High Court of KeralaSingle Judge2013-03-25Writ petition allowed in part; Ext.P5 quashed a...

Abdul Nazar P v. District Collector, Malappuram; Sub Divisional Magistrate/Revenue Divisional Officer, Malappuram; Sub Inspector of Police, Malappuram

Case / Petition Number:WP(C).No. 8394 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon
Judgment Date: 2013-03-25
Court Decision / Holding: Ext.P5 was set aside; the competent authority (District Collector) is directed to reconsider the matter in accordance with law, after giving an effective opportunity of hearing to the petitioner, within six weeks from receipt of the judgment copy; the petitioner shall produce a copy of this judgment along with the writ petition before the concerned respondent for further steps.
Final Disposition: Writ petition allowed in part; Ext.P5 quashed and matter remitted to competent authority for reconsideration with due process within six weeks.

Parties to the Case

Appellants / Petitioners

Abdul Nazar P

Respondents

District Collector, Malappuram
Sub Divisional Magistrate/Revenue Divisional Officer, Malappuram
Sub Inspector of Police, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Shoby K. Francis

Counsels for Respondents

• Government Pleader, Sri. Vincent K.C.

Case Synopsis & Summary

The grievance in WP(C) No. 8394 of 2013 concerns the seizure of vehicle KL-10-Y/3309 under the Kerala Protection of River Banks and Regulation of Removal of Sand Act for alleged illegal river sand transportation. The petitioner Abdul Nazar P. previously challenged the order of the Sub Divisional Magistrate/RDO under what was then the Ordinance; a revision petition filed before the District Collector (1st respondent) was disposed of by Ext.P3 on 22 November 2011, directing the District Collector to decide in light of the Full Bench’s observations in Shan v. State of Kerala (2010) 3 KHC 333. Following that, the petitioner was served with Ext.P4 notice to appear before the Deputy Collector on 16 February 2013. The petitioner appeared; however, he contends the Deputy Collector left and the hearing was not effectively conducted; Ext.P5, dated 21 February 2013, adjudicated the matter and directed payment of Rs. 2,55,500 after credit for Rs. 1,09,500 already remitted as interim custody. The Government Pleader concedes that by Ext.P3 the Ordinance had elapsed; Ext.P5 being based on that framework is unsustainable. The court set aside Ext.P5, and directed the competent authority to reconsider the matter in accordance with law, ensuring a real opportunity of hearing within six weeks, and to act in line with Ext.P3’s mandate. The petition is allowed; Ext.P5 is quashed and the matter is to be decided afresh by the appropriate authority with due process.

Provisions of Law Cited

Kerala Protection of River Banks and Regulation of Removal of Sand ActOrdinance (unspecified)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P5 eorder is illegal since the Ordinance had already expired by Ext.P3, and the revision was to be considered by the District Collector under the Act. The hearing notice Ext.P4 and the alleged non‑appearance of the petitioner are disputed; the Deputy Collector could not conduct a valid hearing, and the order reflects factual and legal errors. Ext.P3 directed consideration in light of Shan v. State of Kerala; Ext.P5 violates that mandate and the due‑process requirement. The remedy is to set aside Ext.P5 and remand for a proper hearing by the competent authority with full opportunity, within a six‑week period, consistent with the court’s prior directions.

Contentions of Respondents

It was argued that Ext.P3’s directions arose under the Ordinance; with its lapse, the matter must be dealt with under the Act by the competent authority. The hearing given under Ext.P4 is intended to satisfy natural justice, and the matter should be decided in accordance with law after the required opportunity of hearing. The court should not circumvent the statutory framework established by Ext.P3 and Shan’s observations.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Shan v. State of Kerala	2010(3) KHC 333	Positive	Cited for guiding the decision; the Full Bench observations in Shan were to be followed in deciding the matter.
W.P.(C) No. 31102/11	Judgment dated 22-11-2011	Mentioned Only	Ext.P3 judgment (W.P.(C).No.31102/11) is referenced for history and directing reconsideration; it is not treated as a substantive binding principle in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935** **WP(C).No. 8394 of 2013 (Y) ---------------------------** **PETITIONER:** **-----------** **ABDUL NAZAR P, AGED 32 YEARS, S/O.KUNJU MOHAMMED, PANDARATHODY HOUSE, PAZHAMALLOOR PO, KOOTTILANGADI VIA, MALAPPURAM (OWNER OF KL-10-Y/3309)** **BY ADV. SRI.SHOBY K.FRANCIS** **RESPONDENTS:** **------------** **1. DISTRICT COLELCTOR, COLLECTORATE, MALAPPURAM 676 505.** **2. SUB DIVISIONAL MAGISTRATE/REVENUE DIVISIONAL OFFICER, OFFICE OF THE R.D.O., PERINTHALMANNA, PERINTHALMANNA P.O., MALAPPURAM 679 322.** **3. SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION, MALAPPURAM 676505.** **BY GOVERNMENT PLEADER SRI.VINCENT K.C.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** **WP(C).No. 8394 of 2013 (Y)** ## **---------------------------** ## **APPENDIX** **--------** **PETITIONER'S EXHIBITS** **---------------------** **EXT.P1. COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 5.11.11.** **EXT.P2. COPY OF THE REVISION FILED BY THE PETITIONER ON 18.11.11. BEFORE THE 1ST RESPONDENT.** **EXT.P3. COPY OF THE JUDGMENT IN WPC NO.31102/11 DATED 22.11.11** **EXT.P4. COPY OF THE NOTICE DATED 18.1.13 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.P5. COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR DATED 21.2.13 IN D. M6.59761/11.** **RESPONDENT'S EXHIBITS: NIL** **---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 8394 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of March, 2013 ## **JUDGMENT** The grievance involved in the writ petition is with regard to the course and proceedings pursued by the statutory authorities in respect of the seizure of the vehicle bearing No. KL-10-Y/3309 belonging to the petitioner for the alleged illegal transportation of river sand under the Kerala Protection of River Banks and Regulation of Removal of Sand Act. 2. In the earlier course of litigation, the petitioner had approached this Court challenging the order passed by the second respondent by virtue of the power and competence conferred upon him in tune with the relevant provisions of the 'Ordinance'. The petitioner had filed a revision petition as well, before the District Collector, who happens to be the first respondent herein. It was in the said circumstance, that the writ petition was disposed of vide Ext.P3 judgment dated 22/11/2011 directing the District Collector to consider W.P.(C)No.8394/2013 2 and finalise the matter in accordance with the observations made by the Full Bench in **Shan v. State of Kerala** (2010(3) KHC 333) . 3. Pursuant to Ext.P3, the petitioner was served with Ext.P4 notice dated 18-1-2013 asking him to appear in the Chamber of the Deputy Collector, Malappuram at 3.30 p.m. on 16.2.2013. The petitioner contends that, even though the petitioner appeared before the said authority, the Deputy Collector had gone out and did not return till 5.00 p.m.; hence the petitioner had to return . It is also stated that the office staff of the Deputy Collector was not in a position to trace out the file and the petitioner was given to understand that he will be let known of further hearing scheduled on a subsequent date. It was while so, that the petitioner was served with Ext.P5 order dated 21.2.2013 passed by the first respondent, whereby the adjudication has been finalised directing the petitioner to satisfy the balance amount of Rs. 2,55,500/- after giving credit to the sum of Rs. 1,09,500/- already remitted in connection with the granting of interim custody of the vehicle. It is the case of the petitioner that there is an observation in Ext.P5 to the effect that the petitioner had not appeared on 16.2.2013 W.P.(C)No.8394/2013 3 and hence the order. It is stated that the observation made by the first respondent is per se wrong and illegal both on facts and also on the question of law and hence is under challenge. 4. Heard the learned Government Pleader as well. 5. During the course of hearing, the learned Government Pleader submits that, by the time Ext.P3 verdict was passed, the Ordinance had already got elapsed . The direction given in Ext.P3 was to consider the revision petition filed before the District Collector, by virtue of his being the revisional authority ( under the Ordinance). It is also not a matter of dispute, that the Ordinance stood elapsed as on the date of Ext.P3 and that no revisional power was conferred upon the first respondent as on the said date. In the said circumstances, it is for the competent authority under the 'Act' to have the matter considered, so as to give effect to Ext.P3 judgment already passed by this Court, which is not subjected to review or appeal. The only question to be considered is whether a positive opportunity of hearing was given to the petitioner . The fact remains that Ext.P4 notice was issued to be present in the chamber of the Deputy Collector for hearing on W.P.(C)No.8394/2013 4 16.2.2013. As per Ext.P3, there was no need, necessity or occasion for the Deputy Collector to have heard the petitioner by issuing Ext.P4 notice and the matter required to be considered and finalised by none other than the first respondent/District Collector. 6. In the above circumstances, this Court finds that Ext.P5 order cannot survive any more. It is set aside accordingly. The competent authority is directed to reconsider the matter and pass appropriate orders in accordance with law, after giving an effective opportunity of hearing to the petitioner, at the earliest, at any rate within 'six weeks' from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment along with a copy of the writ petition before the concerned respondent for further steps. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.8394/2013 5 W.P.(C)No.8394/2013 6