IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 35331 of 2008(F) -------------------------- PETITIONER(S): --------------- ABDUSSALAM, S/O.MUHAMMED ELAVANNAPARAMBATH, VAVAD PO., KODUVALLY, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KOZHIKODE. BY GP SRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).35331/2008 -------------------- Dated this the 1st day of December, 2008 JUDGMENT Petitioner is aggrieved by Ext.P1 order passed by the District Collector, directing him to remit fine as well as the amount towards the value of the vehicle aggregating Rs.2,25,000/- as a condition for release of the vehicle which was seized for alleged infraction of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, and the Rules framed thereunder. 2. While considering a batch of cases, involving a challenge to the various provisions of the Act and Rules, I have held that the power exercisable by the District Collector under Section 23 of the Act is quasi judicial in character. Therefore, the power will have to be exercised in a reasonable manner. There should be the application of mind on the part of the District Collector to the objections raised by the owners of the vehicle against the seizure of the same. W.P.(C).35331/2008 2 Detailed directions have been issued in this regard indicating the manner in which the power will have to be exercised. I have also indicated that the power of the District Collector under Section 23 of the Act will also include the power to release the vehicles on interim custody subject to certain conditions. Guidelines in relation to the same have also been indicated in the said judgment. Those directions which have been included in the judgment in Writ Petition No. 15847/2008 and Connected cases are extracted herein:- It is keeping in mind the impact of the power exercised by the District Collector that they should proceed to consider the objections and then pass the order in terms of Rules 27 and 28 of the Rules. I also take note of the submissions of the learned counsel for the petitioners that the Sand Act does not provide for an appeal against the order passed by the District Collector under Rule 27 or 28 of the Rules. Analogous provisions dealing with the infraction of the provisions under the Forest Act or the Abkari Act, which obviously have a similar kind of W.P.(C).35331/2008 3 impact on the society, should be recalled. An order of confiscation passed under the Forest Act is vulnerable to an appeal before no less an authority than a District Judge and the same can be challenged in revision before this court under Section 115 of the Code of Civil Procedure. An order of confiscation under the Abkari Act is also vulnerable to an appeal and revision before the competent court. The absence of such a provision in the Sand Act obviously is no indication that the provision relating to confiscation under the Sand Act can be exercised in a casual manner. In fact, it should impress the authority, who is conferred with the power, that he is required to do so, applying his mind and acting as a quasi judicial authority. Once it is accepted that the power under Section 23 of the Sand Act, read with Rules 27 and 28 of the Rules, is a substantive power and is also, therefore, quasi judicial in character, then it follows as a logical consequence that the District Collector should also have the power to direct a release of any vehicle which is seized and produced before him, by way of interim custody. Such power would W.P.(C).35331/2008 4 obviously be ancillary to the substantive power exercised under Section 23 of the Act read with Rules 27 and 28 of the Rules. It is not for this court to exhaustively lay down the guidelines regarding the conditions that could normally be imposed, while releasing a vehicle on interim custody. But, going by the discussion made by me above and as a reflection of my own opinion, I feel the following safeguards may be taken by the District Collectors while passing orders for release of a vehicle on interim custody. (1) Deposit of an appropriate amount as a pre-condition for the release of the vehicle on interim custody. (2) A condition that the vehicle shall not be used for transportation of sand, pending final adjudication of the proceedings under Section 23 of the Act read with Rules 27 and 28 of the Rules. (3) That the vehicle shall not be used within the precincts of the Taluk or even the District, W.P.(C).35331/2008 5 pending final adjudication by the District Collector. (4) A condition that the vehicle would be liable for immediate seizure and further proceedings if it is found involved in any other illegal transportation while it is entrusted to the owner on interim custody, pending final adjudication under Section 23 of the Act read with Rules 27 and 28 of the Rules. The list mentioned above is, by no means exhaustive, but only indicative. If there is delay in passing final orders beyond a reasonable period from the date within which the objections could be filed, at any rate, where there is a motion by the aggrieved party for release of the vehicle on interim custody, it is necessary for the District Collectors to pass an order on such application, pending adjudication under Section 23 of the Act. It is made clear that if interim custody of the vehicle is granted, it will survive only till final orders are passed under Section 23 of the Act read with Rules 27 and 28 of the Rules. Such final orders shall be passed within three W.P.(C).35331/2008 6 months from the date of receipt of a copy of this judgment, after hearing the petitioner or his authorised representative. 3. Going by the parameters which this Court has discerned in relation to the manner in which the District Collector should exercise the power under Section 23 of the Act, I am of the view that Ext.P1 does not satisfies the same. 4. I heard learned Government Pleader also. In the result, Ext.P1 order is set aside. Second respondent, District Collector, shall pass fresh orders in the matter of the petitioner’s request for release of the vehicle under Section 23 of the Act within two months from the date of receipt of a copy of this judgment Writ petition is disposed of as above. V.GIRI, Judge mrcs