IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1433 of 2010()
1. NOUSHAD, S/O.KUNHI MOHAMMED,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.T.V.GEORGE
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :22/09/2010
O R D E R
J.Chelameswar, C.J. & P.R. Ramachandra Menon, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
W.A.No. 1433 OF 2010
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 22nd day of September, 2010
JUDGMENT
Ramachandra Menon, J.
The appellant is challenging the correctness and
sustainability of the verdict passed by a learned Single Judge of
this Court, whereby interference was declined with regard to
the challenge raised against Ext.P4 order passed by the District
Collector, pursuant to the confiscation of the vehicle
concerned, which was found transporting ‘river sand’, contrary
to the statutory requirements.
2. The sequence of events as narrated in the writ petition
shows that the appellant herein was transporting river sand, in
his own autorickshaw(goods) bearing No.KL-02-AB-53, which
was purchased from a permit holder, when it was seized by the
concerned Sub Inspector of Police. As the transportation of
the material was without any valid pass, the vehicle and the
goods were handed over for further action, to the District
Collector, which culminated in Ext.P4.
WA No. 1433 of 2010
-:2:-
3. It is seen that during the course of the proceedings
before the District Collector, an opportunity was given to the
petitioner to substantiate his case. However, the contention
raised by the appellant before the District Collector was that he
was transporting the river sand from ‘one site to another’ and the
only request made by him before the District Collector was to
reduce the liability and to enable the petitioner to have the
vehicle released.
4. When the matter came up before a learned Judge of this
Court, the contentions were taken note of and interference was
declined, holding that there was absolutely no case to the
appellant to the effect that the transportation of the material was
on the strength of a valid pass. The contention before this Court
was that he was effecting construction of a residential building in
the property belonging to his mother and in connection with this,
the river sand was being transported after purchasing it from a
valid permit holder. No such contention was ever raised before
the District Collector. The value of the vehicle has fixed in
Ext.P4, on the basis of the report of the concerned RTO in this
WA No. 1433 of 2010
-:3:-
regard. As such, no interference is called for on these heads.
5. When the matter came up for consideration before this
Court by way of writ appeal, the appellant filed an Interlocutory
Application seeking to amend the appeal and to include two new
paragraphs as 9 and 10; which was allowed as per the order
dated 9.9.2010 in I.A.No.693 of 2010. Reference is made to the
relevant Ordinance promulgated and the course and events to be
pursued in connection with the provisions of the Kerala Protection
of River Banks & Regulation of Removal of Sand Act, 2001.
6. The learned counsel for the appellant submits that on
the date of passing Ext.P4 order, the above Ordinance was very
much in existence and this being the position, there was no
power or jurisdiction to the District Collector, to have passed
Ext.P4 order on the relevant date. It is now contended that the
proceedings ought to have been pursued by the Sub Divisional
Magistrate, whereupon the petitioner would have had an
opportunity to file a Revision Petition before the District Collector
and then to file an Appeal before the District Court.
7. Going by the sequence of events, it goes without saying
WA No. 1433 of 2010
-:4:-
that the petitioner was well aware of the Ordinance when he
chose to file the above writ petition, seeking to invoke the
discretionary jurisdiction of this Court under Article 226 of the
Constitution, instead of seeking the benefit of alternate remedy,
if any. It is very much on record that the petitioner has suffered
Ext.P4 at the hands of the District Collector and the merit was
subjected to challenge by approaching this Court, which has been
considered by a learned Single Judge and a verdict has been
passed. This being the position, the alleged loss of opportunity
by filing Revision/Appeal, referring to the provisions in the
Ordinance has become redundant. The contentions raised before
this Court are untenable and do not call for any interference.
The writ appeal is dismissed accordingly.
J.Chelameswar,
Chief Justice.
P.R. Ramachandra Menon,
Judge.
ttb
WA No. 1433 of 2010
-:5:-