IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 12720 of 2009(H) ---------------------------------------- PETITIONER(S): ------------------------ 1. KANAKASUNDARAN @ KANAKAN,AGED 42 YEARS, S/O.RAJAN,KATTAMBIL,KADAVALLOOR VILLAGE, THALAPPILLY TALUK. 2. MOHANAN,AGED 36 YEARS,S/O.VELAYUDHAN, KANDIRITHI,PAZHANJI VILLAGE,THALAPPILLY TALUK. 3. JIBEESH,AGED 24YEARS,S/O.PARAN,PANIKKSSERI, PORKULAM VILLAGE,THALAPPILLY TALUK. 4. SATHESAN,AGED 35YEARS,S/O.NARAYANAN, CHOZHIYATTIL,KATTAKAMBAL VILLAGE, THALAPPILLY TALUK. BY ADVS. MR.V.R.KESAVA KAIMAL, MR.N.M.MADHU. RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE,MALAPPURAM. 2. THE SUB INSPECTOR OF POLICE, CHANGARAMKULAM POLICE STATION. R1 & R2 BY GOVERNMENT PLEADER MR. P.N. SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12720/2009 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BILL DTD. 25/03/09 ISSUED BY THE SECRETARY OF THRIPRANGODE GRAMA PANCHAYAT. P2: COPY OF THE BILL DTD. 25/03/09 ISSUED BY THE SECRETARY OF THRIPRANGODE GRAMA PANCHAYAT. P3: COPY OF THE BILL DTD. 25/03/09 ISSUED BY THE SECRETARY OF THRIPRANGODE GRAMA PANCHAYAT. P4: COPY OF THE BILL DTD. 25/03/09 ISSUED BY THE SECRETARY OF THRIPRANGODE GRAMA PANCHAYAT. P5: COPY OF THE MAHASSAR DTD. 25/03/09. P6: COPY OF THE APPLICATION DTD. 30/03/2009. P7: COPY OF THE APPLICATION DTD. 30/03/2009. P8: COPY OF THE APPLICATION DTD. 30/03/2009. P9: COPY OF THE APPLICATION DTD. 30/03/2009. P10: COPY OF THE JUDGMENT IN WPC.NO.11016/09. P11: COPY OF THE ORDER DTD. 17/04/2009. P12: COPY OF THE ORDER DTD. 17/04/2009. P13: COPY OF THE ORDER DTD. 17/04/2009. P14: COPY OF THE ORDER DTD. 17/04/2009. P15: COPY OF THE ROUGH ROUTE MAP. RESPONDENT'S ANNEXURE: A1: COPY OF THE LETTER DTD. 01/06/2009. /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ------------------------------------- W.P.(C).No.12720 of 2009 ------------------------------------- Dated this the 18th day of June, 2009. JUDGMENT The vehicles belonging to the petitioners bearing registration Nos.KL-48A-5186, KL55B-3255, KL-8V-3248 and KL-48-2923 were seized under Ext.P5 seizure mahazar on the ground that the petitioners were indulging in unauthorised transportation of river sand. They sought for release of the vehicles and ultimately their requests were disposed of by identically worded orders Exts.P11 to P14. The District Collector ordered the petitioners to pay different amounts towards the value of the vehicles and ordered confiscation on failure to deposit the amounts. Those orders are under challenge in this writ petition. 2. I heard learned counsel for the petitioners and learned Government Pleader. W.P.(C).No.12720 of 2009 :: 2 :: 3. The seizure mahazar shows that the consignment was supported by a pass. The question as to whether the pass was issued by a duly authorised Kadavu Committee Chairman of the Thriprangode Grama Panchayat is a matter which will require verification. That has not been done. The only reason which seems to have found favour with the District Collector for ordering confiscation of the vehicles is that the vehicles were found to be traversing a road, which is not the normal route from the Kadavu to the place of destination. Though an unusual deviation in a route or a deliberate attempt to choose a more circuitous route is one factor, which will indicate an attempt on the part of the transporter to transport sand unauthorisedly, that by itself cannot be conclusive of the fact that the transportation of sand was effected unauthorisedly or that there was no pass supporting the transportation W.P.(C).No.12720 of 2009 :: 3 :: of the sand. As has been indicated in Subramanian v. State of Kerala [2009 (1) KLT 77), the power exercised by the District Collector under Section 23 of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002 Act {for short 'the Act'} is quasi judicial in character. In all these cases, it will be appropriate that the District Collector issues a show cause notice, asking the owner of the vehicle to show cause why the vehicle should not be confiscated under the Act and the Rules framed thereunder. The owner of the vehicle must be given an opportunity to file his objections. If the consignment is supported by a pass and a contention is, therefore, taken in that regard, then notice may be issued to the panchayat at the instance of the owner of the vehicle and the Secretary of the Panchayat may be asked to confirm, by way of an affidavit to be filed before the District W.P.(C).No.12720 of 2009 :: 4 :: Collector, whether, in fact, a pass as contended by the owner of the vehicle had been issued by the competent authority. If the panchayat reports that a pass was not issued or that the pass was issued by an authority, who is not competent to do so, then obviously, the burden would be very heavy on the owner of the vehicle to prove the legitimacy of the transportation. An effort will have to be taken by the District Collector to see that a proper enquiry is conducted, obviating the necessity of passing mechanically worded orders. At the same time, I hasten to make it clear that the requirement of passing a reasoned order should not result in the District Collector dispensing with a proper enquiry and ordering release of the vehicle in a hasty manner. 4. This court had occasion to deal with the facilities available to the owners of the vehicles for W.P.(C).No.12720 of 2009 :: 5 :: moving an application for interim custody of the vehicles, if there is delay in conducting a detailed enquiry under Section 23 of the Act. 5. I have later made it clear in Sareesh v. District Collector {2009(2) KLT 906} that when a direction is issued by this court to the concerned District Collector to consider and pass orders on the application for interim custody, the direction is intended only to require the Collector to take appropriate action. The direction to consider the application need not be confused as one expressing any opinion on the merits of the claim made by the applicant. This aspect has been specifically reiterated in the said decision. 6. Learned Government Pleader points out that there is extensive damage brought about by unauthorised and indiscriminate removal and transportation of river sand and therefore, very W.P.(C).No.12720 of 2009 :: 6 :: stringent action is called for. The authorities required to implement the legislation like the Sand Act should bear in mind the pernicious tendencies on the part of unscrupulous elements to commercially exploit the river banks and river beds. There should be absolute and total restraint of such activities for the maintenance of ecological balance. Such unscrupulous actions shall be dealt with by an iron hand and no mercy need be shown. But, where the power is to be exercised carries with it great consequences, it is also necessary that such power be exercised with responsibility. 7. In the present case, I am satisfied that the matter requires a fresh consideration by the District Collector. I also take note of the fact that admittedly, the consignment was supported by a pass, which was issued by the competent authority. In the facts and circumstances of the case, prima W.P.(C).No.12720 of 2009 :: 7 :: facie, I am inclined to direct release of the vehicles to the petitioners on interim custody. I make it clear that the direction, which I propose to issue is only in the facts and circumstances of this case and need not be treated as a precedent for any other case. Accordingly, the writ petition is disposed of in the following terms: Exts.P11 to P14 are set aside. The District Collector, the 1st respondent is directed to pass fresh orders in the matter of confiscation/release of the vehicles bearing registration Nos.KL-48A-5186, KL55B-3255, KL-8V-3248 and KL-48-2923, after conducting an appropriate enquiry and after hearing the petitioners and after following the procedure mentioned above, by calling upon the concerned panchayat to produce the details regarding the passes claimed to have been issued by them to the petitioners. Such orders shall be passed within three W.P.(C).No.12720 of 2009 :: 8 :: months from the date of receipt of a copy of this judgment. In the meanwhile, the aforementioned vehicles shall be released on interim custody to the petitioners, subject to the following conditions: (a) Each of the petitioners shall execute a bond before the District Collector in a stamp paper worth Rs.50/-, undertaking to produce the respective vehicle, as and when required by the District Collector. (b) The sand, which was being carried in the vehicles, shall also be released to the petitioners and it may be made mention of in the order that, if ultimately the vehicles are required to be confiscated, the petitioners would be likely to deposit the value of the sand. (c) The petitioners shall give an undertaking that they will not use the vehicles for transportation of sand, until final orders are passed by the District Collector as aforementioned. (d) The vehicles in question shall not be used by the petitioners outside Malappuram District. W.P.(C).No.12720 of 2009 :: 9 :: The petitioners shall produce a copy of this judgment along with a copy of the writ petition before the 1st respondent for compliance. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge