Fanus vs The State Of Andhra Pradesh,
2021 Latest Caselaw 2293 AP

       THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                      Writ Petition No.10963 of 2021

ORDER:

The petitioner seeks writ of mandamus declaring the action of the 3rd

respondent in seizing the lorry bearing No.KA 39 A 0266 of the petitioner

without following the procedure contemplated under law as illegal and for

consequential direction to the 2nd respondent to release the vehicle.

2. Petitioner's case succinctly is thus:

(a) Petitioner is the owner of the lorry bearing No. KA 39 A 0266

and hires the same for transportation of the goods. While so, he hired his

vehicle to granite dealers of Martur Mandal, Prakasam District for

transporting granite slabs to Hyderabad. On 29.05.2021 the staff of the 3rd

respondent intercepted the vehicle and on verification of the documents

produced by the driver, they observed that the quantity mentioned in the bill

was not covered with the bills and there was no proper permit and

accordingly seized the vehicle and granite.

Hence, the writ petition.

3. Heard learned counsel for the petitioner Sri Somisetty Ganesh Babu

and learned Government Pleader for Mines and Geology representing

respondents 1, 3 and 4.

4. The submission of the learned counsel for the petitioner is that as per

Rule 26 (3)(iii) of A.P. Minor Mineral Concession Rules, 1966 (for short

'APMMC Rules"), Mining Authorities are empowered to collect seigniorage

fee and penalty but they have no authority to seize the vehicle. He thus

prayed to direct the respondents to release the vehicle.

5. Per contra, learned Government Pleader for Mines and Geology

would argue that as per Rule 26(3)(iii) of APMMC Rules as amended by

G.O.Ms.No.35 Industries & Commerce (Mines-III) Department, dated

01.07.2020, if the driver or owner of vehicle fails to produce valid e-transit

permit issued by the concerned Assistant Director of Mines and Geology,

the officer intercepting the vehicle has the power to require the driver or the

owner of the vehicle to pay five times of the normal Seigniorage fee as

penalty in addition to the Normal Seigniorage fee along with DMF and

MERIT amounts and in consonance with the said rule the vehicle and the

granite were seized and if the driver or the owner of the vehicle seeks release

of the vehicle, they have to comply with Rule 26(3)(iii) of APMMC Rules.

6. In reply, learned counsel for the petitioner would argue that the

petitioner is only concerned with the vehicle and he is not the owner of the

material in the vehicle and Rule 26(3)(iii) of APMMC Rules is

predominantly aimed against the mineral that was being transported without

necessary documents and the authorities have every power to seize the

mineral which is not covered with documents but they have no power to

seize the vehicle under the guise of Rule 26(3)(iii). He further submitted

that the petitioner lives on transportation of the vehicle and except the said

vehicle he has no other livelihood and he is not even an income tax assessee

and to that effect he filed a separate affidavit also.

7. Admittedly, the petitioner is the owner of the vehicle bearing No. KA

39 A 0266 and he is not concerned with the granite slabs found in his vehicle

which were allegedly not supported by the required documents. Be that it

may, Rule 26(3)(iii) of APMMC Rules as amended by G.O.Ms.No.35

Industries & Commerce (Mines-III) Department, dated 01.07.2020 which

empowers the authorities to impose penalty for unauthorized quarrying and

transporting minor minerals, reads thus:

"If the Driver or owner of the vehicle fails to produce a valid e-transit permit issued by the concerned Asst. Director of Mines & Geology or an officer authorized by the Director of Mines & Geology, the officer in charge of the check post or barrier or during the interception of the movement of the vehicle, may require the Driver or the owner of the vehicle to pay Five times of the normal Seigniorage fee as penalty in addition to the Normal Seigniorage fee along with DMF and MERIT amounts for the quantity not covered under the e-transit permit."

(a) Basing on the above rule, it is argued by the learned

Government Pleader that the respondent authorities are empowered to

require the Driver or the owner of the vehicle to pay Five times of the

normal Seigniorage fee as penalty for not holding the permit and bills for the

transported mineral. This issue is no more resintigra and same is covered

by the order dated 17.02.2021 in writ appeal No.4 of 2021 of High Court of

Andhra Pradesh. It was observed thus:

"7.Having regard to the usage of the word, 'driver' or 'person-in- charge of the vehicle', the Government Pleader tried to contend that even for release of the vehicle, the owner or the person claiming release of the vehicle has to pay penalty equal to the market value of the mineral along with seigniorage fee prevalent at that time. On a reading of the above Rule, there is nothing to indicate, the vehicle cannot be released, unless the penalty and seigniorage fee is paid. All that the rule states is that the penalty equal to market value of the mineral seized along with seigniorage fee prevalent at that time can be ordered to be paid at the time of interception of the vehicle, if driver or person-in-charge of the vehicle fails to produce a valid permit. But, nowhere the Rule postulates that the vehicle cannot be released, unless the same is paid.

8. On the other hand, a comprehensive reading of the said Rule show that the said provision was mainly directed against the mineral that was being transported in the vehicle without any valid permit. Hence, the argument of the learned Government Pleader has no legs to stand. "

(b) On the above observation, the Division Bench was pleased to

allow the appeal and ordered release of the vehicle on certain terms and

conditions. The above judgment squarely applies to the case on hand.

Therefore, the authorities cannot seize the subject vehicle pending

proceedings.

8. Having regard to the above factual and legal position, the writ petition

deserves to be allowed and lorry bearing No. KA 39 A 0266 can be ordered

to be released. However, the terms and conditions are concerned, the

petitioner's request that the vehicle may be ordered to be released on

furnishing personal bond on the ground that he is not even an income tax

assessee cannot be considered for the reason that the owner of the vehicle

belongs to Bidar District of Karnataka State and subject lorry was registered

in Karnataka State and if the same is not produced as and when required,

concerned proceedings will be stalled.

9. Therefore, this writ petition is allowed and ordered as follows:

(i) The person, in whose custody the vehicle is, shall get the value of the vehicle assessed by the Motor Vehicle Inspector concerned in the presence of the owner of the vehicle/petitioner and on fixing of the value of the vehicle by the Motor Vehicle Inspector, the petitioner shall furnish either bank guarantee or immovable property security to the value of the vehicle as assessed by the Motor Vehicle Inspector and also execute a personal bond to the satisfaction of the authority concerned.

(ii) The interim custody of the vehicle shall be given in favour of the petitioner, subject to producing proof in support of the ownership of the vehicle;

(iii) The petitioner shall give an undertaking to produce the vehicle as and when required either by the authority concerned or Court or the Investigating Agency and also give an undertaking that he will not alienate, encumber or alter the physical features of the vehicle.

As a sequel, interlocutory applications, if any pending, shall stand

closed.

_________________________ U. DURGA PRASAD RAO, J 06.07.2021 krk