IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13757 of 2010(T)
1. P.M.NIZAR, AGED 44 YARS,
... Petitioner
2. MANOJ P.G., AGED 45 YEARS, S/O GOPALAN,
3. VIJEESH, AGED 23 YEARS, S/O.VIJAYAN,
Vs
1. THE DISTRICT COLLECTOR, ERNAKULAM,
... Respondent
2. THE S.I. OF POLICE,
3. THE DISTRICT GEOLOGIST, ERNAKULAM,
For Petitioner :SRI.BABU CHERUKARA
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :22/11/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) Nos.13757, 13758 & 13879 of 2010
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Dated this the 22nd day of November, 2010
J U D G M E N T
Challenge in these writ petitions is against the final
orders passed by the District Collector, exercising his powers
under the Kerala Protection of River Banks and Regulation of
Removal of Sand Act, 2001.
2. Briefly stated the facts of these cases that the
vehicles involved in W.P.(C) Nos.13757/2010 and
13758/2010 were seized by the second respondent on 04-01-
2010. In W.P.(C) No.13757/2010, Exts.P4 to P6 are the
mahazars and Exts.P7 to P9 are the final orders passed.
3. In so far as W.P.(C) No.13758/2010 is concerned,
Ext.P2 is the mahazar and Ext.P3 is the final order passed by
the District Collector.
4. Similarly, in W.P.(C) No.13879/2010, the mahazar
is Ext.P2 and the order passed is Ext.P3.
5. The contents of the mahazars, the contentions
W.P.(C) No.13757/10 & connected cases
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raised during the course of adjudication and the final orders
passed in these cases are almost on similar lines and,
therefore, I deem it only necessary to refer to the contentions
in W.P.(C) No.13757/2010.
6. The mahazar prepared by the second respondent,
the Sub Inspector of Police, shows that the vehicles were
found transporting river sand and that on interception, the
drivers of the vehicles produced P-Forms issued under the
Kerala Minor Mineral Concession Rules, 1967, and according
to the drivers, the sand was ordinary sand purchased from a
licenced dealer. However, rejecting the above version, the
vehicles were seized on the allegation that what was
transported in the vehicles was river sand under the cover of
the P-Forms which the drivers possessed.
7. The matter was referred to the District Collector
and the District Collector issued notice to the respective
petitioners. On behalf of the petitioners, counsel entered
appearance and urged contentions which are all noticed in
the order. However, accepting the version of the second
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respondent that what was transported was river sand and that
the petitioners did not produce any acceptable documents to
uphold the contention that what was transported was ordinary
sand, the impugned orders of confiscation were issued. It is
also stated in the order that the District Collector got the value
of the vehicles assessed by officers of the Motor Vehicles
Department and it is on that basis, petitioners were directed to
remit such amount.
8. Main contention raised by the counsel for the
petitioners is that there is violation of Rule 27 of the Kerala
Protection of River Banks and Regulation of Removal of Sand
Rules, 2002. He also relied on the judgments of this Court in
Subramanian Vs. State of Kerala [2009 (1) KLT 77] and
Shoukathali Vs. Tahsildar [2009 (1) KLT 640]. It was
contended that only when Exts.P10 to P12 applications were
made, the petitioners were issued copies of the mahazars,
which ought to have been served on them at the time of
seizure itself. Counsel contended that the fact that there is no
acceptable specific method to differentiate between river sand
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and ordinary sand has been accepted in Ext.P15. According
to him, if the respondents had a case that what was
transported was not ordinary sand as contended by them, it is
up to them to establish that fact.
9. On the other hand, the learned Government
Pleader contended that there is no violation of Rule 27 of the
Rules. He referred to the mahazar itself to substantiate this
plea. He also contended that this contention was not urged
by the petitioners during the course of the adjudication, and
hence, it was not open to the petitioners to raise the said
contention in a proceedings before this Court. The learned
Government Pleader further contended that since it was the
contention of the petitioners that the sand was ordinary sand,
it was up to them to produce the materials and prove the said
fact.
10. I have considered the submissions. A reading of
the mahazars shows that the consignment of sand involved in
these cases were seized on the basis that what was
transported was river sand. Admittedly, the mahazars in
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question in these cases were prepared at the scene of the
occurrence itself and the Sub Inspector of Police, who had
prepared the mahazars had the benefit of examining the
consignment. In such a situation, unless the petitioners have
succeeded in establishing any malafides on the part of the
petitioners, this Court cannot lightly reject this factual finding,
based only on the unsubstantiated averments contained in the
writ petition.
11. A reading of the impugned orders passed by the
District Collector shows that the District Collector has
accepted the findings of the Sub Inspector of Police that what
was transported was river sand. On the other hand, if as
contended by the petitioners, it was ordinary sand, in my view,
petitioners should have produced evidence either
documentary or oral, before the District Collector and should
have substantiated the said contention. On the other hand,
they relied only on the passes issued under Rule 48K which
did not substantiate their contentions. Therefore, petitioners
fail to prove their case and for that reason, the finding of the
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District Collector cannot be said to be erroneous.
12. In so far as the plea of violation of Rule 27 is
concerned, Rule 27 requires that the mahazar should be
attested by two witnesses. A reading of the mahazars
produced in these writ petitions shows that the mahazars
have been attested by the drivers of the respective vehicles
and also by the Police Constables. Therefore, as far as the
attestation part is concerned, there cannot be any violation of
Rule 27.
13. Then, what remains is that the plea of the
petitioners that the copies of mahazars were not served on
them. As rightly pointed out by the learned Government
Pleader, it is seen that this contention was not urged before
the District Collector. Although it was contended before me
that still these contentions were urged, nothing has been
placed on record to substantiate this. Therefore, such a
contention having not been urged before the District Collector,
I am persuaded to think that the petitioners cannot be
permitted to urge this contention for the first time before this
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Court. Further, although it is not specifically stated in the
counter affidavit, the learned Government Pleader submits
before me that he has gone through the original documents
and it shows that the mahazars were in fact served on the
petitioners at the time of seizure of the vehicles itself. Be that
as it may, now that I decline to entertain this contention raised
for the first time, I do not find force in this contention either.
14. Then, what remains is the correctness of the value
of the vehicles. As far as this aspect is concerned, orders
itself show the value of the vehicles have been fixed based on
the valuation done by the officers of the Motor Vehicles
Department, who certainly have the competency to fix the
value of the vehicles.
In the result, writ petitions fail and are dismissed.
(ANTONY DOMINIC, JUDGE)
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