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Kerala High Court
Aboobacker Siddique vs The District Collector on 3 August, 2010
       

  

  

 
 
  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.

               =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
               W.P(C) Nos. 15151, 15247, 15580, 17172,
              17187, 25730, 25750, 25763, 25867, 25879,
              25952, 25962, 26073, 26191, 26255, 26478,
                        28830 & 31490 of 2009

               =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=

               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/


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