IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K. BALAKRISHNAN NAIR AND THE HONOURABLE MR. JUSTICE P. BHAVADASAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 W.P(C).No. 26073 of 2009(D) ------------------------------------------ PETITIONER(S): --------------------- ABDU RAHIMAN, S/O. MUHAMMED, KOLATHUGALAKANDIYIL HOUSE, ELAYOOR, IRUVETTY, MALAPPURAM DIST. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE TAHSILDAR, ERNAD TALUK, MALAPPURAM DIST. BY ADVOCATE GENERAL SRI. C.P.SUDHAKARA PRASAD & SR. GOVT. PLEADER SRI. T.B. HOOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “C.R.” K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------ W.P.(C) Nos.26073, 15151, 15247, 15580, 17171, 17172, 17187, 18189, 22425, 25730, 25750, 25763, 25867, 25879, 25882, 25950, 25952, 25962, 26191, 26243, 26255 and 26478 of 2009 ------------------------------ Dated this, the 29th day of September, 2009 ORDER Balakrishnan Nair, J. The above Writ Petitions were posted before the Division Bench, based on an order of reference made by the learned Single Judge, noticing the apparent conflict between the decisions of this Court in Ahammed Kutty v. State of Kerala, 2008 (1) KLT 1068 and Shoukathali v. Tahsildar, 2009 (1) KLT 640. 2. Before referring to the legal contentions raised for our resolution, we will briefly refer to the facts of W.P.(Civil) No.26073 of 2009, which is treated as the main case, for the purpose of referring to the Exhibits and facts. The petitioner is the owner of a goods autorickshaw, KL-10Z/7736. The said vehicle was seized by the Tahsildar, Ernad Taluk on 7.7.2009. WP(C) No.26073/09 etc. - 2 - The vehicle was, at the relevant time, transporting river sand from one work site to another work site. The Tahsildar reported the matter to the first respondent, District Collector. The said respondent by Ext.P1 order, ordered to pay an amount of Rs.20,000/- (Rupees Twenty Thousand only) for release of the vehicle. Feeling aggrieved by the said order, the Writ Petition is filed. According to the petitioner, his vehicle could be confiscated or he should be called upon to pay the value of the vehicle in lieu of confiscation, only after a successful prosecution before the competent criminal court. In support of that submission, he mainly relies on the decision of this Court in Ahammed Kutty v. State of Kerala, (supra). When the respondents resisted the said prayer pointing out the decision of another learned Single Judge in Shoukathali v. Tahsildar, (supra), the Writ Petition, as mentioned earlier, was referred to the Division Bench. 3. We heard the learned counsel, Sri. Babu S.Nair, and Sri.Jamsheed Hafiz, for the petitioners. We also heard the WP(C) No.26073/09 etc. - 3 - learned Advocate General, Sri.C.P.Sudhakara Prasad and the learned Government Pleader Sri.T.B.Hood, appearing for the State. The point that is vehemently canvassed by the learned counsel for the petitioners is that, the offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, being a cognizable offence, once information regarding the commission of the same is lodged, the Station House Officer is bound to register a Crime and investigate the same. Simultaneously, he has to file a report regarding the seizure of the vehicle before the Judicial Magistrate concerned under Section 102 of the Code of Criminal Procedure. If that be so, the learned Magistrate will be competent to order release of the vehicle under Sections 451 or 457 of the Code of Criminal Procedure. The Division Bench in Abdul Samad v. State of Kerala, 2007(4) KLT 473 = Alavi P.K. v. District Collector and Others, ILR 2004 (4) Ker. 221 and Moosakoya v. State of Kerala, 2008(1) KLT 538, failed to consider properly the impact of Section 24 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, which makes all WP(C) No.26073/09 etc. - 4 - offences under the said Act cognizable. So, the decision of the learned Single Judge in Ahamed Kutty (supra) refusing to follow the decision in Abdul Samad v. State of Kerala, lays down the correct legal position and the same has to be followed, it is submitted. In other words, the decision in Shoukathali v. Tahsildar, (supra), which follows Abdul Samad (supra) and Moosakoya (supra), does not lay down the correct legal position, it is pointed out. 4. But, we notice that, after referring to Section 24, which makes the offences under the Act cognizable and also adverting to Section 25, which deals with cognizance of offences, the Division Bench in Moosakoya v. State of Kerala, (supra) elaborately considered all the aspects of the matter and issued the following directions: “3. A plain reading of the above provision will show that even though by S.24 all offences under the Act are made cognizable, no court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government or the District WP(C) No.26073/09 etc. - 5 - Collector or a Geologist of the Department of Mining and Geology. A 'complaint in writing' by the authorised officer etc. is the only condition for taking cognizance as provided in S.25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the court may take cognizance. But, the court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under S.173(2) of the Cr.P.C. after investigation by police. S.20 deals with penalty for the offence. Maximum period of imprisonment, apart from fine that can be imposed, is only two years. In Alavi's case we have considered the scope of S.23 read with the Kerala Protection of River Banks and Regulation of Removal of Sand Rules (for short 'the Rules') and held that the Act and the Rules should be read together and harmoniously interpreted and Collector has got power to confiscate and sell the vehicle if the amount fixed by him is not paid to the River Management Fund within a reasonable time. Statutory rules framed in accordance with the Act also can be referred in interpreting the Statute so long as rules are not inconsistent with the Act. (See:Gujarat Pradesh Panchayat Parishad v. State of Gujarat ((2007) 7 SCC 718). For an effective understanding, we may extract S.23 of the Act, Rr.27 and 28 of the WP(C) No.26073/09 etc. - 6 - Rules: 'S.23: Confiscation of vehicles:- Whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for seizure by the police or Revenue officials'. 'R.27. Procedure for confiscation of vehicle:--(1) The police or revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules. (2) In the case of seizure of vehicle under sub-s.(2), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector. (3) The vehicle may be returned if the owner of the vehicle or the possessor remits an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure.' 'R.28. Sale of the vehicle seized:-- (1) The District Collector shall consider every objection submitted within seven days of seizure of any vehicle under R.27 and the decision of District Collector thereon shall be final. (2) In the case of sale of the vehicle under sub-section (1), if the fine and amount under sub-s.(3) of S.27 of these rules has not been remitted, the District Collector shall sell the vehicle by auction. (3) The amount received from auction under sub-s.(2) shall be credited to the River WP(C) No.26073/09 etc. - 7 - Management Fund after deducting the expenditure of auction.” R.27 and 28 clearly lay down the procedure to be complied with by the police officer or revenue officer who seizes the vehicle for illegal transport of sand. The police officers and revenue officials shall seize the vehicle used for illegal transportation of sand under R.27 of the Rules. Under S.23 not only police officers, but also revenue officers may seize such vehicles. After seizure what is to be done with the vehicle and procedure to be adopted by the officers are clearly laid down in Rr.27 and 28. The seizure is, therefore, to be effected under the provisions contained in the Sand Act and Rules and not under S.102 Cr.P.C. On seizure, the following procedures have to be complied with: 1. The officer who is seizing the vehicle should prepare a mahazar. 2. The said mahazar should be signed by two witnesses. 3. A copy of the mahazar should be given to the person possessing the vehicle at the time of seizure. 4. A copy of the mahazar should be given to the District Collector. WP(C) No.26073/09 etc. - 8 - 5. The owner of the vehicle or the person from whom the vehicle was seized can file objection. 6. The District Collector is bound to consider the objection filed within seven days of seizure. 7. In Alavi's case, we have also held that as part of principles of natural justice, District Collector should give an opportunity of hearing also to the person who has filed the objection. 8. The District Collector is bound to take a decision. If the vehicle is not found involved in illegal transport of the same, he is bound to return the same. 9. If it is found that the vehicle was transporting sand illegally, he has to fix an amount equivalent to the prize to be paid to the River Management Fund. 10. The District Collector is bound to return the seized vehicle if the amount fixed by the Collector is paid by the owner (sic. owner or the person) in possession of the vehicle as the case may be. 11.If the amount fixed is not paid within a reasonable time, he can sell the vehicle in auction. 12. The amount realised from the auction shall be credited to the River Management Fund. WP(C) No.26073/09 etc. - 9 - 4. A plain reading of the Sand Act and Rules together will show that in the matter of seizure, no report need be filed to the Magistrate as special procedure is laid down when seizure is effected in view of S.23 of the Act. There is no statutory compulsion for filing such a report or producing the vehicle before the Magistrate under any of the provisions of the Cr.P.C.”. 5. When the above decision was holding the field, we feel that the learned Single Judge should not have issued the directions in Ahamed Kutty (supra). In the said decision, it was held as follows:- “4. I am afraid I cannot agree with the above submissions. No doubt, if the ratio in Alavi's case (Abdul Samad) and Moosakoya's case is to be applied, the learned Public Prosecutor is well founded in his submissions. Moosakoya's case was only a clarification given by the very same Division Bench which disposed of Alavi's case. It is now admitted that the operation of the judgment in Alavi's case (which is the same as Abdul Samad's case since the Division Bench was disposing of a batch of cases) has now been stayed by the Supreme Court in C.C.No.2610 of 2008 in Unnumbered S.L.P. of WP(C) No.26073/09 etc. - 10 - 2008 on 22.2.2008. Hence, the decision of the Division Bench in Alavi's case as clarified in Moosakoya's case does not fetter this Court from considering the contentions made in support of the claim for interim custody.” The learned Single Judge should not have ignored the two Division Bench decisions on the ground that in the appeal filed against one of the said decisions before the Apex Court, there was a stay against it. Even when a decision of Division Bench of this Court is stayed by the Apex Court, the learned Single Judges of this Court are bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay only relieves the concerned parties from obeying the judgment under appeal. 6. In this context, we would refer to a Division Bench decision of this Court in Kannappan v. R.T.O., 1988 (1) KLT 902, wherein a learned Single Judge of this Court declined to follow the decision of a Division Bench, which was directly in point and ordered to refer the matter to the Full Bench. In that context, the WP(C) No.26073/09 etc. - 11 - Division Bench in Kannappan (supra) has held as follows: “2. There can be no 'hesitation' for a single Judge to follow a Division Bench ruling binding on the single Bench for, he is bound in law to follow the Division Bench decision. The fact that the views of the learned Judge did not find acceptance at the hands of the Division Bench does not mean that whenever the identical question is raised before the learned Judge, the matter has to be again referred to a Division Bench till the views of the single Judge are endorsed by a Division or Full Bench. Brought up in the highest traditions of judicial discipline, this court cannot at any time swerve from the path of judicial decorum and propriety. We shall content ourselves by a quotation from the decision of the Supreme Court in Asstt. Collector, C.E., Chandran Nagar v. Dunlop India Ltd. (AIR 1980 SC 330) thus:- “We desire to add and as was said in Cassel and Co. Ltd. v. Broome, 1972 AC 1027, we hope it will never be necessary for us to say so again that, 'in the hierarchical system of Courts' which exists in our country, 'it is necessary for each lower tier', including the High Court, 'to accept loyally the decisions of the higher tiers'. “It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme Appellate tribunal which do not attract the unanimous approval of all members of the judiciary........ But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted”. (See WP(C) No.26073/09 etc. - 12 - observations of Lord Hailsham and Lord Diplock in Broome v. Casell). The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system”. 3. Reiterating the same principle, in a very recent ruling of the Supreme Court in Shyamarju v. U.V. Bhat (AIR 1987 SC 2323) came down very heavily on a Division Bench which did not follow the Full Bench decision of the same court.” 7. Recently, the Apex Court in Official Liquidator v. Dayanand (2008) 10 SCC 1, held as follows: “78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of WP(C) No.26073/09 etc. - 13 - W.B.(AIR 1960 SC 936), this Court observed: (AIR p.941, para 19) '19. . . . If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court'. 79. In Lala Shri Bhagwan v. Ram Chand (AIR 1965 SC 1767), Gajendragadkar, C.J. observed: (AIR p.1773, para 18) '18. .... It is hardly necessary to emphasis that considerations of judicial propriety and WP(C) No.26073/09 etc. - 14 - decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself.' 80. In Union of India v. Raghubir Singh, (1989) 2 SCC 754, R.S.Pathk, C.J. while recognising need for constant development of law and jurisprudence emphasised the necessity of abiding by the earlier precedents in the following words: (SCC p.766, para 9) '9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.' 81. In Sundarjas Kanyalal Bhatija v. Collector, Thane, (1989) 3 SCC 396, a two-Judge Bench observed as under : (SCC p.407, para 22) WP(C) No.26073/09 etc. - 15 - '22. .....In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of Judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.' 82. In Vijay Laxmi Sadho (Dr.) v. Jagdish, (2001) 2 SCC 247, this Court considered whether the learned Single Judge of the Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held: (SCC p.256, para 33) '33. As the learned Single Judge was not in agreement with the view expressed in Devilal case [Election Petition No.9 of 1980 (MP)] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter WP(C) No.26073/09 etc. - 16 - be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs.' 83. In Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1, the Constitution Bench noted that the two learned Judges denuded the correctness of an earlier Constitution Bench judgment in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha (2001) 4 SCC 448, and reiterated the same despite the fact that the second Constitution Bench refused to reconsider the earlier verdict and observed : (Pradip Chandra Parija case, SCC pp.3-4, paras 3 & 5-6) “3. We may point out, at the outset, than in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha a Bench of five Judges considered a somewhat similar question. Two learned Judges in that case doubted the correctness of the scope attributed to a certain provision in an earlier Constitution Bench judgment and, accordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges. WP(C) No.26073/09 etc. - 17 - * * * * * 5. The learned Attorney General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges - a proposition that learned counsel for the appellant did not dispute. The learned Attorney General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India (1992) 4 SCC 97 where it has been said that 'no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench' (SCC p.98, para 5). The learned Attorney General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar, 1991 Supp (2) SCC 576, was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar, could have referred the case to a Bench of five learned Judges. 6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two Judges is so very incorrect that in no earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as WP(C) No.26073/09 etc. - 18 - has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three