JAYENDRA SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By filing this writ petition, the petitioners have prayed for the following reliefs:

(2.) Petitioner no. 1 is the owner of excavator JCB Machine bearing registration no. UK 09 CA 0601 issued on 18/6/2016. Petitioner no. 2 is the Driver of the said JCB machine. On 31/3/2022, at about 10.50 a.m., the SDM, Pratap Nagar, Tehri Garhwal, seized the JCB machine for conducting alleged illegal mining activity over the government land by one Shri Dhanpal Singh Rangad and his son Shri Mukesh Rangad. On that date itself, the SDM, Pratap Nagar, Tehri Garhwal, lodged an FIR against the aforesaid two persons namely Shri Dhanpal Singh Rangad and Shri Mukesh Singh Rangad for the alleged commission of offences under Ss. 189, 353, 504, 506 and 447 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for brevity) with SHO, Police Station - Lambgaon. On that date, a general diary entry was made about 11.36 a.m. Thus, the aforesaid vehicle was challaned for the violation of the provisions of the Motor Vehicle Act, 1988 (hereinafter referred to as "MV Act" for brevity). On 26/4/2022, petitioner no. 1, being the owner of the motor vehicle, filed a representation before the District Magistrate, Tehri Garhwal. He stated in the representation that the said vehicle was taken on rent for construction of motor road and it was taken from Thauldhar to LKC for aforesaid activity in the morning, because plying of heavy vehicles was prohibited between 08.00 a.m. to 05.00 p.m. in the main market of Lambgaon, the petitioner no. 2 i.e. Driver of the aforesaid vehicle, parked the said vehicle in the corner on Pratapnagar - Lamgaon road, so that it could be moved to the site after 05.00 p.m. In the meantime, SDM, Pratap Nagar, Tehri Garhwal, came and initiated proceedings against him. The petitioner further claimed that it was not being used for any mining purpose. Seizure of the vehicle was reported to the Civil Judge (Senior Division) / Addl. Chief Judicial Magistrate, New Tehri, who passed an order whereby penalties of Rs.200.00 and Rs.1000.00have been imposed under Sec. 177 and 179 (1) respectively of the MV Act and a direction was issued for release the aforesaid vehicle in favour of the petitioner no. 1. This order was passed on 26/4/2022. On 2/5/2022, the SDM, Pratap Nagar, Tehri Garhwal, issued a notice to petitioner no. 2 to show cause as to why a penalty should not be imposed upon him for engaging the vehicle in illegal mining activity. The petitioner no. 2 appeared before him and filed his objection. The police filed their objection to the reply of show cause notice filed by petitioner no. 2. On 9/5/2022, SDM, Pratap Nagar, Tehri Garhwal, passed an order whereby he has imposed a penalty of Rs.2,00,000.00 on the petitioner no. 2 under the Uttarakhand Mineral (Prevention of Illegal Mining, Illegal Transport and Illegal Storage) Rules, 2021 (hereinafter referred to as "Rules, 2021" for brevity). As the petitioner could not pay the fine and the vehicle was seized by the SDM, Pratap Nagar, Tehri Garhwal.

(3.) The order impugned is at Annexure No. 11. By passing the impugned order, the SDM, Pratap Nagar, Tehri Garhwal took into consideration the admission of the petitioners before the learned Magistrate about commission of crime by violating the provisions of the MV Act and came to the conclusion that even if, no other instrument of mining and material were seized, even then, petitioner no. 2 is guilty of carrying out illegal mining activity, as he does not have proper permission.