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2023 DIGILAW 1904 (ALL)

Ramveer v. State of U. P.

2023-08-08

MANOJ BAJAJ, SIDDHARTHA VARMA

body2023
JUDGMENT : Instructions filed today be kept on record. 2. From the record, we find that the tractor trolley of the petitioner being vehicle No. UP 83 AU 1915 was apprehended by the police of Police Station Shikohabad, District Firozabad and an information was sent to the petitioner that the vehicle was seized for violation of the provisions under the Motor Vehicles Act, 1988 and, therefore, it was challaned under Section 207 of the Motor Vehicles Act. The petitioner filed an application for release of the vehicle before the Chief Judicial Magistrate, Firozabad on 7.2.2023 stating that the vehicle was required for agricultural proposes. Thereafter a police report was called for and the police also submitted its report on 7.2.2023 stating that the vehicle was seized under Section 207 of the Motor Vehicles Act. On 7.2.2023, the Chief Judicial Magistrate released the vehicle. When, however, the vehicle was not being released, the petitioner applied before the District Magistrate and informed him that even though he was carrying certain minerals legally, the vehicle had been confiscated despite the order of the Chief Judicial Magistrate dated 7.2.2023. Thereafter instead of releasing the vehicle, the District Magistrate on 25.2.2023 passed the impugned order by which the price of the mineral found, the royalty on it and the penalty were asked for. Also the matter was referred to the department dealing with environmental pollution. Aggrieved thereof, the petitioner has filed the instant writ petition. 3. Learned counsel for the petitioner has stated that the order impugned dated 25.2.2023, on the face of it, was erroneous on account of the fact that before any order was passed and before the vehicle was confiscated/impounded under the provisions of U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage), Rules 2018 (hereinafter referred to as the ''2018 Rules''), the petitioner was not provided with any show-cause notice. He submits that before the petitioner was saddled with financial liability, he should have been heard. Learned counsel to bolster his arguments relied upon the judgment of the Supreme Court in A.K. Kraipak and others v. Union of India and others, 1969 (2) SCC 262 . Since learned counsel relied heavily upon paragraph 20 it is being reproduced here as under : ''20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Since learned counsel relied heavily upon paragraph 20 it is being reproduced here as under : ''20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely : (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and others (Civil Appeal No. 990/68,decided on 15-7-1968) the rules of natural justice are not embodied rules. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and others (Civil Appeal No. 990/68,decided on 15-7-1968) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the Constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.'' (emphasis supplied) 4. Learned counsel for the petitioner further submitted that if the Statute did not provide for a hearing then the principles of natural justice should be read into the Statute. In support of this submission, learned counsel for the petitioner has also relied upon a judgment of this Court in Ranveer Singh v. State of U.P. and others, 2017(1) ADJ 240 . Since, he specifically relies upon paragraph Nos. 30 and 33 of the judgment, the same are being reproduced here as under :- ''30. Thus law on the subject is clear that in case no procedure has been provided for as to in what way and manner the authority is to be exercised, then at the said point of time, the exercise of power by public authority has to be properly discharged i.e. it has to be decided with fairness and after following the principle of natural justice and the sense of justice and equity should continue to guide the Authorities concerned while conducting such proceedings in deciding the dispute on merit as the said decision in question would have large scale financial repercussions on the incumbent against whom proceedings in question have been initiated. 33. 33. Once the liability was to be fastened on the shoulder of petitioner, then it was the obligation of the State to prove by way of credible evidence available that it was the petitioner, who has indulged in illegal mining and in the said direction, apart from issuing show-cause notice, all the evidence that was sought to be relied upon i.e. the incumbents who have carried out the search and survey and the incumbents who have come forward to depose against petitioner, their names ought to have been disclosed and they ought to have been produced to support the case of State that petitioner in fact has indulged in illegal mining. Not only this as a part of process, petitioner was was entitled to have reasonable opportunity of defending himself by questioning the veracity of evidence produced against him and by adducing his own defence evidence, if any. Decision maker is bound to act fairly, as under the scheme of things provided for, the determination made by him will entail civil consequences, as qua the person charged with illegal mining on charges being proved financial liability would be shouldered and in contra situation, the State would be at loss.'' 5. Learned counsel for the petitioner has, thus, submitted that if there was no specific law or procedure provided in any Rule by which a vehicle was to be confiscated/seized under the law of mines, then the exercise of power by the public authority had to be properly discharged i.e. it had to be decided with fairness and after following the principles of natural justice. Justice and equity should always be a guiding factor. Learned counsel for the petitioner further submits that once the liability was to be fastened on the petitioner then it was obligatory for the State to prove the offence by credible evidence available and the petitioner should also be permitted to lead evidence. 6. Learned counsel for the petitioner submits that the petitioner had a permission from the owner of the minerals namely Mukesh Kumar to carry minerals on his trolly. 7. Learned counsel submits that even if the communication of the petitioner dated 9.2.2023 was being taken as an admission of the petitioner's guilt, the order impugned should have been preceded by a show-cause notice. 7. Learned counsel submits that even if the communication of the petitioner dated 9.2.2023 was being taken as an admission of the petitioner's guilt, the order impugned should have been preceded by a show-cause notice. In support of this argument learned counsel for the petitioner relied upon the judgment of the Supreme Court in S.L. Kapoor v. Jagmohan and others, AIR 1981 SC 136 . Since learned counsel specifically relied upon paragraph No. 24 of the judgment, the same is being reproduced here as under : ''24. The matter has also been treated as an application of the general principle that justice should not only be done but should be seen to be done. Jackson's Natural Justice (1980 Edn.) contains a very interesting discussion of the subject. He says : ''The distinction between justice being done and being seen to be done has been emphasised in many cases. xx xx xx The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery C.J.'s judgment in R.V. Home Secretary, Ex. P. Hosenball, (1977) 1 W.L.R.766, 772 whereafter saying that ''the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done'' he went on to describe the maxim as ''one of the rules generally accepted in the bundle of the rules making up natural justice.'' It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. The maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland, (1971) 2 Lloyd's Rep 515 Donaldson J. said that the Court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or ''to use the time hallowed phrase'' that justice should not only be done but be seen to be done. In R.V. Thames Magistrates' Court, ex.p. Polemis, (1974) 1 WLR 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge. 'It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say : 'Well, even if the case had been properly conducted, the result would have been the same'. That is mixing up doing justice with seeing that justice is done (per Lord Widgery C.J. at p. 1375).'' In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.'' (emphasis supplied) 8. Sri Ankur Tandon, learned Standing Counsel in reply, however, has submitted that while the vehicle was confiscated on 2.2.2023, Sri Mahendra Singh, Sub-Inspector, Police Station Shikohabad, District Firozabad had sent a report that though the vehicle was seized under Section 207 of the Motor Vehicles Act it had contained certain minerals which the vehicle was illegally carrying. He further submits that the petitioner himself on 9.2.2023 had submitted that he was carrying minerals. Learned Standing counsel further submits that when the petitioner himself had admitted that he was carrying the minerals and when the minerals were not accompanied by any of the papers which are provided under Rule 22 of the 2018 Rules, then it was the duty of the designated officers, as mentioned in Rule 12(2) of the 2018 Rules, to have stopped, checked and apprehended the vehicle. In the instant case, learned Standing Counsel states that even though the vehicle was seized under Section 207 of the Motor Vehicles Act, action as had been taken by the mines department was justifiable. 9. Learned Standing Counsel has also submitted that since neither the provisions of Rule 12 of the 2018 Rules nor the provisions of 72 of the U.P. Minor Minerals (Concession) Rules, 2021 provided for affording any opportunity, it was in the fitness of things that the District Magistrate had passed the impugned order dated 25.2.2023. 10. 9. Learned Standing Counsel has also submitted that since neither the provisions of Rule 12 of the 2018 Rules nor the provisions of 72 of the U.P. Minor Minerals (Concession) Rules, 2021 provided for affording any opportunity, it was in the fitness of things that the District Magistrate had passed the impugned order dated 25.2.2023. 10. Having heard learned counsel for the petitioner and learned Standing Counsel, we are of the view that after the police had submitted its report on 2.2.2023, it was incumbent upon the District Magistrate to have issued a show-cause notice even if the petitioner was submitting the application which the respondents are stating was an admission on his behalf that he was carrying minerals illegally. The police is all powerful and we are of the view that the applicant could have written the application on the dictation of the police. The judgment of the Supreme Court in S.L. Kapoor (supra) clearly mandates the observance of the principles of natural justice even if the guilt is admitted. 11. Under such circumstances, we are of the view that even though the petitioner had stated in his application that he was carrying minerals, the order impugned should have been preceded by a show-cause notice and thereafter a complete procedure ought to have been adopted by the official/authority which was passing the order. We also find that the vehicle was seized under Section 207 of the Motor Vehicles Act which was not in the possession of the petitioner. The reports were being submitted by the police after the vehicle was seized. The petitioner, therefore, had very little opportunity to defend himself. It may be mentioned that the application though had mentioned that the petitioner was carrying minerals it did not state that the minerals were being carried illegally. 12. Under such circumstances, the writ petition stands allowed. The order dated 25.2.2023 is quashed. Consequently the vehicle of the petitioner be released forthwith. However, passing of this order would not prohibit the respondents from taking action against the petitioner in accordance with law.