IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 14446 of 2009(A) -------------------------------------- PETITIONER(S): ---------------------- C.VAHID,S/O.ALAVI,AGED 38 YEARS, CHERALA HOUSE,KULAKKADU, KUTTIPPURAM VILLAGE,TIROOR TALUK. BY ADV. MR.T.V.GEORGE MR.JIMMY GEORGE (THADATHIL) RESPONDENT(S): ------------------------- 1. TAHSILDAR,TALUK OFFICE,PONNANI. 2. VILLAGE OFFICER, ALAMKODE. 3. DISTRICT COLLECTOR, MALAPPURAM. 4. SUB INSPECTOR OF POLICE, CHANGARAMKULAM. 5. SECRETARY,KUTTIPPURAM PANCHAYAT. R1 TO R4 BY GOVERNMENT PLEADER MR.M.A. ASIF. R5 BY ADV. MR.K.ANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14446/2009-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PERMIT DATED 25/03/2009 ISSUED BY THE 5TH RESPONDENT. EXT.P2: COPY OF THE SEIZURE MAHASER PREPARED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE APPLICATION DATED 26/03/2009 PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P4: COPY OF THE JUDGMENT DATED 06/04/2009 IN WP(C) NO. 10828/2009 OF THIS HONOURABLE COURT. EXT.P5: COPY OF THE ORDER DATED 14/05/2009 PASSED BY THE DISTRICT COLLECTOR, MALAPPURAM. EXT.P6: COPY OF THE ORDER DATED 30/04/2009 IN WP(C) NO. 13040/2009 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. V.GIRI, J. ---------------------------------------- W.P.(C).No.14446 of 2009 ---------------------------------------- Dated this the 16th day of July, 2009. JUDGMENT A tipper lorry belonging to the petitioner, bearing registration No.KL-10/X-6611 was loaded with river sand from the Puzha Nambram Kadavu, falling within the limits of Kuttippuram Grama Panchayat, on the strength of Ext.P1 permit granted by the panchayat on 25.3.2009. Ext.P1 permit was issued at 7.45 AM and had permitted starting of the vehicle at 9.40 AM on the same day. By 10.15 AM, the vehicle was seized by the 1st respondent Tahsildar and Ext.P2 mahazar was prepared. Five vehicles were seized including the vehicle of the petitioner. The reasons stated in Ext.P2 is that the vehicles were seized since they were traversing the road other than the road which should normally have been used. W.P.(C).No.14446 of 2009 :: 2 :: 2. The petitioner submitted Ext.P3 objection pointing out that the vehicle in question was held up by mechanical trouble. After hearing the petitioner, the District Collector passed Ext.P5 order wherein it is mentioned that after hearing the petitioner, it has been found that the vehicle has been used in contravention of the provisions of the Kerala Protection of River Banks (Protection and Regulation of Removal of Sand) Act, 2002. This finding has been challenged in this writ petition. 3. A counter affidavit has been filed by the Junior Superintendent of the Collectorate, Malappuram. 4. I heard learned counsel for the petitioner and the learned Government Pleader. 5. No reasons are contained in Ext.P5 indicating an enquiry or due application of mind W.P.(C).No.14446 of 2009 :: 3 :: to reject the reasons put forward by the petitioner. This was not an exercise of power as contemplated by the dictum laid down in Subramanian Vs. State of Kerala [2009 (1) KLT 77). 6. Admittedly, the vehicle was accompanied by a pass. If the vehicle was traversing a road other than what was normally traversed by the vehicle employed for similar purposes, then there could be an indication that the pass was used for more than one case. Apparently, the seizure was effected at 10.15 AM and the pass contemplated the vehicle moving away from the Kadavu after removing sand at 9.40 AM. Therefore, there would not have been sufficient time to use the pass for more than once. One aspect on which enquiry was necessary was whether the permit was W.P.(C).No.14446 of 2009 :: 4 :: issued from the panchayat and whether it was noted in the registers maintained in the Kadavu. A notice of enquiry should have been issued to the panchayat and their version should have been ascertained. No such notice is seen issued. I am constrained to interfere with Ext.P5. A more elaborate and meaningful enquiry should be made by the District Collector. He should deploy a competent subordinate officer, who shall, collect materials. Thereafter on the strength of the materials, he shall hear the petitioner and pass appropriate orders. 7. Accordingly, Ext.P5 is set aside. The District Collector shall pass orders after calling for a report from the panchayat authorities also within three months from the date of receipt of a copy of this judgment. W.P.(C).No.14446 of 2009 :: 5 :: 8. In the meanwhile, the aforementioned vehicle shall be released to the petitioner on interim custody, subject to the following conditions: (a) The petitioner shall deposit an amount of Rs.25,000/- within one month from today. (b) The petitioner shall file an undertaking not to use the aforementioned vehicle for transportation of sand in any manner until orders are passed by the District Collector. (c) The vehicle shall not be taken outside the limits of Malappuram District. Sd/- (V.GIRI) JUDGE sk/ //true copy//