Athira Shiju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** **WP(C).No.21312 OF 2020(L)** **PETITIONER:** **ATHIRA SHIJU, AGED 28 YEARS W/O.SHIJU,PUTHENPURACKAL HOUSE,NEDUMKANDAM.P.O, THANNIMOODU,PARATHODU, IDUKKI DISTRICT-685553.** **BY ADV. SRI.BIJU .C. ABRAHAM** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE SUB COLLECTOR/SUB DIVISIONAL MAGISTRATE, DEVIKULAM,IDUKKI DISTRICT-685613.** - **3 THE STATION HOUSE OFFICER, NEDUMKANDOM POLICE STATION, IDUKKI DISTRICT-685553.** - **4 SHIJU, PUTHENPURACKAL HOUSE,NEDUMKANDAM.P.O, THANNIMOODU,PARATHODU, IDUKKI DISTRICT-685553.** **R1-3 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **GP. PAUL ABRAHAM VAKKANAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21312 of 2020 ..2.. ## **C.R.** ## **P.B.SURESH KUMAR, J.** ## **-------------------------------------** ## **W.P.(C) No.21312 of 2020** **--------------------------------------** ## **Dated this the 17[th] day of December, 2020** ## **JUDGMENT** The petitioner is the owner of a pickup van bearing registration No.KL-37-B-4102. The fourth respondent is the husband of the petitioner. On 15.05.2020, the third respondent has seized the vehicle of the petitioner alleging that the fourth respondent was found transporting river sand in the vehicle contravening the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (the Act). Section 23A of the Act provides for confiscation of such vehicles. On receiving the report regarding the seizure, the second respondent, the competent authority under the Act initiated proceedings for confiscation of the vehicle, and in terms of Ext.P2 order, the vehicle has been confiscated. Ext.P2 order is under challenge in the writ petition. 2. A counter affidavit has been filed by the second W.P.(C) No.21312 of 2020 ..3.. respondent justifying the confiscation of the vehicle. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. 4. It is seen that the petitioner has an effective alternative remedy by way of revision under Section 23B of the Act against orders in the nature of one impugned in the writ petition and a further remedy by way of appeal before the District Court under Section 23C of the Act against the decision of the revisional authority. In the light of the aforesaid provisions, this court would not have normally entertained a writ petition against the impugned order under Article 226 of the Constitution. But, it is found that one of the grounds urged in the writ petition is that the impugned order is vitiated for non-compliance of the principles of natural justice in as much as the same was rendered without notice to the petitioner. If the said ground is sustainable, it is settled that the alternative remedy available to the petitioner is not an impediment for this court in entertaining the writ petition. 5. The fact that the petitioner is the owner of the vehicle covered by the impugned order is not in dispute. The registration of the vehicle also stands in the name of the petitioner. W.P.(C) No.21312 of 2020 ..4.. ## Section 23A of the Act reads thus: “ **23A. Confiscation of sand, vehicles, etc.** - (1) Where any property is seized under section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall whether prosecution proceedings have been initiated or not within forty eight hours of such seizure make a report of such seizure before the Judicial Magistrate and before the Sub-Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of property is received, the police officer concerned shall take steps under section 102 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974). (2) Where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall be taken as per the provision of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them is not satisfactory, they shall be subjected to confiscation under sub-section (4): Provided that the release of the properties seized to any person for its safe custody to any person or its disposal shall be on sufficient security and such release or disposal shall only be till the completion of the confiscation proceeding under this Act: Provided further that the sand seized shall not for any W.P.(C) No.21312 of 2020 ..5.. reason be released to any person and the same shall be subjected to confiscation under sub-section (4). (3) Where a report under sub-section (1) is received before a Sub-Divisional Magistrate, a notice requiring to furnish in writing within the stipulated time as stated in the notice the reason if any for not confiscating the property seized under section 23 shall be issued to the owner of or the person having control of the vehicle, tool, implements, loading equipment, or other article. (4) Where the owner of the properties seized or the person having control of the same does not furnish explanation or the explanation given is not satisfactory, and the SubDivisional Magistrate is satisfied that the properties seized under section 23 are to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed in writing to its owner or the person having its control: Provided that the owner of the properties seized or the person having its control shall be given the liberty to reclaim it, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, in lieu of the properties confiscated: Provided further that the sand confiscated shall not for any reason, be released by realising the value. (5) The amount received under sub-section (4) shall, subject to the provision of section 23D, be remitted to the River Management Fund. W.P.(C) No.21312 of 2020 ..6.. (6) The sand confiscated under sub-section (4) shall be sold to Nirmithi Kendra or to 'Kalavara' at such rate, as may be fixed by the Public Works Department from time to time and such amount shall be remitted to the River Management Fund. (7) The confiscation under this section shall be in addition to the penalty provided for the offence under this Act.” As explicit from sub-section (3) of Section 23A of the Act, the statutory requirement is that upon receipt of a report regarding seizure of a property, the authority empowered to order confiscation shall issue notice requiring the owner of, or the person having control of, the property to furnish in writing the reasons, if any, for not confiscating the property seized. Similarly, as explicit from Sub-section (4) of Section 23A of the Act, confiscation of the property seized is provided for only if the person to whom notice under Sub-section (3) of Section 23A of the Act has been issued, does not furnish explanation or the explanation furnished is not satisfactory. 6. In the case on hand, it is conceded that notice has not been issued to the petitioner before ordering confiscation of her vehicle. Instead, notice was issued to the fourth respondent, the husband of the petitioner. The question is whether notice to the W.P.(C) No.21312 of 2020 ..7.. fourth respondent amounts to sufficient compliance of the statutory requirement under Sub-section (3) of Section 23A of the Act. The learned Government Pleader argued that since the fourth respondent was found having control of the vehicle seized, notice to him is sufficient compliance of the statutory requirement. The learned Government Pleader placed reliance on the enabling words “or the person having control of'' in sub-section (3) of Section 23A of the Act in support of the said argument. 7. True, sub-section (3) of Section 23A of the Act provides for notice only to the owner or to the person having control of the property sought to be confiscated. In the case on hand, as noted, the property sought to be confiscated was found at the time of seizure under the control of the husband of the owner of the property. But, that may not be the situation in every case. As regards vehicles and machinery, the drivers or the operators, as the case may be, would normally be having control over the same. Sometimes, the drivers and operators having control over such properties would be the owners themselves, and sometimes not. Sometimes, in the case of vehicles and similar, the persons having control over the same would be total strangers. Does the legislature W.P.(C) No.21312 of 2020 ..8.. contemplate confiscation of properties with notice to the person who was found to be having control over the same at the time of seizure? If not, what does the expression “the person having control of” in sub-section (3) of Section 23A of the Act mean? 8. It is fundamental that if where rights of a person are likely to be adversely and prejudicially affected by an order proposed by an authority in a proceeding, such person is entitled to a pre-decisional notice, irrespective of whether the proceeding is judicial, quasi-judicial or administrative in nature. It is also fundamental that illegal seizure amounts to deprivation of property and by reason of an order of confiscation the owner thereof is deprived of his right to property guaranteed under Article 300A of the Constitution [See **State of West Bengal and Others v. Sujit Kumar Rana,** (2004) 4 SCC 129]. If the expression “the person having control of” in sub-section (3) of Section 23A of the Act is understood and interpreted in the light of the aforesaid principles, it can be seen that the expression was intended only to enable the competent authority to issue notice to persons having ostensible interests in the property sought to be confiscated, if the identity of its real owner cannot be traced. The said expression, according to W.P.(C) No.21312 of 2020 ..9.. me, can never be understood as enabling the competent authority to confiscate properties without notice to its owners, but by giving notice to persons who are found to be under defacto control of the property at the time of seizure. Of course, the question as to whom notice is to be issued in a given proceedings would depend on the facts of each case. 9. Reverting to the facts, it is alleged by the petitioner that on the relevant day, the fourth respondent took away the vehicle without her consent and knowledge. The said allegation may or may not be correct. Nevertheless, insofar as the fourth respondent did not claim ownership of the vehicle confiscated, according to me, the second respondent ought to have given notice to the petitioner who is the _de jure_ owner of the vehicle, before issuing an order in the nature of Ext.P2. In the said view of the matter, the impugned order is quashed. The second respondent is directed to pass fresh orders under Section 23A of the Act, after affording the petitioner an opportunity of hearing. This shall be done within one month. ## **Sd/P.B.SURESH KUMAR JUDGE** ## **ds 03.12.2020** W.P.(C) No.21312 of 2020 ..10.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE WITH REGARD TO THE VEHICLE BEARING REGISTRATION NO.KL-37-B-4102** **EXHIBIT P2** **TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 5/8/2020.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF THE SEIZURE MAHAZAR. EXHIBIT R2(B) TRUE COPY OF THE HEARING NOTICE DATED 23.07.2020 AND ITS TYPED COPY EXHIBIT R2(C) TRUE COPY OF THE HEARING RECORD PERTAINING TO THE PETITIONER.**