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Judgment
D. Hariparanthaman, J.—The Lorry bearing Registration No. TN 21 AL 9299 of the petitioner was seized on 4.6.2013 by the second
respondent, as the lorry was carrying the sand unauthorisedly. Thereafter, the petitioner made a representation immediately to the first respondent
seeking to release his vehicle at the earliest. However, there is no acknowledgement for having sent the representation dated 4.6.2013. Even now,
the petitioner is not able to furnish the acknowledgment for having sent the representation dated 4.6.2013 seeking to release the lorry. Since these
type of writ petitions are filed often before this court and routine orders are passed to release the lorry, this court passed an order dated
13.06.2013, directing the District Collector, Thiruvallur to furnish certain details and paragraph Nos. 2 to 4 of the said order are extracted
hereunder:-
These type of writ petitions are coming often and therefore, this court put a question to the learned Special Government Pleader as to whether
any private complaint is lodged as contemplated u/s 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 36-A the
Tamil Nadu Minor Mineral Concession Rules, 1959 before the concerned Magistrate.
The learned Special Government Pleader has stated that besides filing complaint u/s 21 and Rule 36-A as stated above, private complaint also
filed u/s 379 of IPC for theft of sand i.e., according to him, private complaint is lodged against the persons who are taking sand through the lorry
unauthorizedly u/s 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 36-A the Tamil Nadu Minor Mineral
Concession Rules, 1959 read with section 379 of IPC.
In view of the above, a direction is issued to the District Collector, Thiruvallur to furnish the number of private complaints filed in the previous
three years i.e., for the years 2010, 2011, 2012 and also upto this date. The District Collector, Thiruvallur is also directed to furnish the stage of
those private complaints and as to whether any person was convicted pursuant to the prosecution launched by the Department.
The District Collector, Thiruvallur today has given the particulars in Rc. No. 777/2013/G & M-2, dated 18.06.2013. It is stated that effective
surprise raids are conducted to curtail the illicit transportation of minerals and the details of vehicles seized by the officials of Revenue, Mining and
Police Department during the period 2010-11, 2011-12, 2012-13 and 2013-14 (upto May 2013) are furnished and the same are reproduced
hereunder:-
Year Mining Dept. Revenue Police Total Penalty amounts realised
2010-11 217 223 342 782 Rs. 1,38,21,020/-
2011-12 163 515 570 1248 Rs. 3,73,00,372/-
2012-13 216 600 753 1569 Rs. 2,90,27,180/-
2013-14 (upto 68 89 130 287 Rs. 53,24,285/-
May 2013)
The District Collector, Tiruvallur has also furnished the details of the Criminal cases filed by the Police Department u/s 379 of IPC for theft of
minerals). The details of criminal cases filed during 2010-11, 2011-12, 2012-13 and 2013-14 (upto May 2013) are reproduced hereunder:-
Year Number of cases filed
2010-11 480
2011-12 675
2012-13 1087
2013-14 (upto May 2013) 140
However, no private complaints were filed during the 2010-11, 2011-12, 2012-13 and 2013-14 (upto May 2013).
After having seized the lorry for taking the sand, the authorities are not filing private complaints and prosecuting the persons who are involved in
illicit quarrying and transporting the minerals.
There should be some guidelines as to, in which case, there should be a prosecution. In case, a lorry is seized for the first time for quarrying and
transporting the minerals, enhanced seigniorage fee as contemplated under Rule 36-A the Tamil Nadu Minor Mineral and Concession Rules, 1959
could be collected if the lorry is seized repeatedly for quarrying and transporting the sand or any other minerals, in my view, the same shall be
prevented by stringent measure and those persons shall be prosecuted.
At this juncture, it is relevant to extract Rule 36-A(1) of the Tamil Nadu Minor Mineral and Concession Rules, 1959, which reads as follows:-
36-A Penalties. (1) Whenever any person contravenes the provisions of [sub-sections (1) and (1-A) of section 4] of the Act in any and, enhanced
seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of (twenty-five thousand Rupees) shall be charged and
recovered form that person by the District Collector or the District Forest Officer, as the case may be, or in the alternative, he shall be liable to be
punished as provided in sub-section (1) of Section 21 of the Act]:
[Provided that in respect of minor minerals, namely, building and road constructions tones including gravel, ordinary sand, earth and turf, ordinary
clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors, under this sub-rule shall be
execrable and dischargeable by the revenue Divisional Officer concerned within their respective jurisdiction.]
As stated above, the enhanced seigniorage fee alone is collected and the lorry and the minerals are let off and no private complaint is made
prosecuting the culprits. It is stated that no private complaint was filed u/s 21(4) and & 21(4-A) of the Mines and Minerals (Development and
Regulation) Act, 1957.
At this juncture, it is relevant to extract section 21(4) and & 21(4-A) of the Mines and Minerals (Development and Regulation) Act, 1957,
which reads as follows:-
Penalties:-
21(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and,
for that purpose, uses any tool equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be
seized by an officer of authority specially empowered in this behalf.
21(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4) shall be liable to be confiscated by an order of the
Court competent to take cognizance of the offence under sub-section (2) and shall be disposed of in accordance with the direction of such court.
In all cases, only certain amounts were collected and the seized lorries along with the minerals were let-off under 36-A(1) of the Rule mentioned
above.
Since there is no stringent action, the incidents of illicit quarrying and transportation of minerals are high as disclosed in the details furnished by
the District Collector. Hence, the Secretary to the Government, Industries Department, Secretariat, Chennai 9 is directed to issue guidelines by
providing stringent measures to arrest the illicit quarrying and transportation of minerals. The guidelines may direct the authorities to lodge private
complaints, if the lorry is involved at the 2nd or 3rd occasions.
As far as this writ petition is concerned, I am of the view that it is not known as to whether, the lorry is involved in earlier illicit quarrying and
transportation of minerals. Only the respondents are aware of the same. Further more, the petitioner has approached this court on 7.6.20123 after
making his representation dated 4.6.2013. Hence, the first respondent could not be blamed for not taking action on the representation dated
4.6.2013.
It is not known as to whether the petitioner sent representation dated 4.6.2013 to the first respondent, as there is no proof for the same.
In similar circumstances, the Division Bench of this court in The Deputy Commissioner of Civil Supplies and The Assistant Commissioner of
Civil Supplies Vs. S. Damodaran, held that the petitioner should approach the Competent Authority at the first instance before approaching the
High Court under Article 226 of the Constitution of India and paragraph No. 13 of he said judgment is extracted hereunder:-
13..............
a) In case any essential commodity or any commodity, package, vehicle, animal, etc., is seized on confiscated and the person from whom such
commodity or vehicle is seized, or the owner of the commodity or vehicle intends to get an order for release of the commodity or vehicle, they
should first avail the alternative remedy before the competent authority for release of such commodity or vehicle for the grounds and reasons as
may be taken by the aggrieved persons;
b) In case such application for release of the commodity, package or vehicle is filed, the competent authority/appellate authority will dispose of the
application immediately, preferably within a week. In case of any adverse decision, the ground should be communicated to the applicant;
c) Only when the competent authority/appellate authority fail to discharge their duty, the concerned person may move straight away before the
High Court under Article 226 of the Constitution of India for appropriate relief;
d) However, it is always open to the High Court to pass appropriate order under Article 226, but generally it should be reluctant to grant such
relief if the party fails to take recourse to alternative remedy.
In these circumstances and particularly taking note of the aforesaid decision of Division Bench of this Court, I am inclined to direct the
petitioner to make a fresh representation to the first respondent seeking the release of lorry and the first respondent is directed to pass orders
thereon, on merits and in accordance with law, within a period of one week from the date of receipt of the representation. The first respondent is at
liberty to impose any condition for the release of lorry. In case of any adverse decision, the petitioner is at liberty to approach this Court
questioning the same. The writ petition is disposed of in the above terms. No costs.