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2010 DIGILAW 775 (BOM)

Rumao Constructions v. State of Maharashtra

2010-06-11

A.M.KHANWILKAR, R.M.SAVANT

body2010
Judgment R.M. SAVANT, J.:- Rule, made returnable forthwith and heard by the consent of the parties. 2. The above Petition exemplifies total high-handed and arbitrary action of the authorities in seizing two vehicles of the Petitioners without following due procedure of law. 3. A few facts which are necessary to be cited for an adjudication of the above Petition are stated thus :- Petitioner No.1 is a partnership firm and is engaged in the business of construction. Petitioner Nos.2 to 4 are the partners of Petitioner No.1. Petitioner No.1 is registered with the Public Works Department of the Government of Maharashtra inter-alia for carrying out various civil works which are awarded by the said Public Works Department. For the purpose of their business, the Petitioners have, amongst others, two vehicles which are dumpers/tippers. One of the dumper/tipper is purchased in the name of Petitioner No.2 and bearing registration No.MH-04-CP-0308. Other dumper/tipper is purchased in the name of Petitioner No.3 and bearing registration No.MH-04-CU-3373. Both the vehicles are hypothecated to the financial institutions who have lent their finances for purchasing the said vehicles to the Petitioners. The said vehicles are inter-alia used for transportation of various materials which are used in the process of construction. 4. It is the case of the Petitioners that on 27/02/2010, as per the information of the Petitioners, at about 4.20 p.m. some persons representing themselves as the officers from the flying squad of the Collector's office, visited the land bearing survey No.48 of village Chinchoti, Taluka Vasai. According to the petitioners, on reaching the said site, the officers conducted a spot panchanama. The officers measured the land to be 49 x 24 x 5 meters. It was stated in the said panchanama that the said land belonged to one Shri. Madhu Chandar Lohar who was a resident of the said village. The said panchanama was conducted in the presence of three panchas viz. Shri. Ramkisan Yadav, Shri. Ram Kumar and Shri. Kripanarayan Pandey. The last person was alleged to be supervisor on the site in question. In so far as the Petitioners were concerned, it was alleged against the Petitioners that Petitioner No.1 firm was engaged in unauthorised excavation of Murrum from the said land. 5. Shri. Ramkisan Yadav, Shri. Ram Kumar and Shri. Kripanarayan Pandey. The last person was alleged to be supervisor on the site in question. In so far as the Petitioners were concerned, it was alleged against the Petitioners that Petitioner No.1 firm was engaged in unauthorised excavation of Murrum from the said land. 5. It appears that on 27/02/2010 contemporaneously when the said panchanama was being carried out, the Petitioners' said two vehicles Nos.MH-04-CP-0308 and MH-04-CU-3373 were plying near Chinchoti Naka, Mumbai-Ahmedabad Highway, which is approximately 2 kilometers away from the land in question, in respect of which the panchanama was effected. It is the case of the Petitioners that one of the vehicles was filled with 4 brass of Murrum whereas the other vehicle was completely empty. It is the case of the Petitioners that the said two vehicles were stopped by some persons representing themselves as officers from the flying squad from the Collector's office. The said officers seized the said two vehicles and handed over a slip to the drivers. The slip recorded registration numbers of the vehicles and were issued on behalf of the office of the Collector, Thane. The said vehicles, according to the Petitioners, were seized without carrying any seizure panchanama. The Petitioners were neither given any notice nor any order of confiscation was served upon the Petitioners. 6. The Petitioners after the said seizure visited the office of the Collector at the address mentioned in the said slip and it is the case of the Petitioners that without admitting their liability towards payment of any amount, the Petitioners ventured to pay penalty/fine, if any, in respect of the Murrum found in one of the vehicles. Thereafter, a letter dated 6/3/2010 was addressed by the Petitioners to the District Collector, explaining that the Petitioners had nothing to do with the land in question nor the Petitioners had anything to do with the levelling work which was allegedly carried out in the said land. It was also stated that the Petitioners were not connected in any manner with the excavation work nor with the levelling of the land in question. 7. It appears in the interregnum that the land owner one Shri. Madhu Chandar Lohar had received a show cause notice dated 2/3/2010. It was also stated that the Petitioners were not connected in any manner with the excavation work nor with the levelling of the land in question. 7. It appears in the interregnum that the land owner one Shri. Madhu Chandar Lohar had received a show cause notice dated 2/3/2010. The said show cause notice made a reference to the panchanama dated 27/2/2010 conducted on the said land bearing survey No.48 of village Chinchoti, Tal.- Vasai. The said notice alleged that a total of 2077.73 brass of Murrum has been excavated in an unauthorised manner from the said land. The said land owner was called upon to explain within 7 days of the receipt of the said notice as to why an amount of Rs.17,43,245/- as and by way of royalty and penalty under Section 48(7) of the Maharashtra Land Revenue Code, 1966 should not be levied against him. The Petitioners did not get any response to their letter dated 6/3/2010. The Petitioners thereafter vide letter dated 11/3/2010 reiterated the contents of letter dated 6/3/2010. The Petitioners also drew attention of the authorities to their personal visits and their readiness and willingness to pay penalty/fine, if any, so that the vehicles, which were seized and which were necessary for the day-to-day business activities and on account of which they were suffering loss in their business, could be released. However, the Petitioners did not receive any reply to the said letter dated 11/3/2010. It appears that the Petitioners' vehicles were kept at the Versova Policy Chowky since the date of their seizure on 27/2/2010 and it is the case of the Petitioners that various parts of the said vehicles were stolen at the location where the said vehicles were parked. 8. Aggrieved by the said seizure of their vehicles, the Petitioners have filed the instant Petition inter-alia for claiming the following reliefs :- "(a) this Hon'ble Court be pleased to issue Writ of Mandamus and/or any other appropriate Writ, Order or Direction in the nature of Mandamus to issue direction against the Collector to forthwith release the confiscated vehicles of the Petitioners on levying the appropriate fine/penalty in accordance with the provisions of law; (b) this Hon'ble Court be pleased to issue Writ of Certiorari and/or an) other appropriate Writ. Order or Direction in the nature of Certiorari to call for the Records and Proceedings in the present matter and on perusal of the same, their Hon'ble Court may be pleased to quash the Order imposing the liability to the tune of Rs.17,43,215/- and the Petitioner be levied the fine/penalty to the extent of the Murrum (Soft Soil) found in possession of the Petitioner's vehicle (i.e. 4 brass) and thereby directions be passed for releasing the confiscated vehicles of the Petitioners." 9. The above Petition had come up for admission before us on 16th April, 2010. As it is the case of the Petitioners that the said vehicles have been confiscated by the officers from the office of the Collector, Thane, in an arbitrary manner and in spite of repeated representations, no heed was being paid to them and since the vehicles were lying in the compound of the Versova Police Chowky, under the jurisdiction of the Kashimira Police Station, Thane, we had called upon the Respondent to produce original file pertaining to the seizure procedure and related issues. Accordingly, the original file was produced before us. Perusal of which discloses that the said file does not contain any seizure panchanama and the authority under which the two vehicles of the Petitioners were seized by the officers of the Collector, Thane. The original file was produced before us by Shri. Ramdas Zalake, Tahsildar. We were informed on the said day by the learned AGP that some papers pertaining to the seizure procedure are in the custody of the Versova Police Station. Accordingly, we had directed the Officer-in-charge of the concerned Police Station to ensure that the original file pertaining to seizure of these vehicles be produced in Court for the perusal. We were also informed by the learned AGP that now show cause notice has been issued to the Petitioners. However, the learned counsel appearing for the Petitioners informed us that the Petitioners have not received any show cause notice till date. The question as to what prevented the authority to issue show cause notice contemporaneous to the seizure of the vehicles still remains unanswered, which we thought fit to examine at the appropriate stage. 10. However, the learned counsel appearing for the Petitioners informed us that the Petitioners have not received any show cause notice till date. The question as to what prevented the authority to issue show cause notice contemporaneous to the seizure of the vehicles still remains unanswered, which we thought fit to examine at the appropriate stage. 10. Taking over all view of the matter, we thought it fit to order release of the two vehicles of the Petitioners forthwith subject to the bond being executed by the Petitioners to the effect that the said vehicles will be brought back if and when required or on such order to be passed by any Competent Court within one week from the order. The above Petition was accordingly adjourned to 22nd April, 2010. 11. The above Petition appeared on board on 23rd April, 2010 on which day the Senior Inspector of Kashimira Police Station, under which the Versova Police Chowky falls, was personally present in the Court with the original record. Since we were told on 16th April, 2010 that all the original documents relating to the seizure are available with the concerned Police Station, in that background, we had called upon the concerned officer of the Versova Police Chowky to produce the relevant record. On 23rd April, 2010, the file which was produced before us by the Senior Inspector of Police contains only a letter addressed to the learned AGP and a loose paper was kept along therewith which was purportedly signed by an official of the Collector, Thane, addressed to the Police Inspector, Versova Police Chowky which paper is dated 27th February, 2010. When we enquired from the learned AGP, whether there was any seizure order, neither the Tahsildar Shri. Zalake nor the Senior Inspector was able to show us any seizure order of the said two vehicles nor the seizure panchanama. Only explanation offered by the Police Officer was that the two vehicles have been kept in the Versova Police Chowky at the request of the office of the Collector in the context of communication dated 27th February, 2010. During the course of hearing, it was also revealed that no criminal case has been registered against the concerned persons in respect of the said two vehicles. During the course of hearing, it was also revealed that no criminal case has been registered against the concerned persons in respect of the said two vehicles. It was also disclosed that no police diary entry in respect of the two vehicles being seized on 27th February, 2010 was made in the Versova Police Chowky, nor in the Kashimira Police Station. As mentioned earlier, neither the Senior Inspector of Police nor the Tahsildar were able to produce any document which would indicate that the two vehicles belonging to the Petitioners have been seized under any valid seizure order and are being kept in their custody in relation to any proposed action of unauthorized excavation of minor minerals. In the background of the aforesaid facts we had no hesitation in directing the Versova Police Chowky to forthwith release the two vehicles without insisting for the bond condition which was mentioned by us in our order dated 16th April, 2010. We, however, made it clear that same would not dispense with the obligation of the Petitioners to bring back the two vehicles as and when required and if ordered by the Court of competent jurisdiction. By so recording the release of the vehicles we had observed in our said order dated 23rd April, 2010 that detailed reasons for disposing of the above Petition would be recorded later on. 12. From the facts as disclosed herein above, it is ex facie clear that no seizure panchanama was effected nor any seizure order has been passed before the said two vehicles were seized by the authorities and kept in the custody of the Versova Police Chowky. We are aghast at the conduct of the officials/officers both of the Revenue Department as well as the Police Department. We are surprised that not a semblance of any procedure was followed before seizing the two vehicles. In a country where there is rule of law, the least that is expected is that a modicum of procedure is followed by the authorities before taking a drastic step such as seizure of the vehicles. The authorities, it appears, had seized the two vehicles without creating any record for the reasons which are inexplicable and best known to them. In a country where there is rule of law, the least that is expected is that a modicum of procedure is followed by the authorities before taking a drastic step such as seizure of the vehicles. The authorities, it appears, had seized the two vehicles without creating any record for the reasons which are inexplicable and best known to them. It is pertinent to note that under the Maharashtra Land Revenue Code as well as the Minor Mineral Rules, a procedure has been prescribed for levying of royalty as well as penalty. If the authorities were convinced that some unauthorized excavation was going on, the authorities should have invoked the said provisions and proceeded against the concerned party in accordance with law. However, for the reasons best known to the authorities, the authorities chose to seize the said two vehicles without creating any record. The letters addressed by the Petitioners as well as the offer made by the Petitioners vide the said letters have also gone unheeded. This, in our view, casts a serious suspicion as regards the real intention and motive of the authorities in seizing the vehicles and can only lead to an irresistible conclusion that the said vehicles were seized for extraneous reasons and with malafide intentions. In our view, the culpability of the concerned officials of the revenue department is more pronounced than that of the police. The officials of the revenue department have in fact seized the vehicles whereas the police officers of the Kashimira Police Station have allowed them to keep the vehicles within the jurisdiction of the Versova Police Chowky. In our view, it was the duty of the police to at least call upon the officials of the revenue department to furnish them the necessary documents on the basis of which they had seized the said vehicles. The police have also not made any record as regards the said two vehicles being in their custody. No such action was taken by the police. Therefore, in that sense, it can be said that there was connivance between the police and the officials of the revenue department in the seizure of the said two vehicles. We therefore express our displeasure in the manner in which the action has been taken by both the authorities in the matter of seizure of the two vehicles. Therefore, in that sense, it can be said that there was connivance between the police and the officials of the revenue department in the seizure of the said two vehicles. We therefore express our displeasure in the manner in which the action has been taken by both the authorities in the matter of seizure of the two vehicles. The officials of the revenue department may have had valid reasons for seizure of the vehicles, but the manner in which the said vehicles have been seized cannot be justified on the touchstone of any legal provision. The said action therefore has to be termed as most high handed and therefore arbitrary and illegal. Hence without expressing any opinion as regards the alleged illegal excavation of Murrum from the site in question but limiting ourselves only to the seizure of the two vehicles and the manner in which they were seized we are disposing of the above Petition. 13. In view of the peremptory order dated 23rd April, 2010 passed by us and in view of the fact that the vehicles have been returned back to the Petitioners, pursuant thereto we allow the above Petition in terms of said order dated 23rd April, 2010, however, on the condition as mentioned by us in the said order dated 16th April, 2010 that the Petitioners should bring back the two vehicles if and when required or on such order to be passed by any Competent Court within one week from the said order. 14. Insofar as prayer clause (b) of the Petition is concerned, we are of the view that the Petitioners would have an adequate efficacious remedy under the Minor Mineral Rules or the Maharashtra Land Revenue Code if the Petitioners are aggrieved by the demand raised in respect of the royalty and penalty for the illegal excavation of Murrum. 15. In view of the fact that we have found the action of the authorities to be totally high handed, arbitrary and illegal, we would be failing in our duty, if we do not direct the higher officials of the revenue and the police departments to take corrective measures so that such actions are not repeated in future. 15. In view of the fact that we have found the action of the authorities to be totally high handed, arbitrary and illegal, we would be failing in our duty, if we do not direct the higher officials of the revenue and the police departments to take corrective measures so that such actions are not repeated in future. We therefore direct the Collector, Thane to conduct an inquiry in respect of the seizure of the two vehicles without any procedure being followed by the officials working under him and more especially the officials of the flying squad. 16. We also direct the concerned Deputy Commissioner of Police, Thane to make an inquiry into the conduct of the officials/ officers of the Kashimira Police Station in keeping the said two vehicles in their custody in the precincts of the Versova Police Chowky without making any record in that respect right from 27th February, 2010 till they were ordered to be handed over to the Petitioners by our order dated 23rd April. 2010. 17. Both the Collector and the concerned Deputy Commissioner of the Police are directed to take appropriate departmental action against the concerned officials/officers who were held responsible for seizure of the two vehicles. On such action being taken, an entry should be made in the service book of the concerned officials/officers. The said process to be completed within a period of eight weeks from date and compliance report of the action taken against the concerned officials/officers by both the Collector and the Deputy Commissioner of Police to be submitted to this Court in the name of the learned Registrar General of this Court within four weeks thereafter. 18. Rule is accordingly made absolute in the above terms. 19. Copy of this order to be sent to the Collector, Thane, the Commissioner of Police, Thane and the Deputy Commissioner of Police Thane who is concerned with the Kashimira Police Station. We further direct that copy of this order be also forwarded to the Principal Secretary, Revenue Department as well as the Principal Secretary, Home Department for information and necessary action. 20. Place the above Petition for directions for placing the compliance report on 14th September, 2010. Petition allowed.