IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 12931 of 2009(J) -------------------------------------- PETITIONER(S): -------------------- ABDUL RAZAK, ERKKOTTUMMAL HOUSE, MAVOOR P.O., MAVOOR VILLAGE, KOZHIKODE. BY ADV. MR.R.SUDHISH SMT.M.MANJU RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT. 2. THE ASSISTANT DISTRICT COLLECTOR, KOZHIKODE. 3. THE ADDL. TAHSILDAR, KOZHIKODE. R1 TO R3 BY GOVERNMENT PLEADER MR.DILEEP MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12931/2009-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AGREEMENT OF PETITIONER'S VEHICLE. EXT.P2: COPY OF THE PASS ISSUED BY THE MAVOOR GRAMA PANCHAYATH. EXT.P3: COPY OF THE BILL ISSUED BY THE WORKSHOP. EXT.P4: COPY OF THE BILL ISSUED BY THE AUTOMOBILE SHOP. EXT.P5: COPY OF THE BILL ISSUED BY THE WORKSHOP. EXT.P6: COPY OF THE ORDER DATED 22/01/2009 PASSED BY THE 1ST RESPONDENT. EXT.P7: COPY OF THE JUDGMENT DATED 25/02/2009 IN WRIT PETITION NO.5401/2009 OF THIS HONOURABLE COURT. EXT.P8: COPY OF THE ORDER DATED 15/04/2009 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC,J. --------------------- W.P.(C).No.12931 OF 2009 ------------------------ Dated this the 18th day of September, 2009. JUDGMENT Challenge in this writ petition is against Ext.P8, an order passed by the District Collector exercising the powers under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, directing that the vehicle bearing registration No.KL-11/X.8205 be released to the petitioner on remittance of Rs.1,50,000/- towards its value and Rs.25,000/- being fine. 2. Facts of the case are that, on 12.11.2008, at 6.30 a.m, the aforesaid vehicle loaded with river sand was seized by the revenue authorities. According to the petitioner, he acquired ownership of the vehicle as per Ext.P1 agreement dated 4.6.2008. It is stated that the river sand was loaded in the vehicle on 11.11.2008 on the strength of Ext.P2 pass issued on 11.11.2008, permitting transportation of river sand on that day. It is stated that, WP(c).No.12931/09 2 due mechanical defect the vehicle could not reach the destination and that after carrying out mechanical repairs, the driver was taking the load to the place of delivery and that while so it was seized by the revenue officials. 3. Initially by Ext.P6 order passed by the District Collector, the vehicle was ordered to be released on remittance of Rs.25,000/- as fine and Rs.3,00,000/- towards its value. That order was challenged before this court in WP(c). No.5401/09. The writ petition was disposed of as per Ext.P7 judgment, invalidating Ext.P6 on the ground that the enquiry which preceded Ext.P6 was conducted by the Assistant Collector and not the District Collector, the designated authority. Accordingly, the matter was reconsidered and the petitioner appeared before the District Collector on 8.4.2009. It is stated in Ext.P8 order that the petitioner did not have anything more to submit. The matter was considered and taking into account the fact that on 12.11.2008 when the river sand was seized, the transportation was without any permit or WP(c).No.12931/09 3 other record, the District Collector ordered confiscation and release of the sand on the petitioner remitting Rs.1,50,000 towards the value of the vehicle and Rs.25,000/- towards its fine. It is challenging this order the writ petition is filed. 4. Although it is a fact that on 12.11.2008 there was no pass justifying transportation on that day, even going by the objection filed by the petitioner before the Collector on 12.11.2008, the delay was on account of mechanical defect and he also pleaded that it was an inadvertent mistake of the driver. In this writ petition, to support the story of mechanical defect and repair, petitioner has produced Exts.P3 to P5 receipts and the petitioner submits that these were also produced before the District Collector and that Ext.P8 does not even make reference to those documents. 5. True there is a finding in Ext.P8 that the vehicle was involved in similar offence earlier on two earlier occasions which according to the Government Pleader was on 20.10.2006 and 15.2.2008. However the case of the petitioner WP(c).No.12931/09 4 is that, he acquired title over the vehicle only as per Ext.P1 agreement executed on 4.6.2008. If it was a bona fide transfer the fact that the previous owner has committed offence employing this vehicle could not have been relied on to the prejudice of the petitioner. In any case, the fact that the alleged transfer on the basis of Ext.P1 subsequent to the aforesaid defects is also not seen adverted to by the District Collector. 6. On an over all consideration I feel that the matter needs res-examination. Therefore, I set aside Ext.P8 and direct that the matter shall be reconsidered by the District Collector. Accordingly, I dispose of the writ petition with the following directions. 7. The first respondent shall reconsider the proceedings against the vehicle referred to above with notice to the petitioner as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of the judgment. It is directed that in the meanwhile if the petitioner remits WP(c).No.12931/09 5 Rs.50,000/- with the District Collector, with an endorsement on the RC that proceedings are pending, the vehicle will be released on the petitioner furnishing a undertaking that he will not alienate or encumber the vehicle until the matter is finalized. Petitioner shall produce a copy of the judgment before the first respondent for compliance. (ANTONY DOMINIC) JUDGE vi/