IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 OP(C).No. 2727 of 2011(O) ----------------------------------- CMA. NO.54/2010 OF ADDL. DISTRICT COURT (SPECIAL) KOTTAYAM .......... PETITIONER -------------------- K.S.PRASANNAN,AGED 50,KARTHIYANI BHAVAN,KUMARANALLOOR,KOTTAYAM. BY ADVS. SRI.SABU S.KALLARAMOOLA SRI.S.NIDHEESH RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM 686 002. 2. THE SUB INSPECTOR OF POLICE, PAMPADY,KOTTAYAM 686 502. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2727/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DOCUMENT SHOW THAT THE M SAND WAS TRANSPORTED FROM PATTITHANAM NEAR ETTUMANOOR TO PAMPADY. P2:- COPY OF THE BILL FROM THE FRIENDS MOTOR WORKS DT.D 20.12.09. P3:- COPY OF THE MAHAZAR PREPARED BY THE S.I. OF POLICE, PAMPADY, KOTTAYAM. P4:- COPY OF THE HEARING NOTICE ISSUED TO THE PETITIONER DT.D 8.1.2010 SCHEDULING THE HEARING ON 13.1.10. P5:- COPY OF THE REQUEST DTD. 14.1.2010 TO THE IST RESPONDENT. P6:- COPY OF THE NOTICE DTD. 6.2.2010 ISSUED BY DEPUTY COLLECTOR. P7:- COPY OF THE NOTICE DTD. 27.2.2010 ISSUED BY IST RESPONDENT. P8:- COPY OF THE NOTICE DTD. 15.3.2010 ISSUED BY IST RESPONDENT. P9:- COPY OF THE REQUEST DTD. 31.3.2010 SUBMITTED BY PETITIONER BEFORE IST RESPONDENT. P10:- COPY OF THE ORDER NO. E9.65106/09 DTD. 27.4.2010. P11:- COPY OF THE JUDGMENT IN WPC. NO.28485/2010 DTD. 15.9.2010. P12:- COPY OF THE ORDER OF THE DISTRICT COLELCTOR DTD. 30.9.2010. P13:- COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, KOTTAYAM. P14:- COPY OF THE JUDGMENT DTD. 25.6.2011 IN CMA. 54/2010 PASSED BY THE ADDL. DISTRICT JUDGE, (SPECIAL), KOTTAYAM. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2727 of 2011 ==================================== Dated this the 23rd day of August, 2011 J U D G M E N T Exhibit P12, order passed by the first respondent by virtue of the power conferred on him under Section 20 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short, “the Act”) is under challenge. It is alleged that vehicle belonging to the petitioner was used to transport red earth for reclaiming paddy land. The vehicle was (allegedly) seized by the Sub Inspector and produced before the District Collector for initiating confiscation proceedings. Petitioner applied to the first respondent for interim custody of the vehicle which resulted in Ext.P10, order. Aggrieved by the conditions imposed, petitioner approached this Court in W.P(C) No.28485/2010. This Court while refusing to interfere with the condition directed by judgment dated 15.09.2010 to conclude the confiscation proceedings with notice to the petitioner within four weeks of production of a copy of the judgment. It is thereafter that first respondent has passed Ext.P12, order confiscating the vehicle. That order was confirmed by the learned Additional District Judge, Kottayam in C.M.A. No.54 of 2010. 2. It is contended by learned counsel for petitioner that sub-sec. (2) of Sec.20 of the Act required the first respondent to give petitioner O.P(C) No.2727 of 2011 -: 2 :- opportunity of being heard before Ext.P12, order was passed. No such opportunity was given notwithstanding the specific direction contained in Ext.P11, judgment of this Court. It is contended that for the said reason alone Ext.P12, order is liable to be set aside. It is also contended that it is merely based on the report of the Village Officer and Sub Inspector that seizure was made and the documents of petitioner (Exts.P1 and P2) were not taken into account in the correct perspective. According to learned counsel the vehicle was carrying M. Sand, which if opportunity is given petitioner will be able to establish. 3. Learned Government Pleader submitted that in Ext.P12, order itself it is stated that notice of proceeding was given to the petitioner on 16.02.2010. It is also submitted by learned Government Pleader that report of the Sub Inspector as to the seizure of vehicle would show that the platform and inner side of the side body of the vehicle contained remnents of red earth. It is also pointed out that as reported by the Village Officer, red earth transported (in the vehicle) was used for conversion of paddy land and hence no interference is required with Ext.P12. 4. It is seen from the page 2 of Ext.P12 that there is reference to the first respondent issuing notice to the owner of the vehicle for further enquiry in the matter on 16.02.2010. According to the learned counsel for petitioner that was concerning seizure of the vehicle and not regarding O.P(C) No.2727 of 2011 -: 3 :- confiscation proceedings under Sec.20 of the Act. It is also contended that at any rate this Court while disposing of the Writ Petition has directed in Ext.P11, judgment that confiscation proceedings be concluded after giving notice to the petitioner. 5. It is relevant to note that Ext.P11, judgment was passed by this Court on 15.9.2010 and even as per Ext.P12, order, notice referred to therein is dated 16.02.2010. In Ext.P11, this Court directed that first respondent shall conclude confiscation proceedings within the time specified therein after giving notice to the petitioner. No such notice is seen issued to the petitioner. Even the reference in Ext.P12, order did not refer to any such notice issued to the petitioner after Ext.P11, judgment and as directed therein. 6. Petitioner is entitled to get opportunity of being heard before an order of confiscation is passed under sub-sec.(1) of Sec.20 of the Act. The said opportunity is being offered to the petitioner to establish his case by producing relevant documents and even witnesses in support of his case. The lack of notice as directed in Ext.P11, judgment affected the right of petitioner particularly when the consequence is serious confiscation of the vehicle. That, the appellate court has confirmed Ext.P12, is a different matter. On hearing learned counsel for petitioner and the Government Pleader it is seen that confiscation proceedings stand concluded by the first respondent without giving opportunity to petitioner O.P(C) No.2727 of 2011 -: 4 :- as contemplated under sub-sec.(2) of Sec.20 of the Act and as directed by this Court in Ext.P11, judgment. For that reason order under challenge has to fail. Resultantly, Original Petition is allowed. Exhibit P12, order dated 30.09.2010 as confirmed by the learned District Judge in Ext.P14, judgment is set aside and the matter is remitted to first respondent for fresh enquiry and decision after giving notice to the petitioner as contemplated and as directed by this Court in Ext.P11, judgment. First respondent shall conclude the proceeding as early as possible after complying with the above direction and giving opportunity to petitioner to adduce evidence in the matter. THOMAS P. JOSEPH, JUDGE. vsv