High Court Kerala High Court

Ashraf vs The District Collector on 18 September, 2009

Kerala High Court
Ashraf vs The District Collector on 18 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 26382 of 2009(P)


1. ASHRAF, S/O.KUNCHUKOYAMUTTY NAHA HAJI,
                      ...  Petitioner

                        Vs



1. THE DISTRICT COLLECTOR,
                       ...       Respondent

                For Petitioner  :SRI.K.SHIBILI NAHA

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :18/09/2009

 O R D E R
                            P.N.RAVINDRAN, J.
                   -----------------------------
                      W.P(C) No. 26382 of 2009-P
                  ------------------------------
             Dated this the 18th day of September, 2009.

                             J U D G M E N T

Heard Sri.K.Shibili Naha, the learned counsel appearing for the

petitioner and Sri.P.Narayanan, the learned Government Pleader

appearing for the respondent.

2. The petitioner is the registered owner of a goods vehicle

bearing registration No.KL-10M-6129. The said vehicle was seized by

the Sub Inspector of Police, Parappanangadi, on 4.12.2008, on the

allegation that it was used to transport river sand without a valid pass.

After the vehicle was seized, the Circle Inspector of Police, Tanur

forwarded Ext.P2 report dated 6.12.2008 along with Ext.P1 seizure

mahazar to the District Magistrate, Malappuram, stating that the vehicle

was seized under Section 17(2) of the Kerala Anti Social Activities

(Prevention) Act, 2007. He also requested the District Collector to

confiscate the vehicle under Section 17(3) of the said Act. It appears that

the vehicle was also produced before the Court of the Judicial Magistrate

of First Class, Parappanangadi. The petitioner thereupon filed

C.M.P.No.3143 of 2008 in the Court of the Judicial Magistrate of First

Class, Parappanangadi seeking custody of his vehicle. On the said

application, the Court of the Judicial Magistrate of First Class passed an

W.P(C) No. 26382 of 2009-P 2

order dated 24.12.2008 granting custody of the vehicle to the petitioner

on his executing a bond for the sum of Rs.25,000/-. Thereafter, the

District Collector issued Ext.P3 show cause notice dated 19.2.2009

calling upon the petitioner to show cause why his vehicle should not be

confiscated under Section 17(3) of the Kerala Anti Social Activities

(Prevention) Act, 2007. On receipt of Ext.P3 show cause notice, the

petitioner submitted Ext.P4 reply dated 25.2.2009 wherein he interalia

contended that action under Section 17 of the Kerala Anti Social Activities

(Prevention) Act, 2007, is not warranted. The District Collector thereafter

passed Ext.P6 order dated 28.3.2009 ordering confiscation of the

petitioner’s vehicle. He however permitted the petitioner to get the

vehicle released on remitting the sum of Rs.70,000/- in lieu of

confiscation of the vehicle. Thereafter the District Collector issued Ext.P8

notice dated 30.5.2009 calling upon the petitioner to remit the said sum

of Rs.70,000/- within 14 days from the date of receipt of the said notice,

failing which he was informed that his vehicle will be confiscated. Ext.P6

order and P8 notice are under challenge in this writ petition. The

petitioner contends relying on the decision of a Division Bench of this

Court in Abdul Majeed v. District Collector (2009 (3) KLT 459) that

the action taken against him under Section 17 of the Kerala Anti-Social

Activities (Prevention) Act, 2007, is without the sanction or authority of

W.P(C) No. 26382 of 2009-P 3

law.

3. Ext.P2 report submitted by the Circle Inspector of Police,

Tanur, Ext.P3 show cause notice issued by the District Collector,

Malappuram and Ext.P6 order passed by him establish that the

petitioner’s vehicle was seized and ordered to be confiscated applying

the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007,

on the allegation that it was used to transport river sand without a valid

pass. A Division Bench of this Court has in Abdul Majeed v. District

Collector (supra) held that Section 17 of the Kerala Anti-Social Activities

(Prevention) Act, 2007 cannot be invoked to proceed against the owners

of the vehicles used to transport river sand without a valid pass. It was

held that action if any, can be taken only under the provisions of the

Kerala Protection of River Banks and Regulation of Removal of Sand Act,

2001 and the rules framed thereunder. In the light of the authoritative

pronouncement of the Division Bench of this Court in Abdul Majeed v.

District Collector (supra) it has to be necessarily held that Ext.P3 show

cause notice, Ext.P6 order and Ext.P8 notice cannot be sustained.

In the result I allow this writ petition, quash Ext.P6 order and P8

notice and declare that the petitioner’s vehicle is not liable to be

confiscated under the Kerala Anti-Social Activities (Prevention) Act, 2007.

I make it clear that nothing contained in this judgment will stand in the

W.P(C) No. 26382 of 2009-P 4

way of District Collector from initiating appropriate proceedings, if such

proceedings are warranted, under the provisions of the Kerala Protection

of River Banks and Regulation of Removal of Sand Act, 2001 and the

Rules framed thereunder. It is further clarified that if such proceedings

are not initiated within one month from the date of receipt of or

production of a certified copy of this judgment, the conditions imposed

by the learned Magistrate while granting interim custody of the vehicle to

the petitioner shall stand vacated and the release of the vehicle shall be

treated as unconditional. If on the other hand, the District Collector

initiates such proceedings, the same shall be finalised within two months

from the date on which the proceedings are initiated, after notice to and

affording the petitioner a reasonable opportunity of being heard. The

contentions of the petitioner on the merits are kept open.

Sd/-

P.N.RAVINDRAN
JUDGE

//True Copy//

PA to Judge

ab