IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WA.No. 1003 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.14952/2010 Dated 24/05/2010 .................... APPELLANT(S): PETITIONER ------------------------ JANEESH KUMAR, AGED 37 YEARS, SON OF ASOKAN, AZHEEKKAL, KAPPADU.P.O. KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, KOZHIKODE. 2. SUB INSPECTOR OF POLICE, KOILANDY, KOZHIKODE DISTRICT. BY SR.GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON 07/09/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.1003 of 2010 ----------------------------------------- Dated this the 7th day of September, 2010 JUDGMENT Ravindran,J. The appellant is the petitioner in W.P(C)No.14952 of 2010. The writ petition was filed challenging Ext.P2 order passed by the first respondent District Collector ordering confiscation of the appellant's vehicle under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. By the judgment under challenge the learned single Judge declined to interfere with the order of confiscation but directed the District Collector to pass revised orders after fixing the value of the vehicle. Hence this writ appeal. 2. We heard Smt.Kochumol Koduvath, learned counsel appearing for the appellant and Sri.Benny Gervasis, learned Senior Government Pleader appearing for the respondents. We have also gone through the pleadings and the materials on record and the files leading to Ext.P2 order that were made available by the learned Senior Government Pleader. The pleadings and the materials on record disclose that the appellant is the registered owner of a goods vehicle W.A.No.1003 of 2010 -:2:- bearing registration No.KL-11/J 5715. The said vehicle was seized by the Sub Inspector of Police, Koilandy Police Station on 9.3.2010 on the allegation that it was used to transport river sand without a valid pass. A report was thereafter submitted to the District Collector, Kozhikode, who issued a notice calling upon the appellant to appear before him on 17.3.2010. The appellant appeared before the District Collector on that day. Thereafter the District Collector passed Ext.P2 order dated 24.3.2010 holding that the appellant's vehicle was used to transport river sand without a valid pass. The District Collector accordingly ordered confiscation of the vehicle. He however, permitted the appellant to avert confiscation by depositing the sum of Rs.75,000/- fixed as the value of the vehicle in the River Management Fund. The instant writ petition was thereupon filed challenging Ext.P2 order inter alia on the ground that the vehicle was seized without preparing a mahazar and in any event a copy of the mahazar was not served on the appellant and therefore, the procedure prescribed in Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 has not been followed. Yet another contention raised is that Ext.P2 order was passed in haste without affording the appellant a reasonable opportunity to put forward his contentions. W.A.No.1003 of 2010 -:3:- 3. By the judgment under challenge the learned single Judge held that as the appellant had admitted before the District Collector that he has transported river sand without a valid pass the finding of the District Collector that the sand was transported in the appellant's vehicle in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act and the Rules cannot be interfered with. The learned single Judge however held that as the vehicle was not got valued by an Engineer of the Public Works Department or the Assistant Motor Vehicles Inspector the decision regarding value of the vehicle is liable to be interfered with. The District Collector was accordingly directed to get the value of the vehicle assessed and to pass a fresh order. 4. It is evident from the files that a copy of the mahazar was never served on the appellant. Rule 27(2) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 stipulates that when a vehicle is seized for transporting river sand in violation of the provisions of the Act and the Rules, a mahazar shall be prepared in the presence of two witnesses and a copy thereof shall be given to the person possessing the vehicle at the time of seizure. The learned Senior Government Pleader appearing for the respondents fairly W.A.No.1003 of 2010 -:4:- submitted that though a mahazar was prepared when the vehicle was seized by the Sub Inspector of Police, Koilandy on 9.3.2010 a copy thereof does not appear to have been served on the appellant. In our opinion as a copy of the mahazar was admittedly not served on the appellant, the person in possession of the vehicle at the time it was seized, the order passed by the District Collector directing confiscation of the vehicle cannot be sustained. In such circumstances we are of the opinion that the competent authorities should be directed to furnish a copy of the mahazar to the appellant and to proceed against him in accordance with law. We also notice that the provisions of the Act have been amended with effect from 13.6.2010 and that as per the amended provisions the authority competent to pass original orders of confiscation is the Sub Collector having jurisdiction over the area. We accordingly allow the writ appeal, reverse the judgment of the learned single Judge, quash Ext.P2 order and dispose of the writ petition with the following directions: (i) The District Collector Kozhikode shall hand over the relevant files to the Sub Collector having jurisdiction over the area where the vehicle was seized. W.A.No.1003 of 2010 -:5:- (ii) The Sub Collector shall thereupon furnish to the appellant a copy of the mahazar prepared on 9.3.2010 and shall give him ten clear days' time to submit a written representation setting out his contentions. The Sub Collector shall thereafter hear him and pass an order adverting to the various contentions raised by the appellant and after orders are passed communicate a copy thereof to the appellant. (iii) The Sub Collector shall complete the entire exercise within two months from today. The contentions raised by the appellant on the merits of the case are kept open. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.1003 of 2010 ---------------------------- JUDGMENT 7th September, 2010