IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 27152 of 2010(T) -------------------------------------- PETITIONER(S): -------------------------- U.K.YOOSUF, S/O.ABDUL RAHIMAN, U.K.TRADERS, HOSANGADI, MANJESWAR, KASARAGOD. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): ------------------------- 1. M.V.SHAMBU, ADDITIONAL SUB INSPECTOR OF POLICE, VIDYANAGAR POLICE STATION, KASARAGOD, PIN-670 121. 2. THE DISTRICT SUPERINTENDENT OF POLICE, KASARAGODE, PIN-670 121. 3. THE DISTRICT COLLECTOR, KASARAGODE, PIN-670 121. 4. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. GOVERNMENT PLEADER SRI.T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.27152 of 2010 ---------------------------------------- Dated this the 2nd day of November 2010 J U D G M E N T K.M.JOSEPH,J The petitioner has approached this Court seeking the following reliefs: i) Issue a writ of mandamus or any other appropriate writ, order or direction, compelling the 1st respondent to return the original permit and pass for transportation of sand from Kajepadaw to Kallambalam; ii) Issue appropriate direction to the 4th respondent to consider and dispose of Exhibit- P11 in accordance with the provisions of law and to initiate disciplinary action against the 1st respondent. 2. Briefly put, the case of the petitioner is as follows: 3. The petitioner is the registered owner of Tata Taurus Lorries bearing Registration No.KA-19C-167 and KA-19C-1417. The petitioner is a transporting contractor. One Sri.U.Pocker is having dealers licence for stocking and selling ordinary sand. Ext.P1 is the certificate issued by the Geologist. The petitioner's W.P.C.No.27152 of 2010 2 lorry was hired by Sri.U.Pocker who was transporting ordinary sand from Kajepadaw in Kasaragode District to Kallambalam in Trivandrum district under Exts.P2 and P3 permits. The vehicles are to pass through Manjeswar check post. The vehicles and its records were verified by the authorities and necessary entries were made in the check post. The vehicle was stopped by the 1st respondent at a place called Bevinji. The drivers of the vehicles employed by the petitioners handed over all the documents such as registration certificates relating to the vehicles and the relevant documents for storing and transporting of ordinary sand to the 1st respondent. But the 1st respondent illegally seized the records and vehicles by force and took them to Vidyanagar police station. He refused to verify the records and release the vehicles. He demanded huge amounts for which the drivers of the petitioners were not ready. The 1st respondent registered a case under Section 4(1) (a) and Section 21(2) of the Kerala Minor Mineral Construction Rules. Exts.P4 and P5 are the F.I.Rs. The 1st respondent submitted Exts.P6 and P7 reports before the 3rd respondent. The petitioner filed Exts.P8 and P9 representations before the 1st respondent. The 3rd respondent W.P.C.No.27152 of 2010 3 heard the case of the petitioner and, on verification of the records, the 3rd respondent was satisfied that there was valid permit for transportation of the sand in the petitioner's vehicle and the 3rd respondent ordered release of the vehicle with sand to the petitioner vide Ext.P10 order. The 3rd respondent illegally imposed a compounding fee of Rs.1,000/- to each of the petitioner's vehicle. 4. The petitioner preferred an appeal against Ext.P10 order before the competent authority which is still pending. The complaint of the petitioner is that in spite of Ext.P10 order, the 1st respondent refused to hand over the original passes and permit for transportation of the sand though the vehicle with sand alone was released. The petitioner filed a complaint before the 4th respondent as Ext.P11. 5. A memo was filed by the learned Government Pleader producing a kaichit executed by the petitioner for having received the R.C books and documents on 23/8/2010. Objection was raised by the petitioner against the memo. It is stated that he had endorsed in the kaichit specifically that the R.C.book and the documents of the lorries are received. The petitioner admits W.P.C.No.27152 of 2010 4 his signature and date. He stated that at the time of seizure of the lorry, all the required documents for selling and transporting sand, receipts for payment of sales tax at the Manjeswar check post, original road passes, registration certificates of the lorries were in the vehicle and those documents were shown to the 1st respondent. The 1st respondent had taken custody of all the documents. But the 1st respondent said that the documents of the lorry were not genuine and that was the circumstance under which Ext.P1 was produced later before the 1st respondent. It is also stated that the 1st respondent has illegally refused to hand over the original permit, sales tax bill and the passes issued by the Geologist mentioned in it. It is stated that the documents are still in the custody of the 1st respondent, without which he is unable to operate the vehicles for transporting sand to the destination. 6. Later, a counter affidavit is filed by the 1st respondent wherein it is inter alia stated as follows: He denies that he has seized the vehicles in spite of having the requisite permits for transportation of sand. He has taken the vehicles in his custody only because the vehicles were engaged in the illegal W.P.C.No.27152 of 2010 5 transportation of sand without having any requisite permit. He has denied that he said that the documents found in the lorry were not genuine. There was no occasion for him to make such a statement as no documents were found in the lorry at the time of seizure of the lorry. He has denied the case of refusal to hand over the original permit, sales tax bill and the passes. The petitioner has filed a reply affidavit to the same wherein it is inter alia stated as follows: The 1st respondent has revealed for the first time before the Court that there were no documents in the lorries at the time of seizure. The 1st respondent has not disclosed when the R.C book and connected records issued by the department were produced by the petitioner before the 1st respondent through the driver. He maintains that the 1st respondent seized the entire documents from the vehicle and foisted Exts.P2 and P3 cases and submitted Exts.P6 and P7 reports. In spite of Ext.P10 order, the 1st respondent refused to release the documents with mala fide intention. 7. We have heard the learned counsel for the petitioner and the learned Government Pleader. The prayer pressed before us by the learned counsel for the petitioner is to return the W.P.C.No.27152 of 2010 6 original permit and the passes of the vehicles. This is on the basis that two vehicles were seized by the 1st respondent and he had seized all the documents also. 8. We find absolutely no merit or bona fides in this writ petition. The vehicles of the petitioner was seized by the 1st respondent. There is no dispute that the vehicles and the R.C.books of the vehicles have been returned. In fact, the petitioner has not referred to the fact that he had executed a kaichit under which the R.C.books and other documents were returned to him. He has suppressed this fact from the Court. The kaichit was executed on 23/08/2010 and the writ petition is filed afterwards. More importantly, when the matter came up before the 3rd respondent, it is true that the 3rd respondent noted that the geologist issued Ext.P1 certificate. But the question is, at the time when the 1st respondent seized the vehicles, it was accompanied by the permit and passes. The case itself was taken finding that there were no documents to support the transport of sand. It is accordingly that F.I.R was lodged and reports were sent to the District Collector. A perusal of Ext.P10 is crucial to establish the falsity of the petitioner's case. It reads W.P.C.No.27152 of 2010 7 as follows: “As per the ref read above, the Sub Inspector of Police, Vidyanagar Police Station has reported that he had two seized a two lorries bearing reg no:KA 19C 167 from Bevinja in Chengala village on 07/08/2010 at 1115 hrs, and KA 19C 1417 from Bevinja in Thekkil village on 07.08.2010 at 1050 hrs while it was engaged at illegal transportation of sand. After preparing a seizure mahazer the Sub Inspector has kept the seized vehicles at the station compound and registered cases against the driver of the vehicles as per Cr.No.17/10 and 18/10 of that police station. In this connection the Sub Inspector has requested to take stringent action against the concerned as per law. After verifying the mahazar submitted by the Sub Inspector of Police, Vidyanagar Police Station, the owner of the vehicle was heard on 26.8.2010 at 2.00 p.m. The owner stated that he was carrying sand with valid permit and had produced a certificate issued by the Geologist Kasaragod wide ref no.DOK/235/M/2010 Dated:12.08.2010, certifying that the permits used by the vehicles for transportation of sand is valid and produced the counterfoil of the passes. W.P.C.No.27152 of 2010 8 The owner of the vehicle has requested to release the vehicle. On scrutiny of the report submitted by the S.I of Police, Vidyanagar it is learned that the driver of the vehicle has not produced any permit at the time of the inspection of the vehicle. It is a violation of the provisions in the KMMC Rules 1967. Hence as per the provisions contained in the KMMC Rules-1967 the case is here by compounded for an amount of Rs.1,000/- (Rupees one thousand only) each. In accordance with the orders, the owner of the vehicle remitted an amount of Rs.1,000/- (Rupees one Thousand only) in this office as per Receipt No.77 and 78 of TR 5 Book no:3552 on 28.08.2010. In these circumstances, the Sub Inspector of Police, Vidyanagar Police Station will release the above vehicles with sand on receipt of this order.” 9. Therefore, a perusal of the above order would show two things. Firstly, the Sub Inspector of Police has submitted a report that the drivers of the vehicles has not produced any permit at the time of inspection of the vehicles. Secondly, we find that the petitioner has actually compounded the matter and it is on the said basis that the lorries were got released. W.P.C.No.27152 of 2010 9 Therefore, it is one thing to say that he may have had that document. It is another thing to suggest that the documents were there with the vehicles and it was produced before the 1st respondent. The case before the 3rd respondent ended with the matter being compounded by the petitioner. The 3rd respondent had, in fact, directed the vehicles with sand to be released. The petitioner did not raise the plea before the 3rd respondent that the vehicles with sand and the documents should be released to him. In fact, such a case would have been inconsistent with the reports of the Sub Inspector of Police and also the act of compounding. Therefore, we see absolutely no merit in the writ petition and is hence dismissed. (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.C.No.27152 of 2010 10 W.P.C.No.27152 of 2010 11 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010