IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 14898 of 2008(W) ------------------------ PETITIONER : ------------------ SUNIL KUMAR, AGED 38, S/O.THANKAPPAN, KADUKKAKAUNNEL HOUSE, MINALOOR VILLAGE, KURANCHERRY DESAM, TALAPILLY TALUK. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.SAJITH KUMAR KANJINGHAT RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY SECRETARY (REVENUE DEPARTMENT), THIRUVANANTHAPURAM. 2. DIST COLLECTOR, COLLECTORATE, THRISSUR. 3. REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE, DIVISIONAL OFFICER THRISSUR. 4. TAHSILDAR, TALUK OFFICE, THRISSUR. R1 TO R4 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 14898 of 2008(W) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF BASIC TAX RECEIPT ISSUED BY VILLAGE OFFICER, VELAPPAYA DATED 27-03-2007. EXT.P2 : COPY OF PETITION FILED UNDER RIGHT TO INFORMATION ACT DATED 12-05-2008 RECEIVED ON 13-05-2008. EXT.P3 : COPY OF RECEIPT ISSUED BY ADDITIONAL TAHSILDAR DATED 16-03-2007 TOWARDS COST OF 16 TONNES SAND. EXT.P4 : COPY OF RECEIPT ISSUED BY ADDITIONAL TAHSILDAR DATED 17-03-2007 TOWARDS COST OF 18 TONNES SAND. EXT.P5 : COPY OF RECEIPT ISSUED BY ADDITIONAL TAHSILDAR DATED 16-04-2007 TOWARDS COST OF 8 TONNES SAND. EXT.P6 : COPY OF PERMIT DATED 04-05-2007 ISSUED FOR 8 TONNES OF SAND UNDER R.29 (1) (a) OF KERALA PROTECTION OF RIVER BANKS AND SAND MINING RULES, 2002. EXT.P7 : COPY OF PERMIT DATED 16-05-2007 ISSUED FOR 8 TONNES OF SAND UNDER R.29 (1) (a) OF KERALA PROTECTION OF RIVER BANKS AND SAND MINING RULES, 2002. EXT.P8 : COPY OF PERMIT DATED 02-06-2007 ISSUED FOR 8 TONNES OF SAND UNDER R.29 (1) (a) OF KERALA PROTECTION OF RIVER BANKS AND SAND MINING RULES, 2002. EXT.P9 : COPY OF CASH BILL DATED 05-06-2007 SHOWING PURCHASE OF 2.5 UNITS OF SAND FROM R.K. TRADERS, POLLACHI. EXT.P10 : COPY OF INVOICE DATED 05-06-2007 SHOWING PURCHASE OF 2.5 UNITS OF SAND FROM LUCKOO TRADERS, M. PUDUR. EXT.P11 : COPY OF FORM 15 DELIVERY NOTE DATED 05-06-2007. EXT.P12 : COPY OF CASH BILL DATED 06-06-2007 SHOWING PURCHASE OF 2.5 UNITS OF SAND FROM KVK TRADERS, GANAPATHIPALAYAM. EXT.P13 : COPY OF RECEIPT FOR PAYMENT OF MONEY DATED 06-06-2007 ISSUED BY COMMERCIAL TAXES DEPARTMENT, KANNIMARI CHECK POST. ...3/- WP(C).No. 14898 of 2008(W) -3- EXT.P14 : COPY OF ACKNOWLEDGEMENT FOR RECEIPT OF MONEY DATED 25-03- 2008 ISSUED BY TAHSILDAR, TALAPILLY FOR PURCHASE OF 8 TONNES OF SAND. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S.SIRI JAGAN, J. ----------------------------------------- W.P. (C) NO. 14898 OF 2008 ---------------------------------------- Dated this the 19th day of October, 2010. JUDGMENT Certain sand stored in the property of the petitioner was seized by the respondents on allegation that the sand was stored by the petitioner without obtaining a licence for trading in sand under the Kerala Minor Mineral Concession Rules. According to the petitioner, the petitioner had purchased the sand for construction of his house, from legal sources which could have been proved if he was given a notice and a hearing. Petitioner has also produced some documents,viz., Exts.P3 to P14, to prove that the petitioner had purchased the sand from legal sources. But the sand was confiscated without any notice or hearing to the petitioner is the contention of the petitioner. The petitioner therefore seeks the following reliefs:- “i) Directing the release of sand lying in petitioner's property which is allegedly confiscated by the respondent nos. 3 & 4; ii) Alternatively directing the respondent nos. 3 & 4 to hear the petitioner and pass orders after considering Exhibit P3 to P14” 2. A statement has been filed by the Additional Tahsildar, Thrissur taking the contention that the sand was river sand, which was stored without obtaining a licence from the Kerala Minor W.P. (C) NO. 14898 OF 2008 2 Mineral Concession Rules and license from the Panchayath concerned, for trading in sand. The Tahsildar contends that the sand was confiscated and auctioned for an amount of Rs.1,19,900/-. 3. I have considered the rival contentions in detail. Certainly if the petitioner has violated any provisions of any law in storing the sand in his property, the appropriate authority can take appropriate action as warranted by law. But that can only be after a notice and an opportunity of being heard to the petitioner and passing a final order considering the contentions of the petitioner, confiscating the sand. On 4.6.2008 I passed following interim order:- “Notice. No further proceedings in respect of the sand in question shall be taken by the respondents except after issuing a seizure mahzar as also an order passed after hearing the petitioner which hearing shall also include opportunity to adduce evidence.” In the counter affidavit has been filed on 28.5.2008, it is stated that the sand was confiscated and auctioned for an amount of Rs.1,19,900/-. The date of auction is not mentioned therein. The learned Government Pleader orally submits that the auction was on 9.5.2008. But the seizure itself was on 9.5.2008. I fail to understand how, sand seized on 9.5.2008 could have been W.P. (C) NO. 14898 OF 2008 3 confiscated and auctioned on the date of seizure itself, that too without issuing any seizure mahazar, show cause notice or confiscation order. Therefore the entire proceedings of the respondents are against law and the same is therefore quashed. The respondents are directed to refund the amount of Rs.1,19,900/-obtained by sale of sand to the petitioner within one month from the date of receipt of a copy of this judgment. The second respondent shall conduct an enquiry as to how the concerned Officer has sold the sand without complying with the procedure prescribed under law for confiscating and selling sand and take appropriate action against him for not complying with the procedure prescribed by law. Such action shall be taken up and completed within a period of 4 months. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE. mns