IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 36983 of 2008(C) ---------------------------------- PETITIONER : ---------------- C.N.KRISHNANKUTTY S/O.NARAYANANKUTTY, NALUPURAKAL CHOONDAPARAMBIL, CHERUKULAM P.O.,KOTTAYI, ALATHUR, PALAKKAD (OWNER OF THE VEHICLE BEARING REG.NO.KL 9 R 1468) BY ADV. SRI.P.VIJAYA BHANU SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS : -------------------- 1. THE SUB INSPECTOR OF POLICE KOTTAYI POLICE STATION, PALAKKAD. 2. THE DISTRICT COLLECTOR PALAKKAD DISTRICT. GOVERNMENT PLEADER SRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008 ALONG WITH WP(C) NO.37016 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : V.GIRI, J. ------------------------------ W.P.(C) Nos.36983, 37016, 37037 & 37053 OF 2008 ------------------------------ Dated this the 16th day of December, 2008 JUDGMENT The order impugned in these writ petitions is a common one. Therefore, I have taken up these writ petitions by consent of parties and the same are being disposed of by this common judgment. W.P.(C) No.36983 of 2008 2. I will refer to the facts in W.P.(C) No.36983 of 2008. Petitioner is the owner of a tractor bearing registration No. KL9 R 1468. It was seized on 07.03.2008 on the ground that it was found illegally transporting river sand, in violation of the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short “the Act”). The first respondent prepared a mahazar and forwarded it to the District Collector. The petitioner approached the Judicial First Class Magistrate's Court, Palakkad. The vehicle was released from the Magistrate's court. Thereafter the District Collector proceeded to pass Ext.P2 order, directing the petitioner to W.P.(C) 36983 of 2008 & connected cases 2 remit a sum of Rs.15,000/- as value of the vehicle and Rs.1,000/- as sand value. This is challenged in the writ petition. 3. It is contended that going by the seizure mahazar, the only allegation is violation of Section 12(6) of the Act, which reads as follows :- “ The vehicle for loading sand shall be parked at a distance of at least 25 meters from the River Bank and no vehicle shall be brought to the river bank for loading.” 4. It is contended that a violation of Section 12(6) of the Act would only lead to a prosecution before the concerned Magistrates' Court. It will not enable the District Collector to pass an order under Section 23 of the Act. I am unable to accept the submission. The word 'transportation' used in Section 23 of the Act cannot be confined to cases where the seizure of the vehicle is effected when they are mobile and not when they are stationary. What is contemplated by Section 23 is the actual user of the vehicle in contravention of the provision of the Act and obviously a vehicle like a tractor, would be used for transportation of sand and not for mere W.P.(C) 36983 of 2008 & connected cases 3 storage of the same. If a vehicle is found to be loaded with river sand and on enquiry there is material to show that the transportation is not with due authority, than the fact that it was stationary when the seizure was effected or that the seizure mahazar only referred to the provisions of Section 12(6) of the Act will not be decisive of the issue. It is up to the District Collector, the competent authority to exercise powers under Section 23 of the Act. 5. But I agree with the learned counsel for petitioners that the orders do not reveal a reference to any of these contentions or issues. The nature of the power exercisable by a District Collector under Section 23 of the Act has been dealt with in detail by this court in W.P.(C) No.15847 of 2008 and connected cases. Paragraphs 56 and 57 of the judgment read as follows : “ 56. In many cases, the orders are purely mechanical, referring only to the seizure of the vehicle and reporting to the District Collector. There is no consideration of the objections. No scientific or rational method has been adopted in fixing the price of the vehicle. It should also W.P.(C) 36983 of 2008 & connected cases 4 be remembered that a direction to the owner of the vehicle to remit an amount equal to the price of the lorry, does not mean that the amount to be so remitted is fixed irrespective of the question as to whether the offence detected is a first offence or whether a recurring one. It is here that the District Collector should remember that the power which is exercised under Section 23 of the Act read with Rules 27 and 28 is a substantive power that could result in a person forfeiting his property. 57. 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 W.P.(C) 36983 of 2008 & connected cases 5 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 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, W.P.(C) 36983 of 2008 & connected cases 6 applying his mind and acting as a quasi judicial authority. ” 6. Going by the principles laid down by the court in several judgments and in W.P.(C) No. 15847 of 2008 & connected cases, I am of the view that Ext.P2 does not satisfy those requirements, nor it does not seems to be a product of an exercise of an authority in a quasi judicial manner. For all these reasons, Ext.P2 in all the writ petitions are set aside. The District Collector is directed to pass fresh orders after hearing the petitioners or their authorized representative. The District Collector shall take note of the observations made and the directions issued by this court in W.P.(C) No.15847 of 2008. It is open to the petitioners to file a representation before the District Collector raising all these contentions. Fresh orders shall be passed within 3 months from the date of receipt of copy of the judgment. Writ petitions are disposed of as above. V.GIRI, JUDGE pac