IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15151 of 2009(L)
1. ABOOBACKER SIDDIQUE, S/O.ALIKUTTY,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. THE DEPUTY TAHSILDAR,
3. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.BABU S. NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :03/08/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) Nos. 15151, 15247, 15580, 17172,
17187, 25730, 25750, 25763, 25867, 25879,
25952, 25962, 26073, 26191, 26255, 26478,
28830 & 31490 of 2009
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Dated this, the 3rd day of August, 2010.
J U D G M E N T
In all these writ petitions, the petitioners challenge orders of the
respective District Collector passed under the Kerala Protection of
River Banks and Regulation of Removal of Sand Act, 2001, by which
on finding that the vehicles owned/possessed by the petitioners have
been used for illegal transportation of river sand in violation of the
provisions of the Act and Rules, the petitioners have been directed to
pay the value of the vehicles towards the River Management Fund.
The learned counsel appearing for the petitioners in all these writ
petitions advanced only one set of arguments without going into the
merits of the case on facts in respect of each order challenged in each
writ petition. He bases his contention only on the applicability of the
amended Section 23 of the Act, which came into force with effect
from 14-7-2010 , which contention has not been raised in the writ
petition. According to him, although all the orders challenged in
these writ petitions were passed prior to the coming into force of the
said amendment, in view of the beneficial provisions introduced by
the amendment, which gives added protection to owners/possessors
of the vehicles accused of being used for illegal transportation of
river sand, such provisions should be construed as retrospective in
nature and therefore all these orders should be set aside and the
matters should be remanded to the original authority as per the
amended provisions of the Act so as to re-do the procedure in
accordance with the amended provisions of the Act. He would
contend that insofar as the amendment does not result in taking
away of any vested right in anybody, the same can be construed as
W.P.C. No. 15151/2009 etc. -: 2 :-
retrospective and the benefit of the amended provisions can be made
available to the petitioner in these cases. Learned counsel for the
petitioners refers to the following decisions of the Supreme Court in
support of his contention: K. Eapen Chacko v. The Provident
Investment Company (P) Ltd., 1976 SC 2610, Sita Ram and
others v. The State of Uttar Pradesh, 1979 SC 745, Maru Ram v.
Union of India, 1980 SC 2147, Mithilesh Kumari and another v.
Prem Behari Khare, 1989 SC 1247, State through C.B.I., Delhi v.
Gian Singh, AIR 1999 SC 3450, Shiv Shakti Co-op. Housing
Society, Nagpur v. M/s. Swaraj Developers and others, 2003 SC
2434 and Pratap Singh v. State of Jharkhand and another, 2005
SC 2731.
2. The contention proceeds as follows:
By amendment of the Section 23, an elaborate new procedure
has been prescribed with a right of revision before the District
Collector and a right of appeal before the District Court. Only after
the confiscation proceedings are over, a criminal prosecution can be
launched. According to the learned counsel for the petitioners, under
the Mines and Mineral (Development and Regulation) Act,
confiscation can be effected only by the criminal court trying an
offence under the Act, that too, on successful prosecution for the
offence alleged. It is unlike to that provision that in the present Act,
a power to confiscate the vehicle without successful prosecution is
incorporated and therefore when the rigor of the law has been
minimized by the beneficial provisions of the amended Act, such
beneficial provisions should be made applicable to the petitioners’
vehicles also.
W.P.C. No. 15151/2009 etc. -: 3 :-
3. In answer to that, the learned Government Pleader would
contend that the petitioners cannot now raise such a contention in
view of the fact that in these cases themselves, on an earlier reference
by a learned Single Judge of this Court to a Division Bench, because
of a decision of another learned Single Judge taking a view contrary
to the earlier Division Bench decision and in that reference, in the
decision of Abdu Rahiman v. District Collector, Malappuram,
2009(4) KLT 485, a Division Bench held against the petitioners in
these writ petitions themselves and therefore the petitioners are
bound by that decision and cannot take a contention contrary to that
decision. He would further submit that a Division Bench of this Court,
in Abdul Samad v. State of Kerala, 2007(4) KLT 473, has upheld
the power of the District Collector to confiscate the vehicle under
Section 23 of the Act even without a seizure under Section 102 of the
Crl. P.C, which would mean that even without a successful
prosecution in a criminal court, the District Collector has power to
confiscate the vehicle. That decision was later followed by another
Division Bench in Moosakoya v. State of Kerala, 2008(1) KLT 538.
4. As far as the contention regarding retrospective operation of
the amended provisions, the learned Government Pleader points out
that Section 1(2) of the Amendment Ordinance specifically stipulates
that the Ordinance shall come into force at once, which would mean
that the amendment is only prospective and not retrospective.
Therefore, according to the learned Government Pleader, the
contention of the petitioners that in view of the amendment by the
Kerala Protection of River Banks and Regulation of Removal of Sand
(Amendment) Ordinance, 2010, which came into force with effect
W.P.C. No. 15151/2009 etc. -: 4 :-
from 14-10-2010, which is retrospective in character, the impugned
orders should be set aside and the matters should be remanded to the
original authority for fresh consideration in accordance with the
amended provisions, does not have any merit whatsoever. He would
further submit that the right of appeal is referable to the date on
which the impugned order is passed and a proceeding under Article
226 of the Constitution of India is not a continuation of the original
proceedings as in the case of an appeal.
5. I have considered the rival contentions in detail.
6. First of all, I do not think that the Ordinance is retrospective
in character insofar as the Ordinance expressly makes it clear that it
would come into force with effect from the date of the Ordinance.
Section 1 of the Ordinance reads thus:
“1. Short title and commencement:- (1) This Ordinance may be
called the Kerala Protection of River Banks and Regulation of
Removal of Sand (Amendment) Ordinance, 2010.
(2) It shall come into force at once.”
That Section specifically and abundantly makes it clear that the
amended provisions would come into force with effect from the date
of that Ordinance only. Conversely, it would mean that the provisions
of the amendment are not retrospective in nature. In fact, that itself
would be sufficient to repel the contention of the petitioners that the
matter should be remanded to the original authority for fresh
consideration in accordance with the amended provisions of the Act.
Still, I am inclined to consider the other contentions raised by the
learned counsel for the petitioners as well as the learned Government
W.P.C. No. 15151/2009 etc. -: 5 :-
Pleader.
7. A learned Single Judge before whom the same came up for
consideration, referred these writ petitions for consideration of a
Division Bench in view of another decision of a learned Single Judge in
Ahammed Kutty v. State of Kerala, 2008(1) KLT 1068 refusing to
follow two earlier Division Bench decisions of this Court on the
ground that against one of those decisions, the matter was taken to
the Supreme Court, in which there was a stay. Considering that
reference order, a Division Bench of this Court has in Abdu
Rahiman v. District Collector, 2009(4) KLT 485 held that despite
the stay granted by the Supreme Court against the judgment in
Abdul Samad’s case, the learned Single Judges of this Court are
bound by the ratio of that decision in respect of other cases. Again, in
that decision, the Division Bench upheld the view of the earlier
Division Bench in Abdul Samad’s case by holding that the District
Collector has powers to order confiscation of the vehicles even
without a seizure under Section 102 of the Crl. P.C and without
reference the matter to the criminal court. That would essentially
mean that even without a successful prosecution, the District
Collector has power to order confiscation of the vehicles, which are
found to have been used for illegal transportation of river sand. The
orders impugned in all these writ petitions have been passed based on
that law as explained by the Division Bench. Here, I note that the
constitutional validity of the Act as a whole and particularly Section
23 thereof has been specifically upheld by a learned Single Judge of
this Court in Subramanian v. State of Kerala, 2009(1) KLT 77, with
which I respectfully agree. In that decision, it was specifically held
W.P.C. No. 15151/2009 etc. -: 6 :-
that the power to order confiscation is not dependent on conviction of
a person concerned in a criminal case for an offence under the Act.
Therefore, I have to consider the validity of those impugned orders on
the basis of the position of law as it existed on the date of passing
those orders and not on the basis of the amended provisions of the
Act, which came into force long after the passing of the orders
impugned in these writ petitions.
8. The law as it existed on the date of passing of those orders,
as I have already stated above, is that the District Collector had
powers to order confiscation even in the absence of a criminal case
before the criminal court or a successful prosecution thereof. It is in
exercise of such powers the impugned orders have been passed. I do
not think that I can consider the validity of those orders on the basis
of the amended provisions of the Act.
9. Even apart from that, insofar as the petitioners themselves
have invoked the power of judicial review of this Court under Article
226 of the Constitution of India, I can certainly consider the validity
of those orders under Article 226 of the Constitution of India. As
such, it is not necessary to remand the matter back to the original
authority even otherwise.
10. As I have already stated in the beginning, the learned
counsel for the petitioners confined his arguments to the question of
law on the basis of the amended provisions of the Act and did not
advance any arguments on merits against those orders, since,
according to him, he cannot canvass the validity of the findings of fact
in proceedings under Article 226 of the Constitution of India. As
rightly pointed out by him, this Court can go into the findings of fact
W.P.C. No. 15151/2009 etc. -: 7 :-
in such orders only if such findings of facts are demonstrably
perverse. In the impugned orders, the District Collector has come to
the finding that the vehicles have been used for illegal transportation
of river sand in violation of the provisions of the Kerala Protection of
River Banks and Regulation of Removal of Sand Act, 2001 and Rules
on the basis of the material available before him. Accordingly, for
such violation, the petitioners have been directed to pay the value of
the vehicle as assessed by a competent officer to the River
Management Fund. I do not think that such findings are in any way
perverse so as to enable this Court to interfere with those orders.
In view of my above findings, there is no merit in any of these
writ petitions. Accordingly, they are dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/
