Jose Thomas M. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 7TH DAY OF AUGUST 2012/16TH SRAVANA 1934** **WP(C).No. 13466 of 2012 (G) ---------------------------** **PETITIONER:** **-------------** **JOSE THOMAS.M., AGED 49 YEARS** **GOVERNMENT CONTRACTOR, JOSE BUNGALOW, PIDAVOOR P.O. PATHANAPURAM, KOLLAM DISTRICT - 691625.** **BY ADVS.SRI.K.BABU THOMAS SMT.MARYKUTTY BABU** **RESPONDENTS:** **--------------** **1. STATE OF KERALA REP. BY THE SECREARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695001.** **2. SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695001.** **3. THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, SOUTH CIRCLE VIKASBHAVAN P.O., THIRUVANANTHAPURAM - 695033.** **4. THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA - 689645.** **5. DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA PATHANAMTHITTA - 689645.** **6. REVENUE DIVISIONAL OFFICER, CIVIL STATION, THIRUVALLA PATHANAMTHITTA DISTRICT - 689101.** ## **7. TAHSILDAR,** - **MALLAPPALLY TALUK, MALLAPPALLY WEST P.O. PATHANAMTHITTA DISTRICT - 689586.** WP(C).No. 13466 of 2012 (G) : 2 : **8. SRI.CHANDRAMOHAN & ADDITIONAL TAHSILDAR, MALLAPPALLY TALUK, MALLAPPALLY WEST P.O. PATHANAMTHITTA DISTRICT - 689586.** **9. SRI.SREEKUMAR, VILLAGE OFFICER, ANIKKAD VILLAGE OFFICE ANIKKAD P.O., PATHANAMTHITTA DISTRICT - 689585.** **10. THE SUB INSPECTOR OF POLICE, KEEZHVAYPOOR POLICE STATION, KEEZHVAYPOOR P.O. PATHANAMTHITTA - 689587. BY ADV. GOVERNMENT PLEADER SRI.K.C.VINCENT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 13466 of 2012 (G) ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXT.P1 TRUE COPY OF THE RELEVANT PORTION OF THE AGREEMENT.** - **EXT.P2 TRUE COPY OF ACKNOWLEDGEMENT OF HANDING OVER OF POSSESSION OF SITE TO THE PETITIONER.** - **EXT.P3 TRUE COPY OF THE RELEVANT PORTION OF THE REGISTRATION CERTIFICATE OF TIPPER LORRY NO. KL-25-C-3159.** - **EXT.P4 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER TO THE 5TH RESPONDENT FOR RELEASE OF THE TIPPER LORRY.** - **EXT.P5 TRUE COPY OF THE ILLEGAL ORDER PASSED BY THE 5TH RESPONDENT DIRECTING PAYMENT OF RS.11,50,000/- TOWARDS VALUE OF THE TIPPER LORRY AND PENALTY.** - **EXT.P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT, 2005 SEEKING COPY OF THE DOCUMENTS.** ## **RESPONDENTS' EXHIBITS :** **EXT.R5(A): COPY OF THE SEIZURE MAHAZAR** - **EXT.R5(B): COPY OF THE COMMUNICATION FROM THE OFFICE OF THE TAHSILDAR, MALLAPPALLY** **EXT.R5(C): COPY OF THE STATEMENT DTD.12.4.2012** - **EXT.R5(D): COPY OF THE ORDER DTD.10.5.2012** - **EXT.R5(E): COPY OF THE VALUATION REPORT** ## **//TRUE COPY//** ## **P.S.TO JUDGE** **ab** ## **T.R.RAMACHANDRAN NAIR, J.** ------------------------------------ ## **W.P.(C).No. 13466 of 2012** ------------------------------------ ## **DATED THIS THE 7th DAY OF AUGUST, 2012** ## **JUDGMENT** The petitioner herein is aggrieved by Ext.P5 order passed by the District Collector, under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 confiscating his vehicle with a further direction to remit an amount of Rs.11 lakhs to the River Management Fund and another amount of Rs.50,000/- towards fine. 2. According to the petitioner, he is a contractor engaged by the Public Works Department, to construct a bridge at Kavanalkkadavu across Manimala River. The work was executed as per Ext.P1 agreement. In connection with the execution of the work under the P.W.D. Authorities, the vehicle, viz. Tipper Lorry bearing registration No.KL-25-C-3159 was parked in the temporary island formed for construction of pier No.3 in the middle of the river. The allegation is that respondents 8 to 10 took away the vehicle forcibly and thereafter proceedings were initiated against him. It is also averred in the writ petition that by Ext.P4 representation filed before the fifth respondent, the petitioner ha given the details with regard to the alleged illegal seizure and had submitted therein that the lorry was taken W.P.(C).No.13466/2012 -2- into custody and kept in the police station illegally. The petitioner therefore contends that the lorry was being parked at the site only in connection with the construction of the bridge and it was never used for any transportation of sand in violation of the Act. But none of the aspects have been considered by the fifth respondent. It is also stated that the 9[th] respondent has no authority to enter the premises, as the area is not within the territorial limits of the 9[th] respondent. It is also pointed out that even though the petitioner had given an application Ext.P6, he was not even given the copies of the reports, mahazar, etc. and therefore, the entire action is illegal. 3. On behalf of the fifth respondent, a counter affidavit has been filed. The fact that the petitioner is a P.W.D. Contractor engaged in Civil Engineering construction work for the construction of the bridge in question, is admitted. Reliance is placed on Ext.R5(a) mahazar. 4. Heard learned counsel for the petitioner and the learned Government Pleader. 5. Learned counsel for the petitioner vehemently submitted that the ninth respondent had no territorial jurisdiction in the area and only because of the illegal interference of the officers, the Revenue authorities, even W.P.(C).No.13466/2012 -3- without informing the P.W.D. Authorities, have taken the vehicle forcibly. It is submitted that the petitioner being the contractor, has to engage vehicles for the purpose of construction and the illegal interference by the officers has resulted in stoppage of the work also. It is further submitted that no independent evidence was collected by the District Collector and no report from P.W.D. Authorities have also been obtained in the matter. It is further submitted that the release of vehicle is required for the execution of the work and the huge liability cast on the petitioner in the matter cannot be supported. 6. A reading of the order Ext.P5 does not show that the contentions of the petitioner have been adverted to. It is stated in paragraphs 1 and 2 that the allegations have been proved beyond doubt and the petitioner has not produced any documents in support of his case. The facts herein are peculiar, as the petitioner was handed over the site for construction of the bridge. Therefore, the petitioner has access to the place, being the Government contractor and he is entitled to use vehicles also. The proceedings Ext.P5 does not show that a report was called for from the P.W.D. Authorities who had entrusted the work to the petitioner which was crucial as far as the whole issue is concerned. Therefore, the order has been W.P.(C).No.13466/2012 -4- passed mechanically and without going into the contentions of the petitioner. In the reply affidavit, the petitioner has pointed out that actually a temporary island was formed in the middle of the river for carrying out the construction. It is not within the territorial jurisdiction of the Village Officer, Anikkad Village. It is the case of the petitioner that Ext.R5(a) mahazar is fabricated to wreak vengeance on the petitioner. 7. Thus, the question whether the ninth respondent was empowered to take action in a matter like this and whether he had territorial jurisdiction, etc. had to be adverted to and a finding ought to have been entered in the matter. The petitioner's right to execute the work for the construction of the bridge and whether the vehicle was being used for illegal transportation of river sand, etc. were to be ascertained. The said aspects have not been enquired into and no finding has been entered. According to the petitioner, more than 500 cubic meters, i.e. 100 lorry loads of all classes of soil including river sand, gravel, pebbles, etc. obtained in excavation carried out in the river bed for foundation of the bridge are removed and levelled the site as specified in item 2 of the schedule of work in Ext.P1 agreement. Therefore, it is pointed out that the allegation that the vehicle was engaged in loading of river sand, is false and actually W.P.(C).No.13466/2012 -5- respondents 8 to 10 had trespassed into the work site for which they have no jurisdiction or power. 8. I am satisfied that none of the above aspects have been considered in Ext.P5 order. Hence, Ext.P5 order is quashed. The matter will have to be considered with notice to the petitioner. The various contentions raised by the petitioner will be considered and the crucial aspects concerning the work entrusted for execution by the petitioner, also will be verified. A report will be obtained from the P.W.D. authorities before taking a decision. An appropriate decision will be taken within two months from the date of receipt of a copy of this judgment, especially in the light of the urgency shown by the petitioner that the vehicle is necessary for the execution of the work. The stoppage of work, in the light of these proceedings, is really a matter for concern of the Government and other functionaries. 9. Apart from the same, there will be a direction to the 10[th] respondent to file a report before the jurisdictional Magistrate in the light of the decision of a Division Bench of this Court in **Sujith v. State of Kerala** (2012 (2) KLT 547) wherein in para 13 the following directions have been issued: W.P.(C).No.13466/2012 -6- “It is hereby ordered that the revenue and police authorities, while effecting seizure, shall ensure that any revenue official effecting the seizure, notifies such seizure, also to a police official, over and above the requirement in S.22 of the Act and the Rules. That police official may effect seizure of those goods and report such seizure to the jurisdictional Magistrate in accordance with law and any police officer effecting seizure shall, apart from reporting any such seizure to the jurisdictional Magistrate, also place a report of such seizure before the concerned revenue authority so that action can follow through the criminal court and through the revenue authority in terms of the laws. Following the aforesaid, it is further ordered that in all pending cases, the competent police officer shall effect seizure and report the same to the jurisdictional magistrate, if not already done and the competent revenue authority shall make appropriate complaint to the jurisdictional Magistrate at the earliest. This would also enable the owners of the goods or vehicles to apply for interim custody in terms of S.451 or 457 Cr.P.C., as the case may be. In ordering release, the Judicial Magistrate shall be guided by the terms laid down by the Full Bench of this Court in _Shan v. State of Kerala_ (2010 (3) KLT 413 (FB). The appropriate authorities shall also file complaints for initiating prosecution in all cases, where offences under the Act are disclosed. These directions shall apply in dealing with sand and vehicles, seized by the police or revenue authority W.P.(C).No.13466/2012 -7- under the provisions of the Act or the Code of Criminal Procedure, over and above the directions in _Moosakoya_ (2008 (1) KLT 538) and _Shoukathali_ (2009 (1) KLT 640), until appropriate legislative provisions are brought in.” 10. This will enable the petitioner to move the Magistrate's Court for getting release of the vehicle by way of interim custody by filing an application under Section 451 or 457 of the Code of Criminal Procedure. Such report shall be filed within a period of five days from the date of production of a copy of this judgment positively by the tenth respondent before the jurisdictional Magistrate and the petitioner will be free to file appropriate application before the Court. The writ petition is allowed to the above extent. No costs. ## **T.R.RAMACHANDRAN NAIR, JUDGE** ## **kav/**