SEKAR REPORTER

Court News from Madras High Court

THE HONOURABLE MR. JUSTICE M.S.RAMESH and THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH    W.P(MD)No.14341 of 2022 and W.M.P(MD)Nos.10249, 10251, 10252, 10245, 10246 and  21098 of 2022.Petitioner     : Mr.Vallinayagam                                                     Senior Counsel for                                                     Mr.S.Palani Velayutham                       For Respondents           : Mr.Veerakathiravan,                                                   Additional Advocate General                                                   assisted by Mr.Senthil Ayyanar                                                 Government Advocate for R1 to R4                                                   :No appearance for R5              

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

 

RESERVED ON    :  29.11.2022

DELIVERED ON   :   02.12.2022

 

CORAM :

 

THE HONOURABLE MR. JUSTICE M.S.RAMESH

and

THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH

 

 W.P(MD)No.14341 of 2022

and

W.M.P(MD)Nos.10249, 10251, 10252, 10245, 10246 and

 21098 of 2022

 

S.Kumar                                                       .. Petitioner/Petitioner

Vs.

1.The District Collector,

Kokkirakulam,

Tirunelveli District,

Tirunelveli.

 

2.The Assistant Director of Mines and Minerals,

Collector Office Compound,

Kokkirakulam,

Tirunelveli District,

Tirunelveli.

 

3.The Assistant Superintendent of Police,

Nanguneri Sub Division,

Nanguneri,

Tirunelveli District.

 

4.The State Rep. by

The Sub Inspector of Police,

Munneerpallam Police Station,

Munneerpallam,

Tirunelveli District.

(Crime No.128 of 2022)

 

5.The Manager,

Tamil Nadu Mercantile Bank,

Branch at Palayamkottai,

Near St.John College,

Palayamkottai,

Tirunelveli District.                                   .. Respondents / Respondents

 

PRAYER: Writ Petition filed under Article 226 of the Constitution of India, seeking for issuance of mandamus, to direct the respondents more particularly the first respondent permitting the petitioner to continue his business of crusher operation in the property bearing Survey Nos.844, 848 and 849/2 in the name of Venkateswara Crusher at Door No.815 Adamithipankuam, Tharuvai Village, Palayamkottai Taluk, Tirunelveli District and further direct the 1st and 2nd respondents to permit the petitioner to take back his vehicles as parked in his Patta land at  Thuruvai Village, Palayamkottai, Tirunelveli District and also direct the 5th respondent to permit the petitioner to operate Bank, Overdue Account bearing Account No.152700050900047 with Tamil Nadu Mercantile Bank, Palayamkottai Branch near St. John College, Tirunelveli District and further direct the respondents to break open the seal of the petitioner’s chamber and crusher office situated at Palayamkottai in the main road leading to Nagercoil from Tirunelveli and also further permit to take back all the vehicles such as Tractor, Tipper Lorry, Torus Lorry, Kittachi, JCB, Pockline, Bench Lorry, Motorcycle, Pickup Vehicle, TATA Pickup, Mahindra Pickup, Kobelco 380 (for removing mud) and two wheelers forthwith.

For Petitioner     : Mr.Vallinayagam

Senior Counsel for

Mr.S.Palani Velayutham

 

For Respondents           : Mr.Veerakathiravan,

Additional Advocate General

assisted by Mr.Senthil Ayyanar

Government Advocate for R1 to R4

 

:No appearance for R5

 

ORDER

 

[Order of the Court was made by N.ANAND VENKATESH, J.]

 

This writ petition has been filed for the issuance of writ of mandamus directing the first respondent to permit the petitioner to continue his crusher operation in the subject property and for a further direction to the first and second respondents to permit the petitioner to take back his vehicles that have been parked in his patta land and to direct the fifth respondent to permit the petitioner to operate his bank account and for other consequential reliefs.

 

  1. 2. When the writ petition came up for hearing on 26.10.2022, this Court heard both sides and passed the following order.

“2. The matter was mentioned before us with an urgency that there are 29 vehicles that have been parked in the petitioner’s patta land and these vehicles have not been seized in the manner known to law and hence, the petitioner, who is said to be using these vehicles for his crusher unit, requires these vehicles and hence, he has sought for return of these vehicles.

  1. The learned Senior Counsel appearing on behalf of the petitioner submitted that an FIR has been registered in Crime No.128 of 2022 before Munnerpallam Police Station for the offences under Section 304(ii), 336 and 379 of IPC, Section 4(1)(a) of the Explosives Substances Act, 1908 and Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957. This FIR was registered based on an incident, that took place on 14.05.2022, wherein nearly four persons lost their lives and two persons sustained serious injuries in the quarry unit, which was run by one Sankaranarayanan, who is said to be lessee of the petitioner. The learned Senior Counsel further submitted that even though the petitioner and his father have nothing to do with the offence, they were arrested and remanded to judicial custody.
  2. The main issue that was canvassed by the learned Senior Counsel was that 29 vehicles that are sought to be seized by the respondent police have neither been produced before the regular Court nor before the Special Court and in order to substantiate the same, the learned Senior Counsel brought to our notice a copy application filed before the Magistrate Court as well as the Special Court, which was returned with an endorsement ‘property not remanded’. The learned Senior Counsel therefore submitted that the entire seizure itself is illegal and hence, sought for a direction to the respondents to return back the vehicles.  The learned Senior Counsel in order to substantiate the same, relied upon the Division Bench Order of this Court in WP(MD)No.19936 of 2017, etc., dated 29.10.2018.
  3. The learned Additional Advocate General appearing on behalf of the respondents 1 to 4, by placing reliance upon the counter affidavit filed by the District Collector and the Inspector of Police, submitted that an unfortunate incident had taken place resulting in loss of four lives and many others sustaining injuries due to the illegal mining activities.
  4. The learned Additional Advocate General submitted that the situation was going out of control and the entire village people were agitated and hence, the police had taken immediate action. Accordingly, both the quarry unit as well as crusher unit were closed and sealed. The learned Additional Advocate General submitted that even though the petitioner claims that the land was leased in favour of the said Sankaranarayanan to carry on with the quarry activities, the petitioner and his father were actually the one who are running it and the said Sankaranarayanan is merely a Binamidhar.
  5. The learned Additional Advocate General submitted that since it involved 29 vehicles and all the vehicles could not be produced before the concerned Court, they were parked inside the patta land of the petitioner and Form 91 was filed before the learned Judicial Magistrate No.V, Tirunelveli, on 26.05.2022. This form was returned and it was once again represented on 13.10.2022 and a request has also been made to the concerned Magistrate to make an inspection of the vehicles and to grant PR number. The learned Additional Advocate General submitted that once PR number is issued, a final report will be filed in this case. It was contended that there was no illegality in the seizure of vehicles and the petitioner cannot file a writ petition before this Court seeking for return of vehicles.
  6. We are not inclined to go into the merits of the case and the short issue that arises for consideration for the present is as to whether we have to exercise writ jurisdiction to order for release of vehicles in favour of the petitioner. In order to exercise such jurisdiction, we have to be satisfied that the seizure itself is illegal and not made in accordance with law. 
  7. On carefully going through the counter affidavit filed by the respondents, we are not clear as to whether the revenue authority had given a complaint after the seizure to the jurisdictional Court, as directed by the Division Bench of this Court in WP(MD)No.19936 of 2017 etc., dated 29.10.2018. The documents that have been produced before this Court only show that attempts have been made to file Form-91 before the Judicial Magistrate No.V, Tirunelveli. It is not clear as to whether this Court is a Special Court, which can try offences involving the Mines and Minerals (Development and Regulation) Act, 1957.  The copy application that was filed before the concerned Court seeking for return of vehicle, has been returned on 18.10.2022 with an endorsement that the property has not been remanded.  The petitioner is not clear as to where he has to file the application seeking for return of vehicles and that is the reason why this writ petition has been filed before this Court.
  8. The Division Bench of this Court in WP(MD)No.19936 of 2017 etc., dated 29.10.2018 has made it very clear that after the seizure of the vehicle, the revenue officials are expected to make a complaint before the jurisdictional Court and such a complaint has to be made immediately after the seizure, preferably within a period of one week. Following the order passed by the Division Bench of this Court, proceedings have been issued in G.O.Ms.No.170, Industries  (MMC.2) Department, dated 05.08.2020, which prescribes the procedure to be followed by the authorities after the seizure of the vehicle in a case involving offence under the Mines and Minerals (Development and Regulation) Act, 1957.  It is not clear as to whether this procedure was followed by the respondents.
  9. The learned Additional Advocate General submitted that he will file a status report on the query that has been raised by this Court and satisfy this Court that the seizure of the vehicles has taken place in accordance with law. We deem it fit to direct the District Collector, Tirunelveli, to file a status report in this regard.”

The above order gives a clear picture as to the actual issue that requires an adjudication in the present writ petition.

 

  1. 3. Pursuant to the above order, a status report was filed by the first respondent. The relevant portions in the status report are extracted hereunder:

“4. In obedience to the order of the Hon’ble High Court the following status report is submitted. On 14.05.2022 at about late night 23.00 hrs when the workers in the stone quarry were engaged in illegal quarry operation, suddenly a large scale landslide took place in the quarry located in                  SF.Nos.844, 848 & 849/2 of Tharuvai Village, Palayamkottai Taluk leased out to Thiru.Sankaranarayanan @ Sankaran for a period of 5 years from 17.07.2018 to 16.07.2023. The 4th  respondent, the Sub Inspector of Police, Munneerpallam Police Station had registered a case in Crime No.128 of 2022, dated 15.05.2022 on the basis of the complaint of the 1st rescued worker Thiru.Murugan. Initially a case was registered under sections 336, 304 and 304(A) of IPC. As per the proceedings of the Superintendent of Police, Tirunelveli dated. 15.05.2022 Thiru.Rajat R.Chaturvedi, Assistant Superintendent of Police, Nanguneri Sub-Division is appointed as investigation officer for this case. Based on the initial report submitted by the Assistant Director of Geology and Mining, Tirunelveli, dated 17.05.2022 and the report of the Assistant Director of Survey, Tirunelveli, dated 23.05.2022, theft of minerals involved in this case is confirmed. Since, it attracts the Mines and Minerals Act and Rules, the FIR already filed was altered again on 24.05.2022 u/s 304(ii), 336, 379 of IPC r/w 4(1)(a) of Explosive Substance Act and 21(1) of Mines and Minerals Development and Regulation Act, 1957.
5. Further, it is respectfully submitted that, even though the lessee was issued with transport permit lastly on 05.04.2022 with a validity upto 13.04.2022 the lessee had indulged in illegal mining during night hours beyond the permitted depth of 44 meters as approved in the mining plan. Hence it is a grave violations of the conditions stipulated in the lease deed as well as Environmental Clearance issued by the District Level Environmental Impact Assessment Authority.
6. Further it is submitted that, the team constituted by the Commissioner of Geology and Mining, Chennai and the District Collector, Tirunelveli had inspected the subject quarry and estimated that, excess quantum of 21,422 cbm of gravel and 10,88,665 cbm of roughstone had been mined and transported by the lessee without obtaining valid transport permit from the mines department,
7. It is respectfully submitted that, based on the police Investigation it is ascertained that the crushing unit functioned in the name and style of M/s.Venkateshwara Crusher which is represented through its partners Thiru.K.S.Kumar and Thiru.K.Selvaraj and the said stone quarry had been functioning as single Management Unit and all the vehicles moving to the quarry and crusher having only one pathway through the main gate wherein there is a check post. On enquiry from the drivers of the vehicles it is also ascertained that all the vehicles are engaged for transporting stone from the subject quarry site to the said M/s.Venkateshwara Crusher. It was also found that these vehicles were transporting the minerals at night time which is not allowed.
8. Further, it is respectfully submitted that, on verification of sale deeds and the Revenue records it is also ascertained that the owner pattadars of the land in which quarry license was granted and the M/s.Venkateshwara Crusher are one and the same family who executed sham lease deed in the name of Thiru.Sankaranarayanan @ Sankaran who was worked as a accountant in the office of the M/s. Venkateshwara Crusher unit owned by the petitioner (confession statement enclosed). In the instant case the entire quantum of illegally mined and transported minerals from the subject stone quarry were stored/consumed in the crushing unit owned by the petitioner in the name of M/s.Venkateshwara Crusher at Adaimithippankulam, Tharuvai Village and causing huge loss of about 48 crores revenue to the state exchequer.
9. Further it is submitted that, the petitioner and his father Thiru.K.Selvaraj are the partners of M/s.Venkateshwara Crusher Unit. Hence, the lessee Thriu. Sankaranarayanan @ Sankaran, the Register Holders / Land Owners, namely, Thiru.K.S.Kumar and Thiru.K.Selvaraj shall be held responsible for the excess mining carried out in the lease hold and illegal mining in the non lease hold patta land. The lessee Thriu.Sankaranarayanan @  Sankaran has also entered upon the agreement with the petitioner and his father Thiru.Selvaraj on 19.11.2018 for supplying of stone aggregates from the subject quarry to M/s.Venkateshwara Crusher till the expiry of the lease on 16.07.2023. Further, according to Rule 23 of the Tamil Nadu Minor Mineral Concession Rules, 1959 the ‘Registered Holder Thiru.K.S.Kumar and Thiru.K.Selvaraj and lessee Thiru.Sankaranarayanan @ Sankaran are jointly responsible for working mine properly. It reads as “In all cases the registered holder and in cases where the lands are leased out, the registered holder and the lessee shall be jointly and severally responsible for working the mine in a manner which will ensure the safety of the labourers and conservation of minerals and shall also be directly liable to Government for any wrongful act or default”.
10. Further it is revealed from the police enquiry that the bank account maintaining by the lessee Thiru.Sankaranarayanan @ Sankaran in Indian Overseas Bank, Tisaiyanvilai is verified and found that during the period from 01.07.2018 to 20.07.2022 the transaction is only Rs.48/- whereas, while verifying the account of M/s.Venkateshwara Crusher as on 18.05.2022 the balance available is Rs.19,72,539/-.  Hence, it is construed that the entire business transaction maintain only by the M/s.Venkateshwara Crusher and not with the lessee Thiru.Sankaranarayanan @ Sankaran.
11. It is respectfully submitted that, based on the above evidences 29 vehicles engaged for the said illegal quarrying and transportation minerals were seized on 26.05.2022 under the Mines and Minerals Act and the 379 IPC for involvement in crime. Since the seized vehicles are heavy trucks, powerful pocklines, compressors and tractors it could not be produced directly before the Judicial Magistrate Court-V. Hence, all these vehicles are stationed safely in the premises of the M/s.Venkateshwara Crushing unit owned by the petitioner with the police production round the clock. In the total 29 vehicles seized 9 Vehicles are not having registration number.
12. It is respectfully submitted that, on 01.06.2022 the said 29 vehicles were produced before the Tirunelveli, Judicial Magistrate Court – V, through Form-91 and obtained returned Form -91 on the day itself. For ascertain the owners of the vehicle concerned Regional Transport Officer, Tirunelveli, Vallioor and Karur are requested to send detailed report for individual vehicles. Accordingly, the Regional Transport Officer, Tirunelveli has sent details for 16 vehicles on 23.07.2022 and the Regional Transport Officer, Vallioor for 3 vehicles on 28.07.2022 and the Regional Transport Officer, Kang for 1 vehicle on 24.08.2022, respectively and hence it was taken two months delay for getting the said particulars. Since 9 vehicles seized without registration number the ownership of the vehicle could not be identified and hence Engine and Chassis number of the vehicles were recorded for further proceedings.
13. It is further submitted that, after collecting the ownership details from concerned the Regional Transport Officers, for remand the said 29 vehicles before the Tirunelveli, Judicial Magistrate Court – V, a Form – 91 was submitted before the Hon’ble Judicial Magistrate Court, Tirunelveli on 11.10.2022. Since the seized vehicles are heavy machineries such as trucks, powerful chain pocklines, tractor mounded compressors, cranes, JCB, wheel loader and earth master these vehicles could not be produced before the Judicial Magistrate Court-V. Tirunelveli for obtaining property remand number. Hence, on 13.10.2022 the Hon’ble Judicial Magistrate was requested to visit the site in which the vehicles are stationing and on 31.10.2022 the Hon’ble Judicial Magistrate-V visited the area where the vehicles are stationed and verified the properties and issued property remand number 513 of 2022 on 31.10.2022.
14. It is further submitted that, on getting the vehicles details from the concerned Regional Transport Officers, the Investigation Officer / Assistant Superintendent of Police, Nanguneri Sub-Division vide his letter dated 26.10.2022 along with the case details has requested the Revenue Divisional Officer, Tirunelveli for filling private complaint before the designated Special Court for taking further necessary action. Based on the request of the Investigation Officer / Assistant Superintendent of Police, Nanguneri Sub Division, as per the powers delegated under section 22 of Mines and Minerals (Development and Regulation) Act, 1957, the Revenue Divisional Officer, Tirunelveli has filed a private complaint on 31.10.2022 to confiscate the properties seized by the police department by way of an affidavit to Designated Court with respect to the offence committed by the offenders under section 21 of the said act vide Filing No.SPLCC/12095/2022, dated 31.10.2022.”

 

  1. 4. When the above writ petition came up for hearing on 17.11.2022, this Court, on going through G.O.Ms.No.170, dated 05.08.2020, which was issued pursuant to the orders passed by the Division Bench, noticed that the Government Order was not in line with the directions issued by the Division Bench. Consequently, certain queries were raised by this Court. By way of answering the queries raised by this Court, a clarification petition has been filed in W.M.P.(MD)No. 21098/2022 to clarify the common order passed in Review Application No.80/2019 in W.P(MD)No.19936/2017.
  2. 5. The Division Bench while passing orders in the writ petition and in the review petition, had proceeded on the footing that the authorised officer under the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “the Act”) to carry out seizure is only the revenue official. However, in G.O.Ms.No.170, dated 05.08.2020, apart from the revenue official, two other Government Orders have been mentioned and as per G.O.Ms.No.114, dated 18.09.2006, even police personnel not below the rank of Inspector of Police has been empowered to carry out the seizure under Section 21(4) of the Act. This fact was not brought to the notice of the Division Bench and hence the Division Bench through out the order has only recognized the revenue officials as the authorised officer. Hence, the clarification petition has been filed to clarify that, apart from the revenue officials, even the police personnel is empowered to seize in their capacity as the authorised officer, under Section 21(4) of the Act.
  3. 6. Heard Mr.Vallinayagam, learned Senior Counsel for Mr.S.Palani Velayutham, learned counsel appearing on behalf of the petitioner and Mr.Veerakathiravan, learned Additional Advocate General, assisted by Mr.Senthil Ayyanar, learned Government Advocate appearing on behalf of the respondents 1 to 4.

 

  1. 7. The learned Additional Advocate General appearing on behalf of the official respondents submitted that as per G.O.Ms.No.114, dated 18.09.2006, a police personnel not below the rank of Inspector of Police can exercise powers under Section 21(4) of the Act as the authorised officer and the said fact has to be recorded in the earlier orders passed by this Court and it must be clarified that apart from the revenue officials, even the police personnel not below the rank of Inspector of Police will have the power to seize under Section 21(4) of the Act. It was further submitted that once this clarification is made, G.O.Ms.No.170, dated 05.08.2020 cannot be called into question and in the instant case, the power of seizure made by the police cannot be held to be illegal. The learned Additional Advocate General concluded his arguments by submitting that G.O.Ms.No.170 has been implemented effectively for the last two years and it has not been called into question and if this Court clarifies the earlier order by recognizing the right of seizure of the police personnel also, it will remove the confusion that has been raised by the petitioner in the above writ petition.

 

  1. 8. Per contra, the learned Senior Counsel appearing on behalf of the writ petitioner submitted that the clarification petition is in the nature of a review petition and if the same is entertained, it will tantamount to reviewing an earlier order passed by a Coordinate Bench in a review petition. Therefore, according to the learned Senior counsel, the clarification petition is not maintainable. That apart, it was submitted that Section 21(4) of the Act uses the word “an officer” and it only means that a revenue official alone can be the authorised officer and there cannot be plurality of officers designated as authorised officers. Insofar as the offence contemplated under the Act, police will have no role to play and it is only the revenue officials, who must proceed further by filing a private complaint as provided under Section 22 of the Act. In this case, the seizure was made by the police, who did not have the power or jurisdiction and no information was provided to the petitioner after the so called seizure and after the seizure was made, the private complaint was not given immediately as directed by the Division Bench of this Court. In view of the same, the learned Senior counsel contended that the entire procedure adopted by the police is illegal and requires the interference of this Court.
  2. 9. We have carefully considered the submissions made on either side and earlier orders passed by this Court.
  3. 10. Writ petitions came to be filed before this Court for taking action in respect of illegal sand quarry and to take effective steps to prevent such illegal sand mining. These writ petitions were in the nature of Public Interest Litigations. Considering the seriousness of the issue involved in these writ petitions, this Court impleaded the State of Tamil Nadu and also the District Collector and called for a report. The main focus in these writ petitions pertained to the release of vehicles that are involved in the illegal mining operations which are seized and proceeded against for confiscation. The Coordinate Bench of this Court took into consideration the various provisions under the Act and the procedures contemplated under the Act to take action against the offender for committing offence under the Act and also while dealing with release of vehicles which are seized and subjected to confiscation proceedings.

 

  1. 11. When final orders were passed in the writ petitions on 29.10.2018, this Court had only recognized the revenue officials as the authorised officer who can seize the vehicle and can file the private complaint after the seizure before the jurisdictional Court. Even while dealing with the power of the police qua the revenue officials, it was held that eventhough the police can register a case for offences under IPC along with offence under the Act, insofar as the offence under the Act is concerned, the police were expected to inform the same to the revenue official and the revenue official had to file a complaint under Section 22 of the Act before the jurisdictional Court. Insofar as the IPC offence is concerned, the police must independently investigate the same in accordance with the provisions under Cr.P.C. This Court directed this procedure to be followed strictly. While disposing of the writ petition, the following directions were issued.

“13.As recorded earlier, illegal mining is carrying on unabatedly under the very nose of the revenue officials, which can be taken judicial note of this Court with a fond hope that the same can be controlled in future. Hence, we issue the following directions:

(i)The District Level Task Forces and Taluk Level Task Forces, constituted pursuant to the order passed in WP(MD)No.9806 of 2018 should  follow the G.O.(Ms)No.135 Industries (MMA.1) Department, dated 13.11.2009 in letter and spirit.

(ii)As stated in the above said Government Order, periodical meetings will have to be held followed by Revenue which is inclusive of action taken/to be taken for the illicit mining.

(iii)Steps will have to be taken for dereliction of the duty by the concerned officials.

(iv)Taluk Level Task Forces shall also comply with the directions issued in the Government Order by making frequent surprise checks and submit their report to the District Level Task Forces.

(v)The Taluk Level Task Forces shall meet every fortnight as mandated in the Government Order.

(vi)The responsibility fixed in the Government Order will have to be strictly construed and action will have to be taken against the erring Village Administrative Officer, Tahsildar, Officer in-charge of Department of Geology and Mining at District Level.

(vii)Action taken report will have to be sent by the District Collector concerned for the purpose of taking necessary action. The District Collector concerned shall take appropriate departmental action by himself as when Rules provide so.

(viii)Separate records will have to be maintained by the Village Administrative Officer, Tahsildar and Officer in-charge of the Department of Geology and Mining with respect to the cases involving illicit mining.

(ix)As and when illicit mining is reported, the same will be recorded in the records.

(x)The respective District Collectors will have to ensure  by making vide publicity of phone particulars assigned to the District Level Task Forces and the Talk Level Task Forces, so that, the general public can give their complaints. There should be affixture or display of the phone particulars in the Collectorate, Taluk office, Office of Deputy Director and Assistant Director of Geology and Mining and that of the Village Administrative Officer.

(xi)Complainant will have to be intimated on the action taken within a period of one week from the date of receipt of the complaint. A complaint shall also be received even when made through phone calls.

(xii)Complaints by an authorised person under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 or to be made immediately and not later than one week from the date of seizure.

(xiii)Whenever, a final report is filed for the offence under Section 379 IPC by the jurisdictional police before the jurisdictional Magistrate, the same shall also be committed to the Special Court. This is for the reason that it would be appropriate to deal with both the police case and the private complaint by the same Court and in order to avoid any possible conflict.

(xiv)The revenue officials at the time of seizure can issue a memo to the person in charge of the vehicle, mineral among other things, indicating the seizure made, along with the date and time.

(xv)In so far as the seized vehicles are concerned, they shall be produced before the concerned Magistrate Court by the revenue authorities at the time of filing their respective complaints.

(xvi)Any application for release of vehicle etc., can only be filed before the Special Court above.

(xvii)Any violation of the above would constitute a contempt of the order passed by this Court, for which, appropriate application can either be filed before the First Bench of this Court or any other Bench as per the direction of the Hon’ble Chief Justice.”

 

  1. 12. The above order became a subject matter of challenge before the Apex Court in SLP(C)No.33477-33479/2018 and these special leave petitions were dismissed on 11.01.2019. The following order was passed by the Apex Court.

“Heard learned counsel for the petitioners and perused the relevant material.

We are not inclined to interfere with the order impugned in the special leave petitions.  The same are accordingly, disposed of.

However, if the petitioners have any grievance with regard to any of the directions contained in the order of the High Court, it will be open for them to request the High Court for reconsideration of the matter. In the event, it becomes necessary, the petitioner will be at liberty to approach this Court once again?”

 

  1. 13. Pursuant to the above order, review applications came to be filed in Review Application(MD)Nos.80 to 82 of 2019. The Apex Court had granted leave to the appellants only to seek for reconsideration of the directions issued by the High Court and strictly speaking, it cannot be construed as a review. However, the applications were numbered only as review petitions and apart from the directions issued in the writ petition, a couple of issues were also clarified by the Division Bench in the review applications.

 

  1. 14. The Division Bench while passing orders in the writ petitions had held that Section 23-A of the Act has lost its relevancy and the power of compounding the offence was held to be available only to the jurisdictional Court and not to the authorised officer. This view was reviewed and it was held that the authorised officer has the power to compound the offence under the Act. However, insofar as the confiscation and release of vehicle is concerned, it is only the jurisdictional Court which was held to possess such a power. The Court also dealt with the distinction between compounding of offence and confiscation/release of vehicle. Thus, it was held that the authorised officer continued to have the power of compounding the offence and irrespective of the same, the power of confiscation and release of the vehicle is vested only with the jurisdictional Court. The review applications were dismissed on all the other counts and while disposing of the review applications, the following directions were issued.

“20. Accordingly, the following directions are issued:

(i) The Secretary to Government, Industries Department, Fort St. George, Chennai is directed to issue proper directions either by way of order or circular to all the persons authorized to exercise the power to seizure indicating the manner and the circumstances under which the power of compounding is to be exercised sparingly;

(ii) The designated Courts are directed to deal with the question of confiscation or release of the vehicles on receipt of the private complaint

or seizure report from the person authorized, notwithstanding the exercise of power of compounding. The persons authorized are directed to comply with the earlier directions with reference to making the private complaints.

(iii) Whenever the vehicles/materials seized are produced before the Court for confiscation proceedings, the Courts concerned shall take photographs of the vehicle/material and keep the same in file and shall proceed to sell the vehicle/material by public auction after getting valuation report from the Motor Vehicle Inspector of the District concerned (or) the authorities concerned and shall issue sale certificate to the successful bidder and deposit the sale price to the credit of the particular case. In the event, confiscation is ordered by the trial Court, the amount shall be confiscated to the Government.

(iv) If the designated Court comes to the conclusion that the vehicle/material is not liable to be confiscated, the same shall be returned to the parties who are legally entitled to.

(v) The applicants are directed to file an affidavit on the complaints made on the direction issued by this Court, particularly in the light of the submission made that they are not being followed.  Such an affidavit will have to be filed within a period of four weeks from the date of receipt of a copy of this order.”

 

 

  1. Pursuant to the above orders passed in the writ petitions and the review applications, G.O.Ms.No.170, dated 05.08.2020 came to be passed. On carefully going through the Government Order, it can be ascertained that this Government Order was issued only in compliance of the directions issued in the above petitions. If this Government Order had confined itself only to the revenue officials as the authorised officer, there would have been no difficulty and it will be perfectly in line with the directions issued in the above petitions. The difficulty arises since the police have also been brought without the ambit of authorised officer under Section 21(4) of the Act. By virtue of the same, there is an apparent conflict between the directions issued by this Court recognizing only the revenue officials as the authorised officer and the Government Order which recognizes even a police personnel as an authorised officer apart from the revenue officials.

 

  1. 16. The important question that arises for consideration is as to whether the conflict stated supra can be resolved by clarifying the earlier orders passed by this Court. In other words, will it suffice if this Court adds the police personnel also within the fold of authorised officer along with the revenue officials. We do not think that such a clarification can be made straight away by a Coordinate Bench and we assign the following reasons to come to such a conclusion.

 

  1. 17. In the entire scheme of the Act, no role has been assigned to a police officer. It is only the District Collector and the revenue officials who are entirely involved at various stages from issuance of mining lease and license, till taking action for violation of the provisions of the Act. That is the reason why the earlier orders passed by the Coordinate Bench was repeatedly referring only to revenue officials as the authorised officers who can seize, file private complaint, compound the offence, etc. under the Act. It is for the very same reason that even the police officer was directed to inform the revenue official after the registration of the FIR wherever it also involved offence under the Act. This is in view of the fact that it is the authorised officer/revenue official who is vested with the power to file a complaint under Section 22 of the Act. Such revenue official was also held to have the power to compound the offence under the Act. Only insofar as confiscation and release of vehicle is concerned, the competent Court was held to possess such powers.

 

  1. 18. If the police personnel is also brought within the ambit of an “authorised officer”, it would mean that such a police officer can seize the vehicles and will also have the power to compound the offence under the Act. That apart, the same police officer can also file a private complaint under Section 22 of the Act. From the status report filed by the respondents, it is clear that the seizure of vehicles has been done by the police officer and whereas when it came to filing the private complaint, the matter was handed over to the Revenue Divisional Officer and the Revenue Divisional Officer has filed a compliant before the competent Court. Hence, it is clear that even the respondents are not very sure as to how far the power of the police officer can extend.

 

  1. 19. If the police officer is brought within the ambit of an authorised officer, yet another anomalous situation will arise. If the FIR registered by the police officer covers both the IPC offence as well as the offence under the Act, insofar as the IPC offence is concerned, the police officer cannot compound the offence. However, the same police officer can compound the offence under the Act. We are not sure as to whether such a power can be exercised by the police officer and if so, it can have adverse consequences.
  2. 20. It is brought to our notice that in majority of the cases, it is the police officer, who registers the FIR, seizes the vehicle and produces the same before the jurisdictional Magistrate Court. Even in this case, Form 91 has been filed only before the Judicial Magistrate No.V, Madurai. This procedure followed by the police officer is in line with Cr.P.C. for the IPC offence. However, such procedure is not correct for the offence under the Act. In every case, after the vehicle is seized, Form 91 is filed before the jurisdictional Magistrate Court. Thereafter, intimation is sent to the revenue official and separate proceedings are initiated for the confiscation of the vehicle. Insofar as the release of vehicle is concerned, applications are entertained only by the Special Court. We find that the seizure of vehicles is not in line with the directions issued by the Division Bench and if the very seizure is held to be illegal, it will open up a Pandora’s box whereby all the earlier seizures and confiscation proceedings will be reopened.
  3. 21. In our considered view, we cannot get over this situation by merely clarifying the earlier order. Infact, by clarifying the earlier order, it will only tantamount to reviewing the earlier order passed in the review applications. That apart, there are certain important questions which needs to be answered and we cannot answer those questions as a Coordinate Bench.

 

  1. 22. In view of the above discussion, in order to bring more clarity to the earlier directions issued by this Court and in order to answer certain questions which arises for consideration while issuing such clarity, we deem it fit to refer this case to a Full Bench for an authoritative answer.

 

  1. 23. The matter can be referred to the Full Bench in order to decide the following questions:

(a) Whether a police personnel can be brought within the ambit of “authorised officer empowered” under Sections 21(4),  22 and   23-A of the Act?

(b) If the police officer cannot be brought within the fold of an authorised officer and hence he does not have the power to seize the vehicles/materials, what will be the effect of such seizure that had taken place after G.O.Ms.No.170, dated 05.08.2020 was issued?

(c) Whether the police officer who also happens to be the authorised officer, registers an FIR for IPC offence and the offence under the Act, can partly compound the offence under the Act and proceed further only for the IPC offence with respect to the very same transaction?

(d) Whether the authorised officer, who seizes the vehicle under Section 21(4) of the Act alone can initiate private complaint under Section 22 of the Act or a different officer can be appointed for initiation of criminal proceedings under the Act – in other words, the officer, who seizes the vehicle and the officer who initiates the private complaint should be the same officer?

(e) If the Special Court alone is entitled to try the offence under the Act, can the power of compounding be given to an authorised officer or such a power should only be exercised by the Special Court?

                   

  1. 24. The Registry is directed to place this order before the Hon’ble Chief Justice in order to enable the constitution of a Full Bench and to refer the questions raised in this order for an authoritative pronouncement.

 

  1. 25. The petitioner has sought for the release of vehicles in this writ petition. In view of the larger issue involved in this writ petition, we are not inclined to pass any orders for release of vehicles. However, it was brought to our notice that already a complaint has been filed by the Revenue Divisional Officer before the Principal District Court, Tirunelveli and the same is pending in Cr.M.P.No.12473/2022. In view of the same, we grant liberty to the petitioner to move an appropriate application before the Special Court and seek for the return of vehicles. The Special Court shall deal with the application in accordance with law and final orders shall be passed within a period of two weeks from the date of filing of the application.

 

                                         [M.S.R., J.]  &   [N.A.V., J.]

        02.12.2022

Index           : Yes/No

Internet        : Yes/No

PJL

 

 

 

To

1.The District Collector,

Kokkirakulam,

Tirunelveli District,

Tirunelveli.

 

2.The Assistant Director of Mines and Minerals,

Collector Office Compound,

Kokkirakulam,

Tirunelveli District,

Tirunelveli.

 

3.The Assistant Superintendent of Police,

Nanguneri Sub Division,

Nanguneri,

Tirunelveli District.

 

 

4.The Sub Inspector of Police,

Munneerpallam Police Station,

Munneerpallam,

Tirunelveli District.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

M.S.RAMESH, J

and

N.ANAND VENKATESH, J

 

 

PJL

 

 

 

 

 

 

Pre-delivery Order made in

W.P(MD)No.14341 of 2022

 

 

 

 

 

 

02.12.2022

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