IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 26382 of 2009(P) --------------------------------------- PETITIONER: ------------------- ASHRAF, S/O.KUNCHUKOYAMUTTY NAHA HAJI, KIZHAKKINIYAKATH HOUSE, PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADVS. MR.K.SHIBILI NAHA, SMT.A.LOWSY. RESPONDENT: ---------------------- THE DISTRICT COLLECTOR, MALAPPURAM. BY GOVT. PLEADER MR. P. NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 26382 of 2009-P ------------------------------ Dated this the 18th day of September, 2009. J U D G M E N T Heard Sri.K.Shibili Naha, the learned counsel appearing for the petitioner and Sri.P.Narayanan, the learned Government Pleader appearing for the respondent. 2. The petitioner is the registered owner of a goods vehicle bearing registration No.KL-10M-6129. The said vehicle was seized by the Sub Inspector of Police, Parappanangadi, on 4.12.2008, on the allegation that it was used to transport river sand without a valid pass. After the vehicle was seized, the Circle Inspector of Police, Tanur forwarded Ext.P2 report dated 6.12.2008 along with Ext.P1 seizure mahazar to the District Magistrate, Malappuram, stating that the vehicle was seized under Section 17(2) of the Kerala Anti Social Activities (Prevention) Act, 2007. He also requested the District Collector to confiscate the vehicle under Section 17(3) of the said Act. It appears that the vehicle was also produced before the Court of the Judicial Magistrate of First Class, Parappanangadi. The petitioner thereupon filed C.M.P.No.3143 of 2008 in the Court of the Judicial Magistrate of First Class, Parappanangadi seeking custody of his vehicle. On the said application, the Court of the Judicial Magistrate of First Class passed an W.P(C) No. 26382 of 2009-P 2 order dated 24.12.2008 granting custody of the vehicle to the petitioner on his executing a bond for the sum of Rs.25,000/-. Thereafter, the District Collector issued Ext.P3 show cause notice dated 19.2.2009 calling upon the petitioner to show cause why his vehicle should not be confiscated under Section 17(3) of the Kerala Anti Social Activities (Prevention) Act, 2007. On receipt of Ext.P3 show cause notice, the petitioner submitted Ext.P4 reply dated 25.2.2009 wherein he interalia contended that action under Section 17 of the Kerala Anti Social Activities (Prevention) Act, 2007, is not warranted. The District Collector thereafter passed Ext.P6 order dated 28.3.2009 ordering confiscation of the petitioner's vehicle. He however permitted the petitioner to get the vehicle released on remitting the sum of Rs.70,000/- in lieu of confiscation of the vehicle. Thereafter the District Collector issued Ext.P8 notice dated 30.5.2009 calling upon the petitioner to remit the said sum of Rs.70,000/- within 14 days from the date of receipt of the said notice, failing which he was informed that his vehicle will be confiscated. Ext.P6 order and P8 notice are under challenge in this writ petition. The petitioner contends relying on the decision of a Division Bench of this Court in Abdul Majeed v. District Collector (2009 (3) KLT 459) that the action taken against him under Section 17 of the Kerala Anti-Social Activities (Prevention) Act, 2007, is without the sanction or authority of W.P(C) No. 26382 of 2009-P 3 law. 3. Ext.P2 report submitted by the Circle Inspector of Police, Tanur, Ext.P3 show cause notice issued by the District Collector, Malappuram and Ext.P6 order passed by him establish that the petitioner's vehicle was seized and ordered to be confiscated applying the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, on the allegation that it was used to transport river sand without a valid pass. A Division Bench of this Court has in Abdul Majeed v. District Collector (supra) held that Section 17 of the Kerala Anti-Social Activities (Prevention) Act, 2007 cannot be invoked to proceed against the owners of the vehicles used to transport river sand without a valid pass. It was held that action if any, can be taken only under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the rules framed thereunder. In the light of the authoritative pronouncement of the Division Bench of this Court in Abdul Majeed v. District Collector (supra) it has to be necessarily held that Ext.P3 show cause notice, Ext.P6 order and Ext.P8 notice cannot be sustained. In the result I allow this writ petition, quash Ext.P6 order and P8 notice and declare that the petitioner's vehicle is not liable to be confiscated under the Kerala Anti-Social Activities (Prevention) Act, 2007. I make it clear that nothing contained in this judgment will stand in the W.P(C) No. 26382 of 2009-P 4 way of District Collector from initiating appropriate proceedings, if such proceedings are warranted, under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the Rules framed thereunder. It is further clarified that if such proceedings are not initiated within one month from the date of receipt of or production of a certified copy of this judgment, the conditions imposed by the learned Magistrate while granting interim custody of the vehicle to the petitioner shall stand vacated and the release of the vehicle shall be treated as unconditional. If on the other hand, the District Collector initiates such proceedings, the same shall be finalised within two months from the date on which the proceedings are initiated, after notice to and affording the petitioner a reasonable opportunity of being heard. The contentions of the petitioner on the merits are kept open. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab