Shankarji Rupaji Vanzara vs State Of Gujarat
2021 Latest Caselaw 12475 Guj

       C/SCA/5839/2021                              ORDER DATED: 26/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5839 of 2021

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                         SHANKARJI RUPAJI VANZARA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SHUBHAM JHAJHARIA(10231) for the Petitioner(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4,5
Mr. ISHAN JOSHI ASSTT. GOVT. PEADER
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 26/08/2021

                                ORAL ORDER

Heard learned Advocate Mr. Shubham Jhajharia for the petitioner and learned Assistant Government Pleader Ms. Ishan Joshi on behalf of the respondents.

2. Rule. Learned AGP waives service of notice of rule on behalf of the respondents.

3. By way of this petition, the petitioner has sought for quashing and setting aside the order dated 6.11.2020 passed by respondent no. 3 as well as praying direction against the respondent no.3 for release of the vehicle of the petitioner bearing registration No. Tata Hitachi Hydraulic E-1.000 Xcavator Model EX200LC SUPER serial no. S-200-212837.

4. It is submitted by learned Advocate that the vehicle in question had been seized on 24.7.2020 by Geology and Mining Department. It is submitted by the learned Advocate that show cause notice dated 8.9.2020 has been issued, but not served to the petitioner. The petitioner filed

C/SCA/5839/2021 ORDER DATED: 26/08/2021

detailed representation/reply on 21.9.2020 and 15.9.2020. The petitioner filed Special Civil Application No. 13205 of 2020 before this Hon'ble Court vide order dated 26.11.2020 disposed the petition of the petitioner giving direction to the respondent no. 3 and 4 to decide the representation of the petitioner. The petitioner after receiving letter dated 30.12.2020 along with the order dated 6.11.2020 of the Geologist, District Geology and Mining Office that the representation of the petitioner is decided and impugned order dated 6.11.2020 is passed by the Geologist District Geology and Mining Office, Sabarkantha. The petitioner did not receive the impugned order and the respondents did not inform and bring attention of this Hon'ble Court about the said order passed by respondent no.3.

5. The petitioner had stated that order dated 6.11.2020 passed by the respondent no. 3 had ordered penalty against the present petitioner without considering the facts and has observed that the machine in question can be released on payment of the compounding fee of Rs 2,00,000/- and furnishing the bank guarantee equivalent to the written down value of the machine in question amounting to Rs 26,11,000/-.

6. In the facts and circumstances of the case the action of the respondent authority of continuation of seizure of the machine in question, further asking for compounding fee. Therefore, the order dated 9.11.2020 deserves to be quashed and set aside.

7. Learned Advocate for the petitioner relies upon the decision of this Court rendered in Special Civil Application No. 7845 of 2020 and Special Civil Application No. 9023 of 2020 dated 14.07.2020 and 26.08.2020 in which judgments this Court had elaborately discussed with regard to the powers available to the respondent authorities under the provisions of the Gujarat Mineral ( Prevention of illegal Mining and Transportation and Storage ) Rules, 2017 (hereinafter referred to as "Rules, 2017"). According

C/SCA/5839/2021 ORDER DATED: 26/08/2021

to the learned Advocate, this Court while interpreting the Rules in question has inter alia held that after seizure of the vehicle in question, the respondent authority is under an obligation to follow provisions contained in Rule 12(2) (a) whereby the authority shall inform the person about the property being seized and to submit a bank guarantee for an amount equal to the penalty payable under Rule 21 in case of transportation of the vehicle or in case of illegal mining, the written down value of the property. It is further held in the said judgement that in case notice is not issued to the owner of the vehicle under form 'J' and whereas even after the same has been issued and if the notice is not complied with then the authority after expiry of 45 days shall file a written complaint before Court of Sessions and whereas if the said procedure has not been carried out then the authority is under an obligation to release the vehicle unconditionally. The relevant portion of the decision rendered in Special Civil Application No 9203 of 2020 is reproduced hereinbelow for better appreciation:

"6. Salient features of the Rules can be summarized thus:

(1) Seizure of the offending property as a security against the amount of penalty if any as may be determined as also to ensure the presence of the alleged offender before the government at notice stage in the event of person found to be indulging into objectionable activities by the use of the said property.

(2) Issuance of notice in Form J; release of the seized property upon receipt of the bank guarantee equal to penalty payable under Rule 21 or written down value of the property in case of illegal mining or illegal storage of minerals subject to right of the investigator to conduct investigation and other actions.

(3) Investigating and compounding of the offence if compoundable; upon receipt of the application for compounding, and recovery of the compounded amount by invocation of bank guarantee if the amount remains unpaid after the specified period.

(4) Preliminary investigation and registration of a complaint before the court of sessions upon expiry of 45 days from the date of seizure or completion of the investigation whichever event occurs earlier, if compounding is not permissible or offence is not compoundable or not compounded.

(5) Trial by the court of sessions and imposition of penalty or confiscation of the property after appropriate opportunity of making a representation in

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writing as also the opportunity of being heard to the alleged offender found to have committed the offence.

(6) Validity of the bank guarantee and its renewal until occurrence of certain eventualities.

(7) Custody of the property seized until the occurrence of certain events.

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; reluctantly the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

8. Although Rule 12, while referring to Rule 22 speaks about compoundability of offence and impermissibility of the compounding, the class of offences not qualifying for compounding are not indicated therein and on the contrary it speaks about compoundability of 'any' offence punishable under the Rules. Thus all the offences would be compoundable in absence of contrary provision; at any time before the order of confiscation by the court.

9. On perusal of the affidavit by respondent No.2, it appears that an attempt has been made to read amended and unamended rules in a distorted manner by picking up few contemplations of the rules in a selective manner. That, in the opinion of this court, is not a proper reading of the rules. Although the compounding of the offence under Rule 22 would be permissible even after institution of the prosecution; should there be an application for the purpose.

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

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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 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."

8. As against the same learned Assistant Government Pleader submitted that the respondent Authorities have issued final order dated 6.11.2020 with regard to the show cause notice dated 8.9.2020 and whereas an alternative remedy is provided to the petitioner to challenge the said order under Rule 18 of the Act and therefore, this Court may not entertain the petition, in alternative the learned AGP has submitted that this Court were to direct unconditional release of the vehicle and the petitioner would not challenge the final order passed by the respondent Authority then liberty may be reserved with the State to take out appropriate proceedings for recovery of the penalty as quantified in the final order.

9. Heard learned Advocates for the parties.

10. In the considered opinion of this Court in view of the observations of this Court in decision quoted hereinabove, this Court is of the opinion that the vehicle ought not to have been detained by respondent authority if the complaint is not filed as stipulated in the Rules of 2017, and therefore the same is required to be released forthwith. In so far as the order dated 6.11.2020 is concerned, this Court is of the opinion that there are enough provisions available in the rules whereby the respondent authorities can take action against the present petitioner for recovery of the penalty imposed

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upon the petitioner more particularly Rule 14 of the Rules, 2017 read with Rule 58 of the Gujarat Mines and Minerals Concession Rules, 2017 whereby it is inter alia provided that the penalties can be recovered as arrears of land revenue. While a clarification of such nature is not required still in the peculiar fact of this Case, it is clarified by this Court, that the respondent authorities are at liberty to take appropriate action if they want to have the order implemented as against the petitioner for recovery of the penalty amount.

11. In this view of the matter, the respondent authorities more particularly respondent no. 3 is directed to release the vehicle of the present petitioner forthwith i.e. within a period of 7 days from the date of receipt of the order and whereas insofar as order dated 6.11.2020, the observations made by this Court hereinabove, in the opinion of this Court would suffice.

12. At the request of the learned Advocate for the petitioner, it is clarified that it would be open for the petitioner to challenge order dated 6.11.2020 in accordance with law and whereas the respondent Authorities in view of the fact that the present petition was preferred by the petitioner, would not raise the issue of limitation.

13. It is clarified that this order would not come in any way against the authorities for implementation of order dated 6.11.2020.

14. With the above observations and direction petition stands disposed of as allowed. Rule is made absolute to the above extent.

15. Direct service is permitted.

(NIKHIL S. KARIEL,J) MARY VADAKKAN