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