IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 34898 of 2008(D) -------------------------- PETITIONER: --------------- MUHAMMED ASHRAF, S/O.MOHAMMED, AGED 32 YEARS, KAVUPPADATH HOUSE, P.O.NARIPPARAMBU, VIA.THAVANOOR, MALAPPURAM DISTRICT, (R C OWNER OF KL 10 Q 1620). BY ADV. SRI.SHOBY K.FRANCIS RESPONDENTS: ------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM. 2. SUB INSPECTOR POLICE, VALANCHERI POLICE STATION, MALAPPURAM DISTRICT. BY GOVT. PLEADER SRI.P.N SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/200 ALONG WITH WPC NOS.34898/2008 AND 35231/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) Nos.34898, 34899 and 35231 of 2008 -------------------------- Dated this the 28th November, 2008 J U D G M E N T Common issues arise for consideration in these writ petitions which have been heard together and therefore they are being disposed of by a common judgment. 2. Vehicles have been taken into custody by the Police Officer for the alleged contraventions of the provisions of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002. 3. I heard learned counsel for the petitioner and learned Government Pleader. 4. Para meters within which the power under Section 23 of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002 and 27 (3) of the Rules has to be exercised have been considered in a detailed judgment passed by this Court in a batch of writ petitions. Elaborate directions have also been issued to the District Collector for future guidance W.P ( C) Nos.34898, 34899 and 35231 of 2008 2 both in the matter of passing final orders under Section 23 of the Act and passing orders on application for release of the vehicle on interim custody. It will be appropriate that said directions are incorporated hereunder. The said directions read as follows: 5. 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 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 W.P ( C) Nos.34898, 34899 and 35231 of 2008 3 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. 6. 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 obviously be ancillary to the substantive power exercised under W.P ( C) Nos.34898, 34899 and 35231 of 2008 4 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, pending final adjudication by the District Collector. (4) A condition that the vehicle would be liable for immediate seizure and further W.P ( C) Nos.34898, 34899 and 35231 of 2008 5 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. 7. 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. 8. The power exercised by a District Collector under Section 23 of the Act r/w Rules 27 and 28 is a quasi judicial act. This therefore means obligation of the District Collector to consider the objections filed by the owner of the vehicles and pass a reasoned order, which are vulnerable to judicial review at the hands of the District Collector. W.P ( C) Nos.34898, 34899 and 35231 of 2008 6 9. The orders which are impugned in these cases do not satisfy such para meters. There is narration of facts followed by conclusion the vehicle is liable for confiscation. This would not suffice. 10. In these circumstances, the orders impugned in these writ petitions are set aside and the District Collector is directed to pass fresh order after considering the objections raised by the petitioners against seizure of the vehicles and also seeking release of the same on the ground that transportation in the vehicles were not in contravention of the provisions of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002 and the Rules framed thereunder.Final orders in thisregard shall be passed within three months from the date of receipt of a copy of this judgment. 11. In the meanwhile, if petitioners apply for release of the vehicles on interim custody and orders shall be passed thereon taking note of the directions already issued in the judgment in WPC No.15847/2008 and connected W.P ( C) Nos.34898, 34899 and 35231 of 2008 7 cases which have been extracted above. Orders relating to interim custody shall be passed within two weeks from the date of receipt of such applications are filed in this regard. Writ petitions are disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) Nos.34898, 34899 and 35231 of 2008 8 W.P ( C) Nos.34898, 34899 and 35231 of 2008 9