IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 16637 of 2010(D) ------------------------ PETITIONER : --------------- LISSY SUNNY, MANAKULANGARA HOUSE, VILLOONNI P.O, KOTTAYAM. BY ADVS. SRI.V.K.SUNIL SMT.NIMA JACOB RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE THAHSILDAR, KOTTAYAM. 3. THE GEOLOGIST, MINING & GEOLOGY, KOTTAYAM. 4. V.G. AMBUJAKSHAN, PUTHENPURAYIL HOUSE VARIKKAMKUNNU,VADAKARA P.O,VAIKOM. R1 TO R3 BY GOVT. PLEADER SRI. T.K. ARAVINDKUMAR BABU R4 BY ADV. SRI.P.M.ZIRAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 16637 of 2010(D) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CASH MEMORANDUM IN FORM P DATED 27.1.2010. EXT.P2: COPY OF THE JUDGEMENT DATED 10.2.2010 IN WP(C) 3933 OF 2010 OF THIS HONOURABLE COURT. EXT.P3: COPY OF THE APPLICATION DATED 20.2.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF THE HEARING NOTICE NO. C5/979/10 DATED 27.2.2010 ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER NO. C5-979/10 DATED 5.3.2010 ISSUED BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE APPLICATION DATED 8.3.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7: COPY OF THE HEARING NOTICE NO. E10 (2) 6826/10 DATED 9.3.2010 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT. EXT.P8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 18.3.2010. EXT.P9: COPY OF THE PROCEEDINGS NO. E.10 (2)-6826/10 DATED 26.3.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P10: COPY OF THE APPLICATION FILED BEFORE THE 2ND RESPONDENT UNDER THE RIGHT TO INFORMATION ACT. EXT.P11: COPY OF THE LETTER NO. C5-7188/10 DATED 24.7.2010 ISSUED BY THE 2ND RESPONDENT UNDER THE RIGHT TO INFORMATION ACT. EXT.P12: COPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 3RD RESPONDENT DATED 13.7.2010. EXT.P13: COPY OF THE REPLY LETTER NO. 1139/DY/ML/10 DATED 10.8.10 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.16637 of 2010 ----------------------------------- Dated this the 5th day of October 2010 J U D G M E N T Petitioner challenges Ext.P9 proceedings of the 1st respondent. 2. Petitioner is the owner of a mini lorry bearing Reg.No.KL5/Y 2900. According to the petitioner, she purchased 3 Metric Tonnes of ordinary sand from the 4th respondent, a dealer of ordinary sand. Ext.P1 is said to be a cash memorandum. It is stated that when the ordinary sand was transported in her lorry on 27.1.2010, the 2nd respondent seized the vehicle alleging that the sand transported in the lorry was river sand. 3. Petitioner thereupon approached this Court challenging the proceedings by filing a writ petition, which was disposed of by Ext.P2 judgment, directing the W.P.(C) No.16637 of 2010 -: 2 :- petitioner to seek interim custody of the vehicle from the 2nd respondent. Accordingly the petitioner made an application. Although orders were not passed as directed, in the mean time, the District Collector issued Ext.P9 final order holding that the sand seized from the lorry of the petitioner was got tested by the Geologist and it was found that the sand was river sand. On that basis, it was concluded that the petitioner violated the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act and the Rules and it was held that the vehicle of the petitioner has liable for confiscation. It is this order which is under challenge. 4. The contention raised by the learned counsel for the petitioner is that the sand seized from the lorry on 27.1.2010 was the sand purchased by the petitioner from the 4th respondent and that Ext.P1 is the cash memorandum that was issued by the 4th respondent. It is his contention that since the sand in question was purchased by her from a W.P.(C) No.16637 of 2010 -: 3 :- licensed dealer who is still continuing his business, she could not have been found guilty. It is contended that the authorities have also not come to a conclusion that under the cover of Ext.P1, petitioner procured river sand from other sources or transported such river sand. 5. Ext.P5 is the report of the Tahasildar on the basis of which 1st respondent conducted the enquiry. This report states that in pursuance to the directions in Ext.P2 judgment, 2nd respondent issued notice to the 4th respondent and that the 4th respondent appeared and confirmed that sand was sold to the petitioner and that the same was ordinary sand. However, the explanation of the 4th respondent was refused to be accepted by the 2nd respondent on the ground that 4th respondent did not maintain his stock register properly. It is further stated in Ext.P5 itself that the Geologist had also confirmed the sand to be river sand. It is on that basis adjudication has recommended. W.P.(C) No.16637 of 2010 -: 4 :- 6. In Ext.P9 order passed by the District Collector the sand is held to be river sand on the strength of the report of the Geologist. However no cogent reason stated to reject the evidence of the 4th respondent. In my view, if the petitioner is actually a purchaser of ordinary sand as contended by her it certainly is a relevant matter which should have been considered by the 1st respondent while concluding on the guilt of the petitioner and passing order of confiscation of the vehicle. Further, if the theory canvassed by the petitioner is acceptable, the fact that Stock Register was not properly maintained by the 4th respondent, may not be a reason to reject the case of the petitioner. A reading of Ext.P9 shows that 1st respondent did not appreciate the case of the petitioner in the aforesaid manner. 7. Therefore, I am inclined to think that the matter requires a fresh consideration. In that view of the matter, Ext.P9 order has to be set aside and I do so. The Sub W.P.(C) No.16637 of 2010 -: 5 :- Divisional Magistrate who is now authorized to exercise powers under Sec.23 of the Act shall, reconsider the matter with notice to the petitioner affording him an opportunity to adduce evidence in the matter and shall pass a fresh order. In the mean time, if petitioner is desirous of getting interim custody of the vehicle, it will be open to the petitioner to apply for interim custody of the vehicle. If such an application is made, it shall be considered in accordance with law and in the light of the principles laid down by this Court in Shan C.T. v. State of Kerala [2010(3) KHC 333]. Petitioner to produce a copy of this judgment before the respondents for compliance. Orders shall be passed within 8 weeks from the date of production of a copy of this judgment. ANTONY DOMINIC, JUDGE. Jvt