IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 35310 of 2009(G) PETITIONER: --------------- BASKAR.S.E, S/O. A. EDRAJ, AGED 32 YEARS, 8, GENGU REDDY ROAD, EGMORE, CHENNAI, TAMIL NADU - 600 008. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, THRISSUR. 3. THE SUB INSPECTOR OF POLICE, VARANTHARAPPILLY POLICE STATION, THRISSUR DISTRICT. 4. THE DISTRICT COLLECTOR, COLLECTORATE, THRISSUR. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF THE CERTIFICATE OF REGISTRATION OF THE GOODS CARRIAGE VEHICLE BEARING REG.NO.T.N.01 AC 8736. EXT.P2 PHOTOCOPY OF THE NATIONAL PERMIT FOR GOODS CARRIAGE ISSUED BY THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, CHENNAI (CENTRAL), CHENNAI – 23, TO THE LORRY BEARING REG.NO.T.N.01 AC 8736. EXT.P3 PHOTOCOPY OF THE RELEVANT PAGE OF THE CERTIFICATE OF FITNESS ISSUED TO THE LORRY BEARING REG.NO.T.N.01 AC 8736 BY THE MOTOR VEHICLES DEPARTMENT OF CHENNAI. EXT.P4 PHOTOCOPY OF THE RECEIPT NO.89 ISSUED TO THE DRIVER OF THE LORRY BY SRI.RAJAKALI AMMAN AGENCIES, AN AUTHORIZED SAND DEALER OF KAVERY SAND AT KANGAYAM. EXT.P5 TRUE COPY OF THE FORM OF DELIVERY NOTE ISSUED BY THE COMMERCIAL TAX AUTHORITIES OF VELANTHAVALAM SALES DEPOT. EXT.P6 TRUE COPY THE RETAIL INVOICE ISSUED BY THE COMMERCIAL TAX AUTHORITIES OF VELANTHAVALAM SALES DEPOT. EXT.P7 TRUE COPY OF THE REPRESENTATION DATED 16.9.2009 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXT.P8 TRUE COPY OF THE REPRESENTATION DATED 16.9.2009 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 16.9.2009 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. EXT.P9(a) TRUE COPY OF THE JUDGMENT DATED 18.9.2009 IN W.P.(C)NO.26390 OF 2009 OF THIS COURT. EXT.P10 TRUE COPY OF THE ORDER NO.B.10-46374/09 DATED 3.11.2009 PASSED BY THE FOURTH RESPONDENT. EXT.P11 TRUE COPY OF THE JUDGMENT DATED 30.7.2007 IN W.P.(C)NO.22293 OF 2007 OF THIS COURT. EXT.P12 TRUE COPY OF THE JUDGMENT DATED 20.2.2008 IN W.P.(C) NO.3656 OF 2008 OF THIS COURT. EXT.P13 PHOTOCOPY OF THE FIR NO.386/2009 DATED 15.9.2009 REGISTERED BY THE THIRD RESPONDENT. EXT.P14 TRUE COPY OF G.O.(MS) NO.161/09/ID DATED 14.12.2009 ISSUED BY THE GOVERNMENT. EXT.P15 TRUE COPY OF THE ORDER NO.LRC.3-2009/54110/9 DATED 15.1.2010 ISSUED BY THE DISTRICT COLLECTOR, PALAKKAD. EXT.P16 TRUE COPY OF THE JUDGMENT DATED 16.3.2010 OF THIS COURT IN W.P.(C) NO.31898 OF 2009 AND CONNECTED CASES. EXT.P17 TRUE COPY OF THE REPRESENTATION DATED 22.2.2010 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. RESPONDENTS' EXHIBITS: ANNEXURE R1(a) A COPY OF THE SEIZURE MAHAZAR PREPARED BY THE POLICE. ANNEXURE R1(b) A COPY OF THE JUDGMENT IN W.P.(C)NO.3656/2008. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 35310 OF 2009 ------------------------------------------------------ Dated this the 14th day of June, 2010 JUDGMENT The challenge in this Writ Petition is against Ext.P10 order dated 3.11.2009 passed by the District Collector, Thrissur under the Kerala Protection of River Banks and Regulation of Removal of River Sand Act, 2001, by which the District Collector directed auction sale of the vehicle bearing Registration No.TN-01/AC 8736, owned by the petitioner, in case the petitioner failed to pay a sum of Rs.7,50,000/- within seven days from the date of order. 2. The allegation is that on 15.9.2009 at about 5 PM, the vehicle in question was seized by the Sub Inspector of Police, Varantharappilly Police Station on finding that sand was illegally transported in the vehicle. The driver of the lorry ran away on seeing the police. Ext.P13 First Information Report was registered under Section 4(1A) read with Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957. The matter was reported to the District Collector. The District Collector heard the petitioner on W.P.(C) NO.35310 OF 2009 :: 2 :: 19.10.2009. The District Collector was not satisfied with the case of the petitioner that the vehicle was carrying sand legally transported from Tamil Nadu. The directions in the judgment in W.P.(C) No.3656 of 2008 were also taken note of by the District Collector. Rejecting the contentions put forward by the petitioner, the District Collector came to the conclusion that the vehicle was liable to be confiscated as it was involved in illegal transportation of sand. Accordingly, Ext.P10 order was passed directing the petitioner to pay a sum of Rs.7,50,000/-, on failure of which the vehicle was directed to be sold in auction. 3. The petitioner relies on Ext.P14 G.O.(MS)No.161/09/ID dated 14.12.2009, issued by the Government subsequent to Ext.P10 order, wherein among other things, it was noticed thus: “Government appointed a three member Committee of officials to undertake a study on Scarcity of Construction Grade Sand in Kerala as per Government Order read as 1st paper above. Accordingly the Committee has submitted its interim report to Government with various suggestions. The report was further examined by a Cabinet sub- Committee and the Committee made certain W.P.(C) NO.35310 OF 2009 :: 3 :: recommendations on the basis of the suggestions in the report. Government, after having examined all these suggestions and recommendations order the following:- 1) Import of Sand:- Import of sand from other States as well as from other Countries will be encouraged. Kerala State Mineral Development Corporation Ltd. (KEMDEL) is authorized to import sand from other States without prejudice to the open market import of sand by private operators. The procedure for import will be simplified and free movement of sand shall be facilitated. Increased vigilance should be exercised at the place of extraction of sand within Kerala and harassment while the sand is in transit shall be avoided.” 4. The counsel for the petitioner also relies on Ext.P15 order dated 15.1.2010 passed by the District Collector, Palakkad in a similar case, wherein the minutes of the Cabinet Sub Committee held on 6.1.2010 directing not to seize the vehicles transporting sand from other States after remitting necessary taxes at the check post, was noticed. Accordingly, the District Collector directed the Sub Inspector of Police, Alathur to release the vehicle involved in that case (Ext.P15 order). W.P.(C) NO.35310 OF 2009 :: 4 :: 5. Learned counsel for the petitioner also relied on Ext.P16 judgment dated 16.3.2010 in W.P.(C) No.31898 of 2009, where, in a similar case, the District Collector was directed to consider the matter afresh on a representation to be submitted by the petitioner in that case. 6. In view of Ext.P14 Government Order, which was issued subsequent to Ext.P10 order passed by the District Collector, and also in view of the subsequent decision of the Cabinet Sub Committee, it is necessary to have a fresh look into the matter. More over, it is necessary to consider whether any violation of the Kerala Protection of River Banks and Regulation of Removal of River Sand Act, 2001 was committed in the particular case, with reference to the facts and circumstances of the case. If no offence under the Kerala Protection of River Banks and Regulation of Removal of River Sand Act, 2001 was committed, there would normally be no order for confiscation, as ordered to be made in Ext.P10. The District Collector shall consider the matter afresh in the light of the facts and circumstances of the present case and also in the light of Ext.P14 Government Order and subsequent Government Orders, if any, in W.P.(C) NO.35310 OF 2009 :: 5 :: the matter. The petitioner would be entitled to make an effective representation, if not already made. (Learned counsel submitted that Ext.P17 representation was already made to the District Collector.) The District Collector shall pass fresh orders within a period of two weeks from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/