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Gujarat High Court · body

2019 DIGILAW 992 (GUJ)

Rajaram Lalsinh Jarman v. State of Gujarat

2019-10-21

BHARGAV D.KARIA

body2019
ORDER : Bhargav D. Karia, J. 1. By way of this petition under Article 226 of the Constitution of India, 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 quashing and setting aside the action of the respondent No. 2 in seizing the vehicle i.e. Hitachi Machine Ex. 200 Super having serial No. S200-52127 under the provision of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017 and to quash and set aside the order dated 06.09.2018 passed by the respondent No. 2 authority; (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. Hitachi Machine Ex. 200 Super having serial No. S200-52127; (d) Pending admission final hearing and disposal of this petition, direct the respondent No. 2 to release the vehicle i.e. Hitachi Machine Ex. 200 Super having serial No. S200-52127 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." 2. The short facts of the present case are that, the petitioner is the owner of the vehicle Hitachi Machine Ex. 200 Super having serial No. S200-52127. It is the case of the petitioner that on 08.04.2018, vehicle of the petitioner was seized by the respondent No. 2 authority stating that it was involved in illegal mining at Village Bamroli. The respondent No. 2 thereafter, on 25.06.2018, issued a notice upon petitioner for proceedings to be undertaken before the Collector on 02.07.2018 and to remain present with all the papers of the said vehicle. On 06.09.2018, respondent No. 2 authority passed an order and levied a penalty of Rs. 7,87,868/- in the form of compounding fees. 3. It is the case of the petitioner that the vehicle-in-question was given by the petitioner on rent to one Pradipkumar Vajesingbhai Oad, residing at Village Dhokaliya, Bodeli on 02.04.2018 and therefore, the petitioner was not aware about the use of the vehicle-in-question. 7,87,868/- in the form of compounding fees. 3. It is the case of the petitioner that the vehicle-in-question was given by the petitioner on rent to one Pradipkumar Vajesingbhai Oad, residing at Village Dhokaliya, Bodeli on 02.04.2018 and therefore, the petitioner was not aware about the use of the vehicle-in-question. The petitioner thereafter, has made written application for release of the vehicle, however, no decision has been taken by the respondents for releasing the vehicle of the petitioner and the respondents are insisting for compounding fees as per aforesaid order dated 06.09.2018. 4. Heard learned advocate Ms. Kruti Shah for the petitioner and learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondents. 5. Learned advocate for the petitioner has submitted that the petitioner has not indulged in any illegal mining but the vehicle-in-question is alleged to have been used by the lessee Mr. Pradipkumar Vajesingbhai Oad, who is alleged to have used the said vehicle for mining. It is submitted that the respondents have already levied the penalty upon said person. It was also submitted that at the time of illegal mining, three machines were seized by the respondent No. 2 out of which, JCB Machine is already released on payment of Rs. 10,00,000/- by the respondents. The said JCB Machine does not belong to the petitioner. It is further submitted that in view of the fact that the petitioner is ready and willing to undertake before this Court, as well as before the respondents, that the petitioner would not use vehicle-in-question for illegal mining and the said vehicle would be used by the petitioner without being given on lease to any other person and the petitioner is also ready and willing to pay the bank guarantee of Rs. 2,00,000/- in favour of the respondents, as condition for release of the vehicle. 6. On the other hand, learned Assistant Government Pleader, Mr. Dhawan Jayswal for the respondents has referred to the affidavit-in-reply filed on behalf of the respondent No. 3 to contend that the inspection team seized three vehicles, which were carrying out illegal mining of mineral, ordinary sand at three different spots. The vehicle Hitachi Machine Ex. 200 Super having serial No. S200-52127 was one of the three vehicles as mentioned in paragraph No. 8 of the affidavit-in-reply. The vehicle Hitachi Machine Ex. 200 Super having serial No. S200-52127 was one of the three vehicles as mentioned in paragraph No. 8 of the affidavit-in-reply. It is further submitted that all the three vehicles, which were seized from three different spots, separate show cause notices were issued on the basis of the measurement of the pits from which the vehicles were excavating mineral, ordinary sand. It was also pointed out that the vehicle of the petitioner was seized from Village: Bamroli, Taluka Bodeli while carrying out illegal mining and on seeing the inspection team of Geology Department, the operator fled from the spot leaving machine and the same was seized as per the procedure prescribed. Learned AGP further submitted that the vehicle No. 1 i.e. JCB 84040405 was released on payment of Rs. 10,00,000/- and therefore, the vehicle-in-question is also required to be released only on payment of equal amount for which the JCB Machine was released. He further submitted that Mr. Pradipkumar Vajesingbhai Oad was present, at whose instance illegal mining was carried out and as per his statement of confession before the respondents for alleged offence, has given consent to pay the amount of penalty as per the law and therefore, the vehicle-in-question would be released in that circumstances. It is submitted that as Mr. Pradipkumar Vajesingbhai Oad did not remain present before the respondents, the respondents passed order dated 06.09.2018 for compounding of offence directing the petitioner to pay Rs. 7,87,868/- for release of the vehicle. It is therefore, submitted that the petitioner is liable to pay the amount of penalty imposed upon him for release of the vehicle-in-question. 7. Having considered submissions made by both the sides and considering all the relevant documents on record, it appears that the vehicle Hitachi Machine Ex. 200 Super having serial No. S200-52127 is of the ownership of the petitioner and was given on lease to one Mr. Pradipkumar Vajesingbhai Oad, who is alleged to have been carrying out illegal mining. 7. Having considered submissions made by both the sides and considering all the relevant documents on record, it appears that the vehicle Hitachi Machine Ex. 200 Super having serial No. S200-52127 is of the ownership of the petitioner and was given on lease to one Mr. Pradipkumar Vajesingbhai Oad, who is alleged to have been carrying out illegal mining. In view of the submissions made by learned advocate for the petitioner that the petitioner is ready and willing to give undertaking to the fact that the vehicle-in-question would be used by the petitioner himself without the same being given to the other person on lease in future and the petitioner is ready to abide by all the rules and regulations of mining, for which the machine will be used in future. The petitioner is also ready to give bank guarantee of Rs. 2,00,000/- for release of vehicle-in-question which was seized since April 2018. It is true that the vehicle-in-question is alleged to have been used in illegal mining which could not be permitted in any circumstances, however, in the facts of the case that the petitioner is not alleged to have been mining directly and only machine of the petitioner is alleged to have been used for illegal mining, it would be in the interest of justice to release the vehicle of the petitioner on following conditions in the peculiar facts of this case: (i) Petitioner shall file undertaking to the fact that the petitioner will never indulge in any act of illegal mining in future contrary to the rules and regulations. (ii) Petitioner shall not give vehicle-in-question i.e. Hitachi Machine Ex. 200 Super having serial No. S200-52127 on lease to any other person in future and the petitioner will use the said vehicle for his own business. (iii) Petitioner shall furnish bank guarantee of Rs. 2,00,000/- for a period of one year as security so as to enable the respondents to finalize procedure under the provisions of rules for levy of penalty, if any. 8. In view of the aforesaid directions, the petition is disposed of. Notice is discharged. 9. Direct service is permitted.