IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 11181 of 2004(F) ------------------------------------- PETITIONER: ----------------- VALSAMMA JOSEPH, AGED 50, W/O. JOSEPH, KARIMADAM HOUSE, KADUMENI. P.O. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY TO GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, KASARAGOD. 3. STATION HOUSE, NEELESWARAM POLICE STATION, KASARAGOD. BY SENIOR GOVERNMENT PLEADER SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).11181/2004-F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PASS ISSUED TO THE PETITIONER EXT.P2: COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT EXT.P3: COPY OF THE RECEIPT ISSUED BY THE ASSISTANT GEOLOGIST TO SRI.SHAJI JOSEPH DATED 12/03/2004. EXT.P4: COPY OF RECEIPT DATED 12/03/04. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // Rs/ K. BALAKRISHNAN NAIR, J. -------------------------------------- W.P.(C) No. 11181 OF 2004 ------------------------------------- Dated this the 4th day of July, 2008 J U D G M E N T ~~~~~~~~~~~ The petitioner has approached this Court challenging Ext.P2 order of the District Collector, Kasaragod, dated 26.3.2004 confiscating her vehicle KL-14/A-3373 and also imposing a fine of Rs.25,000/-. She has been given option to remit Rs.1,85,000/-, which is the value of the vehicle in lieu of confiscation. The allegation against the petitioner is that the vehicle was found transporting river sand on 12.3.2004 at 8 a.m. at Parappachal. Since no valid document for transporting the river sand was available with the vehicle, it was seized and kept in Nileshwar Police Station. 2. The petitioner submitted a representation on 15.3.2004 to the District Collector requesting to release the vehicle. The Collector heard the petitioner in person on 20.3.2004. The District Collector found that the reasons for non production of pass at the time of seizure have not been explained satisfactorily. The petitioner claims that the pass was W.P.(C) No.11181/2004 2 in her house, when the lorry was checked by the police. There is no evidence to support the said claim, it was held. The Collector also took the view that the petitioner has got the pass, after the vehicle was seized, colluding with the panchayat authorities. The Collector also noticed that the petitioner has produced a pass issued by the Pappinisseri Grama Panchayat which is in Kannur District. No permit issued by the District Collector, Kannur, has been produced for transporting the river sand to another district. Therefore, in exercise of power under Rule 28(1) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002, the said order was passed. 3. According to the petitioner, owing to unavoidable reasons, the pass could not be carried in the vehicle. It is also submitted that it is not stipulated in any of the rules that the pass should accompany the consignment of sand. 4. The learned counsel for the petitioner also submitted that the District Collector has no power or authority to impose a fine. The confiscation order should not have been passed as the W.P.(C) No.11181/2004 3 petitioner has produced Ext.P1 pass to show that the consignment was supported by a valid cash memorandum issued by the competent authority. Therefore, the petitioner prays for quashing Ext.P1. 5. The 2nd respondent has filed a counter affidavit supporting the impugned order. The contentions raised in the impugned order were reiterated in that counter affidavit. The said respondent prayed for dismissal of the writ petition. 6. The petitioner filed reply affidavit dealing with the averments in the counter affidavit. 7. Heard the learned counsel of both sides. The learned counsel for the petitioner relying on a decision of the learned single judge of this Court in Ahammed Kutty v. State of Kerala [2008(1)KLT 1068] submitted that rule 27 is not workable. It does not contain a fair procedure. It does not provide for any appeal also. W.P.(C) No.11181/2004 4 8. I think these contentions are irrelevant in this writ petition, wherein, what is under challenge is only Ext.P3. The petitioner does not seek a declaration that the rule is ultra vires and unenforceable. In the absence of a challenge against the rule, it is unnecessary for this Court to consider the above points. The contention of the petitioner that the pass need not accompany the vehicle carrying the consignment cannot be accepted. A pass or permit is issued to show the authority for the transport of the goods. So, it should always accompany the consignment. The petitioner mainly built up his case relying on Ext.P1. Going by Ext.P1, the original of which has handed over to me by the learned counsel for the petitioner for my perusal, I find that it is not countersigned by the Grama Panchayat, which is a mandatory requirement as per Rule 29 which was in force at the relevant time. So, the post facto claim of the petitioner that she was having a valid permit for transporting the consignment is untenable. 9. But, I find that the contention of the petitioner that the Collector has no power or authority to impose a fine, has to W.P.(C) No.11181/2004 5 be accepted, in view of the judgment of this Court, in W.A.No.1286/2002 and connected cases dated 17.6.2002. Sri.B.N.Srikrishna, C.J., as his lordship then was, speaking for the bench stated that the power of imposition of fine rests only with the Criminal court. Subsequently, the Act has not been amended empowering the District Collector to impose any fine. 9. But, the confiscation order by the District Collector has to be held as valid as the consignment of sand was transported without a valid permit. I have already found that the permit subsequently produced also does not satisfy the requirement of law. Accordingly, the order of confiscation with a direction to pay the value of the vehicle is upheld. But, the imposition of a fine of Rs.25,000/- as per Ext.P2 is set aside. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) ps