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2019 DIGILAW 1094 (GUJ)

Yukta Enterprise v. State of Gujarat

2019-12-02

BHARGAV D.KARIA

body2019
JUDGMENT : 1. Rule. Learned Assistant Government Pleader, Ms. Shruti Pathak waives service of notice of rule on behalf of the respondent. 2. Having regard to the controversy in narrow compass, with consent of learned advocates of both the sides, the matter is taken up for final hearing today. 3. The petitioner has prayed for the following reliefs: “(a) This Hon’ble Court may be pleased to admit and allow this petition; (b) This Hon’ble Court may be pleased to issue appropriate writ, order or direction for quashing and setting aside the seizure of the vehicle and issuance of notice dated 23.09.2019 issued by the respondent no.2 authority in respect of the Dumper/Tipper No. GJ-21-W- 9468. (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. Dumper/Tipper No. GJ-21-W-9468 of the petitioner; (d) Pending admission final hearing and disposal of this petition, direct the respondent no.2 to release the vehicle i.e. Dumper/Tipper No. GJ-21-W-9468 of the petitioner upon such terms and conditions as this Hon’ble Court may deem fit; (e) Grant such other and further relief as thought fit in the interest of justice.” 4. It is the case of the petitioner that the vehicle Dumper No.GJ-21-W-9468, which is of the ownership of the petitioner, was seized by the respondent no.2 on 20.09.2019. The said vehicle was carrying 40.40 metric ton of black trap and at the time of seizure of the vehicle, respondent did not issue any seizure memo. 5. It appears that thereafter, on 23.09.2019, respondent no.2 issued notice stating that on investigation, driver of the seized vehicle produced royalty pass in which number of tyres of the said vehicle were shown more than the actual number of tyres at the time of seizure. Therefore, notice was issued for illegal transportation and breach of rules of Gujarat Mineral (Prevention of illegal Mining, Storage and Transportation) Rules, 2017 (hereinafter referred to as 'the Rules'). 6. It was further stated in the notice that custody of the vehicle is given to the Collector Office, Navsari and the petitioner is liable to pay Rs.2,02,000/- for illegal transportation of 40.40 metric ton of black trap and Rs.1,00,000/- for compounding fees and Rs.3781/- for environment compensation fund. 7. 6. It was further stated in the notice that custody of the vehicle is given to the Collector Office, Navsari and the petitioner is liable to pay Rs.2,02,000/- for illegal transportation of 40.40 metric ton of black trap and Rs.1,00,000/- for compounding fees and Rs.3781/- for environment compensation fund. 7. In response to the notice issued by this Court, respondent No.2 has filed affidavit-in-reply, wherein it is stated that after the issuance of show cause notice, the petitioner did not come forward for payment of penalty and compounding fees and has approached this Court. It was further stated that the respondent authority has passed an order dated 07.10.2019 to pay the amount of Rs.3,05,781/-, to be paid by the petitioner towards penalty, compounding fee and environment compensation fund. 8. The respondent no.2 has thereafter, passed revised order dated 20.11.2019 to pay the amount of Rs.2,05,781/-, to be paid by the petitioner towards penalty and environment compensation fund, which is produced along with the affidavit-in-reply. 9. The petitioner has tendered affidavit-in-rejoinder stating that there is no evasion of any royalty amount and therefore, it can not be said that there is any offence committed under the provisions of the Rules. 10. It was submitted that as per the notice dated 23.09.2019, it is stated that there is discrepancy in the number of tyres in royalty pass and RC book, which would not result in any punishable offence under the Rules. It was further submitted that the orders dated 07.10.2019 and 20.11.2019 are also required to be quashed and set aside on the ground that the same are without jurisdiction as the petitioner can not be compelled to compound offence. 11. Heard learned advocate Ms. Kruti M. Shah for the petitioner and learned Assistant Government Pleader, Ms. Shruti Pathak for the respondent no.2. 12. Learned advocate for the petitioner submitted that the petitioner has paid royalty as per the royalty pass and therefore, there is no loss to the respondents so far as royalty is concerned. It was submitted that the petitioner has not committed any offence for breach of any of the Rules so as to attract penalty under Rule 21 of the Rules. It was submitted that the petitioner has not committed any offence for breach of any of the Rules so as to attract penalty under Rule 21 of the Rules. It was further submitted that the impugned action of the seizure culminating into the order passed by the respondent, is required to be quashed and set aside together with the impugned orders placed on record along with the affidavit-in-reply. 13. On the other hand, learned Assistant Government Pleader submitted that the petitioner is liable for contravention of the Rules as the petitioner was carrying minerals in the carrier, which was not authorized for the purpose of transportation. 14. It was further submitted that the transportation of the minerals by the petitioner would amount to illegal transportation as the petitioner used carrier, which is having less tyres than what is specified in the royalty pass which is valid transit permit. Reliance was placed upon the definition of “illegal transportation” as per Rule 2(n) of the Rules read with Rule 7, which prescribes obligation of the owner and operator of the carrier. It was therefore submitted that the impugned action as well as orders passed by the authority are in accordance with the law and the penalty is also levied as per Rule 21 of the Rules by revised order, which is amended with effect from 21.06.2019. It was therefore, submitted that the petition is required to be dismissed. 15. Having heard learned advocates of both the sides, it emerges from the record that the petitioner has used carrier having less tyres than what is mentioned in the royalty pass. Therefore, short question which arises for consideration is as to whether carrying of minerals in the carrier, which is having less number of tyres than what is stated in the royalty pass, would amount to “illegal transportation” or not. It would therefore germen to refer to Rule 2(n) of the Rules, which reads as under: “2(n) “illegal transportation” means the removal, shifting, transfer and/or transport of any mineral by any Carrier otherwise than in accordance with the provisions of the Act and/or the rules made thereunder.” 16. From the above definition, it is clear that “illegal transportation” means the removal, shifting, transfer and/or transport of any mineral by any carrier otherwise what is provided in the Mines and Mineral (Regulation and Development) Act, 1957 and the Rules. From the above definition, it is clear that “illegal transportation” means the removal, shifting, transfer and/or transport of any mineral by any carrier otherwise what is provided in the Mines and Mineral (Regulation and Development) Act, 1957 and the Rules. Therefore, it would be necessary to refer the relevant provisions of the Rules to ascertain whether such Rules can be said to be contravened by the petitioner or not. Rule 7 of the Rules reads as under: “7. Obligations of the owner and operator of a Carrier: (1) Every owner and operator of a Carrier carrying minerals within the State shall carry: (a) a duly working tracking device and duly working electronic identification device; and (b) a valid Transit Permit or Delivery Challan, as the case may be. The Carrier shall follow the transportation route specified pursuant to clause (e) of sub-rule (I) of rule 5 and pass through the en-route Check Posts. (2) In case of transfer of ownership of a Carrier, the new owner shall register himself and pending such registration, such Carrier shall not be used for carrying minerals. (3) A carrier or other person (including importer) carrying minerals entering the State from other State, shall register at the first Check Post and provide to the first Check Post, information regarding the quantity, quality, destination, name of carrier/person at whose behest minerals are entering the State, related price information and such other information as may be required to be disclosed for minerals entering the State. (4) The Government may also impose additional conditions as it may deem necessary with respect to carriage of minerals in the State.” 17. On perusal of the above Rule, it is clear that every owner and operator carrying minerals within State is required to carry a valid transit permit or delivery challan, as the case may be. Admittedly, in the facts of the case, petitioner transported the minerals in the carrier which is having less tyres than what is stated in the royalty pass, which is a valid transit permit. Thus, the petitioner was not carrying minerals as per the valid transit permit and thus, has committed breach of Rule 7. It can not be said that the petitioner has not committed any offence or breach of any Rules merely because, the petitioner has paid the royalty on the minerals, which was found in the carrier at the time of seizure. It can not be said that the petitioner has not committed any offence or breach of any Rules merely because, the petitioner has paid the royalty on the minerals, which was found in the carrier at the time of seizure. The petitioner could not have used the vehicle-in-question for the purpose of transportation of minerals using royalty pass, which is of more tyres than the tyres of vehicles-in-question. It is necessary to note that the capacity of vehicle depends upon number of tyres of the vehicle. It therefore, appears that though the vehicle-in-question is of less tyres, the petitioner has shown the more tyres in the royalty pass so as to carry excess minerals than the capacity of vehicle-in-question. The said modus-operandi of the petitioner would amount to “illegal transportation” as per the definition provided under Rule 2(n) read with Rule 7 of the Rules. The respondents therefore, have rightly seized the goods and the vehicle exercising powers under Rule 12 of the Rules. 18. After the seizure of the vehicle-in-question along with the goods, respondent no.2 has passed revised order dated 20.11.2019 imposing penalty under Rule 21 of the Rules amounting to Rs.2,05,781/-. The penalty has been worked out on the basis of Rule 21 of the Rules, which reads as under: “21. Penalties and recovery: (1) Any contravention of sub-section (1) or sub-section (IA) of Section 4 of the Act shall be punishable in accordance with the provisions of sub-section (1) of Section 18 of the Act. (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 rupee for every day during which such contravention continues after conviction for the first such contravention. (3) Whenever any person raises, transports or stores any mineral or causes to be raised or transported or stored any mineral without any lawful authority including any transportation or storage of minerals in violation of sub-rule (3) of rule (7), the Government may, in addition to the penalties prescribed under sub-rules (1) and (2) above and subject to the provisions of the rule 21 thereof; (a) recover from such person, the mineral so raised or transported or stored and where such mineral has already been disposed of, the price thereof as specified under Schedule-III, and may also recover from such person the rent, royalty, tax and any other amount payable under the Act or the rules made thereunder, as the case may be; (b) cancel the registration of such person in respect of its mineral concession, carrier mechanized machinery or of such trader or mine operator as may be granted pursuant to sub-rule (3) and sub-rule (3A) of rule 4 thereof; 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 payable 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. (4) Whenever any person raises, transport 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; (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-rule (1) shall be cognizable.” 19. On the basis of aforesaid Rule, the petitioner is therefore, liable to pay sum of Rs.2,05,781/- as per the Schedule – III of the Rules and as per the revised order dated 20.11.2019, annexed with the affidavit-in-reply. 20. On the basis of aforesaid Rule, the petitioner is therefore, liable to pay sum of Rs.2,05,781/- as per the Schedule – III of the Rules and as per the revised order dated 20.11.2019, annexed with the affidavit-in-reply. 20. Learned advocate for the petitioner has also made an alternative submission that if the order dated 20.11.2019 is not interfered with than, the petitioner may be granted installments to make the payment of amount of penalty and release the vehicle on suitable condition. 21. Learned Assistant Government Pleader submitted that if the petitioner is ready to make payment of penalty as per the order dated 20.11.2019, than the installments may be granted by the Court. 22. In view of the aforesaid discussion, the order dated 20.11.2019 is upheld and the petitioner is directed to pay penalty as per the said order. The petition is therefore, disposed of with following directions with regard to the payment of amount of penalty: 1. The petitioner shall pay the amount of penalty of Rs.2,05,781/- in four equal installments, to be payable on or before 10th of each month starting from January, 2020. 2. The petitioner shall furnish bank guarantee for Rs.1,00,000/- of any Nationalized bank for a period of four months or till the amount of penalty is fully paid by the petitioner, whichever is later. 3. The petitioner shall file an undertaking before the respondents to undertake to pay the amount of penalty of Rs.2,05,781/- in four equal monthly installment. 4. On furnishing 1st installment and bank guarantee of Rs.1 lakh together with undertaking of the petitioner, respondent authority shall release the vehicle Dumper No. GJ-21-W-9468. 17. The petition is disposed of accordingly. Rule is discharged. No order as to costs.