Heard Ms. Shah, learned advocate for the petitioner, and Mr. Yagnik, learned AGP, for the respondent – State Government.
Rule.
Mr. Yagnik, learned AGP, waives service of rule for the respondent – State Government.
2. In present petition, the petitioner has prayed that:-
“7(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for releasing the vehicle i.e. Truck bearing No.GJ- 5AV-6466 of the ownership of the petitioner which is seized by the respondent no.3 on 26.08.2012 under the provisions of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2005, on such terms and conditions as this Hon'ble Court may deem think fit.
(c) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, to the respondent no.3/4 to pass appropriate orders an application dated 01.11.2012 presented under Rule 18 of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2005 within one week, for the release of seized vehicle bearing No.GJ-5 AV-6466 of the ownership of the petitioner.”
3. In support of the reliefs prayed for in the petition, the petitioner has stated that:-
“The petitioner is an owner of loading vehicle Truck bearing No.GJ-5 AV-6466. The petitioner is doing the business of transportation in the name and style of Mehul Carting at Surat. The petitioner is having state permit of transportation which is valid all over Gujarat.
During the inspection carried out by the Royalty Inspector, Surat the above mentioned vehicle was seized and detained on 26.08.2012 at Surat, when the said truck was passing through Kamrej Cross Roads. The said truck was detained and kept at Ghaludi Police Station, Head quarter Surat, under the provisions of the Gujarat Mineral (Prevention of Illaegal Mining Storage and Transportation) Rules, 2005.
The petitioner claims that till date no notice has been issued to the petitioner for the confiscation of the said vehicle and the seizure memo dated 26.08.2012 came to be issued. The petitioner also claims that the police authorities have issued one notice dated 11.10.2012 to the petitioner for investigation of illegal royalty pass.
The petitioner claims that many vehicles were seized by the respondent no.3 and it was orally conveyed to the petitioner that the same order will be passed as in case of another person namely Mr. Rishikesh R. Shahi who has approached to this Hon'ble Court. Though the order is passed in LPA in favour of Mr. Rishikesh R. Shahi, the respondent no.3 has orally refused to release the vehicle of the petitioner by saying that the said order is not applicable to them as it is an individual order. Under such circumstances, on 1.11.2012 the petitioner has made an application to the respondent no.3 with a prayer to release the vehicle and also stated that all the formalities had been completed and no illegality is committed.”
4. In light of abovementioned facts, Ms. Shah, learned advocate for the petitioner, has submitted that the petitioner's vehicle is seized and despite requests and though the petitioner is ready and willing to complete all the formalities in accordance with the provisions, the respondents have not taken any action to release the vehicles.
She has also submitted that though the petitioner had in support of his request submitted decisions of this Court before the respondent authorities for consideration, viz. decision dated 11.10.2012 passed in LPA No.1168 of 2012 and the order dated 19.10.2012 passed in SCA No.12314 of 2012, the respondents have not accepted petitioner's request.
5. Mr. Yagnik, learned AGP, has appeared on service of advance copy of the petition. He has submitted that the vehicle has been seized since it was found to be transporting minerals in violation of the rules and that therefore, in exercise of powers conferred under the said Rules and the Act, the respondent authority has taken the vehicle under seizure.
He submitted that the request made by the petitioner is under consideration and appropriate action, in accordance with the provisions, will be taken.
6. Ms. Shah, learned advocate for the petitioner, has reiterated factual aspects mentioned in the petition and submitted that the seizure of vehicle is unauthorised and contrary to the provisions of the Act and the respondents have not followed any procedure prescribed under the Act before effecting seizure of the said vehicle. She also submitted that though the petitioner submitted an application under Rule 18 of Gujarat Prevention of (Illegal Mining, Transportation & Storage) Rules, 2005. The said application has been decided without assigning any justiciable and sustainable reasons and the said vehicles are detained and not released.
7. Learned advocate for the petitioner also relied on the decision dated 11.10.2012 by the Hon'ble Division Bench in Letters Patent Appeal No.1168 of 2012 when the Hon'ble Division Bench has, while referring to the said provisions contained under Rules 17 and 18 of the said Rules, observed, inter-alia, that:
“17. If the Rules of 2005 empowers an authorized officer to seize a vehicle on the ground of contravention or breach of other provisions of the Rules, then at the same time, it is also expected of the concerned Department to keep the vehicle in a safe custody and in a manner to ensure that the vehicle is not damaged, but it is a matter of common knowledge that as and when vehicles are seized and kept in the open office premises of the Department, not only they occupy substantial space of the office premises of the Department, but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the Police station or other places for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. Ultimately, if the Department fails to make out any case and the confiscation proceedings are dropped, then under such circumstances, even if the vehicle is returned to the owner, it will not serve any good purpose because of extensive damage being already caused to such vehicles. To avoid all this, Rules provide for release of the vehicle on execution of a bond.
Rule 18 of the Rules, 2005, as referred to above, enables the authorised officer to provide for interim custody of such property, pending conclusion of the confiscation proceedings, or any other enquiry. It is only a temporary arrangement, and what is contemplated is, only an interim provision to provide custody with a proper person as the authorised officer thinks fit, with liability to produce the property back as and when directed by the authorised officer. The maximum duration of the arrangement is only till conclusion of the confiscation proceedings, or any other enquiry. It follows that the arrangement is only temporary and the main object is to protect or preserve the property, pending the confiscation proceedings. Even if the person entrusted with the interim custody is the owner, his possession or custody during the period of entrustment is only as representative of the authorised officer, and not in his independent right. He is bound by the terms of entrustment and the bond executed by him in favour of the authorised officer. His ownership or right to possession may not operate against his obligation to the Department. The entrustment or custody will not invest him with any preferential right to ownership or even possession. In the eye of law, his possession or custody is only that of the authorised officer of the Department.
What is stated above does not mean that the power of the authorised officer is arbitrary. Even though the power is discretionary, it has to be exercised in a judicious manner. Whenever such application for interim custody of the vehicle is preferred, the authorized officer is obliged to take into consideration many other factors, over and above the contravention which is alleged. While deciding such an application, the authorised officer's main concern should be to protect or preserve the property, pending the confiscation proceedings or any other enquiry. An application under Rule 18 of the Rules, 2005 could not be rejected only on the ground that the owner of the vehicle is alleged to have committed breach of the Rules. If that be the only consideration, then the object with which Rule 18 of the Rules, 2005 has been enacted, would get frustrated. The authorised officer is obliged to keep the object of Rule 18 of Rules, 2005 in mind while deciding the application. In the present case, we have noticed that the Collector, Surat, being the authorised officer under the Rules of 2005, took into consideration only the fact that the petitioner being the owner of the vehicle, was trying to transport the sand outside the State of Gujarat and has past antecedence. The Collector, Surat failed to consider the consequences of keeping the vehicle idle at an open place for months together pending the confiscation proceedings, and also failed to consider that the vehicle is prone to fast natural decay on account of weather condition. Such being the position, we are of the opinion that the authorised officer failed to exercise his discretion in a judicious manner. The discretion has to be exercised judiciously and not as per the whims and caprice of the authorised officer.
18. For the foregoing reasons, we allow this Letters Patent Appeal and the writ-petition, being Special Civil Application No. 12145 of 2012, and direct the respondents to release the vehicle of the petitioner, bearing Registration No. MH-43U 651, on the petitioner furnishing an undertaking of the nature as referred to hereinafter:-
1. The petitioner shall execute a bond, within a period of one week from today, for the production of the vehicle so released, if and when required before the officer authorized by the Commissioner having jurisdiction to try the offence on account of such seizure, to the satisfaction of the authorized officer.
2. The petitioner shall carry on his business of transport, strictly in accordance with the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005, as well as in accordance with the Gujarat Minor Mineral Concession Rules, 2010;
3. The petitioner shall not sell, transfer or alienate the vehicle in any manner, pending the confiscation proceedings, and shall produce the vehicle before the authorized officer, as and when call upon to produce the same for the purpose of further proceedings in the matter.
19. The petitioner is directed to file an undertaking on oath on the above terms, and on filing such an undertaking before the authorized officer or the authority concerned, the authorized officer shall immediately release the vehicle and hand over the same to the petitioner.“
8. As observed by the Hon'ble Division Bench in the aforesaid decision, the regular procedure including the investigation and trial against the petitioner for the alleged act of illegal mining and transportation can continue in accordance with law against the petitioner and it would take its own course in accordance with law.
9. However, during the pendency of such proceedings/trial, there is no justiciable reason for detaining and not releasing the vehicle under seizure – provided confiscation order is not passed on such terms and conditions which are considered appropriate in the facts and circumstances of the case.
10. In the said decision, the Hon'ble Division Bench has mentioned certain conditions on which the Hon'ble Division Bench directed the authority to release the vehicle in question.
11. In that view of the matter, in present case also, there does not appear to be any justiciable reason for which, the authority should continue to detain the vehicle under seizure (since confiscation order is yet not passed) and should not release the vehicle in question.
12. So as to ascertain as to whether the authorities have, after following the prescribed procedure, crossed the stage of seizure of vehicle and whether vehicle in question has been confiscated, a query was put to the learned AGP. In response to the query, the learned AGP has submitted and clarified that until now the authority has not passed any confiscation and has remained seizure only.
13. Therefore, Rule 18 will continue to apply. In that view of the matter and having regard to the facts and circumstances of the case and in light of the observations made by the Hon'ble Division Bench, it appears that present petition can be partly allowed and can be disposed of with below mentioned order.
14. The concerned and competent respondent authority is directed to pass necessary and appropriate order on the application/representation submitted by the petitioner under Rule 18. The authority shall keep in focus present order as well as observations and directions passed by the Hon'ble Division in the decision dated 11.10.2012 in LPA No.1168/2012 and the order dated 19.10.2012 passed in Special Civil Application No.12314 of 2012.
15. Appropriate order in accordance with law may be passed by the concerned and competent authority on or before 15.11.2012.
16. The concerned officer and competent authority shall also take into consideration the conditions mentioned by the Hon'ble Division Bench in paragraph 18 of the said order dated 11.10.2012 in LPA No.1168/2012 while passing appropriate and necessary order on petitioner's application under Rule 18. If the authority passes the order releasing the vehicle then, the petitioner shall execute a bond for production of vehicle so released if and when required by the officer authorised by the Commissioner to offence on account of seizure. The petitioner shall not use or allow to be used the vehicle in illegal transportation of any material or goods and pending confiscation proceedings, the petitioner shall also not sell, transfer or alienate the vehicle and the petitioner shall also abide by such other condition that may be prescribed by the authority.
17. It is clarified that the order of release of vehicle which may be passed by the competent officer shall not mean that confiscation proceedings are terminated and such order shall be subject to final decision in the confiscation proceedings.
18. The order shall take effect only after the petitioner executes bond and files undertaking on oath to the aforesaid effect and also as regards the conditions which may be directed by the authority executed and undertaking is filed, the order which may be passed by the competent authority, shall take effect.
With the aforesaid clarification and direction, present petition is partly allowed. Rule is made absolute to the aforesaid extent.
(K.M.Thaker, J.) kdc