IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 13757 of 2010(T) ---------------------------------------- PETITIONER(S): ------------------------- 1. P.M.NIZAR, AGED 44 YARS, S/O.P.M.MUHAMMED, PULAYARVALAVIL, MARAVANTHURUTHU P.O., KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686 608. 2. MANOJ P.G., AGED 45 YEARS, S/O GOPALAN, PADATHURUTHEL, KULASHEKHARAMANGALAM P.O., KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 608. 3. VIJEESH, AGED 23 YEARS, S/O.VIJAYAN, VIJEESH BHAVAN, KULASHEKHARAMANGALAM P.O., KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686 608. BY ADVS. SRI.BABU CHERUKARA, SRI.P.V.PRAKASAN, SRI.S.RUSSEL, SRI.V.R.ARUN, SRI.R.THULASEEDHARAN PILLAI. RESPONDENT(S): ---------------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM, DISTRICT COLLECTORATE, KAKKANAD, ERNAKULAM PIN.682 030. 2. THE S.I. OF POLICE, HILL PALACE POLICE STATION, TRIPUNITHURA, ERNAKULAM, TRIPUNITHURA P.O., PIN 682 301. 3. THE DISTRICT GEOLOGIST, ERNAKULAM, DISTRICT COLLECTORATE, KAKKANAD, ERNAKULAM PIN 682 030. GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010 ALONG WITH WPC NO. 13758 OF 2010 AND WPC NO. 13879 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13757/2010 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL-36/A 1329. P2: COPY OF REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL-16-8806. P3: COPY OF REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL-17/D 6376. P4: COPY OF MAHAZAR DTD. 4/01/2010. P5: COPY OF MAHAZAR DTD. 4/01/2010. P6: COPY OF MAHAZAR DTD. 4/01/2010. P7: COPY OF THE ORDER DTD. 20/04/2010 BY THE 1ST RESPONDENT. P8: COPY OF THE ORDER DTD. 20/04/2010 BY THE 1ST RESPONDENT. P9: COPY OF THE ORDER DTD. 20/04/2010 BY THE 1ST RESPONDENT. P10: COPY OF THE APPLICATION FILED BY THE 1ST PETITIONER DTD. 2/02/2010. P11: COPY OF THE APPLICATION FILED BY THE 2ND PETITIONER DTD. 2/2/2010. P12: COPY OF THE APPLICATION FILED BY THE 3RD PETITIONER DTD.18/04/2010. P13: COPY OF THE ORDER IN WA.NO.499/2010 DTD. 17/03/2010. P14: COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT DTD. 9/02/2010. P15: COPY OF THE REPLY DTD. 19/02/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) Nos.13757, 13758 & 13879 of 2010 ``````````````````````````````````````````````````````` Dated this the 22nd day of November, 2010 J U D G M E N T Challenge in these writ petitions is against the final orders passed by the District Collector, exercising his powers under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 2. Briefly stated the facts of these cases that the vehicles involved in W.P.(C) Nos.13757/2010 and 13758/2010 were seized by the second respondent on 04-01- 2010. In W.P.(C) No.13757/2010, Exts.P4 to P6 are the mahazars and Exts.P7 to P9 are the final orders passed. 3. In so far as W.P.(C) No.13758/2010 is concerned, Ext.P2 is the mahazar and Ext.P3 is the final order passed by the District Collector. 4. Similarly, in W.P.(C) No.13879/2010, the mahazar is Ext.P2 and the order passed is Ext.P3. 5. The contents of the mahazars, the contentions W.P.(C) No.13757/10 & connected cases : 2 : raised during the course of adjudication and the final orders passed in these cases are almost on similar lines and, therefore, I deem it only necessary to refer to the contentions in W.P.(C) No.13757/2010. 6. The mahazar prepared by the second respondent, the Sub Inspector of Police, shows that the vehicles were found transporting river sand and that on interception, the drivers of the vehicles produced P-Forms issued under the Kerala Minor Mineral Concession Rules, 1967, and according to the drivers, the sand was ordinary sand purchased from a licenced dealer. However, rejecting the above version, the vehicles were seized on the allegation that what was transported in the vehicles was river sand under the cover of the P-Forms which the drivers possessed. 7. The matter was referred to the District Collector and the District Collector issued notice to the respective petitioners. On behalf of the petitioners, counsel entered appearance and urged contentions which are all noticed in the order. However, accepting the version of the second W.P.(C) No.13757/10 & connected cases : 3 : respondent that what was transported was river sand and that the petitioners did not produce any acceptable documents to uphold the contention that what was transported was ordinary sand, the impugned orders of confiscation were issued. It is also stated in the order that the District Collector got the value of the vehicles assessed by officers of the Motor Vehicles Department and it is on that basis, petitioners were directed to remit such amount. 8. Main contention raised by the counsel for the petitioners is that there is violation of Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002. He also relied on the judgments of this Court in Subramanian Vs. State of Kerala [2009 (1) KLT 77] and Shoukathali Vs. Tahsildar [2009 (1) KLT 640]. It was contended that only when Exts.P10 to P12 applications were made, the petitioners were issued copies of the mahazars, which ought to have been served on them at the time of seizure itself. Counsel contended that the fact that there is no acceptable specific method to differentiate between river sand W.P.(C) No.13757/10 & connected cases : 4 : and ordinary sand has been accepted in Ext.P15. According to him, if the respondents had a case that what was transported was not ordinary sand as contended by them, it is up to them to establish that fact. 9. On the other hand, the learned Government Pleader contended that there is no violation of Rule 27 of the Rules. He referred to the mahazar itself to substantiate this plea. He also contended that this contention was not urged by the petitioners during the course of the adjudication, and hence, it was not open to the petitioners to raise the said contention in a proceedings before this Court. The learned Government Pleader further contended that since it was the contention of the petitioners that the sand was ordinary sand, it was up to them to produce the materials and prove the said fact. 10. I have considered the submissions. A reading of the mahazars shows that the consignment of sand involved in these cases were seized on the basis that what was transported was river sand. Admittedly, the mahazars in W.P.(C) No.13757/10 & connected cases : 5 : question in these cases were prepared at the scene of the occurrence itself and the Sub Inspector of Police, who had prepared the mahazars had the benefit of examining the consignment. In such a situation, unless the petitioners have succeeded in establishing any malafides on the part of the petitioners, this Court cannot lightly reject this factual finding, based only on the unsubstantiated averments contained in the writ petition. 11. A reading of the impugned orders passed by the District Collector shows that the District Collector has accepted the findings of the Sub Inspector of Police that what was transported was river sand. On the other hand, if as contended by the petitioners, it was ordinary sand, in my view, petitioners should have produced evidence either documentary or oral, before the District Collector and should have substantiated the said contention. On the other hand, they relied only on the passes issued under Rule 48K which did not substantiate their contentions. Therefore, petitioners fail to prove their case and for that reason, the finding of the W.P.(C) No.13757/10 & connected cases : 6 : District Collector cannot be said to be erroneous. 12. In so far as the plea of violation of Rule 27 is concerned, Rule 27 requires that the mahazar should be attested by two witnesses. A reading of the mahazars produced in these writ petitions shows that the mahazars have been attested by the drivers of the respective vehicles and also by the Police Constables. Therefore, as far as the attestation part is concerned, there cannot be any violation of Rule 27. 13. Then, what remains is that the plea of the petitioners that the copies of mahazars were not served on them. As rightly pointed out by the learned Government Pleader, it is seen that this contention was not urged before the District Collector. Although it was contended before me that still these contentions were urged, nothing has been placed on record to substantiate this. Therefore, such a contention having not been urged before the District Collector, I am persuaded to think that the petitioners cannot be permitted to urge this contention for the first time before this W.P.(C) No.13757/10 & connected cases : 7 : Court. Further, although it is not specifically stated in the counter affidavit, the learned Government Pleader submits before me that he has gone through the original documents and it shows that the mahazars were in fact served on the petitioners at the time of seizure of the vehicles itself. Be that as it may, now that I decline to entertain this contention raised for the first time, I do not find force in this contention either. 14. Then, what remains is the correctness of the value of the vehicles. As far as this aspect is concerned, orders itself show the value of the vehicles have been fixed based on the valuation done by the officers of the Motor Vehicles Department, who certainly have the competency to fix the value of the vehicles. In the result, writ petitions fail and are dismissed. (ANTONY DOMINIC, JUDGE) aks