Aboobacker Siddique v. District Collector, Malappuram; Deputy Tahsildar, Ernad Taluk; Sub Inspector of Police, Areacode Police Station, Malappuram District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932** **WP(C).No. 15151 of 2009(L)** **--------------------------------------** **PETITIONER:** **-------------------** **ABOOBACKER SIDDIQUE, S/O.ALIKUTTY, THEKKUMPURATH HOUSE, AREACODE, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR.** **RESPONDENTS:** **------------------------** **1. THE DISTRICT COLLECTOR, MALAPPURAM.** **2. THE DEPUTY TAHSILDAR, ERNAD TALUK, MALAPPURAM DISTRICT.** ## **3. THE SUB INSPECTOR OF POLICE,** **AREACODE POLICE STATION, MALAPPURAM DISTRICT.** ## **R1 TO R3 BY GOVERNMENT PLEADER SRI. T.B. HOOD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2010, ALONG WITH W.P.(C). NO. 26255/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.15151/2009-L:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE PASS ISSUED BY THE SECRETARY, KAVANOOR GRAMA PANCHAYATH DTD. 05/03/2009.** **EXT.P.2: COPY OF THE SEIZURE MAHAZAR PREPARED BY THE R.2. DTD. 05/03/2009.** **EXT.P.3: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 11/03/2009.** **EXT.P.4: COPY OF THE ORDER OF THE R.1. DTD. 05/05/2009 AS NO. P4-14074/09.** ## **RESPONDENTS' ANNEXURES:** **ANNEXURE R1.A: COPY OF THE `P' FORM NO. BEARING SL.NO.5773.** **ANNEXURE R1.B: COPY OF THE `P' FORM NO. BEARING SL.NO.5782.** **ANNEXURE R1.C: COPY OF THE STATEMENT GIVEN BY THE SECRETARY OF THE PANCHAYAT.** **ANNEXURE R1.D: COPY OF THE STATEMENT GIVEN BY DEPUTY TAHSILDAR, ERNAD.** **ANNEXURE R1.E: COPY OF THE STATEMENT GIVEN BY THE KADAVU WATCHMAN.** **ANNEXURE R1.F: COPY OF THE RELEVANT PAGE OF THE KADAVU REGISTER.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 15151, 15247, 15580, 17172, 17187, 25730, 25750, 25763, 25867, 25879, 25952, 25962, 26073, 26191, 26255, 26478, 28830 & 31490 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3[rd] day of August, 2010. ## J U D G M E N T In all these writ petitions, the petitioners challenge orders of the respective District Collector passed under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, by which on finding that the vehicles owned/possessed by the petitioners have been used for illegal transportation of river sand in violation of the provisions of the Act and Rules, the petitioners have been directed to pay the value of the vehicles towards the River Management Fund. The learned counsel appearing for the petitioners in all these writ petitions advanced only one set of arguments without going into the merits of the case on facts in respect of each order challenged in each writ petition. He bases his contention only on the applicability of the amended Section 23 of the Act, which came into force with effect from 14-7-2010 , which contention has not been raised in the writ petition. According to him, although all the orders challenged in these writ petitions were passed prior to the coming into force of the said amendment, in view of the beneficial provisions introduced by the amendment, which gives added protection to owners/possessors of the vehicles accused of being used for illegal transportation of river sand, such provisions should be construed as retrospective in nature and therefore all these orders should be set aside and the matters should be remanded to the original authority as per the amended provisions of the Act so as to re-do the procedure in accordance with the amended provisions of the Act. He would contend that insofar as the amendment does not result in taking away of any vested right in anybody, the same can be construed as W.P.C. No. 15151/2009 etc. -: 2 :- retrospective and the benefit of the amended provisions can be made available to the petitioner in these cases. Learned counsel for the petitioners refers to the following decisions of the Supreme Court in support of his contention: **K. Eapen Chacko** v. **The Provident Investment Company (P) Ltd** ., 1976 SC 2610, **Sita Ram and others** v. **The State of Uttar Pradesh** , 1979 SC 745, **Maru Ram** v. **Union of India** , 1980 SC 2147, **Mithilesh Kumari and anothe** r v. **Prem Behari Khare** , 1989 SC 1247, **State through C.B.I., Delhi** v. **Gian Singh** , AIR 1999 SC 3450, **Shiv Shakti Co-op. Housing Society, Nagpur** v. **M/s. Swaraj Developers and others** , 2003 SC 2434 and **Pratap Singh** v. **State of Jharkhand and another** , 2005 SC 2731. ## 2. The contention proceeds as follows: By amendment of the Section 23, an elaborate new procedure has been prescribed with a right of revision before the District Collector and a right of appeal before the District Court. Only after the confiscation proceedings are over, a criminal prosecution can be launched. According to the learned counsel for the petitioners, under the Mines and Mineral (Development and Regulation) Act, confiscation can be effected only by the criminal court trying an offence under the Act, that too, on successful prosecution for the offence alleged. It is unlike to that provision that in the present Act, a power to confiscate the vehicle without successful prosecution is incorporated and therefore when the rigor of the law has been minimized by the beneficial provisions of the amended Act, such beneficial provisions should be made applicable to the petitioners' vehicles also. W.P.C. No. 15151/2009 etc. -: 3 :- 3. In answer to that, the learned Government Pleader would contend that the petitioners cannot now raise such a contention in view of the fact that in these cases themselves, on an earlier reference by a learned Single Judge of this Court to a Division Bench, because of a decision of another learned Single Judge taking a view contrary to the earlier Division Bench decision and in that reference, in the decision of **Abdu Rahiman** v. **District Collector, Malappuram** , 2009(4) KLT 485, a Division Bench held against the petitioners in these writ petitions themselves and therefore the petitioners are bound by that decision and cannot take a contention contrary to that decision. He would further submit that a Division Bench of this Court, in **Abdul Samad** v. **State of Kerala** , 2007(4) KLT 473, has upheld the power of the District Collector to confiscate the vehicle under Section 23 of the Act even without a seizure under Section 102 of the Crl. P.C, which would mean that even without a successful prosecution in a criminal court, the District Collector has power to confiscate the vehicle. That decision was later followed by another Division Bench in **Moosakoya** v. **State of Kerala** , 2008(1) KLT 538. 4. As far as the contention regarding retrospective operation of the amended provisions, the learned Government Pleader points out that Section 1(2) of the Amendment Ordinance specifically stipulates that the Ordinance shall come into force at once, which would mean that the amendment is only prospective and not retrospective. Therefore, according to the learned Government Pleader, the contention of the petitioners that in view of the amendment by the Kerala Protection of River Banks and Regulation of Removal of Sand (Amendment) Ordinance, 2010, which came into force with effect W.P.C. No. 15151/2009 etc. -: 4 :- from 14-10-2010, which is retrospective in character, the impugned orders should be set aside and the matters should be remanded to the original authority for fresh consideration in accordance with the amended provisions, does not have any merit whatsoever. He would further submit that the right of appeal is referable to the date on which the impugned order is passed and a proceeding under Article 226 of the Constitution of India is not a continuation of the original proceedings as in the case of an appeal. 5. I have considered the rival contentions in detail. 6. First of all, I do not think that the Ordinance is retrospective in character insofar as the Ordinance expressly makes it clear that it would come into force with effect from the date of the Ordinance. Section 1 of the Ordinance reads thus: “1. Short title and commencement:- (1) This Ordinance may be called the Kerala Protection of River Banks and Regulation of Removal of Sand (Amendment) Ordinance, 2010. (2) It shall come into force at once.” That Section specifically and abundantly makes it clear that the amended provisions would come into force with effect from the date of that Ordinance only. Conversely, it would mean that the provisions of the amendment are not retrospective in nature. In fact, that itself would be sufficient to repel the contention of the petitioners that the matter should be remanded to the original authority for fresh consideration in accordance with the amended provisions of the Act. Still, I am inclined to consider the other contentions raised by the learned counsel for the petitioners as well as the learned Government W.P.C. No. 15151/2009 etc. -: 5 :- Pleader. 7. A learned Single Judge before whom the same came up for consideration, referred these writ petitions for consideration of a Division Bench in view of another decision of a learned Single Judge in **Ahammed Kutty** v. **State of Kerala** , 2008(1) KLT 1068 refusing to follow two earlier Division Bench decisions of this Court on the ground that against one of those decisions, the matter was taken to the Supreme Court, in which there was a stay. Considering that reference order, a Division Bench of this Court has in **Abdu Rahiman** v. **District Collector,** 2009(4) KLT 485 held that despite the stay granted by the Supreme Court against the judgment in **Abdul Samad's case** , the learned Single Judges of this Court are bound by the ratio of that decision in respect of other cases. Again, in that decision, the Division Bench upheld the view of the earlier Division Bench in **Abdul Samad's case** by holding that the District Collector has powers to order confiscation of the vehicles even without a seizure under Section 102 of the Crl. P.C and without reference the matter to the criminal court. That would essentially mean that even without a successful prosecution, the District Collector has power to order confiscation of the vehicles, which are found to have been used for illegal transportation of river sand. The orders impugned in all these writ petitions have been passed based on that law as explained by the Division Bench. Here, I note that the constitutional validity of the Act as a whole and particularly Section 23 thereof has been specifically upheld by a learned Single Judge of this Court in Subramanian v. State of Kerala, 2009(1) KLT 77, with which I respectfully agree. In that decision, it was specifically held W.P.C. No. 15151/2009 etc. -: 6 :- that the power to order confiscation is not dependent on conviction of a person concerned in a criminal case for an offence under the Act. Therefore, I have to consider the validity of those impugned orders on the basis of the position of law as it existed on the date of passing those orders and not on the basis of the amended provisions of the Act, which came into force long after the passing of the orders impugned in these writ petitions. 8. The law as it existed on the date of passing of those orders, as I have already stated above, is that the District Collector had powers to order confiscation even in the absence of a criminal case before the criminal court or a successful prosecution thereof. It is in exercise of such powers the impugned orders have been passed. I do not think that I can consider the validity of those orders on the basis of the amended provisions of the Act. 9. Even apart from that, insofar as the petitioners themselves have invoked the power of judicial review of this Court under Article 226 of the Constitution of India, I can certainly consider the validity of those orders under Article 226 of the Constitution of India. As such, it is not necessary to remand the matter back to the original authority even otherwise. 10. As I have already stated in the beginning, the learned counsel for the petitioners confined his arguments to the question of law on the basis of the amended provisions of the Act and did not advance any arguments on merits against those orders, since, according to him, he cannot canvass the validity of the findings of fact in proceedings under Article 226 of the Constitution of India. As rightly pointed out by him, this Court can go into the findings of fact W.P.C. No. 15151/2009 etc. -: 7 :- in such orders only if such findings of facts are demonstrably perverse. In the impugned orders, the District Collector has come to the finding that the vehicles have been used for illegal transportation of river sand in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and Rules on the basis of the material available before him. Accordingly, for such violation, the petitioners have been directed to pay the value of the vehicle as assessed by a competent officer to the River Management Fund. I do not think that such findings are in any way perverse so as to enable this Court to interfere with those orders. In view of my above findings, there is no merit in any of these writ petitions. Accordingly, they are dismissed. Sd/- S. Siri Jagan, Judge. Tds/