IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 37184 of 2008(B) ------------------------------------- PETITIONER(S): ----------------------- ABRAHAM JOHN, VALIYAVEETTIL, MARIYATHURUTHU, KOTTAYAM. BY ADV. MR.V.K.SUNIL RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE TAHSILDAR, VAIKOM. 3. THE S.I. OF POLICE, VAIKOM. BY GOVERNMENT PLEADER SRI. SALIM P.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37184 of 2008(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE KL.8 B 7693. EXT.P2 - TRUE COPY OF THE FORM P CASH MEMORANDUM ISSUED BY THE DEALER DATED 1.11.2008. EXT.P3 - TRUE COPY OF THE APPLICATION DATED 7.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4 - TRUE COPY OF THE ORDER NO. E 10-54118/08 DATED 9.12.2008 ISSUED BY THE 1ST RESPONDENT. EXT.P5 - TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 12.12.2008 FOR THE COPY OF THE MAHSER. EXT.P6 - TRUE COPY OF THE MAHSER DATED 1.11.2008. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 37184 of 2008 ................................................. Dated this the 21st day of August, 2009 J U D G M E N T The petitioner has filed this writ petition challenging Ext.P4 order passed by the District Collector, Kottayam, the 1st respondent herein, whereby on the allegation that in the petitioner's Lorry No. KL08 B 7693, river sand was being illegally transported in violation of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the Rules thereunder. Petitioner's contention is that he was transporting ordinary sand in his lorry on behalf of one Kudavechoor Pushpadas, which was accompanied by Ext.P2 cash memorandum issued under Rule 48 of the Kerala Minor Mineral Concession Rules. The same was detained by local people, consequent to which the police took custody of the same and proceedings were initiated under the Act. The petitioner submits that he has not committed any offence under the Act and therefore neither he nor his vehicle is liable to be proceeded against for any violation of the Act and Rules. W.P(C) No. 37184 of 2008 -2- 2. Although, no counter affidavit has been filed by the respondents, the learned Government Pleader would vehemently argue in support of Ext.P4 order. He would point out that the petitioner himself admitted that the petitioner's submission was that he consciously did not commit any offence and if it is proved otherwise, he is prepared to pay a small fine, which would amount to admission by the petitioner that he was actually transporting river sand. Therefore according to the learned Government Pleader, the imposition of fine and the realisation of value of the vehicle in lieu of confiscation of the vehicle are perfectly valid and proper. 3. I have considered the rival contentions in detail. 4. The District Collector can take proceedings under the Kerala Protection of Riverbanks and Regulation of Removal of Sand Act, only if the sand is one covered by the Act. Although the sand is not defined in the Act, the term Kadavu is defined to mean a river bank or water body where removal of sand is carried out. The contention of the respondents is that this sand was mined from Vembanad Lake and the same was being transported in the guise of ordinary sand, using cash W.P(C) No. 37184 of 2008 -3- memorandum issued under Rule 48 of the Kerala Minor Mineral Concession Rules. Therefore, essentially the action under the Act would lie only if the respondents show that what was being transported is actually river sand. There is no material before me to show that the sand in question was actually river sand. Only contention raised by the learned Government Pleader is that the petitioner has admitted that it is river sand. That contention does not appear to be correct on the face of Ext.P4 order itself. In Ext.P4 while reciting the case of the petitioner, it has been specifically stated that according to the petitioner, he was transporting ordinary sand on behalf of one Kudavechoor Pushpadas for the purpose of construction of a house for his brother, which was accompanied by Ext.P2 cash memorandum. Once the petitioner takes such a contention by producing Ext.P2, it is for the respondents to prove that the sand in question is not ordinary sand but river sand. In Ext.P4, it is specifically stated that the petitioner has produced Ext.P2 cash memorandum. In such circumstances, the onus of proving that the sand was river sand lies squarely on the respondents. The respondents have no case that the sand has been tested and found to be river sand. W.P(C) No. 37184 of 2008 -4- Therefore the jurisdictional fact enabling the District Collector to take proceedings under the Act has not been proved by the respondents. Without prima facie proving that the sand in question is river sand, the District Collector could not have validly initiated proceedings against the petitioner under the Act. In view of my findings that respondents have not been able to produce prima facie material to show that the sand is river sand, clearly the proceedings against the petitioner and his vehicle are clearly without jurisdiction. 5. Accordingly Ext.P4 order is quashed. If the petitioner has paid the amount as directed in the order dated 17.12.2008, the same shall be refunded to him within two weeks form the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE rhs