IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 17737 of 2004(J) -------------------------------------- PETITIONER: ------------------- JOSSY FRANCIS, S/O. M.J.FRANCIS MADUKKAKUZHY HOUSE, ANAKALLU P.O., KANJIRAPALLY, KOTTAYAM DISTRICT. BY ADV. MR.JOBI JOSE KONDODY. RESPONDENT: ---------------------- THE DISTRICT COLLECTOR, KOTTAYAM. BY GOVERNMENT PLEADER MR. T.K. VIPIN DAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17737/2004-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE BEARING NO.KL-8/F-2502. EXT.P.2: COPY OF THE `P' FORM (CASH MEMORANDUM) DTD. 05/04/2003 ISSUED BY ONE SIMON ABRAHAM TO THE PETITIONER. EXT.P.3: COPY OF THE INTERIM ORDER PASSED IN I.A. NO. 2351/03 IN I.A. NO. 983/03 IN W.P.(C).NO.16183/2003 DTD. 12/08/03 PASSED BY THIS HONOURABLE COURT. EXT.P.4: COPY OF THE `P' FORM (CASH MEMORANDUM) DTD. 04/09/2003 ISSUED BY ONE SIMON ABRAHAM TO THE PETITIONER. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).NO.29743/30 DTD. 25/09/03 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE PROCEEDINGS NO. 16436/03 DTD. 10/03/2004 ISSUED BY THE RESPONDENT. EXT.P.7: COPY OF THE PROCEEDINGS NO. 4692/A3/03/ID DTD. 29/04/2004 OF THE PRINCIPAL SECRETARY TO GOVERNMENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No.17737 of 2004 - J --------------------------------------------- Dated this the 24th day of June, 2009 J U D G M E N T Challenging Ext.P6 order issued by the respondent in exercise of his powers under Rule 27(3) of the Protection of River Banks and Regulation of Removal of Sand Rules,2002 (for short 'the Rules') against the vehicle bearing Registration No.KL8/F-2502, petitioner- the registered owner of the said vehicle has preferred this writ petition. 2. The case of the petitioner is that the petitioner was transporting sand from a mine belonging to one Sri.Simon Abraham at Challarkovil with valid 'P' Form Pass issued from the Mining and Geology Department for transportation of sand. Ext.P2 is the said pass. According to the petitioner, though Ext.P2 was shown to the Sub Inspector of Police, the vehicle was taken into custody and the vehicle was released subsequently only on the basis of the order of this Court as per Ext.P3. It is also the case of the petitioner that the said vehicle was again seized by the Circle Inspector of Police, Manimala on a false allegation, in spite of the fact that he had 'P Form' pass dated 4.9.2003. In the second time also, the WP(C) NO.17737 of 2004 :-2-: petitioner had approached this Court for interim custody of the vehicle which was granted by this Court as per Ext.P5 judgment. It is the further case of the petitioner that while the vehicle was being operated on the strength of Exts.P4 and P5, the petitioner received Ext.P6 order of final adjudication presumably issued in terms of Ext.P5 judgment. It is the specific case of the petitioner that Ext.P6 is not a speaking order. It is also the case of the petitioner that the respondent has no authority to impose fine. Thus, the petitioner challenges Ext.P6 order issued by the respondent who is the authority under the provisions of the Protection of River Banks and Regulation of Removal of Sand Act,2001 and Rules, 2002. 3. I have heard learned counsel appearing for the petitioner as well as learned Government Pleader. 4. Counsel for the petitioner submits that Ext.P6 is not a speaking order though the order was issued in exercise of the quasi judicial powers of the respondent-District Collector in terms of Rule 27(3) of the Rules. It is pointed out by the learned counsel that the materials produced by the petitioner are not seen considered in the impugned order. Therefore, according to the learned counsel, Ext.P6 is liable to be set aside on the above WP(C) NO.17737 of 2004 :-3-: sole ground. On the strength of the judgment of this Court in Sanjayan v. Tahsildar (2007(4) KLT 597), the learned counsel submits that as per the provisions of the above Act or Rules, the authority concerned is not authorised to impose fine, other than levying the value of the vehicle and the confiscation of the vehicle. While considering the batch of cases, this Court has held that in view of the Bench decision of this Court cited supra (2007(4) KLT 597), the District Collector cannot impose fine on the owner of the vehicle under the provisions of the Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Kerala). It was further held that the District Collector is authorised only to confiscate the vehicle and the power of imposition of fine rests only with the court. In the light of the above decision, the fine awarded against the petitioner as per Ext.P6 order is liable to be set aside. I do so accordingly. 5. Further, going by Ext.P6 order, there is nothing to infer that the respondent has applied his mind and came into a conclusion against the petitioner after considering the case of the petitioner and the materials produced. Though I have repeatedly perused Ext.P6, nothing is seen other than the statement regarding the seizure of the vehicle on two occasions and its WP(C) NO.17737 of 2004 :-4-: release as interim arrangement. In the order, no reference was made to the contentions raised by the petitioner and how it was dealt with. There is no reference to the materials and evidence produced by the petitioner in support of his objection. If actually the petitioner has not produced any evidence or materials, there should be an observation even to that effect. Therefore, it cannot be said that Ext.P6 is a speaking order. This Court in paragraph 55 of the decision reported in Subramanian v. State of Kerala (2009(1) KLT 77) had held as follows:- “55. R.27(3) enables a vehicle to be returned to the person, if the owner of the vehicle or possessor remits an amount equal to the price fixed by the District Collector. The determination of the price of the vehicle is contemplated under R.28(1) of the Rules. But, this, the District Collector does after considering the objections filed within 7 days of the seizure of the vehicle under R.27. In other words, an objection by the owner or possessor of the vehicle with regard to the seizure as such or with regard to the infraction of the procedure under R.27(2) is to be considered by the District Collector,who is obliged to do so, exercising a quasi judicial power. The question of sale of the vehicle, which is what a confiscation contemplates is resorted to only when there is a default in payment of the amount in spite of an WP(C) NO.17737 of 2004 :-5-: opportunity granted under R.27(3) of the Rules. It is in the above background, that I have considered the orders impugned in these Writ Petitions and I am satisfied that these orders are not the products of a quasi judicial exercise of power by an officer of the rank of a District Collector.” From the above, it is mandatory on the part of the respondent being the authority exercising powers under Rule 27(3) of the Rules to pass a speaking order referring to the objection raised by the parties and also referring to the materials on record. Therefore, Ext.P6 cannot be approved as legally or factually valid and sustainable. Hence, Ext.P6 is set aside and the matter is remanded back to the respondent for fresh consideration after giving an effective opportunity of being heard to the petitioner and with liberty to adduce evidence or materials, if so required. The respondent is directed to dispose of the matter as early as possible, at any rate within three months from the date of receipt of a copy of this judgment, which will be produced by the petitioner within one month from today. 6. Learned Government Pleader, on the strength of the direction contained in the decision cited above, submits that a direction may be given to the petitioner not to use the vehicle for WP(C) NO.17737 of 2004 :-6-: transporting sand. As the time fixed for concluding the enquiry is three months, I am not inclined to impose such condition. But, it is made clear that the authorities concerned are free to seize the vehicle if the same is misused for transporting sand without proper authority or involved in any similar case. The writ petition is disposed of as above. V.K.Mohanan, Judge MBS/ WP(C) NO.17737 of 2004 :-7-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -6-2009 WP(C) NO.17737 of 2004 :-8-: