It is of utmost significance to note that none other than the Punjab and Haryana High Court has itself as recently as on October 3, 2023 in a most learned, laudable, landmark, latest and logical judgment titled Rajak vs State has issued a comprehensive set of nine guidelines for mining officers to ensure transparency and adherence to legal procedure while seizing the vehicles involved in mining-related activities. It must be noted that the Chandigarh High Court was hearing a petition that had been filed by Rajak who through his counsel Arun Awasthy had contended that his 10-wheel truck which was his only means of livelihood was impounded/seized by an order of a mining officer on charges that at the time of surprise check on October 28, 2022, the vehicle was found loaded with 35 metric tons of stone/mineral material without permit, and e-Rawana (transit pass) was not displayed on the vehicle (it is supposed to be put up on the front windscreen), thus violating Rule 102 of Haryana Minor and Mineral Stocking Transportation Rule, 2012 (MMTR). It also must be noted that the petitioner argued that he was not even provided an opportunity to contest this seizure, and no formal complaint or First Information Report (FIR) has been filed by the mining department.
While setting the record straight, the Single Judge Bench comprising of Hon’ble Mr Justice Arun Monga of Punjab and Haryana High Court at Chandigarh said without mincing any words most unequivocally that, “These guidelines are aimed to ensure transparency, fairness and adherence to legal procedures in mining-related penalty imposition and vehicle seizures, while also taking into consideration the humanitarian aspects and the livelihood of the affected individuals and families.”
Most significantly and most commendably, what forms the cornerstone of this notable judgment are the key guidelines that have been framed by the Punjab and Haryana High Court in this leading case. They are as follows: –
I. Fair and Transparent Inspection Process:
a. Ensure that inspections and checks conducted by mining officers are fair, transparent and well-documented.
b. Conduct surprise checks in accordance with established procedures and rules.
c. Clearly state the specific violations alleged, including the specific reasons to show such violations.
II. Proper Documentation:
a. Document all findings during inspections, including the condition of the vehicle, the quantity of minerals being transported, and the violations observed.
b. Provide a written report of the inspection findings to the vehicle owner or its driver as the case may be, specifying the alleged violations and also explain the same, in a language they understand.
III. Respect Legal Rights:
a. Respect the legal rights of vehicle owners and operators, including the right to due process and a fair hearing.
b. Ensure that vehicle owners are informed of their rights and the steps they can take to contest any actions taken against them.
IV. Handling of Overload Violations:
a. In cases of alleged overload violations, ensure that the evidence is properly collected and recorded.
b. Clearly specify the alleged overloaded quantity of the mining material and provide evidence to support the claim.
c. Follow established penalty guidelines for overload violations, as per relevant mining rules and regulations and specify the quantum of the likely penalty and the mode of calculations.
V. Appellate Process:
a. Inform vehicle owners of their right to appeal any seizure or penalty imposed.
b. Provide clear guidance on the appellate process, including where and how to file an appeal.
c. Ensure timely processing of appeals to prevent unnecessary delays.
VI. Humanitarian Considerations:
a. Take into account the potential humanitarian consequences of vehicle seizures.
b. Consider the livelihood of the vehicle owner and their family, especially if the vehicle is their primary source of income.
c. Endeavor to expedite the release of seized vehicles when appropriate.
VII. Communication and Responsiveness:
a. Maintain open communication with vehicle owners and their legal representatives.
b. Respond promptly to any written appeals or representations submitted by vehicle owners.
c. Ensure that the appellate authority reviews and addresses appeals.
VIII. Determination of Tentative Penalty in the Challan Seizure Memo:
a. The mining officer should calculate and determine a tentative penalty payable by the offender in the seizure memo/challan.
b. The mining officer should also apprise the offender of his right to contest the penalty so determined.
c. This enables the offender to make an informed choice/decision regarding payment to avoid vehicle seizure or contest it after the vehicle’s seizure.
IX. Duty of the Mining Officer to Seek Court Order for Confiscation of Vehicle Upon Failure to Pay Penalty:
a. If there is no FIR or complaint before a competent court, and the penalty is not paid within 30 days of vehicle seizure, the mining officer shall promptly, but no later than next 7 days move an application to the competent court for confiscation of the vehicle.
b. If no such application is moved, written reasons for not doing so must be recorded in the file.
Having said this, we need to note here that the Court was hearing the plea against seizure of a vehicle in October, 2022 by mining officer on allegations of loading 35 metric tons of stone and mineral material without permit and transit pass was not displayed on the vehicle. The counsel who appeared for the petitioner submitted that the vehicle is the only source of his income for the survival of the family. The counsel also pointed out that if the vehicle is not released, the petitioner and his family will face severe financial hardship and potential hunger.
It is worth noting that while perusing the seizure memo, the Chandigarh High Court questioned the alleged violation and police duplicity in this entire case. The Court hastened to add stating that, “…memo clearly states that no FIR has been filed in the case. The vehicle was intercepted during a road check, but there is no allegation of any evidence of it being overloaded. Memo states quantity loaded is 35 MT, whereas as per transit permit… issued to petitioner by Department of Mines, Govt. of Rajasthan, permitted quantity is 38.02 Metric Ton. Then where is the violation? Memo is silent about it.”
Be it noted, the Chandigarh High Court noted that the petitioner finding himself “completely hapless and helpless” approached the SDM and SDJM but his plea was dismissed since “there was neither an FIR registered against the petitioner nor was any application filed by the mining department before the Court for confiscation of the petitioner’s vehicle, therefore, sapurdari application was not maintainable.”
It would also be germane to note that while adding that the appeal was filed sometime in November-December 2022, and it has been 10 months since then, with no orders passed, the Court said that, “It is parked unattended in the open space at Police Station Ferozepur Jhirka. On the other hand, the petitioner and his family members are living in sheer penury and dying of hunger/malnutrition. Said vehicle is stated to be the only source of livelihood.”
It cannot be just glossed over that the Chandigarh High Court said that it is unfathomable as to how while keeping the vehicle seized, the appellate authority is sitting over the appeal, in which, in the worst case scenario, all that is envisaged is a fine of not less than Rs. 10,000/- or Rs. 15,000/- or Rs. 25,000/-.
While pulling back no punches, the Chandigarh High Court Bench minced just no words to say in no uncertain terms that, “Yet, on the other hand, the petitioner has been driven to the wall and made to suffer for almost one year, being deprived of his livelihood due to the seizure of his vehicle and subsequent high headedness of the officials of the department.” We also need to note here that calling it a “frivolous argument”, the Bench also rejected the contention of the State that it did not receive the representation. Going forward, the Court further said that it was inclined to impose a cost of Rs 1 lakh on the State for its inaction but in the oral request of State counsel, it took a lenient view.
As it turned out, while noting that none of the guidelines framed by the Court was complied with, the Court directed to release the vehicle to its registered owner on superdari on furnishing bonds to the satisfaction of the Duty Magistrate on usual terms and conditions. We also need to note that the Punjab and Haryana High Court also directed to the Director of the Mining, Haryana to circulate copy of the order to all the mining officers in the State and also sensitise about the guidelines.
All doubt, there can be no gainsaying that what the Punjab and Haryana High Court has directed to respect legal rights of the drivers of the vehicles and consider potential humanitarian consequences must be respected. Also, the most commendable guidelines issued by the Chandigarh High Court to the mining officers seizing vehicles must be strictly implemented also on ground! There can be just no denying or disputing it!
Sanjeev Sirohi