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2012 DIGILAW 879 (GUJ)

VISHNUBHAI CHELABHAI BHARWAD v. STATE OF GUJARAT

2012-12-20

Z.K.SAIYED

body2012
Judgment : Z. K. SAIYED, J. Rule. Learned A.G.P. Mr. Alkesh Shah waives service of Rule on behalf of the respondents in all the petitions. 2. Since, in all petitions similar reliefs have been prayed for by the petitioners and similar facts have been mentioned and common and identical contentions have been raised and even the orders passed in connection with the application made under Rule 18 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 are also identical and same, the present group of petitions are heard and decided by this common judgment. 3. Earlier by common oral judgment and order dated 10-10-2012, this Court (Coram : Hon'ble Mr. Justice K. M. Thaker) has disposed of all these petitions on certain conditions/directions. One of the condition was that "each of the petitioners shall submit Bank guarantee drawn by a Nationalized Bank in the sum of Rs. 16,00,000/- per petitioner, the vehicles of the petitioners may be released. The vehicles of only those petitioners may be released who submit Bank Guarantee, as aforesaid, in the sum of Rs. 16,00,000/-.......". Thereafter, the petitioners herein have filed Misc. Civil Application No. 2877 of 2012 for modification of order passed in the above Special Civil Application Nos. 12752 to 12758 of 2012, in which it was submitted that considering the financial position, the petitioners will not be in a position to get and submit the Bank Guarantee as directed by this Hon'ble Court in the order dated 10-10-2012 and the petitioners requested that the said condition may be dropped or modified and for that purpose, petition be restored. Thereafter, this Court vide order dated 30-10-2012 restored the above petitions and directed the office to list the above petitions for admission and hearing. 4. Heard learned Advocate Mr. Vijay Patel for the petitioner and learned A.G.P. Mr. Shah, appearing for the respondents. I have also gone through the papers produced before me and also earlier judgment passed by this Court in the above group of petitions. '- 5. Learned Advocate Mr. Patel has submitted that earlier the petitioners have filed Special Civil Application Nos. 11461 to 11465 and 11470 of 2012 before this Court, which were filed at the stage of show-cause notice, and therefore, the same were disposed of by this Court by giving certain directions to the authority. '- 5. Learned Advocate Mr. Patel has submitted that earlier the petitioners have filed Special Civil Application Nos. 11461 to 11465 and 11470 of 2012 before this Court, which were filed at the stage of show-cause notice, and therefore, the same were disposed of by this Court by giving certain directions to the authority. He has further submitted that though this Court passed an order directing the authority to pass appropriate order, the authority could not decide and pass order, and therefore, the petitioners have again filed Special Civil Application Nos. 12400 to 12406 of 2012 before this Court. However, during the pendency of said petitions, authority has passed the impugned order on 17-9-2012, and therefore, the said petitions came to be disposed of as having become infructuous. He has contended that thereafter, the petitioners have filed the above petitions challenging the order dated 17-9-2012 passed by the authority, which came to be disposed of earlier by this Court by judgment and order dated 10-10-2012 and as the petitioners were not in a position to fulfil the conditions of submitting the Bank Guarantee the petitioners have preferred Misc. Civil Application Nos. 2877 to 2883 of 2012 for modifying and/or recalling the judgment and order dated 10-10-2012 passed in above group of petitions. 6. Mr. Patel has contended that the order dated 17-9-2012 of the respondent No.2 itself is illegal and contrary to the provisions of law. He has contended that the petitioners have not committed any breach of the Rules, more particularly Rules 3, 5, 6, 8 and 17 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. He has contended that the machine of the petitioners has been seized from the private place and without any mineral. Mr. Patel has relied upon Rules 17 and 18 and contended that when there is reason to believe that an offence has been committed in respect of any mineral such mineral, together with vehicles or other conveyances used in committing such offence may be seized by any officer authorized by the Government. He has contended that the vehicle/machine was wrongly seized by the authority as it has not been found with any mineral or sand and the same was stationary at the private land. He has contended that the vehicle/machine was wrongly seized by the authority as it has not been found with any mineral or sand and the same was stationary at the private land. He has contended that Rule 17(6) provides that the property seized under the said Rule shall be kept in custody of the authorized officer, but in fact, the vehicle of the petitioner is in the custody of Vatva Police Station, and therefore, there is flagrant violation of Rule 17(6). He has contended that the respondent No.3-Collector has heard the matter, however, the order has been passed by the respondent No.2, and therefore, the order itself is unjust: illegal and contrary to the settled legal position. He has also contended that mineral i.e. sand has not been found loaded with in the vehicles or even the mineral has not been seized. He has, therefore, contended that the action of the authority of seizing the vehicles/ machines of the petitioners are illegal, and therefore, the order passed by the authority may be quashed and set aside and vehicles/machine seized by the authority may be released. 7. Learned A. G. P., Mr. Shah has contended that the authority has after fully following the provisions and the Act and Rules has passed the order, and therefore, no interference is called for. He has also read the Rojkam and contended that as per the documents produced, prima facie, it is established that there is reason to believe that the petitioners are involved in illegal activity of digging sand through the machines, and therefore, the authority has rightly seized the vehicles/machine of the petitioners. Learned A.G.P. has also relied upon Rule 19 of the Rules, 2005. He has also contended that the minerals worth huge amount and large quantity is involved in the matter. 8. I have heard the learned Counsel for the respective parties. Learned A.G.P. has also relied upon Rule 19 of the Rules, 2005. He has also contended that the minerals worth huge amount and large quantity is involved in the matter. 8. I have heard the learned Counsel for the respective parties. I have also gone through the papers produced before me and also gone through the provisions of the Act and the Rules, more particularly Rule 17 of the Rules, which reads as under : "Seizure of Property Liable to Consfication : (1) When there is reason to believe that an offence has been committed in respect of any mineral, such mineral together with vehicles or other conveyances used in committing such offence may be seized by any officer authorized by the Government in that behalf (hereinafter referred to as the authorised officer) and record details of seizing property in Form J. (2) xxx xxx xxx xxx (3) Where any mineral seized under sub-rule (1) produced before the officers authorized by the State Government and he is satisfied that an offence has been committed in respect thereof, he may order confiscation of the mineral or value or part of the value thereof so seized and produced, together with the vehicles, or other conveyance used in committing such offence." 9. On perusal of the papers, it appears that the vehicles/machines of the petitioners have been seized from the private land without any minerals. On going through Rule 17(1) and (3) which show when there is reason to believe that an offence has been committed in respect of any mineral such mineral, together with vehicles or other conveyance used in committing such offence may be seized by any other authorized by the Government in that behalf. Here, in the present case, it appears that the vehicles/machines of the petitioners were seized from the private land and that too without any minerals. Respondents have not even cared to produce any evidence to show that there is any reason to believe that the said vehicles were involved in committing an offence. From the Notice dated 13-8-2012, issued by respondent No.2, the allegation is that the petitioners were found illegally digging the minerals through the vehicles/machines from Sabarmati River which was passing through Kamod-Piplaj village. From the Notice dated 13-8-2012, issued by respondent No.2, the allegation is that the petitioners were found illegally digging the minerals through the vehicles/machines from Sabarmati River which was passing through Kamod-Piplaj village. However, while seizing the vehicles/machines no minerals were found lying at the spot or even there is no evidence to suggest that any minerals were found on the vehicles, seized by the authority. The authority has also not cared to take statement of the persons, who are residing nearby the said property to verify the claim of the petitioner that the vehicles/machines were stationary. In the notice issued to the petitioners there is no mention as to upon which information the flying squad have visited the spot and as to why flying squad did not seize the vehicles/machines of the petitioners, but directed the respondent No. 2 to seize the vehicles/machines who had no knowledge of the information. The authority have also failed to produce any evidence to show that on what basis they have reason to believe that the vehicles/machines in question are involved in illegally digging the sand from the river. 10. In view of above, I am of the opinion that the respondents have wrongly exercised the powers vested in them and they have seized the vehicles/machines of the petitioners without any material evidence. The action of the authority is, therefore, illegal and contrary to the provision of Rule 17(1) and (3) of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. Therefore, the impugned order passed by the respondent No.2, on the face of it, is illegal and contrary to the Rules, which is required to be quashed and set aside. 11. In view of above, all the petitions are allowed. The impugned order is quashed and set aside by holding that the action of the authority of seizing and confiscating the vehicles/machines are illegal. The respondents authority are directed to release the vehicles/machines of the petitioners immediately. Rule made absolute accordingly. D. S. permitted. Petitions allowed.