IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 19888 of 2009(E) ------------------------------------ PETITIONER(S): ------------------- KUNDINI MUHAMMED HAJI,S/O. KUNHIKOYA HAJI, KUNDINI HOUSE, VENGALOOR P.O., B.P.ANGADI, TIRUR, MALAPPURAM DISTRICT. BY ADV. MR.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE DEPUTY THAHSILDAR, TIRUR, MALAPPURAM DISTRICT. BY GOVT. PLEADER MR.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19888/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PASS ISSUED BY SECRETARY THRIPRANGODE GRAMA PANCHAYATH DTD. 27.4.09. P2:- COPY OF THE SEIZURE MAHAZAR DTD. 27.4.09 PREPARED BY THE 2ND RESPONDENT. P3:- COPY OF THE LETTER GIVEN BY THE WATCHMAN OF THE KADAVU TO THE SECRETARY TRIPRANGODE GRAMA PANCHAYATH DTD. 28.4.09. P4:- COPY OF THE EXPLANATION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DTD. 23.5.09. P5:- COPY OF THE ORDER OF THE IST RESPONDENT DTD. 5.6.09. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19888 of 2009-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2010. JUDGMENT This writ petition is one challenging Ext.P5 order passed by the District Collector under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 2. The case of the petitioner is that the petitioner's vehicle was hired by one Mani for the purpose of transportation of river sand for his construction work. A valid pass issued by the Secretary of Thriprangode Grama Panchayat which is produced as Ext.P1 herein. The date of issue of pass is 27.4.2009 and the time noted is 2.55 p.m. On 27.4.2009 from the colony kadavu of the said Panchayat the vehicle of the petitioner was seized by the second respondent. According to the petitioner, at that point of time, the vehicle was trapped in the mud of the kadavu with full load of sand in it and it is only because of this reason, the vehicle could not be proceeded at the appointed time after loading the sand. Ext.P2 is the copy of the mahazar. It is further averred in the writ petition that the vehicle of the petitioner and the vehicle KL 3A 3569 and another vehicle KL 8Z 9485 were trapped in the mud and this was noticed by the Revenue officials also wpc19888 /2009 2 apart from the kadavu watchman. It is pointed out that none of the aspects have been considered by the District Collector while directing confiscation of the vehicle. The petitioner also relying upon the judgment of a learned Single Judge of this Court in W.P.(C) No.19112/2009 relating to confiscation of the vehicle KL-10-S 6250 which was also seized on the same day. This Court allowed the said writ petition after noticing various aspects. 3. Heard learned Govt. Pleader appearing for the respondents. As directed by this Court, the records have also been produced for perusal by the learned Govt. Pleader. 4. A reading of Ext.P5 shows that the District Collector was of the view that the squad of the Tahsidlar examined the vehicle at 4.20 p.m. and the time up to which the sand had to be collected was 3 p.m. Therefore, it was found that the vehicle with the load of sand remained till 4.20 p.m. and hence the transportation was not legal and that under the guise of the pass, they were trying to transport river sand illegally. Accordingly, a conclusion was arrived at that the vehicle is liable to be confiscated. 5. The petitioner has produced Ext.P1 pass. It shows that the time was 2.55 p.m. The seizure is effected at 4.20 p.m. What is recorded in the mahazar is also that the time for collection of sand was over by 3 p.m. wpc19888 /2009 3 Therefore, it is contended that as the vehicle was remained with the load of sand till 4.20 p.m., there is no illegality. 6. There is no direct evidence that the petitioner has illegally collected sand and attempted to transport it. The respondents have drawn a presumption that since the vehicle remained in the kadavu till 4.20 p.m. and as the time was over by 3 p.m., the transportation of sand is illegal. 7. Identical circumstances were considered by this Court in W.P.(C) No.19112/2009. Therein also, the incident occurred on the same day and the pass issued is also having the identical time, i.e. 2.55 p.m. While considering the issue, it was held in para 3 thus: “Section 12(2) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 states that no sand removal operation shall be carried out in a Kadavu before 6 a.m. and after 3 pm. the original of Ext.P1 pass issued to the petitioner states that the vehicle left the Kadavu at 2.55 p.m. As per law, no sand removal operation could have been carried out from the Kadavu in question that is after 3 p.m., another five minutes thereafter. The District Collector has not established by any cogent material especially the registers maintained at the Kadavu that after 3 pm sand removal operation was carried out in the Kadavu. Therefore, the finding of the District Collector that after the sand covered by Ext.P1 pass was transported, another lorry load of sand was transported using the very same pass, cannot be sustained. the wpc19888 /2009 4 District Collector has not entered a finding that after 3 pm another lorry load of sand was removed from the Kadavu. He has in fact rested his findings on mere surmises and conjectures. To order confiscation, the District Collector should have had cogent materials which would establish that Ext.P1 pass was misused to transport another lorry load of sand. Apart from the ipse dixit of the District Collector, there is no cogent material on which it can be found that s Ext.P1 pass was thus misused. The petitioner has explained the presence of her lorry at Beeranchira in Exts.P3 and P4 representations which were filed on 29.4.2009 and 5.5.2009. She had stated that the driver halted the vehicle near a hotel to take food and that as it was the last trip he transported the sand, leisurely. In my opinion in the absence of any cogent material to conclusively establish that the sand removal operation was carried out from the Kadavu in question after 3 pm, the conclusions arrived at by the District Collector cannot be sustained.” 8. The same reasoning will apply to the facts of this case also. There is no material herein also to show that after 3 pm alone, the sand was collected and was attempted to be removed. A presumption as now drawn can be made only on proved facts. There is no case that after the transportation of sand covered by the pass in question, another load was collected for illicit transportation. There is no finding regarding the said aspect, adverse to the petitioner. As held by this Court in the above wpc19888 /2009 5 judgment, there is no finding that the pass was misused also. 8. As the situation herein is identical, I am of the view that the seizure effected and the confiscation cannot be supported in law. Ext.P3 is the report said to have been submitted by the Kadavu watchman of the Panchayat, wherein it is mentioned that the two vehicles, viz. KL 55A 6501 and KL 8Z 9485 were trapped in mud in the Kadavu with load of sand. All these point out that the fact that the conclusion arrived at by the District Collector is only on surmises and conjectures and not on the basis of any positive evidence. Merely because the vehicle was remaining at 4.20 p,.m., it cannot be said that there is illegal transportation of river sand, in the absence of any other evidence in the matter and there had been a misuse of the pass also. 9. Therefore, the writ petition is allowed. Ext.P5 is quashed. There will be a direction to the respondents to release the vehicle described in Ext.P5 to the petitioner, forthwith on production of a certified copy of this judgment before the District Collector, Malappuram. No costs. (T.R. Ramachandran Nair, Judge.) kav/