IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 36968 of 2008(A) ----------------------------------- PETITIONER : ---------------- P.T.AHAMMEDKUTTY PALLIKKATHODI HOUSE, THANA, MAMPAD P.O. BY ADV. SRI.SUNNY MATHEW RESPONDENTS : ------------------- 1. THE TAHSILDAR, NILAMBUR. 2. THE DISTRICT COLLECTOR MALAPPURAM. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008 ALONG WITH WP(C) NO.36974 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------------ W.P.(C) Nos.36968, 36974, 36992, 36994, 36995, 37001, 37029, 37030, 37063 & 37064 OF 2008 ------------------------------ Dated this the 16th day of December, 2008 JUDGMENT The order challenged in all these writ petitions is common though it relates to different vehicles. In the circumstances they have been taken up together and are being disposed of. 2. I will discuss the facts involved in W.P.(C) No.36968 of 2008 in the first instance and the same will govern the dispute in the other writ petitions also. W.P.(C) No.36968 of 2008 3. Petitioner is the owner of a mini lorry bearing registration No. KRP 7891. The vehicle was seized as per Ext.P1 mahazar dated 13.03.2007 on the allegation that the same was used for transportation of sand, in contravention of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as “the Act”) W.P.(C) 36968 of 2008 & connected cases 2 4. The seizure was reported to the District Collector, who proceeded to pass an order imposing a penalty of Rs.50,000/-. This was challenged by the petitioners before this court and it led to Ext.P3 judgment. Thereafter the District Collector has proceeded to pass Ext.P4 order directing that the amount shown therein should be deposited towards River Management Fund under Rule 28(2) of the Rules with a further direction that non payment of the amount will result in sale of the vehicle in public auction. It is this order which has been challenged in the writ petition. 5. Learned counsel for petitioners contends that a perusal of the order would show that there has been no consideration of all relevant factors by the District Collector in the background of the parameters that have to be kept in mind by the competent authority exercising powers under Section 23 of the Act read with Rules 27 and 28 of the Rules. 6. On a perusal of the orders, I am not inclined to accept the stand taken by the learned counsel for petitioners. The order merely contains a direction for sale of the vehicle in public auction without reference to the earlier judgment W.P.(C) 36968 of 2008 & connected cases 3 passed by this court, following a direction to pay an amount towards the River Management Fund. No contentions are considered or even adverted to. There is no reference to Ext.P3 judgment also. 7. This court has considered the nature of power that a District Collector has to exercise under Section 23 of the Act and the Rules framed thereunder, in W.P.(C) No.15847 of 2008 and connected cases, it has been so held in paragraphs 56 and 57 of the judgment as follows : “ 56. In many cases, the orders are purely mechanical, referring only to the seizure of the vehicle and reporting to the District Collector. There is no consideration of the objections. No scientific or rational method has been adopted in fixing the price of the vehicle. It should also be remembered that a direction to the owner of the vehicle to remit an amount equal to the price of the lorry, does not mean that the amount to be so remitted is fixed irrespective of the question as to whether the offence W.P.(C) 36968 of 2008 & connected cases 4 detected is a first offence or whether a recurring one. It is here that the District Collector should remember that the power which is exercised under Section 23 of the Act read with Rules 27 and 28 is a substantive power that could result in a person forfeiting his property. 57. It is keeping in mind the impact of the power exercised by the District Collector that they should proceed to consider the objections and then pass the order in terms of Rules 27 and 28 of the Rules. I also take note of the submissions of the learned counsel for the petitioners that the Sand Act does not provide for an appeal against the order passed by the District Collector under Rule 27 or 28 of the Rules. Analogous provisions dealing with the infraction of the provisions under the Forest Act or the Abkari Act, which obviously have a similar kind of impact on the society, should be W.P.(C) 36968 of 2008 & connected cases 5 recalled. An order of confiscation passed under the Forest Act is vulnerable to an appeal before no less an authority than a District Judge and the same can be challenged in revision before this court under Section 115 of the Code of Civil Procedure. An order of confiscation under the Abkari Act is also vulnerable to an appeal and revision before the competent court. The absence of such a provision in the Sand Act obviously is no indication that the provision relating to confiscation under the Sand Act can be exercised in a casual manner. In fact, it should impress the authority, who is conferred with the power, that he is required to do so, applying his mind and acting as a quasi judicial authority. ” 8. It has also been held in the said judgment that in circumstances where the power under Section 23 is a substantial power, the District Collector will also have the W.P.(C) 36968 of 2008 & connected cases 6 power to direct release of the vehicle by way of interim custody. 9. Going by the manner in which the power will have to be exercised by the District Collector, as held in the aforementioned judgment, I am of the view that Ext.P4 does not satisfy the requirements. 10. In the result, Ext.P4 order, in all these writ petitions, are set aside. The District Collector has to pass a fresh order after hearing the petitioners or their authorized representative within 3 months from the date of receipt of copy of the judgment. The District Collector shall bear in mind the principles laid down by this court in W.P.(C) 15847 of 2008 and connected cases, while passing fresh orders, as aforementioned. 11. Learned counsel for petitioners submits that the vehicles in question are now in the custody of the petitioners, pursuant to directions issued by this court earlier on payment of an amount of Rs.25,000/- each. Submission is recorded. It is made clear that if the petitioners have not deposited the amount pursuant to the direction of this court that it is open to W.P.(C) 36968 of 2008 & connected cases 7 the respondents to seize the vehicles, for non payment of such amount and retain the same pending fresh orders in the manner aforementioned. 12. The petitioners shall produce a copy of the judgment in W.P.(C) No.15847 of 2008 along with the certified copy of the judgment in the instant case before the District Collector within 2 weeks from today. The writ petitions are disposed of. V.GIRI, JUDGE pac