Gujarat High Court
Kishorbhai Prabhatbhai Dangar vs State Of Gujarat on 6 December, 2021
Bench: Sangeeta K. Vishen
C/SCA/17906/2021 ORDER DATED: 06/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17906 of 2021
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KISHORBHAI PRABHATBHAI DANGAR
Versus
STATE OF GUJARAT
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Appearance:
MS.NAMRATA J SHAH(6534) for the Petitioner
MR KRUTIK PARIKH, AGP for the Respondents
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 06/12/2021
ORAL ORDER
Ms.Namrata J. Shah, learned advocate for the petitioner, seeks
permission to amend the writ petition. Amendment is allowed in
terms of the draft. The same shall be carried out forthwith.
2. With the consent of the learned advocates for the respective
parties, the captioned writ petition is taken up for final disposal.
3. Issue Rule, returnable forthwith. Mr.Krutik Parikh, learned
Assistant Government Pleader, waives service of notice of Rule for
the respondents.
4. By this petition, inter alia, under Article 226 of the Constitution
of India, the petitioner has prayed for quashing and setting aside
the Show-cause Notice dated 15.09.2021 so also the order dated
05.10.2021 passed by the Office of the Geologist & Mining
Department.
4.1. Ms. Namrata Shah, learned advocate, submitted that on
14.09.2021, team of the officers stopped the vehicle of the
petitioner bearing registration No.GJ-36-T-8294 (hereinafter referred
to as "the vehicle"). The driver was asked to submit a royalty pass
and he has submitted the royalty pass. The officers had inquired
about the name and fact as to from where mineral was loaded.
C/SCA/17906/2021 ORDER DATED: 06/12/2021
However, the driver being from Rajasthan, instead of Shana
Enterprise, name of one Vishalbhai was informed to the respondent
authority. The authorities were of the opinion that there is a
contradiction in the statement of the driver and, therefore, detained
the vehicle though the vehicle was carrying valid royalty pass. It is
submitted that the respondent authority thereafter issued a Show-
cause Notice dated 15.09.2021 requiring the petitioner to show
cause as to why penalty of Rs.4,07,350/- should not be imposed
upon him.
4.2. It is submitted that the petitioner, on 24.09.2021, had given a
detailed reply explaining that the driver of the vehicle was carrying
a valid royalty pass and the same was also shown to the officers.
The stock was loaded from the registered stockist, namely, Shana
Enterprise, proprietor Abdul Sattar Bhala; however, when inquired
about the name, the driver being from Rajasthan, name of Vishal
was mentioned and only on that basis, the respondent authorities
have initiated the proceedings under the Gujarat Mineral
(Prevention of Illegal Mining, Transportation and Storage) Rules,
2017 (hereinafter referred to as the "Rules of 2017").
4.3. It is further submitted that though detailed reply was filed on
24.09.2021 by the petitioner, the respondent authority on
05.10.2021 has passed an order which exhibits sheer non-
application of mind. None of the explanations offered by the
petitioner have been considered and the impugned order is passed
without assigning any reasons and without considering the reply
filed by the petitioner. It is, therefore, urged that the impugned
order deserves to be quashed and set aside.
5. On the other hand, Mr.Krutik Parikh, learned Assistant
Government Pleader, fairly conceded that the order does not deal
with the reply dated 24.09.2021 and therefore, appropriate order be
passed remanding the matter for fresh consideration.
C/SCA/17906/2021 ORDER DATED: 06/12/2021
6. Heard Ms. Namrata J. Shah, learned advocate for the
petitioner and Mr.Krutik Parikh, learned Assistant Government
Pleader for the respondents.
7. The petitioner, as aforesaid, is aggrieved by the issuance of
Show-cause Notice dated 15.09.2021 so also, the order dated
05.10.2021 passed by the respondent authority. Before the
authority, it was the specific case of the petitioner that the driver,
being from the Rajasthan, could not understand and, therefore,
innocently, gave the name of Vishal. However, there is no denial to
the fact that the driver was carrying a valid royalty pass of the
registered stockist i.e. Shana Enterprise, proprietor Abdul Sattar
Bhala. The explanation offered by the petitioner dated 24.09.2021
nowhere makes reference in the order dated 05.10.2021, therefore,
Ms.Shah is right in contending that the order suffers from the non-
application of mind, unreasoned and in violation of principles of
natural justice.
8. At this stage, reference is made on the judgment of the Apex
Court in the case of Kranti Associates Private Limited vs. Masood
Ahmed Khan reported in (2010)9 SCC 496. The Apex Court has held
and observed that the reasons have virtually become as
indispensable a component of a decision - making process as
observing principles of natural justice by judicial, quasi-judicial and
even by administrative bodies; insistence on recording of reasons is
meant to serve the wider principle of justice that justice must not
only be done, it must also appear to be done as well. Therefore, it is
well settled proposition of law that it is incumbent upon the judicial,
quasi-judicial and even by administrative bodies to record the
reasons in support of its conclusion for, insistence on recording of
the reasons is meant to serve the wider principle of justice that
justice certainly be done, it must also appear to be done as well.
9. In the present case, it can be clearly discern out that the office
C/SCA/17906/2021 ORDER DATED: 06/12/2021
of the Geology & Mining Department has not considered the
explanation of the petitioner dated 24.09.2021 and mechanically
passed the order dated 05.10.2021, imposing the penalty.
Therefore, non-consideration of the explanation and not offering any
reasons for not considering the same, the order not only suffers
from non-application mind but, is in violation of the principles of
natural justice. Hence, the order dated 05.10.2021 deserved to be
quashed and set aside and is accordingly quashed and set aside.
Therefore, the matter is remitted back to the Office of the Geologist
& Mining Department to take a decision afresh, after considering the
reply/explanation dated 24.09.2021 and after giving opportunity to
the petitioner, pass the reasoned order strictly in accordance with
law. Since the order dated 05.10.2021 has been quashed and set
aside, the respondents are directed to forthwith release the vehicle
of the petitioner bearing registration No.GJ-36-T-8294.
9.1 Even otherwise, though the show-cause notice was issued on
15.09.2021, followed by order dated 05.10.2021, the respondent
has not registered any FIR/complaint as envisaged under the
provisions of sub-clause (ii) of sub-clause (b) of sub-rule (2) of Rule
12 of the Rules of 2017, after the expiry of the specified period. In
absence of any complaint filed, it would be impermissible for the
respondent to continue the detention in view of the judgment of this
Court in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat
passed in Special Civil Application No.9203 of 2020 wherein, it has
been held and observed that 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. It has also been held that in absence
of such exercise, the purpose of seizure and the bank guarantee
would stand frustrated; resultantly, the property will have to be
released in favour of the person from whom, it was seized, without
insisting for the bank guarantee.
C/SCA/17906/2021 ORDER DATED: 06/12/2021
10. In view of the above discussion, the petition succeeds and is
accordingly allowed in part. Rule is made absolute to the aforesaid
extent. No order as to costs. Direct Service is permitted.
(SANGEETA K. VISHEN,J)
piyush
