Back
2012 Supreme(Guj) 490
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Rishikesh R. Shahi
Versus
State of Gujarat Thro. Secretary & Ors.
Letters Patent Appeal No. 1168 of 2012—Decided on 11/10/2012
Appearance :
Mr. M.P. Shah, for Appellant No. 1.
Ms. Kruti M. Shah, for Appellants No. 1
Ms. Krina Calla, Asstt. Government Pleader, for Respondents No. 1-5.
Point in Issue :
Whether in the facts of the case refusal to release seized vehicle even on security is justified
Headnote:Head Note :
Gujarat Mineral (Prevention of Illegal Mining Transportation & Storage) Rules, 2005 — Rules 13, 17 & 18 — Gujarat Minor Mineral Concession Rules, 2010 — Rule 71 — Seizure of vehicle — Grand to use of transporting sand outside the State of Gujarat — Application with prayer to release the vehicle subject to terms and conditions deemed fit to impose — Rejection of application by Single Judge because relief would tantamount to allowing the main relief by way of interim relief — Propriety of — Sustainability — There is nothing in the Rules 2005 or in the Rules of 2010 which prohibits release of vehicle upon the owner executing a bond if contravention of breach of Rule 71 of Rules, 2010 is complained of — Also if the confiscation is going to be under Rule17 of 2005 then Rule 71 of the Rules, 2010 would be no bar in releasing vehicle pending confiscation proceedings — The maximum duration of this arrangement is only till conclusion of the confiscation proceedings — The arrangement is only temporary and the main object is to project or presence the property pending confiscation proceedings — The provision of release is discrenary and this discretion has to be executed judiciously and not as per the whims and caprice — In the view of the matter Court allowed this Letters Patent Appeal and the writ petition being Special Civil Application and directed the respondents to release the vehicle of the petitioner being Registration No. MH-430651 on the petitioner furnishing an undertaking of the nature indicated in details of the order.
Held :
Court does not find anything in the Rules of 2005 or in the Rules of 2010, which prohibits the authority to exercise his power under Rule 18 of the Rules, 2005, for release of the vehicle, upon the owner executing a bond, if contravention or breach of Rule 71 of the Rules, 2010 is complained of. Ultimately, if the confiscation is going to be under Rule 17 of the Rules, 2005, as reflected from the affidavit in reply, then Rule 71 of the Rules, 2010 would be no bar in releasing the vehicle, pending the confiscation proceedings. [Para 16]
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.
[Para 17]
What is stated 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. [Para 17]
For the foregoing reasons, Court 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 [Para 18]
The Letters Patent Appeal as well as the writ-petition stand disposed of. Rule is accordingly made absolute. Civil Application also stands disposed of. [Para 20]
Law Laid Down :
Rule 18 of Rules 2005 enables the authorised officer to provide interim custody of such property pending conclusion of the confiscation proceedings or any other enquiry.
J.B. Pardiwala, J.—Having regard to the nature of the relief prayed for in the main writ-petition, and also taking into consideration the fact that this Letters Patent Appeal is directed against an interim order, whereby the learned Single Judge has refused to grant interim relief, we decided to hear the main writ-petition itself, and is accordingly, being disposed of by this judgment and order.
2. This appeal is at the instance of a writ-petitioner, in a petition under Article 226 of the Constitution of India, and is directed against an order dated 10th September, 2012, passed by the learned Single Judge, in Special Civil Application No. 12145 of 2012, by which His Lordship admitted the writ petition, making Rule returnable on 8th October, 2012, but having regard to the nature of the dispute and the relief prayed for by the petitioner, interim relief as prayed for the release of the vehicle seized by the authorities under the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005, was refused, as in the view of His Lordship, it would amount to allowing the writ-petition at that stage, or granting relief of final nature at the interlocutory stage.
3. The following facts are not in dispute:—
3.1 The petitioner is engaged in the business of transportation, running in the name and style of Om Sairam Logistic Business Transport at Mumbai. The petitioner is an owner of loading vehicle, a truck bearing Registration No. MH- 43 U-651. On 14th June, 2012, the vehicle of the petitioner was found stationed at Sarthana Kamrej Road, Near Diamond Rose Nursery, Sand Stock Unit, by the Royalty Inspector, Surat. An inspection was carried out by the Royalty Inspector, Surat and it was noticed that sand was being loaded in the vehicle for the purpose of transporting the same outside the State of Gujarat. On such accusation/allegation, the truck was detained and seized under the provisions of the Gujarat Mineral (Prevention of Illegal Mining Transportation and Storage) Rules, 2005 (hereinafter referred to as “the Rules, 2005”). A seizure memo dated 14th June, 2012 was accordingly, issued. A bare perusal of the seizure memo would suggest that one Shri R.N. Joshi, Royalty Inspector, having his office at Geology and Mineral Department, “C” Block, 7th Floor, Multi-storeyed Building, Nanpura, Surat, in exercise of his powers under Rule 17 of the Rules, 2005, seized the vehicle for the alleged contravention of Rule 13 of the Rules, 2005.
3.2 It appears that on 18th June, 2012, the petitioner preferred an application to the respondents Nos. 3 and 4, with a prayer to release the vehicle, subject to the terms and conditions which the authorities may deem fit to impose. The record also reveals that no order of any nature was passed by the authorities on the said application preferred by the petitioner, dated 18th June, 2012, and therefore, the petitioner came before this High Court by way of Special Civil Application No. 8598 of 2012 and prayed for interim release of the vehicle in question, pending the confiscation proceedings under the Rules.
3.3 The learned Single Judge of this Court, vide order dated 20th July, 2012, disposed of the writ-petition, directing the authorities to decide the application of the petitioner expeditiously and preferably within four days after receipt of the order, in accordance with the provisions of the Rules, 2005. It is the case on behalf of the petitioner that the order passed by the learned Single Judge, dated 20th July, 2012 was served on the Respondent No. 3 on 26th July, 2012, and the petitioner also filed an application dated 26th July, 2012, for release of his vehicle on filing an appropriate undertaking.
3.4 It appears that even thereafter, no orders were passed by the authorities, and therefore, the petitioner preferred Misc. Civil Application No. 4454 of 2012, for contempt of the Court’s order, under the provisions of the Contempt of Courts Act, 1971. The Division
