IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34550 of 2008(K)
1. KUNHAMMED P.P., PULPARAMBIL,
... Petitioner
Vs
1. STATE OF KERLA, REP. BY CHIEF
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE SUB INSPECTOR OF POLICE,
4. OORAGATTIRI GRAMA PANCHAYATH,
For Petitioner :SRI.R.SUDHISH
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :11/12/2008
O R D E R
V. GIRI, J.
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WP(C).NO. 34550,34575 & 34578 of 2008
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Dated this the 11th day of December, 2008.
JUDGMENT
Specific issue raised in these writ petitions is covered by
the judgment of this court in WPC.No.15847/2008 and connected
cases. For ready reference the directions and observations
issued in the said judgment have been extracted hereunder:
“56. In many cases, the orders are
purely mechanical, referring only to
the seizure of the vehicle and reporting
to the District Collector. There is no
consideration of the objections. No
scientific or rational method has been
adopted in fixing the price of the
vehicle. It should also be remembered
that a direction to the owner of the
vehicle to remit an amount equal to the
price of the lorry, does not mean that
the amount to be so remitted is fixed
irrespective of the question as to
whether the offence detected is a first
offence or whether a recurring one. It
is here that the District Collector
WPC.34550 /2008 & conn. cases. 2
should remember that the power which
is exercised under Section 23 of the Act
read with Rules 27 and 28 is a
substantive power that could result in a
person forfeiting his property.
57. It is keeping in mind the impact of
the power exercised by the District
Collector that they should proceed to
consider the objections and then pass
the order in terms of Rules 27 and 28 of
the Rules. I also take note of the
submissions of the learned counsel for
the petitioners that the Sand Act does
not provide for an appeal against the
order passed by the District Collector
under Rule 27 or 28 of the Rules.
Analogous provisions dealing with the
infraction of the provisions under the
Forest Act or the Abkari Act, which
obviously have a similar kind of impact
on the society, should be recalled. An
order of confiscation passed under the
Forest Act is vulnerable to an appeal
before no less an authority than a
District Judge and the same can be
challenged in revision before this court
WPC.34550 /2008 & conn. cases. 3
under Section 115 of the Code of Civil
Procedure. An order of confiscation
under the Abkari Act is also vulnerable
to an appeal and revision before the
competent court. The absence of such a
provision in the Sand Act obviously is
no indication that the provision relating
to confiscation under the Sand Act can
be exercised in a casual manner. In
fact, it should impress the authority,
who is conferred with the power, that
he is required to do so, applying his
mind and acting as a quasi judicial
authority.
58. Once it is accepted that the power
under Section 23 of the Sand Act, read
with Rules 27 and 28 of the Rules, is a
substantive power and is also,
therefore, quasi judicial in character,
then it follows as a logical consequence
that the District Collector should also
have the power to direct a release of
any vehicle which is seized and
produced before him, by way of interim
custody. Such power would obviously
be ancillary to the substantive power
WPC.34550 /2008 & conn. cases. 4
exercised under Section 23 of the Act
read with Rules 27 and 28 of the Rules.
It is not for this court to exhaustively
lay down the guidelines regarding the
conditions that could normally be
imposed, while releasing a vehicle on
interim custody. But, going by the
discussion made by me above and as a
reflection of my own opinion, I feel the
following safeguards may be taken by
the District Collectors while passing
orders for release of a vehicle on
interim custody.
(1) Deposit of an appropriate amount
as a pre-condition for the release of the
vehicle on interim custody.
(2) A condition that the vehicle shall
not be used for transportation of sand,
pending final adjudication of the
proceedings under Section 23 of the Act
read with Rules 27 and 28 of the Rules.
(3) That the vehicle shall not be used
within the precincts of the Taluk or
even the District, pending final
adjudication by the District Collector.
(4) A condition that the vehicle would
WPC.34550 /2008 & conn. cases. 5
be liable for immediate seizure and
further proceedings if it is found
involved in any other illegal
transportation while it is entrusted to
the owner on interim custody, pending
final adjudication under Section 23 of
the Act read with Rules 27 and 28 of
the Rules.
59. The list mentioned above is, by no
means exhaustive, but only indicative.
If there is delay in passing final orders
beyond a reasonable period from the
date within which the objections could
be filed, at any rate, where there is a
motion by the aggrieved party for
release of the vehicle on interim
custody, it is necessary for the District
Collectors to pass an order on such
application, pending adjudication under
Section 23 of the Act.
60. But, I also make it clear that where
the District Collector deems it
appropriate to release the vehicle on
interim custody, it would be necessary
that any one or all of the conditions
mentioned above should be imposed at
WPC.34550 /2008 & conn. cases. 6
the time of release of the vehicle on
such interim custody and obviously,
conditions could be further imposed at
the time of passing final orders under
Section 23 of the Act.
61. Keeping in mind the above
guidelines, I am of the view that the
orders, which are impugned in all these
writ petitions are liable to be set aside
and the District Collectors are directed
to reconsider the issue, keeping in mind
the principles laid down by the Division
Bench on more than one occasion and
the observations contained in this
judgment.”
2. Having noted that the power being exercised by the
District Collector under section 23 of the Act is quasi judicial
character and in the light of the parameters laid down by the
Division Bench of this court and by me in the aforementioned
judgment, I have gone through the orders impugned in these
writ petitions. I am satisfied that they cannot be sustained as
the product of an application of mind to the relevant provisions of
law. Accordingly, the impugned orders are set aside. The
WPC.34550 /2008 & conn. cases. 7
District Collector is directed to reconsider the issue in the light of
the observations and findings made in the judgment in
WPC.No.15847/2008 and connected cases. Fresh orders shall be
passed in this regard within three months from the date of receipt
of a copy of this judgment after hearing the petitioners and after
conducting a proper enquiry.
V. GIRI, JUDGE.
Pmn/