IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 18111 of 2010(L) -------------------------------------- PETITIONER(S): ---------------------- VIJAYAN, S/O.KOCHAN, AGED 41, MALLAMKULAM HOUSE, MATHOOR P.O., PALAKKAD DISTRICT. BY ADV. SRI.SOJAN MICHEAL RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, PALAKKAD. 3. THE CIRCLE INSPECTOR OF POLICE, ALATHUR POLICE STATION, ALATHUR. 4. THE SUB INSPECTOR OF POLICE, KOTTAYI POLICE STATION, KOTTAYI, PALAKKAD. R1 TO R4 BY GOVT. PLEADER SMT.RANI DIOTHIMA.P THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV WPC.NO.18111/2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE CERTIFICATE OF REGISTRATION OF TIPPER LORRY BERING REGN.NO.KL 11 T/6218. EXT.P2 : COPY OF THE CERTIFICATE ISSUED BY THE SUB INSPECTOR OF POLICE, KOTTAYI POLICE STATION. EXT.P3 : COPY OF THE REPRESENTATION DATED 12.03.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4 : COPY OF THE JUDGMENT DATED 07.04.2010 IN W.P(C) NO.12027/2010 OF THIS HON'BLE COURT. EXT.P5 : COPY OF THE ORDER NO.LRG.3-2009/9821/9 DATED 24.05.2010 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 18111 of 2010 --------------------------------- Dated this the 19th day of November, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P5 order issued by the 2nd respondent in exercise of power conferred under section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001 and also seeking direction for release of his lorry bearing Registration No.KL-11/T 6218. The 3rd respondent had seized the lorry in question on 21.9.2009 on the allegation of illegal transportation of sand and reported the matter to the 2nd respondent. Petitioner preferred Ext.P3 before the 2nd respondent on 12.3.2010 requesting release of the vehicle. Since such request was not considered, he had approached this court in WP(C).No.12027/2010. In Ext.P4 judgment this court directed the 2nd respondent to consider the request and to pass final orders, within a period of one month, with notice to the petitioner. Ext.P5 is the order passed by the 2nd respondent in compliance of the directions contained in Ext.P4 judgment. Finding that there was no valid pass for transportation WPC.18111/2010 2 of sand when the vehicle was seized and also finding that the vehicle in question was seized on three earlier occasions for the very same offence, the 2nd respondent imposed condition for payment of Rs.1,50,000/- as compounding fee, as per section 23 of the Act. 2. Contention of the petitioner is that, at the time when the vehicle in question was seized by the 3rd respondent it was not carrying any sand and the mahazar was not prepared stating the name of the real person who was driving the vehicle during the relevant time. It is also contended that no certificate of seizure was issued to the petitioner or to the driver by the 3rd respondent and the report was submitted to the 2nd respondent containing false statement. It is also pointed out that no criminal case has been registered on the basis of the alleged seizure of the vehicle. Petitioner also contended that there was inordinate delay in passing the order, which had caused serious prejudices. Further contention is to the effect that even assuming such alleged transport of sand was detected, the same was not with knowledge or consent of the petitioner and therefore the WPC.18111/2010 3 petitioner could not be penalised for no fault of his. 3. In the counter affidavit filed on behalf of the 2nd respondent it is stated that, as per the directions contained in Ext.P4 judgment a personal hearing was afforded to the petitioner and he contended that at the time of seizure the vehicle was not carrying sand. But as per the records prepared at the time of the seizure, the driver of the vehicle was one Sri.Ganesh Kumar and he had given statement admitting the offence. More over the vehicle was seized while transporting river sand without any valid documents. It is also stated that the vehicle in question was seized earlier on three occasions for the same offences. 4. I am of the considered opinion that the disputed factual aspects which are in controversy cannot be resolved in this proceedings, which is instituted under Article 226 of the Constitution of India. I take note of the amendments brought into section 23 of the Act, which provides power of confiscation on the Sub Divisional Magistrate as per Section 23A. There is further power of revision conferred on the District Collector as per WPC.18111/2010 4 section 23B. Section 23C provides appeal to the District Court from any order passed by the District Collector under section 23B. Therefore, while declining to interfere in the order impugned, I am of the view that interest of justice will be served if the petitioner is permitted to seek remedy of appeal provided under section 23C as if Ext.P4 is an order passed by the District Collector in exercise of the power conferred under section 23B. 5. In the result the writ petition is dismissed. It is made clear that the petitioner will be free to invoke appellate remedy as provided under section 23C of the Act, treating Ext.P5 as a revisional order issued by the District Collector under section 23B of the Act. C.K.ABDUL REHIM,JUDGE pmn/ WPC.18111/2010 5 WPC.18111/2010 6