M/S Trimurty Enterprise vs State Of Meghalaya
2024 Latest Caselaw 301 Meg

High Court of Meghalaya

M/S Trimurty Enterprise vs State Of Meghalaya on 21 May, 2024

Author: H. S. Thangkhiew

Bench: H. S. Thangkhiew

Serial Nos.14 & 15
Supplementary List

                         HIGH COURT OF MEGHALAYA
                               AT SHILLONG

    WP(C) No. 375/2023 with
    MC (WPC) No.222/2023 with
    WP (C) No.376/2023 with
    MC (WPC) No.223/2023                        Date of Decision: 21.05.2024
          M/s Trimurty Enterprise, Jamartal, Palashbari, Mirza Dist: Kamrup,
          Assam-781125. Represented by: Shri Madan Chandra Das, partner,
          Aged about 44 years, Son of Late Haren Chandra Das, Village Mirza,
          District: Kamrup, Assam 781125                       ..... Petitioner
                                       Vs.
    1.    State of Meghalaya, represented by the Chief Secretary, Government
          of Meghalaya, Meghalaya State Secretariat, Shillong-793001,
          Meghalaya.
    2.    Deputy Commissioner, Government of Meghalaya, Ri-Bhoi District,
          Nongpoh, Meghalaya-793102.
    3.    The Superintendent of Police, Government of Meghalaya, Ri-Bhoi
          District, Nongpoh, Meghalaya-793102,
    4.    Officer-in-Charge, Government of Meghalaya, Police A.D. Camp,
          Rani, Ri-Bhoi District, Meghalaya-793102.
                                                        ..... Respondents
          Smt. Purnima Boro aged about 53 years, Wife of Late Hiren Chandra
          Boro, Rangapara P.O. Rani, P.S. Palashbari, Dist Kamrup, Assam
          784505.                                               ..... Petitioner
                                        Vs.
    1.    State of Meghalaya, represented by the Chief Secretary, Government
          of Meghalaya, Meghalaya State Secretariat, Shillong-793001,
          Meghalaya.
    2.    Deputy Commissioner, Government of Meghalaya, Ri-Bhoi District,
          Nongpoh, Meghalaya-793102.




                                        1
 3.    The Superintendent of Police, Government of Meghalaya, Ri-Bhoi
      District, Nongpoh, Meghalaya-793102,
4.  Officer-in-Charge, Government of Meghalaya, Police A.D. Camp,
    Rani, Ri-Bhoi District, Meghalaya-793102.
                                                  ..... Respondents
Coram:
                     Hon'ble Mr. Justice H. S. Thangkhiew, Judge

Appearance:
For the Petitioner/Appellant(s) :    Dr. N. Mozika, Sr.Adv with
                                     Ms. A. Pradhan, Adv
                                     Mr. N. Dasgupta, Adv
                                     Mr. S.D. Upadhaya, Adv

For the Respondent(s)           :   Mr. N.D. Chullai, AAG with
                                    Ms. R. Colney, GA
i)    Whether approved for reporting in               Yes/No
      Law journals etc.:

ii)   Whether approved for publication
      in press:                                         Yes/No


                     JUDGMENT AND ORDER (ORAL)

These two writ petitions being similar and on the same

circumstances, are being disposed of by this common judgment and order.

2. In WPC No.375 of 2023, the petitioner is a partnership firm engaged

in the business of renting out excavators and in the course of business on

31.03.2023, two excavators were seized whereafter, writ petitioner came to

learn that the seizure had been made in connection with their alleged used

in illegal mining.

3. Similarly in WPC No.376 of 2023, a dumper truck of the petitioner

was also seized on 30.03.2023 on similar allegations. The above noted

petitioners are therefore before this Court, questioning the manner of

seizure on the ground that due process of law was not followed.

4. Dr. N. Mozika, learned senior counsel on behalf of the petitioners

assisted by Shri N. Dasgupta, submits that on the seizure of the said

excavators and dumper truck, the petitioners on 08.05.2023, had prayed for

release of the seized articles, and for a copy of the seizure list so that the

petitioners could take appropriate legal remedy. However, he submits

neither the articles were released, nor a copy of the seizure memo provided.

He further submits that the seized articles were also not produced before the

jurisdictional Magistrate, which deprived the writ petitioners from filing an

application under Section 451 of the Cr.P.C. for release/zimma which left

the petitioners remediless.

5. The petitioners he submits, then sought information via applications

under the RTI Act, and in the reply thereto dated 06.11.2023, the minutes of

a meeting dated 17.04.2023, of a District Level Committee had been

enclosed. In the said minutes, it was revealed that a Committee had been

constituted by the Deputy Commissioner, Ri-Bhoi District in response to an

order of the National Green Tribunal dated 10.01.2022, in the matter of

O.A.No.48/2019/EZ - Jitul Deka vs. Union of India & ors. Learned senior

counsel would submit that from the minutes of the meeting, they then came

to learn that the dumper truck and excavators had been seized on account of

alleged engagement in mining activities, and that the same were to be

auctioned of in terms of the mandate of the said Committee, under the

provisions of Section 69 of the Assam Land Revenue Regulation Act, 1886.

6. From the said minutes itself, learned Senior counsel has submitted

that the Committee had observed that since legal complaint would be filed

by the DFO, East Khasi Hills and Ri-Bhoi (T) Division, details of the same

should be shared with the Committee, as and when the cases were

registered. However, he submits there has been no case registered and that

the seizure was not under Section 102 (1) of Cr.P.C. as the dumper truck

and excavators where never produced nor the seizure reported before a

Magistrate as per Section 102 (3) of Cr.P.C., or was the same under Section

49 (1) of the Meghalaya Forest Regulation (Application and Amendment)

Act, 1973 as the articles were neither produced nor seizure reported before

the Magistrate as required under Section 49 (2). From the minutes of the

meeting, it is submitted, only what was revealed was that the articles were

attached as per Section 69 of the Assam Land Revenue Regulation Act,

1886. He, therefore, submits that the seizure not being as per law, the

articles are liable to be released by the respondents.

7. Mr. N.D. Chullai, learned AAG with Ms. R. Colney submits that the

action of the respondents was in accordance with law and as per the

directions of the National Green Tribunal, and was directed against the

illegal operation of stone quarries and crusher units, and since the machines

seized had been hired for this activity which was illegal, the same cannot be

said to be without any authority, or not as per law. The entire exercise he

submits, was done to stop illegal mining and stone crushing units from

operating, and to detect illegal movement and transportation of boulder

stones from taking place in the District. In this connection he submits, all

moveable seized items such as dumpers, JCBs were kept in the custody of

the District Magistrate to await further necessary action. The putting up for

auction of such the seized machinery and equipment to recover

environmental compensation, he submits, had been initiated by the State

respondents with due information to the National Green Tribunal. As such

he contends that there is no illegality or arbitrariness in the seizure of the

dumpers and excavators.

8. Heard learned counsel for the parties.

9. It is correct that the scourge of illegal mining whether it be stone or

other minerals, is causing huge environmental degradation to the fragile

eco-system of the State. This Court is also aware about the concerted

actions that have been undertaken by the State players to arrest this menace

in one way or the other. Extensive reference in this regard, from the

arguments advanced by the State, have been made to the orders of the

National Green Tribunal in the case of Jitul Deka, which has dealt

specifically with illegal mining of gravel and stone in Ri-Bhoi District. It is

seen that pursuant to the directions of the NGT, a Committee had been

constituted comprising of the Deputy Commissioner, Divisional Mining

Officer, Divisional Forest Officer, State Pollution Control Board, Senior

Scientist from the Ministry of Environment and Forests etc. to monitor the

situation. However, it is important to keep in mind that, though the seizure

of the said excavators and dumper truck were made from the site where

illegal mining activities were being carried out, no matter the nexus, or

other considerations, any proceedings emanating therefrom, should

necessarily be in accordance with law.

10. At this juncture, it would be expedient to examine the minutes of the

District Level Committee dated 17.04.2023, to get a backdrop with regard

to the seizure and the proposed manner of disposal by auction by the said

Committee, of the excavators and dumper truck of the petitioners. For the

sake of convenience, the minutes of the meeting is reproduced hereinbelow:

"Minutes of the meeting of the District Level Committee constituted in connection with Attachment of Property under section 69 of the Assam Land Revenue Regulation Act, 1886 to discuss on seizure of heavy machineries and dumper truck at Rani Jirang Areas by Meghalaya Police A.D. Camp.

Member present: As per Annexure The Meeting was held under the Chairmanship of Smti. M. Shira Kshir, ADC in charge Revenue Branch (NGT) on 17th of April 2023, who after welcoming the members, requested Shri. B. Lyngdoh, DFO North Khasi Hills (SF) Division Nongpoh cum Member Secretary, District Level Committee to initiate the discussion. The Member Secretary gave a brief account on constitution of the District Level Committee and the term of reference within which the Committee is required to function. He stated that the Committee was constituted by the Deputy Commissioner, Ri-Bhoi District in response to one of the National Green Tribunal's (NGT) order dated 10th January 2022 that was passed in the matter of now disposed case i.e., O.A. No.48/2019/EZ Jitul Deka versus Union of India & Ors. As per order issued by the Deputy Commissioner vide letter No.DCRB (LR) 37/2019/Pt-III/Rev/486 dated 20.01.2022, the Term of reference of the Committee is:

(i) To assess the valuation of the machineries, vehicles, stone crusher plants, DG sets, Excavators etc that have been seized relating to illegal mining/stone crushing activities and attached such properties as per section 69 of the Assam Land Revenue Regulation Act, 1886.

(ii) To prepare Notice Inviting Tender for auctioning of the seized items at (i).

(iii) Issuance of lifting order to successful Bidders on completion of the auction process.

He informed that the Police A.D. Camp stationed at Rani-Jirang had recently seized 1 (one) no. boulder stone loaded Dumper Truck bearing Assam registration no.AS01 LC 9239 at Kabedonga quarry area on 30th March 2023 and 2 (two) nos. Tata Hitachi Excavators engaged in illegal mining at Puran Sukuberia quarry on 31st March 2023 and as per Police report, the dumper truck with boulder stones was brought to Rani-Jirang AD camp for safe custody. Whereas on account of insufficient parking space at Rani-Jirang AD Camp, the two excavators were transported and are presently kept at Byrnihat Police Outpost. Meanwhile the Divisional Forest Officer, East Khasi Hills & Ri Bhoi (T) Division, Shillong had been requested by the Deputy Commissioner to take necessary legal action in respect of the said cases. Simultaneously the Committee is requested to estimate

the reserve price of the machineries seized by the Police AD Camp for auction.

Shri. G.F.W. Pariat Functional Manager, representing General Manager, District Commerce & Industries Centre, Ri Bhoi District suggested seeking assistance from the Transport Department for evaluation of reserve price of the seized heavy vehicles. The Chairman thus requested the Member Secretary to ask the District Transport Officer, Ri Bhoi District to assess the reserve price of the two excavators and one dumper truck that are lying in the custody of the police, to have on record the existing price on "as is where is basis" which would be useful for future reference.

Shri. F. Laloo Environmental Engineer, Meghalaya State Pollution Control Board (MSPCB) expressed that there is a need to find out the names of the owners of these seized items in order to crosscheck with the list of violators that had already been sent to the NGT in the matter of Jitul Deka Case. To this request, the Member Secretary suggested that since legal complaint would be filed by the DFO, East Khasi Hills and Ri Bhoi (T) Division, therefore he may be requested to share the details with the Committee as and when the cases are registered. The Chairman requested the Member Secretary to coordinate with the concerned DFO. (Emphasis supplied) The Chairman was of the view that since the Term of reference of the District Level Committee was made specifically for the items seized during the then Jitul Deka case, it is therefore pertinent to seek legal opinion on authority of the Committee with regard to attachment of seized property for auction under Section 69 of the Assam Land Revenue Regulation Act, 1886 for such new cases relating to illegal stone mining and crushing in the District. She stated that Government Pleader's opinion would be sought in this regard by the Committee.

With on other matters to be discussed, the meeting finally ended with vote of thanks from the chair."

11. A perusal of the above quoted minutes, would reflect that the

Environmental Engineer, Meghalaya State Pollution Control Board had

expressed that there was a need to identify the owners of the seized items,

to which request the Member Secretary suggested that since a complaint

would be filed by the DFO, East Khasi Hills and Ri Bhoi (T) Division, the

same could be obtained when the cases were registered. Apart from the

observations, a query was also raised on the authority of the Committee

with regard to attachment of seized property for auction, under Section 69

of the Assam Land Revenue Regulation Act, 1886.

12. From the above, coupled with the undisputed facts that no case had

been registered under the provisions of the Cr.P.C., the seizure of the

articles under Section 69 of the Assam Land Revenue Regulation Act, 1886

seems to be misplaced. This is because Section 69, relates to recovery of

arrears of land revenue, which allows the Deputy Commissioner to order for

attachment and sale of so much of a defaulter's moveable property to

recover the said arrears. This necessarily involves the issuance of demand

notices before any coercive measures are taken as provided by Section 68

(2) of the said Act. A perusal of the seizure memo also shows that the

seizure was made only on the basis of a GD entry and no FIR had been

registered.

13. From the above facts and discussions, it is thus seen that the seizure

of the articles was in the absence of any complaint or FIR, and was done

purely and ostensibly in furtherance of, and on the strength of the NGT

orders, with regard to environmental violations. In this view of the matter

therefore, though the intent and object of the respondents was bona fide and

correct, due process of law however, was not adopted, as no complaint had

been made by the concerned DFO, and no case was registered.

14. In the facts and circumstances of the case therefore, without prejudice

to any further action that the State respondents may take; it is hereby

directed as follows:

(i) The Deputy Commissioner-respondent No.2 in whose custody the excavators and dumper truck are lying, is directed to release the same to the petitioners, on the production of proper and valid documents showing registered ownership to the satisfaction of respondent No.2.

(ii) The release of the excavators will be subject to the execution of a bond with one surety of Rs.5 lakhs by the petitioner in WP (C) No.375 of 2023, and the dumper truck of Rs.2 lakhs by the petitioner in WP (C) No.376 of 2023, to the satisfaction of respondent No.2, and once released, the same shall remain in the custody of the petitioners and shall not be transferred or assigned in any manner. It is further provided that they shall produce the articles as and when required as part of any legal proceedings, and the release of the same shall be subject to final orders to be passed by a competent Court on the registration of the case.

15. Accordingly, as ordered above, the writ petitions are allowed to the

extent indicated above, and are disposed of.

16. MC (WPC) No.222 of 2023 and MC (WPC) No.223 of 2023 also

stand disposed of.

Judge

Meghalaya 21.05.2024 "D.Thabah-PS"