1. Heard Mr. Patel, learned advocate for H.L. Patel advocates for the petitioner and Mr. Alkesh Shah, learned AGP for the respondent.
2. This group of petitions concerns common and similar facts and common respondents. Learned advocate for the petitioners has submitted that the orders impugned in all petitions are identical and of same date, though show-cause- notices are of different dates. Learned advocate for the petitioners has submitted even orders passed in connection with the application made under Rule 18 of Gujarat Mineral (Prevention of Illegal Mining Transportation and Storage) Rules 2005 is also identical and of same date. Learned advocate for the respondent authorities has also confirmed, that the facts and circumstances involved in all petitions are identical and identical orders on same date have been passed in all cases. Therefore, present group of petitions are decided by present common order.
3. Since in all petitions similar relief have been prayed for by the petitioners and similar facts have been mentioned and common and identical contentions have been raised, the factual details are derived from first petition being Special Civil Application No.12752 of 2012.
4. The petitioners have prayed that:-
15 (A) Be pleased to issue an appropriate writ, order or direction, quashing and setting aside order dated 17.9.2012 issued by the respondent No.2 being illegal, unjust, arbitrary and discriminatory as well as violative of Article 14, 21 of the Constitution of India.
(B) Be pleased to issue an appropriate writ, order of direction, quashing and setting aside the notice dated 15.9.2012 Annexure-I issued by respondent No.2 being illegal, unjust, arbitrary and discriminatory as well as violative of Article 14, 21 of the Constitution of India.
(B1) Be pleased to quash and set aside the order dated 24.9.2012 passed by respondent No.2. Further be pleased to direct the respondent No.2 to release vehicle / machine of the petitioner.
(C). ........
(D). ........
(E) ”
5. The petitioners have stated, inter alia, that:-
2. By way of present petition, the petitioner challenges the order dated 17.9.2012 passed by respondent No.2 which has made available to the petitioner during the course of hearing of Special Civil Application Nos. 12400 of 2012 to 12406 of 2012, on 18.9.2012, confiscating the petitioner's JCB JS 120 No.H00017869 in exercise of power conferred under Rule 17 of Gujarat Mineral (Prevention of Illegal Mining Transportation and Storage) Rules, 2005, framed under the provisions of Mines and Minerals Regulation and Development Act, 1957, on various grounds including (1) order travels beyond the scope of notice (2) entire case was heard by the respondent No.3 Collector and order has been passed by the respondent No.3 which is bad in law, (3) the order is non-speaking order (4) order is passed without considering the facts that no mineral was ever seized and therefore, Rule does not provide to confiscate any machine / vehicle (4) insistence of respondent to examine the petitioner is bad in law (5) without making detailed inquiry as to where and as to whom the mineral is gone to; (6) no offence is ever registered against the petitioner; (7) the impugned order is mala fide, arbitrary, discriminatory, illegal, unjust, unjustifiable, unconstitutional, contrary to the provisions of law and violative of Articles 14, 19 and 21 of the Constitution of India etc. Annexed hereto and marked as Annexure A is a copy of the said order to this petition. The petitioner also challenges the noticed dated 15.9.2012 issued by the respondent No.2 to show cause as to why the petitioner's vehicle should not be confiscated and to remain present on 20.9.2012 before him.
6. Though statutory appeal against order passed by the Asst. Geologist is available under the provisions of the Act, petitioners have preferred petitions invoking writ jurisdiction, instead of approaching the appellate authority.
7. In paragraph No. 3 of the petition the petitioners have mentioned reason and justification for not approaching the appellate authority. The said paragraph No.3 reads thus:-
3. The petitioner has filed this petition directly before this Hon'ble Court without going before the Appellate Authority, which is Additional Director, Flying Squad, Gandhinagar, because at its instance, the Appellate Authority, the petitioner's JCB JS 120 No. H00017869 is seized as per the notice dated 13.8.2012 and therefore, the Appeal would not be an effective remedy.”
In view of the said fact it appears that the said alternative remedy is, in effect and in substance, not available. More so when the fact is admitted by the respondent.
8. As regards other relevant aspects, the petitioners have stated that:-
4. The petitioner was issued a notice on 13.8.2012 by the respondent No.2 addressing the operator of the JCB JS 120 No. H00017869 of the petitioner from Survey No.330 situated at village Vanzar, Ta. Daskroi, where the JCB JS 120 No. H00017869 was lying in an inoperative condition because the said tractor is used for digging and filling the pit, which is far from the highway and even though the respondent No.2 has seized the JCB JS 120 No. H00017869 of the petitioner illegally. The said tractor has been seized, when it was stationary.
5. The petitioner respectfully states and submits that it is alleged that on 25.7.2012, at village Kamod, Ta. Daskroi, the driver of the petitioner was doing unauthorized digging the mineral and it is alleged that there is a breach of Rules 3,5,6 and 8 of the Gujarat Minerals (Prevention of Illegal Mining, Transpiration and Storage) Rules, 2005. The Flying Squad, Unauthorized Mineral Digging, Gandhinagar directed to seize the tractor under the provisions of Section 24(1)(d) of the Mines and Minerals Regulation and Development Act, 1957 (hereinafter referred to as the Act, 1957) and under the provisions of aforesaid Rules of Gujarat Minerals (Prevention of Illegal Mining, Transportation and storage) Rules, 2005 after issuing the notice to the petitioner. Therefore, it is alleged that the proceedings under the provisions of Rules 13 and 17 of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 are required to be initiated against the petitioner. Therefore, the impugned notice was issued on 13.8.2012 to the petitioner as to show cause for committing breach of Rules, within 15 days from the issuance of the notice under Rule 17(4) (A) by the respondent No.2 herein. The respondent No.2 has also directed to produce photostat copies showing the possession of the said machine and RTO registration documents. Annexed hereto and marked as Annexure-A – 1 is a copy of the notice issued to the petitioner.
6. The petitioner respectfully states and submits that in response to the said notice dated 13.8.2012, the petitioner has given detailed reply denying the alleged breach of the rules on the part of the petitioner. The said reply was received by the respondent No.2 on 17.8.2012. Annexed hereto and marked as Annexure-B is a copy of the said reply to the notice.
7. The petitioner thereafter, approached this Hon'ble Court by way of aforesaid Special Civil Application No.11461 of 2012, wherein this Hon'ble Court passed order on 24.8.2012. Therefore, the respondent No.3 the Collector, during course of hearing held on 3.9.2012, insisted to produce the applicant for the purpose of examination him and therefore, the petitioner submitted reply dated 6.9.2012 pointed out that no such examination is provided under the law and also submitted that if any provision under the Rules, be shown to the petitioner with regard to authorize the respondent No.3 to examine the petitioner. Herein annexed as Annexure-C is the copy of the memo of the said petition.
8. It is further submitted that the petitioner also pointed out the provisions of Rule 17 that the person, who has seized conveyance is only authorized to issue notice under Rule 17(4) (a) and of Rules 2005 and therefore, the entire proceedings is without authority and jurisdiction and the same is required to be withdrawn.
9. The petitioner, thereafter, filed Special Civil Application No.1240 of 2012 before this Hon'ble Court for quashing notice being illegal and also to call the respondent No.1 to tender explanation for their flagrant violation of the order dated 24.8.2012 passed by this Hon'ble Court. Annexed hereto and marked as Annexure D is a copy of the order dated 24.8.2012 passed in the aforesaid petitions.
10. It is, therefore, submitted that the custody of the petitioner's JCB JS 120 No.H00017869 trolley is with the seizing authority or with the Vatva Police and therefore, it most strange fact that the risk is attributed to the petitioner. Thus, it is established that the seizure of petitioner's JCB JS 120 No.H00017869 is without application of mind or in most callus manner or the seizing authority does not want to take responsibility of the petitioner's JCB JS 120 No.H00017869, which is valued at about 40 lacs. Annexed hereto and marked as Annexure-E is a copy of the further reply dated 6.9.2012. The petitioner waited to have the order from the respondent authorities, however, no order was received till 12.9.2012 and filed SCA No.1240 of 2012 in this Hon'ble Court praying to direct the respondents to pass orders as directed by this Hon'ble Court vide order dated 24.8.2012. Herein annexed as Annexure-F is the copy of the memo of said petition. The affidavit dated 18.9.2012 is filed by the respondent No.2 in the aforesaid petition. Annexed hereto and marked as Annexure-G is a copy of the said affidavit.”
9. Thus, the order dated 17.9.2012 has been challenged by the petitioners whereby respondent authorities have confiscated the vehicles of the petitioners. The details of the vehicles are mentioned in the impugned order dated 17.9.2012.
10. It is necessary to mention that before preferring present writ petitions the petitioners had earlier approached this Court by way of different petitions. When the notice dated 13.8.2012 was issued the petitioners had submitted their reply to the said notice vide communication dated 17.8.2012. At that stage the petitioners had preferred petition being SCA No.11460 of 2012 and allied matters which came to be disposed of vide order dated 24.8.2012 the said order read thus:-
“Heard Mr. Patel, learned advocate for the petitioner.
Upon service of advance copy of the petitions, Mr. Shah, learned AGP has appeared for the respondent – State Government.
2. In present petitions, the petitioner has prayed that the Hon'ble Court may be pleased to issue an appropriate writ, order or direction, quashing and setting aside notice dated 9.8.2012 (dated 13.8.2012 in Special Civil Application No.11470 of 2012) issued by respondent No.2 as being without jurisdiction, illegal, unjust, discriminatory, arbitrary and unconstitutional.
3. It is noticed from the record and submissions by learned advocate for the petitioner that on the allegation that certain equipments owned by the petitioner were used in illegal excavation of mineral, intimation about seizure of the said equipments and notice about alleged offence as well as intimation that the petitioner may submit reply to the notice has been issued by the respondent authorities. The petitioner is aggrieved by the said notice.
4. Mr. Patel, learned advocate for the petitioner, has submitted that the said notice is in violation of Rule 17 of Gujarat Mineral (Prevention of Illegal Mining Transportation and Storage) Rules, 2005 [hereinafter referred to as “the Rules”]. He submitted that the petitioner has already submitted reply in response to the notice, however, from the tenure of the notice, it is clear that the respondent authorities are not likely to afford opportunity of personal hearing and explanation to the petitioner. He also submitted that the impugned action of the respondent authorities is, prima facie, without jurisdiction.
5. Per contra, Mr. Shah, learned AGP, has submitted that the petitioner has already submitted reply in response to the notice which will be considered by the respondent authorities and appropriate order will be passed.
6. Mr. Patel, learned advocate for the petitioner, has shown apprehension that the respondent authorities may consume inordinate time in completing the proceedings, and until the order is passed, the equipments will remain under seizure which will cause loss to the petitioner.
7. Mr. Shah, learned AGP, in response to the said submission, submitted that the respondent authorities will pass necessary and appropriate order as expeditiously as possible.
8. Actually, the petitioner has approached at show-cause notice stage and therefore, the petition does not deserve to be entertained. However, in light of the the submissions made by learned counsel for the contesting parties, it appears that present petition can be disposed of with below mentioned directions:-
8.1 Having regard to the facts and circumstances, particularly the fact that the petitioner has already submitted reply, it would be appropriate that the competent authority of the respondent completes the adjudication process and expeditiously passes appropriate order.
8.2 The respondent authorities may intimate the date and time to the petitioner for remaining present for personal hearing and thereafter, appropriate order, after hearing the petitioner and considering his reply, may be passed, as expeditiously as possible, preferably on or before 5.9.2012.
8.3 Alongwith the intimation about date and time for hearing, the petitioner may also be supplied copy of Form 'J', if it is already not supplied.
With the aforesaid observations and direction, present petitions stand disposed of. Direct service is permitted. “
11. Subsequently, in view of the said order dated 24.8.2012 the respondent authorities scheduled the hearing on 3.9.2012. and the petitioners filed further reply dated 6.9.2012.
12. At this stage it is pertinent to note that according to the petitioners the hearing, at the relevant time, was conducted by and before the Collector. The petitioners, in their reply dated 6.9.2012 raised objection by contending that under the provisions of the Act the Collector does not have any jurisdiction to hear and decide the cases such as the petitioners' case.
13. At that stage the petitioners preferred another writ petition being SCA No. 12400 of 2012 which came to be disposed of vide order dated 18.9.2012. The said order read thus:-
“1. Heard Mr. Patel, learned advocate for petitioners and Mr. Shah, learned A.G.P.
2. Learned A.G.P. has placed on record affidavit dated 17.09.2012.
3. It is declared, by the said affidavit, by the respondents that the competent authority has now passed an order dated 17.09.2012. A copy of the said order is annexed to the affidavit.
4. In this view of the matter, it is necessary to take into account the relief prayed for in the petitions.
“8(A)Be pleased to issue an appropriate writ, order or direction, quashing and setting aside notice dated 13.08.2012 issued by the respondent no.2 being illegal, unjust, arbitrary and discriminatory.”
5. Since in the petitions the petitioner challenged the notice, the petitions and the challenge therein are exhausted because the notices have now ripen into order dated 17.09.2012.
6. In that view of the matter, the learned counsel for petitioners has submitted that he does not press the petitions at this stage with a view to taking out appropriate proceedings challenging the order dated 17.09.2012, the copy of which has been served today to the advocate appearing for the petitioners.
7. In view of the affidavit dated 17.09.2012, the petitions do not survive and are not pressed at this stage with a view to taking out appropriate proceedings. The petitions are accordingly disposed of as not pressed with liberty to taking out appropriate proceedings against the order dated 17.09.2012.
8. It is clarified that withdrawal of present petitions would not stand in way of the petitioners in challenging the order dated 17.09.2012 on merits.
With the aforesaid clarification, the petitions stand disposed of.”
13.1 The said petition was preferred before the said order dated 17.9.2012 was duly served to the petitioners and that therefore the petition was preferred against the proceedings. However, in view of the fact that before the listing of the petitions for hearing the order dated 17.9.2012 came to be passed. Thus, the cause was lost. Hence the above mentioned order was passed.
14. It appears that probably in view of the petitioners' objection or for any other reason the matter was placed before the respondent No. 2 who passed impugned order dated 17.9.2012. The petitioners are aggrieved by said order.
15. Besides several reasons and grounds on which the said order dated 17.9.2012 has been challenged, one of the major contentions against impugned order is that the order has been passed by the authority other than the authority who had heard the petitioners on the show-cause-notice dated 13.8.2012.
15.1 Differently put, according to the petitioners, the authority who heard the petitioners and the authority who passed the order are different and that therefore the order is vitiated.
15.2 This factual aspect is not disputed by the respondents.
16. Further, the order is also challenged on the ground that it is a non-speaking order. The third major contention which is raised against the order dated 17.9.2012 is that before initiating proceedings against petitioners statements of six persons were recorded by concerned authority, however the said statements were not supplied and have yet not been supplied to the petitioners. It is claimed that either along with the show-cause-notice or even at the time of hearing or before the impugned order came to be passed, or even along with impugned order the said statements were not and have been supplied. Therefore, the petitioners have also alleged denial of sufficient and effective opportunity of hearing.
17. Not only this, but it is also alleged that the flying squad, who conducted visit / inspection pursuant to which notice came to be issued submitted its report and copy of the said report of flying squad was not and is also not supplied to the petitioners and that therefore the impugned orders are vitiated.
17.1 It is pertinent to note that the said factual aspects are neither disputed nor denied by respondent authority. Actually it has been admitted by the respondents that neither the statements of the persons which were recorded by authority nor the report of the squad have been supplied to the petitioners at any point of time, not even at the time when the order 17.9.2012 came to be passed.
18. In addition to the said grounds the petitioners have challenged the order on the ground that it is not in consonance with the requirement prescribed under Rule 17 and those requirements are not complied and that therefore proceedings under Rule 17 is neither directed nor applicable and yet the proceedings have been initiated under provisions of the said Rule 17 and that therefore also proceedings are vitiated.
19. During the pendency of the petitions, the petitioners were permitted to make application under order 18 for getting “vehicle” released.
19.1 However by order dated 24.9.2012, the authority has rejected said request – application as well.
19.2 So as to place on record the said details, the petitioners requested for permission to amend the petition, vide Civil Application No. 11146 of 2012, 11147 of 2012, 11148 of 2012, 11149 of 2012, 11151 of 2012, 11152 of 2012 and 11153 of 2012 and under order dated 9.10.2012 the petitioners were permitted to amend the petition. The said order dated 24.9.2012 is also placed on record by the petitioners.
20. During the hearing learned advocate for the petitioners heavily relied on a document placed on record which purports to be a note prepared by the officer of the respondent and appears to have been prepared and submitted on 15.9.2012 by officer of the respondent.
20.1 According to the said noting, it appears that suggestion was put up before the competent authority to release the vehicles of the petitioners on the petitioners submitting Bank Guarantee totaling to Rs.1,10,67,310.87/- i.e. amount in question mentioned in the impugned order.
20.2 However without considering the said remarks / suggestion impugned order dated 24.9.2012 appears to have been passed. As mentioned hereinabove, the respondents have not disputed or denied the contentions raised by the petitioners against the defects in the impugned order dated 17.9.2012.
20.3 In that view of the matter on the said limited ground the impugned order deserves to be set aside and the matter is required to be remitted to the competent authority for fresh hearing and order.
Therefore below mentioned order is passed.
21. In view of the undisputed fact that (1) the authority who heard the petitioners and the authority who has passed the impugned order are different; and (2) in view of the fact that the statements of 6 persons which were recorded by the concerned authority and have been relied on the by the respondent No.2 while passing the impugned order were not and have not supplied to the petitioners at any point of time until impugned order came to be passed; and (3) in view of the fact that even the report by the flying squad, which has been relied on by the respondent No.2 while passing the impugned order was not and has not been supplied to the petitioners, the impugned order deserves to be set aside. Furthermore also for the reason that the impugned order is a non-speaking and unreasoned order and the respondent No.2 has not dealt with the objection raised by the petitioners including the objection raised in light of the provisions under Rule 17, have not been dealt with, the impugned order deserves to be set aside.
22. For the foregoing discussion and reasons the impugned order dated 17.9.2012 is set aside. In this view of the matter the order dated 24.9.2012 will also not survive.
22.1 The cases of the petitioners are remitted for fresh proceedings and hearing to the competent authority.
22.2 The competent authority shall supply all relevant details and documents, including statements of the persons who are recorded by the squad or any other officer and also the report of flying squad and other relevant documents on which the authority proposes to rely, to the petitioners and the authority shall also provide reasonable and sufficient opportunity of hearing and defence to the petitioners.
22.3 After hearing the petitioners appropriate speaking and reasoned order in accordance with law may be passed by the competent authority and said order shall be conveyed to the petitioners.
23. In the meanwhile, the question about the vehicles of the petitioners which have been confiscated would arise. In view of the above referred noting dated 15.9.2012 and even in view light of the impugned order also it appears that the total demand – against all petitioners is in the sum of Rs.1,10,67,310,.87. Furthermore, it is also necessary to balance equity and protect the interest of respondent State. In view of the said noting it appears that the said suggestion made by the officer of the respondent is reasonable and sufficiently protects the interest of respondent and that therefore it deserves to be accepted.
24. Learned AGP has, on instruction of the officer who is present in the Court i.e. Mr. M.H. Shaikh, Asst. Geologist, Ahmedabad, submitted that the respondent has no objection if the said 7 petitioners submit bank guarantee in the sum of Rs.16,00,000/- each.
24.1 Therefore, on the condition that each of the petitioners shall submit bank guarantee drawn by a Nationalized Bank in the sum of Rs.16,00,000/- per petitioner, the vehicles of the petitioners may be released. The vehicles of only those petitioners may be released who submit bank guarantee, as aforesaid, in the sum of Rs. 16,00,000/-. Each petitioners shall separately submit bank guarantee drawn by Nationalized Bank to the respondent authority. The bank guarantees shall be drawn, initially, for a period of 2 years and then it shall be renewed until further orders.
24.2 Upon submission of such bank guarantee concerned authority shall immediately release the vehicles of the petitioners.
The petitioners shall keep alive the bank guarantees till final conclusion of proceedings and this Court passes further order on that count.
25. The concerned officer shall inform next date of hearing to each petitioner by separate notice and opportunity of filing further reply, if required by petitioners, shall also be allowed. The petitioners will cooperate in early hearing of the show cause notice and shall not delay the hearing for unnecessary and avoidable reasons. The authority shall endeavour to expeditiously complete the hearing of the show cause notice and pass appropriate order in accordance with law after hearing the petitioners.
26. Present order will not be construed as order expressing any view on merits of the dispute involved in the petitions. It is clarified that the Court has not entered into and examined the merits of the allegations in the show-cause notice or defence of the petitioners. In light of the aforesaid limited ground the order is set aside and the matter is remitted for fresh hearing.
With the aforesaid clarification the petitions are disposed of accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(K.M.THAKER,J.) Suresh*