IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 36466 of 2008(N) -------------------------- PETITIONER(S): --------------- BLESSON GEORGE, AGED 27 YEARS, ARANGASSERY HOUSE, KUTTOOR P.O., THRISSUR, (RC OWNER OF KL O8/AH 5438). BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM. 2. THE TAHSILDAR, PONNANI, MALAPPURAM DISTRICT. 3. THE S.I. OF POLICE, PONNANI POLICE STATION, PONNANI, MALAPPURAM DISTRICT. GOVT. PLEADER SRI. P.N. SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. GIRI, J. ------------------------------- WP(C).NO. 36466 of 2008 --------------------------------- Dated this the 11th day of December, 2008. JUDGMENT Specific issue raised in this writ petition is covered by the judgment of this court in WPC.No.15847/2008 and connected cases. For ready reference the directions and observations issued in the said judgment have been extracted hereunder: “56. In many cases, the orders are purely mechanical, referring only to the seizure of the vehicle and reporting to the District Collector. There is no consideration of the objections. No scientific or rational method has been adopted in fixing the price of the vehicle. It should also be remembered that a direction to the owner of the vehicle to remit an amount equal to the price of the lorry, does not mean that the amount to be so remitted is fixed irrespective of the question as to whether the offence detected is a first offence or whether a recurring one. It is here that the District Collector should remember that the power which WPC.36466//2008 2 is exercised under Section 23 of the Act read with Rules 27 and 28 is a substantive power that could result in a person forfeiting his property. 57. It is keeping in mind the impact of the power exercised by the District Collector that they should proceed to consider the objections and then pass the order in terms of Rules 27 and 28 of the Rules. I also take note of the submissions of the learned counsel for the petitioners that the Sand Act does not provide for an appeal against the order passed by the District Collector under Rule 27 or 28 of the Rules. Analogous provisions dealing with the infraction of the provisions under the Forest Act or the Abkari Act, which obviously have a similar kind of impact on the society, should be recalled. An order of confiscation passed under the Forest Act is vulnerable to an appeal before no less an authority than a District Judge and the same can be challenged in revision before this court under Section 115 of the Code of Civil Procedure. An order of confiscation under the Abkari Act is also vulnerable to an appeal and revision before the competent court. The WPC.36466//2008 3 absence of such a provision in the Sand Act obviously is no indication that the provision relating to confiscation under the Sand Act can be exercised in a casual manner. In fact, it should impress the authority, who is conferred with the power, that he is required to do so, applying his mind and acting as a quasi judicial authority. 58. Once it is accepted that the power under Section 23 of the Sand Act, read with Rules 27 and 28 of the Rules, is a substantive power and is also, therefore, quasi judicial in character, then it follows as a logical consequence that the District Collector should also have the power to direct a release of any vehicle which is seized and produced before him, by way of interim custody. Such power would obviously be ancillary to the substantive power exercised under Section 23 of the Act read with Rules 27 and 28 of the Rules. It is not for this court to exhaustively lay down the guidelines regarding the conditions that could normally be imposed, while releasing a vehicle on interim custody. But, going by the discussion made by me above and as a reflection of my own opinion, I feel WPC.36466//2008 4 the following safeguards may be taken by the District Collectors while passing orders for release of a vehicle on interim custody. (1) Deposit of an appropriate amount as a pre-condition for the release of the vehicle on interim custody. (2) A condition that the vehicle shall not be used for transportation of sand, pending final adjudication of the proceedings under Section 23 of the Act read with Rules 27 and 28 of the Rules. (3) That the vehicle shall not be used within the precincts of the Taluk or even the District, pending final adjudication by the District Collector. (4) A condition that the vehicle would be liable for immediate seizure and further proceedings if it is found involved in any other illegal transportation while it is entrusted to the owner on interim custody, pending final adjudication under Section 23 of the Act read with Rules 27 and 28 of the Rules. 59. The list mentioned above is, by no means exhaustive, but only indicative. If there is delay in passing final orders beyond a reasonable period from the date WPC.36466//2008 5 within which the objections could be filed, at any rate, where there is a motion by the aggrieved party for release of the vehicle on interim custody, it is necessary for the District Collectors to pass an order on such application, pending adjudication under Section 23 of the Act. 60. But, I also make it clear that where the District Collector deems it appropriate to release the vehicle on interim custody, it would be necessary that any one or all of the conditions mentioned above should be imposed at the time of release of the vehicle on such interim custody and obviously, conditions could be further imposed at the time of passing final orders under Section 23 of the Act. 61. Keeping in mind the above guidelines, I am of the view that the orders, which are impugned in all these writ petitions are liable to be set aside and the District Collectors are directed to reconsider the issue, keeping in mind the principles laid down by the Division Bench on more than one occasion and the observations contained in this judgment.” WPC.36466//2008 6 2. Having noted that the power being exercised by the District Collector under section 23 of the Act is quasi judicial character and in the light of the parameters laid down by the Division Bench of this court and by me in the aforementioned judgment, I have gone through the order impugned in this writ petition. I am satisfied that they cannot be sustained as the product of an application of mind to the relevant provisions of law. Accordingly, the impugned order is are set aside. The District Collector is directed to reconsider the issue in the light of the observations and findings made in the judgment in WPC.No.15847/2008 and connected cases. Fresh orders shall be passed in this regard within three months from the date of receipt of a copy of this judgment after hearing the petitioner and after conducting a proper enquiry. V. GIRI, JUDGE. Pmn/ WPC.36466//2008 7