IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 30477 of 2010(H) --------------------------------------- PETITIONER(S): ----------------------- JOHNSON, S/O.RAJAPPAN, 11/1034F, J.S.BHAVANAM, KALLUVATHUKKAL, KOLLAM DISTRICT. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2. DISTRICT COLLECTOR, PALAKKAD, PIN-678 001. 3. PROJECT MANAGER, DISTRICT NIRMITHI KENDRA, PALAKKAD, PIN-678 001. R1 & R2 BY GOVERNMENT PLEADER SRI.T.K.ARAVINDKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2011, ALONG WITH WP(C)NO.30532/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.30477/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE FIR AND SCENE MAHASSAR IN CRIME NO.399/2009 OF KASABA POLICE STATION, PALAKKAD. P2 COPY OF THE ORDER LRG 3-2009/52459/9 DATED 4/11/2009 BY THE DISTRICT COLLECTOR DATED 04/11/2009. P3 COPY OF THE ORDER DATED 10/11/2009 IN WP(C)NO.32046 OF 2009. P4 COPY OF THE RECEIPT OF DISTRICT NIRMITHI KENDRA, PALAKKAD DATED 19/11/09. P5 COPY OF THE LORRY KL-02V-7900 IN THE COMPOUND OF DISTRICT NIRMITHI KENDRA, PALAKKAD. P6 COPY OF THE JUDGMENT IN WP(C)NO.32046/09 DATED 25/3/2010. P7 COPY OF THE ORDER NO.LRG 3-2009/52459/9 DATED 28/4/2010 OF THE DISTRICT COLLECTOR, PALAKKAD. P8 COPY OF THE EARTH/SILT/MUD STORED IN THE DISTRICT NIRMITHI KENDRA, PALAKKAD. P9 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. ------------------------- W.P (C) Nos. 30477 & 30532 of 2010 -------------------------- Dated this the 8th February, 2011 J U D G M E N T Petitioners are owners of vehicles bearing Reg. Nos.TN 75A-1994 and KL-02-V-7900. According to the petitioners, they transported river sand from Karoor in Tamil Nadu. It is alleged that on 17.10.2009, the Circle Inspector of Police, Kasaba Police Station,Palakkad seized the lorries with the sand on the allegation that the vehicles were used for transportation of river sand in violation of the provisions contained in Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 2. Proceedings initiated against the petitioners before the District Collector culminated by an order levying compounding fee of Rs.50,000/- each. This order was passed in the purported exercise of powers under the MM (D&R) Act. The petitioner in W.P. (C) No.30477/2010 filed W.P (C) No.32046 of 2009 and petitioner in W.P (C ) No.30532/2010 filed W.P.(C) No.32072/2009 challenging W.P (C) Nos. 30477 & 30532 of 2010 2 the orders passed by the District Collector. Interim orders were passed directing that interim custody of the vehicles be given and the District Collector was ordered to release the lorries after unloading the sand and on the petitioners furnishing the Bank Guarantee for `50 000 each. 3. Accordingly, sand was unloaded at the premises of the 3rd respondent and this fact is acknowledged in Ext.P4 in these writ petitions. Subsequently the writ petitions were disposed of directing the District Collector to reconsider the matter. Accordingly, the matter was reconsidered and Ext.P7 orders in these writ petitions were passed exonerating the petitioners and directing release of the lorries and sand to them. 4. On the strength of Ext.P7 orders, petitioners approached the 3rd respondent. According to the petitioners, as against the fine quality sand which they unloaded in the premises of the 3rd respondent, third respondent offered low quality sand which was mostly clay. Thereupon, petitioners filed Ext.P9 complaints before the District Collector requesting that steps be taken to W.P (C) Nos. 30477 & 30532 of 2010 3 ensure that if not the same sand at least similar sand should be given to them. There was no action on the complaints and writ petitions were filed at that stage. 5. Learned counsel for the petitioners contended that when the 3rd respondent misappropriated the sand, the 3rd respondent is liable to reimburse the price or at least return similar sand. 6. Counter affidavit has been filed by the 2nd respondent in these writ petitions. According to the 2nd respondent, the sand that was unloaded in the premises of the 3rd respondent is a mixture of Karoor sand with filter sand. It is stated that when the petitioners approached and requested to return the sand, they were offered similar quality sand and that the petitioners refused to accept the same. 7. Now that by Ext.P7 order the District Collector has directed release of the vehicles with sand, petitioners are entitled to be returned the sand similar in quality that was unloaded. The petitioners' complaint is that though the sand unloaded was fine quality sand and what is W.P (C) Nos. 30477 & 30532 of 2010 4 offered to them is medium quality. This issue is a disputed question of fact and such an issue cannot be resolved in a writ petition. 8. In that view of the matter and taking note of the case of the petitioners regarding the pendency of Ext.P9 complaints, I direct that on the production of a copy of this judgment, the District Collector will conduct an enquiry into the matter, with notice to the petitioners and the 3rd respondent and pass appropriate orders in the matter. This shall be done, as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment along with a copy of the writ petition. Writ petitions are disposed of as above. Sd/- ANTONY DOMINIC JUDGE ma /True copy/ P.A to Judge