IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 WP(C).No. 18780 of 2010(V) ----------------------------------------- PETITIONER(S): ------------------------- NOUSHAD.K, AGED 26 YEARS, S/O. KHADER, KADAPRATH AKATH HOUSE, EASWARAMANGALAM.P.O, PONNANI TALUK, MALAPPURAM DISTRICT (OWNER KL-46/4704) BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): ---------------------------- 1. DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM. 2. SUB INSPECTOR OF POLICE, KUTTIPURAM POLICE STATION, KUTTIPURAM, MALAPPURAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SMT. N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18780/2010 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RC BOOK OF THE VEHICLE KL-46/4704 DTD. 7/12/06. P2: COPY OF THE REQUEST DTD. 29/03/2010 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P3: COPY OF THE JUDGMENT IN WPC.NO.11696/10 PASSED BY THIS HON'BLE COURT DTD. 5/04/10. P4: COPY OF THE FINAL ORDER PASSED BY 1ST RESPONDENT IN P-5-17434/10 DTD. 25/05/10. P5: PHOTOGRAPH OF THE VEHICLE KL-46/4704. RESPONDENT'S ANNEXURES: R2(A): COPY OF THE SEIZURE MAHAZAR & FIR. R2(B): COPY OF THE REPORT. R2(C): COPY OF THE NEWSPAPER REPORT DTD. 19/06/2010. R2(D): COPY OF THE NEWSPAPER REPORT DTD. 20/06/2010. /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.18780/2010-V ~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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 -:2:- 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 -:3:- 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 -:4:- “............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 -:5:- possessing the vehicle and a copy will have to 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 -:6:- 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 W.P.(C). No.18780/2010 -:7:- 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