The present petition has been filed by the petitioner under Articles 19, 21 and 226 of the Constitution of India read with the Mines and Minerals (Development & Regulation) Act, 1957 and read with the Gujarat Mineral (Prevention of illegal Mining, Transportation and Storage), Rules 2005 read with the Gujarat Minor Mineral Concession Rules, 2010 and read with Gujarat Minor Mineral Rules, 1966 for the following prayers :-
(A) Your Lordship be pleased to quash a letter and / or so called order of dated : 29/12/2012 for seizing the royalty books issued by Respondent No.5 illegally and against the provisions of law.
(B) Your Lordship be pleased to quash and set aside the seizer order of dated : 31/01/2013 passed by Respondent No.6 illegally and be pleased to release the JCB Machine which is illegally seized by Respondent No.6 and is in the custody of Respondent No.6.
(C) Your Lordship be pleased to quash the so called show cause notice of dated : 18/02/2013 which is issued by the Respondent No.3 without evidence against the present Petitioner.
(D) Your Lordship be pleased to pass an order against the Respondent No.5 and in favour of the Petitioner that the Respondent No.5 may issue necessary triplicate royalty passbook for the transportation and sale of the sand mineral from the lease of the Petitioner after having deposited the amount of Advance Royalty under the Government Head as per the rules after the Royalty Pass Book Nos.701 to 710 are being used.
(E) Pending the application stay the proceedings which are going on in the office of Respondent No.3 on the basis of so called show cause notice of dated : 18/02/2013 against the Petitioner.
(F) Your Lordship be pleased to pass any other and further orders which are deemed fit and expedient in the interest of justice.
Heard learned counsel, Shri R.F. Bhagat for the petitioner.
Learned counsel, Shri Bhagat has referred to the papers and submitted that Rule 19 of the Gujarat Mineral (Prevention of illegal Mining, Transportation and Storage), Rules 2005 (herein after referred to as the Rules, 2005 ) provides with regard to the powers of entry, search and seizure. He pointedly referred to 19 of Rules, 2005 and submitted that the authorized officer or any officer are specifically mentioned that either supervisor or inspector can exercise such power. He submitted that the clerk or naka clerk is not empowered under the Rules and, therefore, JCB machine, which has been seized, is without any power or authority. He also submitted that the machine is kept with the Sarpanch (the respondent no.8) and, therefore, such action is contrary to any authority or power vested in the person, who can exercise any such power. He therefore submitted that such action itself is bad and illegal and the present petition may be allowed. He also submitted that he may respond to the show cause notice issued by the authority and would submit royalty book.
Though the submissions have been made, it is required to be mentioned that though he has stated during the course of argument, the prayers for which the present petition is filed, also include the challenge to the show cause notice dated 18.02.2013 and has specifically prayed for quashing and setting aside said show cause notice. As could be seen from the show cause notice itself, the petitioner has been given the quarry lease for the removal of sand and, therefore, he has been asked to submit royalty book, which has not been complied with and, therefore, again impugned show cause notice dated 18.02.2013 has been issued, which specifically states that inspite of written notice, he has failed to submit royalty book and without any authority or permission, he has continued with excavation and, thereby committed breach of Rules 36 and 37 of the Gujarat Minor Mineral Concession Rules, 2010 (herein after referred to as the Rules, 2010) read with condition of lease, which have been stated. It is in this background, show cause notice has been issued asking the petitioner as to why the lease should not be cancelled. As could be seen from the provision of Rules, 2010 as well as the lease deed itself, it has been referred in the show cause notice itself that the authority is empowered to call for the record for the purpose of verification with regard to any such excavation and such action cannot be said to be without jurisdiction. Therefore it only reflects the attitude of the petitioner that though he has been granted lease subject to the terms and conditions as well as Rules, he is not defying any such direction even to produce such record. Therefore the prayer with regard to quashing and setting aside the show cause notice is without any merits.
Another facet of argument, which has been much emphasized referring to Rule 19 of the Rules, 2005, which refers to the power to entry, search and seizure that clerk or other officer, who has no authority, could not have seized the JCB machine is also required to be considered. As could be seen from the scheme of the Rules, Rule 7 refers to the check-post and inspection of the mineral in transit. Rule 17 refers to the seizure of property liable to confiscation. Rule 17(1) provides 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 authorised by the Government in that behalf (herein after referred to as the authorised officer) and record details of scizing property in Firm-J . Sub-rules 4 and 5 refer to the opportunity being provided before the issuance of the order of confiscation after the seizure. It is at that stage the petitioner can comply with the show cause notice and if the authorities are satisfied may pass appropriate order. However merely by raising such contentions that JCB machine has been seized by a clerk without any authority, cannot be accepted and there is no need for exercise of such extra ordinary jurisdiction under Article 226 of the Constitution of India where a complete machinery has been provided for the statute i.e. the Gujarat Mineral (Prevention of illegal Mining, Transportation and Storage), Rules 2005 read with the Gujarat Minor Mineral Concession Rules, 2010. It is further required to be mentioned that in the notification issued by the Industries and Mines Department dated 29th August, 2006, it is stated that in pursuance of the powers conferred by rule 4 of the Gujarat Mineral (Prevention of illegal Mining, Transportation and Storage) Rules, 2005, the Governmetn of Gujarat hereby appoints the following officers as the authorised officer to perform all or any of the functions as specified in column 3 within the area of their jurisdiction. The designated officer referrs to Inspector, Mamlatdar, Flying Squad and, therefore, his bare assertion that clerk is seized the JCB machine cannot be accepted. Therefore, the seizure memo, which is produced at Annexure-M is also required to be looked at closely though learned counsel has stated that it has been seized by a clerk. The seizure memo at Annexure-M issued under Rule 17(1) clearly specifies in column 1 with name mIlkt jPt krnar A2IkarInu nam V.M. Kahar and in designation, it is stated Mines Supervisor and, therefore, such contention cannot be readily accepted.
Therefore, the present petition deserves to be dismissed in limine and accordingly stands dismissed.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 6 of 6