IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18780 of 2010(V)
1. NOUSHAD.K, AGED 26 YEARS,
... Petitioner
Vs
1. DISTRICT COLLECTOR, COLLECTORATE,
... Respondent
2. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.SHOBY K.FRANCIS
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :08/12/2010
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.18780/2010-V
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Dated this the 8th day of December, 2010
J U D G M E N T
The petitioner herein is aggrieved by
confiscation of vehicle, of which he is the registered
owner, under the Kerala Protection of River Banks and
Regulation of Removal of Sand Act, 2001.
2. Ext.P4 is the order passed by the District
Collector. Mainly it is contended that the seizure was
illegal. The vehicle was not carrying any sand at the
relevant time. It is further pointed out that the copy
of the seizure mahazar and the copy of FIR have not
been served to the driver of the vehicle or to the
petitioner and no independent witnesses have signed the
mahazar also. It is also his case that he has taken
photographs and video and there are witnesses to prove
his case. Earlier, he approached this Court by filing
W.P.(C).No.11696/2010 and this Court by Ext.P3 Judgment
dated 05/04/2010 directed the District Collector to
pass final orders and, accordingly, Ext.P4 order has
been passed.
W.P.(C). No.18780/2010
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3. The learned counsel for the petitioner relied
upon the decisions of this Court in Moosakoya v. State
of Kerala [2008 (1) KLT 538 (DB)], Subramanian v. State
of Kerala [2009 (1) KLT 77] and that of the Full Bench
in Shan C.T v. State of Kerala and others [2010 (3) KHC
333].
4. Rule 27 of the Protection of River Banks and
Regulation of Removal of Sand Rules, 2001 (Kerala)
concerns procedure for confiscation of vehicles which
reads as follows:-
“(1) The Police or Revenue officials shall
seize the vehicle used for transporting
sand in violation of the provisions of
the Act and these Rules.
(2) In the case of seizure of vehicle under
sub-section (1), a mahazar shall be
prepared in the presence of two witnesses
regarding the vehicle and one copy of the
same shall be given to the person
possessing the vehicle at the time of
W.P.(C). No.18780/2010
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seizure and one copy to the District
Collector.
(3) The vehicle may be returned if the owner
of the vehicle or the possessor remits an
amount towards River Management Fund
equal to the price fixed by the District
Collector with fine within seven days of
seizure.”
Going by the same, a copy of the mahazar should be
given to the person possessing the vehicle at the time
of seizure. Here, the perusal of the records
maintained by the police does not show that a copy of
the mahazar was given to the driver who was driving the
vehicle at that point of time. It is also the case of
the petitioner that in the absence of mahazar he was
not in a position to know what is the offence he has
committed.
5. In Shan C.T.’s case [2010 (3) KHC 333] it was
held in paragraph (13) as follows:-
W.P.(C). No.18780/2010
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“…………It is also made clear that to
avoid any controversy and the allegations of
undue delay on the part of either party to the
proceedings, the competent authority shall put
the owner on notice within a period of three
days of the date of seizure and the owner or
any other person interested in the vehicle
shall file his objections to the confiscation
within a week thereafter.”
6. Here, we are mainly concerned with the
question whether the non compliance of Rule 27 of the
Rules as well as the procedure for giving a copy to the
concerned, invalidate the seizure itself. In
Subramanian’s case [2009 (1) KLT 77] in paragraph (54)
it was held that:-
“…………It requires to be mentioned
in this context that the provisions in R.27(2)
are mandatory. On seizure of a vehicle, a
mahazar is to be drawn, in the presence of two
witnesses and a copy of the same is to be
straight away supplied to the persons
W.P.(C). No.18780/2010
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be sent to the District Collector. I have no
doubt that a violation of the procedure
contemplated under R.27(2) would definitely
give rise to an attack against the seizure
itself, as being illegal and this court would
be certainly justified in upholding the
contention raised by any person, who alleges
the haphazard manner in which R.27(2) is
violated in several cases.”
Therefore, the said aspect will have to be verified
with the records maintained by the police and any other
relevant records.
7. Apart from the same, the learned counsel for
the petitioner submitted that he will be able to
substantiate his arguments that the vehicle did not
contain any sand at the time of seizure by producing
videos and witnesses. Evidently, in the enquiry
already conducted, those aspects were not put forth by
the petitioner. But, since the confiscation of the
vehicle causes adverse consequences, it is only proper
W.P.(C). No.18780/2010
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that an opportunity is given to the petitioner.
Therefore, Ext.P4 will stand quashed on the above
grounds.
8. There will be a direction to the District
Collector to reconsider the matter in accordance with
the above findings. The petitioner will be allowed to
produce witnesses or other evidences in support of the
plea. The alleged violation of Rule 27(2) of the
Protection of River Banks and Regulation of Removal of
Sand Rules, 2001 (Kerala) will be examined and
appropriate final order will be passed within a period
of one month from the date of receipt of a copy of this
Judgment. The dictum laid down by this Court in the
Judgments relied on by the petitioner and its
implication on the facts of this case will also be gone
into.
9. The learned counsel for the petitioner
submitted that in the light of the Full Bench decision
in Shan C.T’s case [2010 (3) KHC 333], the petitioner
is entitled for release of the vehicle on payment of
30% of the value of the vehicle. If he files an
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application for interim custody of the vehicle, that
also will be considered in accordance with the
directions of the Full Bench as expeditiously as
possible. The writ petition is disposed of as above.
No costs.
(T.R. Ramachandran Nair, Judge.)
ms