Quashed

Mangubhai Kikabhai Aahir v. the State of Gujarat

Gujarat HC7 Oct 2019SCA/4337/2019

Case brief

AI extract

What is this about?

The Gujarat High Court quashed an order imposing compounding fees and penalty against the petitioner for illegal mineral excavation. The court held that the authority misread the Rules by levying fees without an application and failing to produce the seized vehicle before a court within the statutory period under Rule 12. The matter was remanded to pass a fresh order.

What did the court decide?

The impugned order dated 07.02.2019 was quashed, set aside, and remanded to the respondent authority to pass a fresh order within 15 days.

Mangubhai Kikabhai Aahir Vs the State of Gujarat — Land Acquisition | Gujarat HC (2019)

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C/SCA/4337/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 4337 of 2019

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MANGUBHAI KIKABHAI AAHIR

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Versus

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THE STATE OF GUJARAT

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Appearance:

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MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1

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NOTICE SERVED BY DS(5) for the Respondent(s) No. 2

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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 07/10/2019

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ORAL ORDER

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By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for the following reliefs :

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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 for quashing and setting aside the order dated 07.02.2019 issued by the respondent no.2 authority;

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(c) This Hon’ble Court may be pleased to issue appropriate writ, order or direction to the respondent no.2 to immediately release the vehicle i.e. JCB No. GJ-03-AT-9471 of the petitioner;

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(d) Pending admission final hearing and disposal of this petition, direct the respondent no.2 to release the vehicle i.e. JCB No. GJ-03-AT-9471 of the petitioner upon such terms and conditions as this Hon’ble Court may deem fit.

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C/SCA/4337/2019 ORDER

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

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The brief facts of the present case are that the petitioner is owner of the vehicle JCB Machine No. GJ-03-AT-9471. It is the case of the petitioner that on 13.12.2018, respondent no.2 seized vehicle of the petitioner at around 4.30 p.m. at village - Desad, Taluka – Gandevi and issued seizure memo (Form- J) as per sub-rule (i) of Rule 12 of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017 (hereinafter referred to as ‘the Rules’). The vehicle of the petitioner was seized on the ground that the petitioner was doing illegal excavating on the sides of the road. The petitioner therefore, produced certificate from the Sarpanch of Gram-Panchayat Pathari, Taluka- Gandevi that the petitioner was doing the work of site shouldering as the side of the road was broken and sand needed to be filled at the side of the road for preventing from further damage for which the petitioner was given contract and three vehicles of the petitioner were engaged for such work given by the Gram Panchayat. The certificate on letter head of Gram-Panchayat dated

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C/SCA/4337/2019 ORDER

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02.02.2019 is also produced on record.

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It is the case of the petitioner that the petitioner thereafter, made an application before the respondent no.2 -authority for clarifying the above mentioned facts and submitted that the petitioner has not committed any offence as the petitioner carried out work of the GramPanchayat. The Authority even though had knowledge about the above mentioned fact, has passed an order dated 07.02.2019 imposing compounding fees of Rs.2,00,000/- for release of the JCB Machine and directed the petitioner to pay total sum of Rs.3,55,116/for three vehicles i.e. for one JCB Machine and two Tractors and also levied fine for 543.52 metric ton of ordinary sand, which was alleged to have been excavated from the said area. The petitioner therefore, being aggrieved by the said order has preferred this petition.

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Heard learned advocate Ms. Kruti Shah for the petitioner and learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondents.

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C/SCA/4337/2019 ORDER

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Learned advocate for the petitioner submitted that the petitioner has preferred Special Civil Application No. 4344 of 2019 and Special Civil Application No. 4340 of 2019 for release of the two tractors which were also seized by the respondent no.2 along with JCB Machine. This Court by order dated 08.05.2019 has released two tractors, seized by the respondent no.2, belonging to the petitioner by directing the petitioner to submit bank guarantee of Rs.25,000/- and penalty of Rs.10,000/- for one tractor and to submit bank guarantee of Rs.25,000/for another tractor and accordingly, both the vehicles were released. So far as JCB Machine is concerned, respondent no.2 has levied penalty of Rs.95,116/- for 543.52 metric ton of ordinary sand and also asked the petitioner to pay compounding fees of Rs.2,00,000/-. Further, sum of Rs.39,142/- is levied as Environmental Compensation Fund as per Government Resolution dated 29.11.2018. Therefore, the petitioner was asked to pay the sum of Rs.3,55,116/- under Rule 21(3) of the Rules, out of which, the petitioner has already paid Rs.10,000/and submitted bank guarantee of Rs.25,000/- and therefore, the petitioner is now required to pay Rs.3,20,116/- for release of the JCB Machine.

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C/SCA/4337/2019 ORDER

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Learned advocate for the petitioner submitted that on bare perusal of the impugned order dated 07.02.2019, it nowhere refers to the prescribed procedure under the sub-rule (2) of Rule 12. The petitioner has not tendered any application for compounding of offence and therefore, under clause (ii)(b) of sub-rule (2) of Rule 12 of the Rules, the respondent was supposed to produce seized property i.e. JCB Machine before the concerned Court upon expiry of fifteen days. However, the respondents are still having custody of the JCB Machine and has not produced it before the concerned Court and therefore, there is clear violation of Rule 12(2)(b)(ii) of the Rules. She further submitted that on perusal of the impugned order, there is no clarity as to on what basis compounding fees of Rs.2,00,000/- is imposed when there is no application made by the petitioner for compounding fees and further on what basis penalty of Rs.95,116/- (543.52 X 175) is levied, is also not clarified in the impugned order. She therefore, submitted that the impugned order being contrary to the Rules is liable to quashed and set aside.

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C/SCA/4337/2019 ORDER

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On the other hand, learned Assistant Government Pleader Mr. Dhwan Jayswal has tendered affidavit-inreply on behalf of respondent no.1 and submitted that there is alternative remedy available under Rule 18 for filing an appeal and therefore, the petition is not required to be entertained. He further submitted that the impugned order is passed following the provisions of Rule 12, and therefore, if the petitioner desires to have his vehicle released, bank guarantee of ten times of market value of the minerals seized or for such other amount as may be specified by the Government through a notification, subject to minimum of Rs.2,00,000/- is required to be deposited under sub-rule (6) of Rule 12 of the Rules. He also submitted that the vehicle cannot be released until the petitioner pay amount for compounding the offence. Therefore, he referred to Rule 22 of the Rules which provides for compounding of offences and accordingly, amount of penalty as Rs.95,116/- is calculated as per scheduled – III of the Rules which prescribes method of calculation of compounding fees to be paid by the persons who have committed offence under the provisions of Section 21 of the Mines and Minerals (Regulation and Development)

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C/SCA/4337/2019 ORDER

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Act, 1957 (hereinafter referred to as ‘the Act’ for short). He further submitted that as the petitioner has already paid an amount of penalty and submitted bank guarantee for release of the tractors, the petitioner is also required to pay penalty of Rs.95,116/- and bank guarantee in order to release his vehicle JCB No. GJ-03AT-9471.

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Having heard learned advocates for the respective parties and considering the averments made in the petition and affidavit-in-reply as well as material produced on record, it emerges that the respondent no.2 while passing impugned order dated 07.02.2019 has misread the provisions of the Rules as well as of the Act. The respondent no.2 is neither clear about the provisions of Rule 12 nor Rule 21 or Rule 22 which are relevant for the purpose of either levy of compounding fee or penalty, to be recovered from the petitioner. It appears that the respondent no.2 not being well aware about relevant Rules as well as provisions of the Act, has passed the impugned order by misreading the provisions to levy of compounding fees under Rule 22 of the Rules. On bare perusal of the impugned order in the first

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C/SCA/4337/2019 ORDER

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paragraph, it states that the compounding fee of Rs.2,00,000/- is levied, however, no application for compounding the offence is given by the petitioner and therefore, there is no question of levy compounding fees by the respondent no.2. Moreover, the respondent no.2 has calculated Rs.95,116/-, to be paid by the petitioner, without any reference as to whether it is compounding fees or penalty. The said amount is calculated for the alleged excavation of minerals of 543.52 metric ton of ordinary sand. The respondent no.2 has not clarified as to under which Rule, such amount of Rs.95,116/- is calculated i.e. under Rule 21 or Rule 22 of the Rules. At this stage, it would be necessary to refer the said Rules, which are as under:

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“21. Penalties and recovery:-

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(1) Any contravention of sub-section (1) or sub-section (1A) of Section 4 of the Act shall be punishable in accordance with sub-section (1) of Section 21 of the Act.

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(2) Any other contravention of these rules shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

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(3) Whenever any person raises, transports or stores any mineral or causes to be raised or transported pr

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C/SCA/4337/2019 ORDER

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stored any mineral without any lawful authority, the Government may recover from such person, the mineral so raised or transported or stored and where such mineral has already been disposed of, the price thereof, and may also recover from such person, the rent, royalty, tax and any other amount payable under the Act and/or the rules made thereunder and hereunder as the case may be:

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Provided that where the minerals have been obtained from a mineral based area on a Transit Permit after the due payment of royalty but the storage of the mineral is made without registration, a penalty equal to the amount of single royalty amount parable shall be charged for such illegal storage, in case the person has applied for registration prior to storage. If the person has made application for registration after the storage of minerals, a penalty equal to double the amount of royalty payable shall be charged for such illegal storage.

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(4) Whenever any person raises, transports or stores or cause to be raised or transported or stored without any lawful authority, any mineral from any land/place and for that purpose, uses any tool, equipment, vehicle or any other thing, such property shall be liable to be seized by an Authorized Officer or by an authority specially empowered in this behalf.

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(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-rule (1) shall be cognizable.

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22. Compounding of offences:-

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Any offence punishable under these rules may, either before or after the institution of the prosecution, be compounded by the Authorized Officer on payment of an amount computed in the manner specified in Schedule – III when an offence is compounded:

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(a) no further proceedings shall be commenced against such person,

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(b) If any proceedings have already been commenced against such person, such proceedings shall not be further proceeded with and;

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C/SCA/4337/2019 ORDER

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so retained, be released.

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Provided that the same offence shall not be compounded more than three times with respect to the same person or carrier.”

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On bare perusal of the above Rules, it is clear that Rule 21 provides for penalties and recovery whereas Rule 22 provides for levy of the compounding fees. In order to levy compounding fees, it is necessary to refer Rule 12 of the Rules which provides for seizure of property liable to confiscation, which reads as under:

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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 Authorised 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; or

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C/SCA/4337/2019 ORDER

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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) above 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 subsection (4A) of Section 21 of the Act.

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(4) No order for confiscating any property shall be made under sub-rule (3) unless the person from whom the property seized is given:

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(a) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and

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(b) a reasonable opportunity of being heard in the matter.

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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

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(b) completion of the investigation by the Authorised Officer under sub-clause (i) of clause (b) of sub-rule (2); or

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the Authorized Officer may release the property on the furnishing of a non-interest 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

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C/SCA/4337/2019 ORDER

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compounding the offence under sub-clause (3), as applicable, is made. The non-interest bearing security deposit or bank guarantee shall be fo an amount eqivalaent 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 non-interest 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 Authorized Officer, any other third party, nearest police station or Government premises until;

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(a) payment for compounding the offence is made; or

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(b) a bank guarantee is provided pursuant to sub-rule (5); or

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10.On conjoint reading of aforesaid three Rules, respondent no.2 is required to exercise powers of seizure of property for the alleged offence under the provisions of the Act. As per sub-rule (1) of Rule 21 any contravention of sub-section (1) or sub-section (1A) of Section 4 of the Act, shall be punishable in accordance with sub-section (1) of Section 21 of the Act. In view of the aforesaid analysis of various provisions and Rules, respondent no.2 is required to apply the same and pass order accordingly

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C/SCA/4337/2019 ORDER

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after following the same with a view to curb illegal mining which is the object of the Act as well as Rules. However, it appears that respondent no.2 has passed the impugned order by levy of penalty by way of compounding fees as well as other amount so as not to initiate any proceedings for referring the matter to the concerned Court prescribed under sub-rule (2)(ii) of Rule 12 of the Rules. At this juncture, it is necessary to refer to provision for penalty prescribed in Section 21 of the Act, which reads as under:

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Penalties. ― 1[(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area.

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(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

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(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.

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(4) 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

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C/SCA/4337/2019 ORDER

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any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

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(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.

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(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.

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(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable.”

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11.Sub-section (4A) of Section 21 prescribes that any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court. It appears that the respondents have totally ignored the provisions of the Rules though time and again admonished by this Court in the orders which are cited and has passed order for levy of compounding fees

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C/SCA/4337/2019 ORDER

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and to recover the same so as not to adopt the procedure prescribed under the Act and Rules.

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In view of the foregoing discussion, the impugned order dated 07.02.2019 is hereby quashed and set aside by remanding matter back to the respondent no.2 to pass fresh order in accordance with law by denovo proceedings as per the Rules and Provisions of the Act. Such exercise for passing fresh order in the facts of the case, shall be carried out within 15 days from the date of receipt of this order.

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Accordingly, the petition stands disposed of. Notice is discharged. Direct service is permitted.

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(BHARGAV D. KARIA, J)

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RAGHUNATH R NAIR

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Mangubhai Kikabhai Aahir v. the State of Gujarat

Case brief

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Mangubhai Kikabhai Aahir v. the State of Gujarat

Case brief

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