IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 20211 of 2009(V) -------------------------- PETITIONER: ------------------ MANI E.,S/O. VELAYUDHAN, VATTAMKALATHIL HOUSE, NADUVATTOM P.O., KUTTIPPURAM, MALAPPURAM DIST. BY ADV. SRI.S.SREEKUMAR SRI.S.VAIDYANATHAN SRI.P.MARTIN JOSE RESPONDENTS: --------------------- 1. STATE OF KERALA REP. BY ITS ADDITIONAL CHIEF SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, TRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2009, ALONG WITH WPC NO. 20212 OF 2009 WPC NO. 20218 OF 2009 WPC NO. 20213 OF 2009 WPC NO. 20214 OF 2009 WPC NO. 20215 OF 2009 WPC NO. 20216 OF 2009 WPC NO. 20217 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20211 of 2009(V) APPENDIX PETTIONER'S EXHIBITS: P1 : COPY OF REGISTRATION CERTIFICATE NO.KL.10.C-5590 P2 : COPY OF ORDER DATED 10.7.2009. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- V.GIRI,J. ---------------------- W.P ( C) Nos.20211, 20212, 20213, 20214, 20215, 20216, 20217 & 20218 of 2009 ---------------------------------------------------------- Dated this the 27th 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 disposed of by this common judgment. Orders passed under the Protection of River Banks & Regulation of Removal of Sand Act, 2001 by the District Collector have been challenged in these writ petitions. 2. Learned counsel for the petitioners had prayed for interim orders at the time of moving the writ petitions for admission. I had called for the files leading to the impugned order. Thereafter all the petitions have been taken up for for hearing and I have heard counsel. I will refer to the facts in WP(C) No.20211 of 2009 in the first instance. 3. The petitioner is a registered owner of 1994 model mini lorry bearing Registration No.KL.10.C-5590. W.P ( C) Nos.20211, 20212, 20213, 20214, 20215, 20216, 20217 & 20218 of 2009 2 According to the petitioner, he purchased the vehicle for a sum of Rs.1,10,000/- (Rupees one lakh ten thousand only). On 9.6.2009, the vehicle was hired by Santhi Madom builders for transporting building materials from its yard to the work site at Guruvayoor. While sand was being transported from Kallumpuram to Guruvayoor, the vehicle was intercepted by the Sub Inspector of Police, Kunnamkulam. No mahazar was prepared. At any rate, copy of the mahazar was not served on the petitioner. The files were placed before the District Collector who proceeded to pass Ext.P2 order wherein it is found that river sand was being transported without the requisite pass, in contravention of the provisions of the Act and consequently the owner of the vehicle is liable to remit an amount of Rs.2,75,000/- towards the value of the vehicle. This has been challenged in the writ petition. Similar orders are challenged in the other writ petitions. W.P ( C) Nos.20211, 20212, 20213, 20214, 20215, 20216, 20217 & 20218 of 2009 3 4. I have heard Mr.S.Sreekumar learned counsel for the petitioners and the learned Government Pleader Sri.P.N.Santhosh. Mr.Sreekumar submits that a copy of the seizure mahazar was not served on the petitioners. Nor was any proper enquiry conducted into the question as to whether sand taken by the petitioners and being transported is river sand. It was only a building material transported from one site to another work site. He further contends that the value of the vehicle was fixed without any basis. He also submits that transportation of minor minerals other than river sand will not involve contravention of the provisions of the Act and Rules. 5. Learned Government Pleader submits that section 23 of the Kerala Protection of River banks and Regulation of Removal of Sand Act provides for penalty for contravention of the Act. Section 12 deals with the general conditions for sand removal from a kadavu. Section 23 states that transportation of sand without complying with W.P ( C) Nos.20211, 20212, 20213, 20214, 20215, 20216, 20217 & 20218 of 2009 4 the provisions of the Act is illegal and section 28 states that the Act overrides other laws. Section 26 empowers the Government to make rules to carry out all or any of the provisions of the Act. Rule 29 deals with additional provisions regulating sand mining activities. A pass is required for removal of sand and transportation also. In the instant case, vehicle was not accompanied by a pass and it was river sand and a contravention of the provisions of the Act and the Rules have been made out. 6. Apart from hearing the counsel, I have also perused files. The petitions submitted by the petitioners for release of the vehicle does not contain a contention that the sand which was seized at the time of seizure of the vehicle was not river sand. The contention is that it was only a building material which is being transported from one site to another work site. The seizure mahazar proceeds on the premises that they were seized from river bank. The petitioner does not specifically say that what was seized W.P ( C) Nos.20211, 20212, 20213, 20214, 20215, 20216, 20217 & 20218 of 2009 5 was not river sand, though it is contended the transportation of sand was from one work site to another. If that be the contention, then the owner of the vehicle should show that what was being transported was a minor mineral in a legitimate manner. 7. I would have therefore affirmed the order passed by the District Collector. But learned counsel for the petitioner, Mr.Sreekumar submits that a copy of a seizure mahazar was not served on the petitioner. I do not find any material to show that a copy of such mahazar was actually served. In these circumstances the matter requires reconsideration by the District Collector. 8. There is yet another reason why I think reconsideration is necessary. The value of the vehicle, according to the petitioners have been fixed, without notice to the petitioners. Though there is a report by the Assistant Motor Vehicle Inspector on 29.6.2009, the valuation does not appear to have been done with notice to the petitioners. W.P ( C) Nos.20211, 20212, 20213, 20214, 20215, 20216, 20217 & 20218 of 2009 6 9. For all these reasons, I am of the view that the matter requires reconsideration. Accordingly, the orders of confiscation in each of these cases shall stand set aside. A copy of the seizure mahazar relating to the seizure of each one of vehicles would be supplied to the petitioners on request. Petitioners shall be given an opportunity to prove the nature of the transport and after considering the relevant materials, a fresh order shall be passed within 3 weeks from the date of receipt of a copy of this judgment. Writ petitions are disposed of accordingly. (V.GIRI,JUDGE) app/-