Allowed

Hiteshbhai Shamjibhai Baldaniya v. State of Gujarat

Gujarat HC11 Oct 2019SCA/13217/2019

Case brief

AI extract

What is this about?

The High Court allowed a petition for the release of a dumper seized for alleged illegal mining. Relying on Rule 12 of the 2017 Rules and prior precedents, the court held the vehicle must be released upon furnishing a bank guarantee and penalty deposit, citing the authority's failure to produce it in court within the statutory 15-day period.

What did the court decide?

Release of Dumper No. GJ-21-W-7943 upon payment of Rs.25,000 penalty and furnishing a bank guarantee of Rs.1,00,000, subject to an undertaking to comply with the Rules.

Hiteshbhai Shamjibhai Baldaniya Vs State of Gujarat — Company and Corporate | Gujarat HC (2019)

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C/SCA/13217/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 13217 of 2019

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HITESHBHAI SHAMJIBHAI BALDANIYA

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Versus

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STATE OF GUJARAT

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Appearance: MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1 for the Respondent(s) No. 2

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MS.SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER (99) for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 11/10/2019

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ORAL ORDER

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1. RULE. Learned Assistant Government Pleader waives

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service of rule on behalf of the respondent-state.

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2. This petition is filed under Article 14, 19, 21
and 226 of the Constitution of India with following
prayer:

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“(a) This Hon'ble Court may be pleased to admit and allow this Petition;

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(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing the respondent no. 2 authority to immediately release the vehicle i.e. Dumper No. GJ-21-W-7943 of the petitioner;

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(c) Pending admission, final hearing and disposal of this petition, direct the respondent no.2 to release the vehicle i.e Dumper No. GJ-21-W-7943 of the petitioner upon such terms and conditions as this Hon'ble Court may deem fit.

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(d) Grant such other and further relief as thought fit in the interest of justice.”

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3. The petition pertains to release of vehicle which
appears to have been seized under the provisions of
Gujarat Mineral (Prevention of Illegal Mining Storage

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Page 1 of 8

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C/SCA/13217/2019 ORDER

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and Transportation) Rules, 2017 (herein after
referred to as Rules of 2017) and also the provisions
of Mines and Mineral (Regulation and development)
Act, 1957 for it being involved in transporting
mineral / illegal mining. Vehicle is of following
description:

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Dumper No. GJ-21-W-7943

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4. Learned Advocate for the petitioner under
instructions submitted that the petitioner is ready
and willing to comply with the provisions and also
ready and willing to pay the penalty amount without
the compounding penalty and also ready and willing to
undertake before this Court that to pay forthwith the
amount that may be specified by the Authority after
completion of entire proceedings at the departmental
level or upon the completion of the trial, if any.

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5. Learned Advocate for the petitioner submitted that
the vehicle seized under the provisions of Rules of
2017 which provide for the release of vehicle upon
the compliance of the certain conditions. Learned
Advocate mainly relies upon the provisions of Rule-
12, sub-rule (5) and Rule-12, sub-rule (7). It is
submitted that after the seizure of the vehicle, the
petitioner has been issued show cause notice for
compounding of the offence under Rules of 2017 by
paying stipulated amount towards the penalty for the
offence as well as penalty towards compounding
charges. As per the order dated 06.08.2019, passed by
the respondent no.2 authority, the petitioner is
ordered to pay penalty of Rs.25,000/- and compounding

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Page 2 of 8

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C/SCA/13217/2019 ORDER

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charges of Rs.2,00,000/-.

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6. Learned Advocate for the petitioner draws
attention of this Court to the Oral Order in Letters
Patent Appeal No. 397 of 2018 dated 18-04-2018 in
case of Zaverbhai Nanubhai Devani v/s. State of
Gujarat and Letters Patent Appeal No. 1322 of 2018 in
case of Kikubhai Maganbhia Dhodi v/s. State of
Gujarat dated 26-10-2018 to submit that the
respondent Authorities again continue the seizure of
the vehicle and under the provisions of the Rules of
2017, must release the vehicle.

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7. Learned AGP opposing the petition and submitted
that the Truck was found involved in the illegal
mining activity and therefore, the Department has
acted as per the provisions of Rules of 2017 and as
the petitioner is not ready and willing to compound
the offence, the vehicle can not be released. It is
submitted that vehicle was seized on 22-07-2019 and
order dated 06.08.2019 is passed by the respondent
no.2 authority.

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8.It is also submitted that the petitioner should
be relegated to the alternative remedy as provided
under the Rule-18. In view of the alternative remedy
provided for, the Court may not exercise jurisdiction
under Article-226 of the Constitution of India.

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9. Having considered rival submissions of both sides, it would be germane to refer relevant Rules of 2017 as under:.

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Page 3 of 8

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C/SCA/13217/2019 ORDER

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“12. Seizure of property liable to confiscation.-

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(1) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or other thing (hereinafter referred to as “property”) shall be liable to be seized by the Government in the manner specified in sub-rule (2) of this rule.

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(2) Every Authorized Officer seizing any property under these rules shall photograph the property and place on such property a mark in such manner as may be prescribed, indicating that the same has been so seized and shall:

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(a) issue a notice in Form J informing the person from whom the property is seized of the property so seized;

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(b) conduct:

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(i) an investigation and if he is satisfied that a compoundable offence has been committed in respect of the property, he may, subject to receipt of a compounding application, order payment of such amount for compounding the offence as may be deemed appropriate;

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(ii) a preliminary investigation and shall produce the property seized before a court empowered to determine commission of such offence, if compounding is not permissible under rule 22 or if no application for compounding is received pursuant to clause (a) above, upon the expiry of fifteen days from the date of seizure or upon completion of the investigation, whichever is earlier.

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(3) Where any property seized under sub-rule (1) is produced before a court under sub-clause (ii) of clause (b) of sub-rule (2) and the court is satisfied that offence has been committed in respect thereof, the court may order confiscation of the property under sub-section (4A) of Section 21 of the Act.

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(5) Upon expiry of fifteen days from the date of seizure of the property under sub-rule (2) and prior to:

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(a) payment for compounding the offence under sub-clause (i) of clause (b) of sub-rule (2); or (b) completion of the investigation by the Authorised Officer under subclause (I) of clause (b) of sub-rule (2); or (c) a determination under sub-rule (3), the Authorised Officer

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Page 4 of 8

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C/SCA/13217/2019 ORDER

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may release the property on the furnishing of a noninterest bearing security deposit or a bank guarantee.

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(6) The bank guarantee issued under sub-rule (5) shall be valid for an initial period of one year and shall be renewed from time to time until payment for compounding the offence under sub-clause (i) of clause (b) of subrule (2) or a determination under sub-rule (3), as applicable, is made. The noninterest bearing security deposit or bank guarantee shall be for an amount equivalent to ten times of the market value of the mineral seized or for such other amount as may be specified by the Government through a notification, subject to a minimum of rupees two lakh:

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Provided that, if upon a determination under sub-rule (3), a penalty for an amount exceeding the amount of noninterest bearing security deposit or bank guarantee is levied and the penalty amount is not paid, then the penalty amount may be recovered in the same manner as if it were an arrear of land revenue.

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(7) The property seized under this rule shall be kept in the custody of the Authorised Officer, any other third party, nearest police station or Government premises until:

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(a) payment for compounding the offence is maid; or (b) a bank guarantee is provided pursuant to sub-rule (5); or

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(c) an order of the court directing its disposal is received by the Authorized Officer.”

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10. Interpreting aforementioned provisions, this
Court in Letters Patent Appeal No. 397 of 2018,
wherein Para-10, 11 and 12 are as under:

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“10. From the aforesaid provisions coupled with the
facts of the present case, it is clear that after
the seizure of the truck, notice was issued.
However, thereafter, the respondent authority has
not followed the provisions contained in Rule 12(2)
(b)(ii) of the Rules of 2017. As per the said
provision, if the application for compounding of
offence is not received, the vehicle so seized shall
be produced before the Court empowers to determine
commission of such offence, upon expiry of 15 days
from the date of seizure or upon completion of
investigation, whichever is earlier.

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11. In the present case, after completion of 15 days from the date of seizure, when application for

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Page 5 of 8

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C/SCA/13217/2019 ORDER

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compounding of offence is not submitted by the petitioner, it was the duty of the respondent authority to produce the said vehicle before the concerned Court. In absence of production of such vehicle before the competent Court, the petitioner has lost his right to file an application under Section 451 of the Code of Criminal Procedure, 1973, for release of the vehicle.

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12. Thus, in view of the aforesaid discussion, we are of the view that the respondent authorities have failed to justify the reason for seizure of the truck in question. When the respondent authorities have failed to follow the procedure prescribed under the Rules of 2017, we are of the view that this is fit case where the action of seizure of the truck in question taken by the respondent authorities is required to be quashed and set aside and direction is required to be given to the respondent authorities to release the truck in question forthwith.”

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11. Submissions made by learned advocate for the
respondent for alternative remedy was considered by
this Court in Letters Patent Appeal No. 1322 of 2018,
wherein Para-10 and 11 are as under:

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“10. In the case of Nileshbhai Somabhai Raval
V/s State of Gujarat, the learned Single Judge
of this Court has passed an order on 25.9.2018
in Special Civil Application No.10635 of 2018
wherein the learned Single Judge observed that
though there was an alternative remedy of
filing appeal and revision under the Rules, the
petition is required to be entertained in the
facts of the said case and the learned Single
Judge directed the respondent authority to
release the vehicle forthwith.

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11. Keeping in view the provisions contained in Rules of 2017 and the order dated 18.4.2018 passed by the Division Bench of this Court in Letters Patent Appeal No.397 of 2018, if the facts as discussed hereinabove are examined, we are of the view that the respondent authorities have failed to follow the procedure prescribed under Rules of 2017 and till date the offence is not registered against the petitioner. Further no request is made to compound the alleged offence nor the petitioner has shown willingness to pay the compounding fees and therefore the respondent authority was duty

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Page 6 of 8

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C/SCA/13217/2019 ORDER

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bound to produce the vehicle in question before the competent Court after a period of 15 days from the date of seizure. Till date, the vehicle is not produced before the competent Court. Thus, the order passed by the respondent-Collector is required to be set aside. In the facts and circumstances of the present case, as discussed hereinabove, the petition filed under Article 226 of the Constitution of India is required to be entertained on merits and petitioner cannot be relegated to file an appeal before the appellate authority. Accordingly, the order passed by the learned Single Judge is required to be set aside.”

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12. Therefore, considering the aforesaid position of
law, the Rules categorically provides for the release
of vehicle by the Authorized Officer. When a person
whose vehicle is involved in alleged illegal mining
activity furnishes the Bank guarantee or the security
deposit as specified in Sub-rule (7) of Rule-12,
authorized Officer is required to release such
vehicle. It is found that in many cases, the
application by the petitioner are not even accepted
by the Department nor the Department produces the
vehicle with appropriate report before the Competent
Court. Thereby leaving with no option to such person
but to file petition before this Court. As the
petitioner is ready and willing to pay the penalty
amount and at the same time to safe guard interest of
the State as well, the Court deems it fit to order to
release the Dumper No.GJ-21-W-7943 after complying
with following conditions:

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(a) The petitioner to file an undertaking before this
Court that the petitioner shall forthwith comply with
the directions contained in the outcome of the

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Page 7 of 8

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C/SCA/13217/2019 ORDER

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proceedings under Rules of 2017 and Mines and Mineral
(Regulation and Development) Act, 1957;

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(b) to deposit an amount of Rs.25,000/- towards the
penalty quantified by the Department;

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(c) to furnish the Bank guarantee for an amount of
Rs.1,00,000/-;

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(d) If the Petitioner and or the vehicle is found
again violating the provisions of Rules of 2017 and
Mines and Mineral (Regulation and Development) Act,
1957, it is open for the Department to invoke the
Bank guarantee;

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13. The petition is allowed in the aforesaid terms.
Rule is made absolute to the aforesaid extent with no
order as to costs. Direct service is permitted.

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(BHARGAV D. KARIA, J)

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GIRISH

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Hiteshbhai Shamjibhai Baldaniya v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Hiteshbhai Shamjibhai Baldaniya v. State of Gujarat

Case brief

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