed by
notice issued on 15.10.2010 showing intention to recover the amount,
the writ petition was preferred.
3. According
to the appellants, seizure under Rules 13 and 17 of the Gujarat
Minerals (Prevention of Illegal Mining, Storage and Transportation)
Rules, 2005 (hereinafter referred to as `2005 Rules’) is illegal, the
said Rules being not applicable to minor mineral including sand.
2005 Rules are applicable to other minerals and that the minor
mineral is governed by the Gujarat Minor Mineral Rules, 1966
(hereinafter referred to as `the 1966 Rules’) whereunder no provision
has been made for seizure of vehicle or machinery or to recover any
amount other than penalty under Rule 42.
4. Counsel
for the appellant would contend that even if 2005 Rules are applied,
under Rule 18 as the authorized officer has power to release the
vehicle on execution of a bond by owner for production of the
property so released as and when so required, without any condition,
the conditional order for release of vehicle passed by learned Single
Judge is uncalled for. It was also contended that in absence of
determination of amount to be recovered, learned Single Judge ought
not have asked to deposit any amount as a pre-condition for release
of the vehicle.
5. Ms.
Trusha Patel, learned A.G.P. for the respondents contends that the
power of seizure flows from Sec.24(1) of the Mines and Mineral
(Regulation and Development) Act, 1957 (hereinafter referred to as
`the Act of 1957′). If any person raises, transports or causes to be
raised or transported any mineral from any land without any lawful
authority, the competent authority is empowered to seize mineral,
tool, equipment, vehicle or any other thing used in such activity.
Referring to Section 3(a) definition of mineral, it was submitted
that mineral includes both minor and other minerals, except mineral
oils. In absence of any exclusion of miner mineral, no distinction
can be made between two minerals, one minor and another. It is for
giving effect to Section 21(4), which was introduced by Amending Act
38 of 1999, 2005 Rules were framed, wherein under Rule 2(9),
`mineral’ has been expressed and defined in terms with expression and
definition under Sec.3(a) of the Act of 1957. According to her, the
authorities are empowered to seize tool, machine, vehicle, etc. under
Rule 13(2) and (3) read with Rule 17 of 2005 Rules.
6. From
the provisions of the Act and the Rules, it will be evident that
prior to Amending Act 38 of 1999, no provision was made for seizure
of tool, equipment, vehicle, etc. used in illegal mining. Power was
delegated u/Sec.21 only to impose penalty, and for giving effect to
the same provision under Rule 42 of 1966 Rules was made. Sub-sec.(4)
to Sec.21 was introduced by Amending Act 38 of 1999 whereunder for
the first time provision was made for seizure of tool, equipment,
vehicle or any other thing if used by a person for raising or
transporting a mineral without any lawful authority. After
introduction of sub-sec.(4) to Sec.21, to give effect to the same,
2005 Rules were enacted.
7. The
power of seizure of any tool, equipment, vehicle or any other thing
used for raising or transporting mineral without any lawful authority
is vested under sub-secs. (4), (4A) and 5 to Sec.21 and quoted
hereunder:
21.
Penalties. – (1) to (3)
xx xx xx
(4)
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 any other thing shall
be liable to be seized by an officer or authority specially empowered
in this behalf.
(4A)
Any mineral, tool equipment, vehicle or any other thing seized under
sub-section (4), shall be liable to be confiscated by an order of the
court competent to take cognizance of the offence under sub-section
(1) and shall be disposed of in accordance with the directions of
such court.
(5)
Whenever any person raises, without any lawful authority, any mineral
from any land, the State Government may recover from such person the
mineral so raised, or, where such mineral has already been disposed
of, the price thereof, and may also recover from such person, rent,
royalty or tax, as the case may be, for the period during which the
land was occupied by such person without any lawful authority.
(6)
xx xx xx
8. It
will be evident from 2005 Rule that the same is applicable to all
mineral except mineral oil. Rule 5 while deals with mining, Rule 8
relates to registration and renewal for stockings/storage of mineral.
Penalties can be imposed under Rule 13, which includes seizure as
evident from Rule 13, as quoted hereunder:-
13.
Penalties:-
(1) Whoever
contravenes the provision of Rule 5, 6 and 8 of these rules shall be
punishable with imprisonment for a term which may extend to one year
or with fine which may extend to five thousand rupees or with both
and in case of continuing contravention with an additional fine which
may extend to five hundred rupees for every day during which such
contravention continues after conviction for the first such
contravention.
(2) Whenever
any person raise transport or store or cause to be raised or
transported or stored without any lawful authority, the State
Government may recover from such person the mineral so raised, or
transported or stored where such mineral has already been disposed of
the price thereof and may also recover from such person rent, royalty
or tax as the case may be;
(3) Whenever
any person raise, transports or stores or cause to be raises or
transported or stored without any law full authority any mineral from
any land/place and for that purpose or use any tool, equipment,
vehicle or any other thing, such mineral, tool, equipment, vehicle or
any other thing shall be liable to be seized by an officer or
authority specially empowered in this behalf.
9. Rule
17 also deals with seizure of property liable for confiscation. Once
a property is seized it requires to be marked in a specified manner
and required to be produced before the authorized officer to satisfy
that an offence has been committed. Such officer on satisfaction may
order confiscation of mineral or value or part of the value so seized
together with vehicle used in committing such offence. Under
sub-rule (4) of Rule 17, no order of confiscation can be made, unless
the person from whom the property is seized is given a notice,
opportunity of making a representation and a reasonable opportunity
of being heard in the matter. Such procedure is required to be
followed prior to confiscation of the seized property as evident from
the said Rule 17 and quoted hereunder:-
Rule 17.
Seizure of property liable to confiscation:
(1) When
there is reason to believe that an offence has been committed in
respect of any mineral such mineral, together with vehicles or other
conveyances used in committing such offence may be seized by any
officer authorized by the Government in that behalf (herein after
referred to as the authorized officer) and record details of seizing
property in Form-J.
(2) Every
officer seizing any property under these rules shall place on such
property a mark in such manner as may be prescribed, indicating that
the same has been so seized and shall as may be except where the
offender agrees in writing to get the offence compounded, either
produce the property seized before the officers appointed by the
State Government.
(3) Where
any mineral seized under sub-rule (1) produced before the officers
authorized by the State Government and he is satisfied that an
offence has been committed in respect thereof, he may order
confiscation of the mineral or value or part of the value thereof so
seized and produced, together with the vehicles, or other conveyance
used in committing such offence.
(4) No
order confiscating any property shall be made under sub-rule (3)
unless the person from whom the property is seized is given.
(a) a
notice in writing in Form X informing him of the goods on which it is
proposed to confiscate such property.
(b) opportunity
of making a representation in writing within such reasonable time as
may be specified in the notice against the grounds for confiscation;
and
(c) a
reasonable opportunity of being heard in the matter.
(5) Without
prejudice to the provisions of sub-rule (4) no order of confiscation
of vehicle, or other conveyance under sub-rule (3) shall be made if
the owner thereof proves to be satisfaction of competent authority or
authorized officer that it was used without his knowledge or
connivance or the knowledge of connivance of his agent, if any, or
the person in charge of the vehicle or other conveyance in committing
the
offence and that each of them had taken all reasonable and necessary
precautions against such use.
(6) The
property seized under this rule shall be kept in the custody of the
authorized officer or with any third party until compensation for
compounding the offence is paid or until an order of the Officer
authorized by the Commissioner directing its disposal is received.
(7) The
State Government may at any time on its own accord call for the
examination of the order of confiscation by the competent authority
on an application, call for and examine the records of the case and
may make such enquiry or cause such enquiry to be made and pass such
order as he may think fit;
Provided that
no order prejudicial to any person shall be passed without giving him
an opportunity of being heard.
10. The
authorized officer or the officer who seized the vehicle is empowered
to release the vehicle on execution of a bond for production of the
property so released, if and when so required. This is evident from
Rule 18 which reads as follows:
Rule 18.
Power to release property seized on bonds:
The authorized
officer or who has seized any vehicles or other conveyance under
rule-13 and where a report of such seizure has been made to the
officers authorized by Commissioner under sub-rule (3) of that rule
may release the same on the execution by the owner thereof a bond for
the production of the property so released, if and when so required
before the officers authorized by the Commissioner having
jurisdiction to try the offence on account of such seizure has been
made.
11. From
the aforesaid provisions it will be clear that the power of seizure
of vehicle flows from sub-secs.(4), (4A) of Sec.21 of the Act read
with Rule 13 of 2005 Rules. The expression `mineral’ under sub-sec.
3(a) of the Act and Rule 2(9) of 2005 Rules is same, which includes
minerals whether minor mineral or other mineral. The authorized
officer is not only empowered to seize minerals together with
vehicle, tool, equipment, etc., but also liable to determine the
quantum of amount to be recovered after notice and hearing under Rule
17 of 2005 Rules. Final order of seizure or imposition of penalty or
both can be made under rule 13 subject to appeal and revision and
review as prescribed under Chapter V of 2005 Rules. The owner of the
vehicle or the property, if seized, on execution of a bond for
production of property, as and when so required, can request the
authorized officer to release the property without asking for
depositing any amount to be determined, as the authorized officer is
empowered to do so under Rule 18.
12. The
full power being vested with the authority to seize mineral,
property, vehicle, tool, etc. after notice and hearing to decide the
quantum of payment and penalty, there being provision made for
appeal, revision and review under 2005 Rules, and the authorized
officer being empowered to release the vehicle under Rule 18 without
any pre-condition to deposit money, we are of the view that the High
Court under Art.226 normally should not entertain any writ petition
for release of vehicle or seized material.
13. In
the present case, we find that the authorities have not yet finally
determined the quantum of amount to be paid by appellant after notice
and hearing the appellant, we are of the view that the learned Single
Judge instead of passing conditional order ought to have dismissed
the writ petition allowing the appellants to move before the
authorities for release of the vehicle. In absence of any
exceptional circumstance such as absence of authorized officer or
appellate forum, there was no occasion to entertain the writ
petition. For the reasons aforesaid while we set aside the order
dated 25.01.2010 passed by learned Single Judge, give liberty to the
appellants to move before the authorized officer under Rule 18, who
may decide the same in accordance with law preferably within a week
from the date of receipt of such application.
The
Letters Patent Appeal and Civil Application stand disposed of with
the aforesaid observations. Direct service is permitted, but no
costs.
(S.J.
MUKHOPADHAYA, C.J.)
(ANANT
S. DAVE, J.)
[sn
devu] pps
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