Navinbhai Jagmalbhai Jhala vs State Of Gujarat
2021 Latest Caselaw 14790 Guj

     C/SCA/9385/2021                                     ORDER DATED: 22/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9385 of 2021
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 9385 of 2021
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                        NAVINBHAI JAGMALBHAI JHALA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Petitioner(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4,5,6
MR.KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                               Date : 22/09/2021
                                ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.

2. Issue Rule, returnable forthwith. Mr.Krutik Parikh, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent.

3. By this petition, the petitioners have prayed for direction for releasing the JCB Machine bearing No.GJ-11-BJ-0747 (hereinafter referred to as "the vehicle") of the ownership of the petitioner No.2.

4. The facts of the case are to the effect that the petitioner No.1 is doing a business and social activities while the petitioner No.2, is the owner of the vehicle. In furtherance of the Sujalam Suflam Jal Abhiyan Scheme introduced by the State Government, the respondent No.5, allotted the work to respondent No.6 vide communication dated 07.05.2021 who, in turn, has issued instructions to the petitioner No.2 and other farmers asking them to undertake the excavation activity for storage of rainy water in

C/SCA/9385/2021 ORDER DATED: 22/09/2021

Devka River by deepening the same. On the basis of some unknown frivolous application, the respondent No.2 drew the assumption and carried out the raid and as a result whereof, the JCB machine and 11 Tractors were seized on 22.05.2021. Such seizure, was followed by issuance of show cause notice to the petitioner No.1 and he filed a detailed reply clarifying that the petitioner has nothing to do with such activity and also that the vehicle was detained in illegal manner and without jurisdiction. Show cause notice also came to be issued to the owner of JCB machine and he also filed the reply; however, according to the petitioner, the respondent No.2, exhibited threats that if the petitioners fail to pay the fine, they will be implicated in another offence and compelled the petitioners to pay the fine coupled with an affidavit declaring that they have committed the offence. It is the case of the petitioners that the petitioners refused to surrender as the petitioner No.2, was carrying out the activities strictly as per the directions of the State Government and during the raid, nothing objectable was found inasmuch as, all the Tractors were found in an empty state. Hence, the present writ petition with the aforementioned prayers.

5. Mr.Maulik Soni, learned advocate submitted that the work of excavation was apropos the directions issued by the respondent No.6. The excavation was a part of the activity performed under the Sujalam Suflam Jal Abhiyan Yojana. Despite the petitioners were carrying out the activity under the Jal Abhiyan Yojana, the notice dated 22.05.2021, came to be issued to the petitioner No.1, requiring him to pay the penalty, at the same time, the machine/vehicle of the petitioner No.2 was detained. It is submitted that despite the detailed reply having been filed, there is a sheer inaction on the part of the authorities in releasing the vehicle. It is also submitted that a show cause notice was issued on 27.05.2021; however, till date, neither the vehicle has been produced beforethe

C/SCA/9385/2021 ORDER DATED: 22/09/2021

Court of competent jurisdiction nor First Information Report has been filed as per the requirement contemplated under Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transporation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017"). It is submitted that the grievance of the petitioner, stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020. In absence of there being any complaint filed, the authority concerned, will have no power to seize or detain the vehicle. It is submitted that the action on the part of the respondent authority, is against the provisions of Rule 12 of the Rules of 2017 so also the principle laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat and deserves to be quashed and set aside.

6. Mr. Krutik Parikh, learned Assistant Government Pleader has submitted that the show cause notice was issued on 27.05.2021 followed by the order dated 14.07.2021 and if the petitioners, have any grievance, the petitioners may challenge the said order before the Appellate Authority. The learned Assistant Government Pleader, however, could not dispute the fact that neither the FIR has been registered nor the vehicle/machine was produced before the Court of competent jurisdiction.

7. Heard learned Advocates appearing for the respective parties and perused the documents available on the record.

8. Pertinently, the vehicle of the petitioner was detained, followed by the issuance of show cause notice dated 27.05.2021 to the petitioner No.1. No such notice appears to have been issued to the petitioner No.2. The order dated 14.07.2021, has been placed on record, which has been passed pursuant to the aforesaid show cause notice dated 27.05.2021. Undisputedly, the respondent has

C/SCA/9385/2021 ORDER DATED: 22/09/2021

not filed the FIR as provided under the provisions of Rule 12 of the Rules of 2017. In absence of any complaint filed after the expiry of specified period, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020.

9. In the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020, this Court, in paragraphs 7, 10 and 11 has held thus:-

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

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 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

C/SCA/9385/2021 ORDER DATED: 22/09/2021

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."

It has been held 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. 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.

10. Under the circumstances, this Court is of the opinion that in absence of any complaint filed upon expiry of the specified period by the respondent authority, the principle laid down by this Court in the aforesaid judgment applies on all fours to the facts of the present case. Therefore, the present petition deserves to be allowed and is partly allowed. Needless to mention that the captioned writ petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner being JCB Machine bearing No.GJ-11-BJ-0747. So far as the order dated 14.07.2021 is concerned, it will be open to the petitioner No.1, if he so chooses to challenge before the Appellate Authority and the Appellate Authority, shall decide the same strictly in accordance with law. So far as the petitioner No.2 is concerned, it will be open to the authorities to initiate proceedings if permissible and in accordance with law.

11. With the above observations and directions, petition succeeds. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

       C/SCA/9385/2021                             ORDER DATED: 22/09/2021



ORDER IN CIVIL APPLICATION (FOR DIRECTION)             NO. 1 of 2021 in
R/SPECIAL CIVIL APPLICATION NO. 9385 of 2021:

In view of the disposal of the main writ petition, the present civil application (for Direction) No.1 of 2021, does not survive. Hence the civil application also stands disposed of. No order as to costs.

(SANGEETA K. VISHEN, J) RAVI P. PATEL