Inspite of the order passed earlier the affidavit has been filed but detailed report for any explanation is not there though learned APP Ms. Archana Raval has referred to the affidavit which has been filed by S.D.Kapse, Additional Director I/C (Flying Squad), Commissioner of Geology and Mining dated 4.2.2012. The affidavit in paragraph 12, in terms provide:
"It is submitted that here is a case of encroachment by the company for illegal excavation of the minerals which was specifically confessed by the company vide its letter dated 29.9.2009. It is submitted that after observing the case details and other factual circumstances, including the report of GMRDS, the authority does not find it proper to pursue with the procedure of lodging of FIR."
Learned APP Ms. Raval has also referred to the rojkam along with this affidavit on page 188. The rojkam dated 26.9.2009 in terms record that the measurement of the illegal excavation of the area has been carried out and the illegal excavation of the mining of stone is to the tune of 1,96,753 MT and after providing 10% deduction it is 1,77,078 MT and inspite of that a recommendation has been made that is stated in this report itself at page 194 suggesting that as the lease area is of irregular size, unintentionally such illegal mining might have been made as stated by the Manager of the Company. It is also stated that as the Manager of the Company is ready to settle with the Government on deduction of the necessary amount, it may be considered sympathetically.
This attitude is required to be noted that inspite of the Government own Resolution dated 26.10.2010, which infact refers to the illegal mining and the aspect of royalty. It has been stated that those who are found indulging in the illegal activities of mining should be dealt with severely. On the one hand, the policy refers to a strict approach, one fails to understand the affidavit and the recommendation as stated above.
It is in these circumstances, the submissions of learned APP Mr. Raval cannot be accepted, and since, it has been also raised as a contention that the Company should be joined as a party though it is not necessary or compulsory, it is thought desirable that Respondent M/s. Ambuja Cement may be joined as party Respondent and the Respondent No.1 shall file a further affidavit if they so desire, to clarify their stand on this issue, failing which further directions will be issued.
The submissions have been made referring to the affidavit with regard to the compounding of offence and it was submitted that it is not necessary to lodge FIR in every case which is also required to be considered in light of the aforesaid affidavit and the policy. It may be stated that the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 may be providing some kind of discretion for compounding of the offence in isolated cases of a small lapse or violation, which cannot be permitted in such cases. Therefore, the Court is constrained to pass the order granting one more opportunity to explain.
Learned Advocate Mr. N.M.Kapadia for Respondent No.1 is directed to carry out the amendment.
After the amendment is carried out, Notice is ordered to be issued to the newly added Respondent No.5, returnable on 30th November, 2012. It is also made clear that no further time shall be granted if proper affidavit along with the report is not filed by the State.
(Rajesh H. Shukla,J) Jayanti*