IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17737 of 2004(J)
1. JOSSY FRANCIS, S/O. M.J.FRANCIS
... Petitioner
Vs
1. THE DISTRICT COLLECTOR, KOTTAYAM.
... Respondent
For Petitioner :SRI.JOBI JOSE KONDODY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/06/2009
O R D E R
V.K.MOHANAN, J.
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W.P(C).No.17737 of 2004 - J
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Dated this the 24th day of June, 2009
J U D G M E N T
Challenging Ext.P6 order issued by the respondent
in exercise of his powers under Rule 27(3) of the Protection of
River Banks and Regulation of Removal of Sand Rules,2002
(for short ‘the Rules’) against the vehicle bearing Registration
No.KL8/F-2502, petitioner- the registered owner of the said
vehicle has preferred this writ petition.
2. The case of the petitioner is that the petitioner was
transporting sand from a mine belonging to one Sri.Simon
Abraham at Challarkovil with valid ‘P’ Form Pass issued from
the Mining and Geology Department for transportation of
sand. Ext.P2 is the said pass. According to the petitioner,
though Ext.P2 was shown to the Sub Inspector of Police, the
vehicle was taken into custody and the vehicle was released
subsequently only on the basis of the order of this Court as
per Ext.P3. It is also the case of the petitioner that the said
vehicle was again seized by the Circle Inspector of Police,
Manimala on a false allegation, in spite of the fact that he had
‘P Form’ pass dated 4.9.2003. In the second time also, the
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petitioner had approached this Court for interim custody of the
vehicle which was granted by this Court as per Ext.P5 judgment.
It is the further case of the petitioner that while the vehicle was
being operated on the strength of Exts.P4 and P5, the petitioner
received Ext.P6 order of final adjudication presumably issued in
terms of Ext.P5 judgment. It is the specific case of the petitioner
that Ext.P6 is not a speaking order. It is also the case of the
petitioner that the respondent has no authority to impose fine.
Thus, the petitioner challenges Ext.P6 order issued by the
respondent who is the authority under the provisions of the
Protection of River Banks and Regulation of Removal of Sand
Act,2001 and Rules, 2002.
3. I have heard learned counsel appearing for the
petitioner as well as learned Government Pleader.
4. Counsel for the petitioner submits that Ext.P6 is not a
speaking order though the order was issued in exercise of the
quasi judicial powers of the respondent-District Collector in terms
of Rule 27(3) of the Rules. It is pointed out by the learned
counsel that the materials produced by the petitioner are not seen
considered in the impugned order. Therefore, according to the
learned counsel, Ext.P6 is liable to be set aside on the above
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sole ground. On the strength of the judgment of this Court in
Sanjayan v. Tahsildar (2007(4) KLT 597), the learned counsel
submits that as per the provisions of the above Act or Rules, the
authority concerned is not authorised to impose fine, other than
levying the value of the vehicle and the confiscation of the
vehicle. While considering the batch of cases, this Court has
held that in view of the Bench decision of this Court cited supra
(2007(4) KLT 597), the District Collector cannot impose fine on
the owner of the vehicle under the provisions of the Protection of
River Banks and Regulation of Removal of Sand Act, 2001
(Kerala). It was further held that the District Collector is
authorised only to confiscate the vehicle and the power of
imposition of fine rests only with the court. In the light of the
above decision, the fine awarded against the petitioner as per
Ext.P6 order is liable to be set aside. I do so accordingly.
5. Further, going by Ext.P6 order, there is nothing to infer
that the respondent has applied his mind and came into a
conclusion against the petitioner after considering the case of the
petitioner and the materials produced. Though I have repeatedly
perused Ext.P6, nothing is seen other than the statement
regarding the seizure of the vehicle on two occasions and its
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release as interim arrangement. In the order, no reference was
made to the contentions raised by the petitioner and how it was
dealt with. There is no reference to the materials and evidence
produced by the petitioner in support of his objection. If actually
the petitioner has not produced any evidence or materials, there
should be an observation even to that effect. Therefore, it cannot
be said that Ext.P6 is a speaking order. This Court in paragraph
55 of the decision reported in Subramanian v. State of Kerala
(2009(1) KLT 77) had held as follows:-
“55. R.27(3) enables a vehicle to be
returned to the person, if the owner of the
vehicle or possessor remits an amount equal to
the price fixed by the District Collector. The
determination of the price of the vehicle is
contemplated under R.28(1) of the Rules. But,
this, the District Collector does after
considering the objections filed within 7 days
of the seizure of the vehicle under R.27. In
other words, an objection by the owner or
possessor of the vehicle with regard to the
seizure as such or with regard to the
infraction of the procedure under R.27(2) is to
be considered by the District Collector,who is
obliged to do so, exercising a quasi judicial
power. The question of sale of the vehicle,
which is what a confiscation contemplates is
resorted to only when there is a default in
payment of the amount in spite of anWP(C) NO.17737 of 2004
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opportunity granted under R.27(3) of the
Rules. It is in the above background, that I
have considered the orders impugned in these
Writ Petitions and I am satisfied that these
orders are not the products of a quasi judicial
exercise of power by an officer of the rank of
a District Collector.”
From the above, it is mandatory on the part of the respondent
being the authority exercising powers under Rule 27(3) of the
Rules to pass a speaking order referring to the objection raised
by the parties and also referring to the materials on record.
Therefore, Ext.P6 cannot be approved as legally or factually valid
and sustainable. Hence, Ext.P6 is set aside and the matter is
remanded back to the respondent for fresh consideration after
giving an effective opportunity of being heard to the petitioner and
with liberty to adduce evidence or materials, if so required. The
respondent is directed to dispose of the matter as early as
possible, at any rate within three months from the date of receipt
of a copy of this judgment, which will be produced by the
petitioner within one month from today.
6. Learned Government Pleader, on the strength of the
direction contained in the decision cited above, submits that a
direction may be given to the petitioner not to use the vehicle for
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transporting sand. As the time fixed for concluding the enquiry is
three months, I am not inclined to impose such condition. But, it
is made clear that the authorities concerned are free to seize the
vehicle if the same is misused for transporting sand without
proper authority or involved in any similar case.
The writ petition is disposed of as above.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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O.P.NO. OF 200
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J U D G M E N T
DATED: -6-2009
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