IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 19112 of 2009(H) -------------------------- PETITIONER(S): --------------- THARAKSHI, W/O.SUBRAMANYAN, KANNATHUPARAMBU HOUSE, THRIPRANGOD P.O., MALAPPURAM DISTRICT. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, MALAPPURAM. 3. THE TAHSILDAR, TIRUR. (THE ADDRESS OF THE 3RD RESONDENT IS CORRECTED AS PER ORDER DATED 11/08/2009 IN I.A.No.9855/2009] GOVERNMENT PLEADER SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC NO.19112 OF 2009 PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF THE PASS ISSUED BY THE THRIPANODE GRAMA PANCHAYAT FOR THE REMOVAL RIVER SAND. EXT.P2:- TRUE COPY OF THE SEIZURE PREPARED BY THE 3RD RESPONDENT ON 27/4/2009. EXT.P3:- TRUE COPY OF THE PETITION FILED BY THE PETITIONER'S BROTHER BEFORE THE 2ND RESPONDENT. EXT.P4:- TRUE COPY OF THE PETITION FILED BY THE PETITIONER'S DRIVER EXT.P5:- TRUE COPY OF THE ORDER DATED 05/06/2009 OF THE 2ND RESPONDENT. [ TRUE COPY ] PA TO JUDGE P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 19112 OF 2009 -------------------------- Dated this the 29th day of September, 2009 J U D G M E N T The petitioner is the registered owner of a goods vehicle bearing registration No.KL-10-S 6250. It was seized by the third respondent Tahsildar at about 4.15 pm on 27.4.2009 on the allegation that it was used to transport river sand without a valid pass. After seizure, the vehicle was produced before the District Collector, Malappuram. The petitioner thereupon moved the District Collector, Malappuram, by submitting Exts.P3 and P4 representations wherein she pointed out that as it was the last trip, the driver halted the vehicle near a hotel at Beeranchira and that while he was taking food, the vehicle was seized and produced before the District Collector Malappuram. She contended that the vehicle was not used to transport river sand without a valid pass. The District Collector considered the petitioner’s contentions and passed Ext.P5 order dated 5.6.2009 ordering confiscation of the said vehicle. He also ordered that in lieu of confiscation, it will be open to the petitioner to pay the sum of Rs.1,60,000/- fixed as the W.P.(C) No. 19112/09 2 value of the vehicle, to the river management fund. Ext.P5 is under challenge in this writ petition. 2. The petitioner challenges Ext.P5 on various grounds. She contends that no time limit has been fixed for transporting the load of sand carried in the vehicle and that on the pass issued to her vehicle, it is clearly stated that the vehicle left the kadavu at 2.55 pm. It is contended that the District Collector, Malappuram, has ordered confiscation on mere surmises and conjectures. As directed by this Court, the files leading to Ext.P5 were produced. The original of Ext.P1 pass is in the files. It bears the seal and signature of the Geologist and the Secretary of the local authority. From the pass it is evident that the vehicle left the kadavu at 2.55 pm on 27.4.2009. The District Collector, Malappuram, has in Ext.P5 ordered confiscation of the petitioner’s vehicle on a short ground that the vehicle was found at a place 200 metres away from the Kadavu and as it was still at that place, one hour and twenty minutes after the pass was issued, it is evident that the original of Ext.P1 pass was used to transport another lorry load of river sand. 3. Section 12(2) of the Kerala Protection of River Banks and W.P.(C) No. 19112/09 3 Regulation of Removal of Sand Act, 2001, states that no sand removal operation shall be carried out in a Kadavu before 6 am and after 3 pm. The original of Ext.P1 pass issued to the petitioner states that the vehicle left the Kadavu at 2.55 pm. As per law, no sand removal operation could have been carried out from the Kadavu in question that is after 3 pm, 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 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 W.P.(C) No. 19112/09 4 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. For the reasons stated above, I hold that Ext.P5 cannot be sustained. It is accordingly quashed. The vehicle described in Ext.P5 shall be released to the petitioner forthwith on the petitioner producing a certified copy of this judgment before the District Collector, Malappuram. P.N.RAVINDRAN, JUDGE vps W.P.(C) No. 19112/09 5