IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(C).No. 15372 of 2009(N) ----------------------------------------- PETITIONER(S): ------------------------ JALEEL.V.S, AGED 45 YEARS, S/O. SHOUKATHALI, VALIYAKATH HOUSE, VALAPPAD.P.O, THRISSUR (R.C OWNER OF KL-46-A-3759) BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): --------------------------- 1. DISTRICT COLLECTOR, COLECTORATE, THRISSUR. 2. SUB INSPECTOR OF POLICE, VALAPPAD POLICE STATION, VALAPPAD, THRISSUR DISTRICT. R1 & R2 BY MR.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL BY GOVERNMENT PLEADER MR. K.V. SOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2009 ALONG WITH WPC.NO.15406 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15372/2009 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RC BOOK OF THE VEHICLE KL-46-A-3759 DTD. 4/12/07. P2: COPY OF THE FINAL ORDER PASSED BY THE DISTRICT COLLECTOR IN ORDER NO.B3.18921/09 DTD. 20/05/2009. RESPONDENT'S ANNEXURES: ANNEXURE 1: COPY OF THE PROCEEDINGS DTD. 20/01/2008 OF THE DISTRICT COLLECTOR, THRISSUR. ANNEXURE 2: COPY OF THE LETTER OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR ALONG WITH THE LIST OF PROPERTY DTD. 30/03/2009. ANNEXURE 3: COPY OF THE JUDGMENT IN WPC.12965/09. ANNEXURE 4: COPY OF THE STATEMENT FILED BY THE PETITIONER ON 20/05/2009. ANNEXURE 5: COPY OF THE APPLICATION FILED BY THE PETITIONER DTD. 18/03/2009. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI,J. ------------------------- W.P ( C) Nos.15372 & 15406 of 2009 -------------------------- Dated this the 9th July,2009 J U D G M E N T Almost similar contentions are raised for consideration in these writ petitions, therefore they have been heard together and are disposed of by a common judgment. I will refer to the facts in WPC No.15372 of 2009, in the first instance. 2. Petitioner is the registered owner of a Tipper Lorry bearing Reg.No.KL-46-A-3759. On 17.3.2009 the 2nd respondent seized the petitioner's vehicle on the allegation that it was engaged in unauthorised transportation of river sand. The vehicle was thereafter produced before the District Collector who initiated proceedings under Section Section 23 of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002. It seems that the vehicle was not accompanied by a pass and it further seems that the petitioners were not able to produce any materials to W.P ( C) Nos.15372 & 15406 of 2009 2 show that the transportation of river sand was supported by a pass. In the result, Exhibit-P2 order was passed holding that the vehicle was engaged in unauthorised transportation of river sand. The District Collector therefore required the petitioner to remit an amount of Rs.5.95 lakhs plus Rs.50,000/- towards fine. This has been challenged in the writ petiton. 3. Almost a similar method of evaluation has been adopted in the other writ petition as well. 4. A statement has been filed on behalf of the respondents supporting the impugned order. 5. Heard learned counsel for the petitioner and learned Government Pleader. The finding by the District Collector that the vehicles in question were engaged in unauthorised and illicit transportation of river sand hardly warrants an interference as it is not the case of the petitioners also that the transportation of sand was accompanied by a pass. In fact, the major portion of arguments have been centred around what is described as an exorbitant value assessed by the District Collector for W.P ( C) Nos.15372 & 15406 of 2009 3 the vehicles, which according to the petitioners, will result in the forfeiture of the vehicles. Neither the Act nor the Rules cannot any guidelines as such for the fixation of the value of vehicles, to guide the District collector in determining the amount to be deposited towards the River Management Fund, on completion of the proceedings under Section 23 of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002 r/w Rules 27 and 28 of Kerala Protection of River Banks and Regulation of Removal of Sand Rules 2002. In fact, Rule 27 of the Rules merely says that the vehicle may be returned to the owner if he remits an amount towards River Management Fund equal to the price fixed by the District Collector. As to what are the para meters which should govern the fixation of the price, the Act and Rules are silent as such. 6. This Court has in Subramanian Vs. State of Kerala [2009 (1) KLT 77) held that the power exercised by the District Collector under Section 23 of the Kerala Protection of River Banks (Protection and Regulation of W.P ( C) Nos.15372 & 15406 of 2009 4 removal of sand) Act is quasi judicial in character. Therefore, relevant factors will have to be taken into account while fixing the price of the vehicle in terms of 27 (3) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules 2002. The question as to whether the offence in question is a first offence or whether it is a repetition and whether the owner of the vehicle has co- operated with the enquiry are relevant factors. Further, there would be nothing arbitrary or unjustified in higher amount being determined as the value of the vehicle, for the purpose of redemption under Rule 27 (3) of the Rules, if the same vehicle is found to have been involved in an infraction of the provisions of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002 on more than one occasion. It would also be appropriate if the District Collector calls for materials to determine the value of the vehicle, from an expert agency. Value, if any, given by the owner of the vehicle with the Insurance Company and the extent of the coverage by the Insurance Company could also be a safe indicator. A W.P ( C) Nos.15372 & 15406 of 2009 5 depreciation of 30% from the current market value of the vehicle may not always be a safe indicator. In the circumstances, while upholding the orders impugned, to the extent to which the District Collector has found that the vehicles have been engaged in illicit transportation of sand, I am of the view that the fixation of the value of the vehicle for the purpose of redemption under Rule 27(3) of the Rules requires a re-consideration. The orders impugned are therefore set aside to a limited extent. The District Collector is directed to pass a fresh order in the matter of fixation of the value of the vehicles, and the amount that will have to be remitted by the petitioners towards the River Management Fund for securing release of the vehicles. In passing fresh orders, the District Collector shall call for a report from the Secretary, R.T.A, or from a Motor Vehicle Inspector, as the case may be, who shall fix the same after notice to the petitioner as well. The District Collector shall hear the petitioner before final orders are passed in this regard. Such orders shall be passed within three months from the date of receipt of a copy of this W.P ( C) Nos.15372 & 15406 of 2009 6 judgment. 7. In the meanwhile, since the vehicles have been lying with the custody of the police for a fairly long time and taking into account the fact that there was an earlier direction to release the vehicle on interim custody, I am of the view that the vehicles in question be released to the respective registered owners of the vehicles subject to the following conditions. i. Petitioners shall remit an amount of Rs.2 lakhs for each of the vehicle with the District Collector within three weeks from today. ii. They shall not use the vehicles for transportation of river sand or any other minor mineral pending final orders to be passed by the District Collector. iii. They shall produce the vehicles as and when required by the District Collector or by the Motor Vehicle Inspector or the Joint Regional Transport Officer, as the case may be for an assessment of the value of the vehicles. iv. The vehicles in question shall not be alienated or otherwise encumbered pending final orders passed by the W.P ( C) Nos.15372 & 15406 of 2009 7 District Collector. v. It is made clear that the District Collector lacks jurisdiction to impose any fine as has been held in Sanjayan Vs.Tahasildar [2007 (4) KLT 597). Vehicles shall be released on interim custody on deposit of the amount as aforementioned and on final orders to be passed by the District Collector, if the value of the vehicle is fixed above Rs.2 lakhs, petitioner shall be given an opportunity to pay the difference. Writ petitions are disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) Nos.15372 & 15406 of 2009 8 W.P ( C) Nos.15372 & 15406 of 2009 9