Kunjivappu v. District Collector, Thrissur District and S.I. of Police, Cheruthuruthy Police Station

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938 WP(C).No. 3854 of 2010 (F) --------------------------- ## PETITIONER : ------------ KUNJIVAPPU, AGED 49 YEARS, S/O.MOIDEENKUTTY HAJI, PUTHENPEEDIKAYIL HOUSE, DESAMANGALAM P.O., THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS.SRI.C.A.CHACKO SRI.UNNIKRISHNAN SMT.C.M.CHARISMA SRI.M.A.SHAFEEK RESPONDENTS : -------------- ## 1. THE DISTRICT COLLECTOR, THRISSUR DISTRICT. ## 2. THE S.I. OF POLICE, CHERUTHURUTHY POLICE STATION, THRISSUR DIST. ## R1 BY GOVERNMENT PLEADER SRI.SWAMIDASAN.K.N. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2016, ALONG WITH W.P.(C)No.8258/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3854 of 2010 (F) ## APPENDIX PETITIONER'S EXHIBITS :- EXT.P1 : COPY OF THE APPLICATION DTD.9.6.2009 SUBMITTED BY THE PETITIONER BFFORE THE 1[st] RESPONDENT. EXT.P2 : COPY OF THE ORDER DTD.3.11.2009 ISSUED BY THE 1[st] RESPONDENT. RESPONDENTS' EXHIBITS :- NIL. True copy P.A to Judge ## **ANIL K.NARENDRAN, J. ------------------------------------------W.P.(C)Nos.3854 & 8258 of 2010 -------------------------------------------Dated this the 28[th] day of October, 2016** ## **JUDGMENT** W.P.(C).Nos.3854/2010 and 8258/2010 arise out of the order passed by the District Collector, Thrissur in exercise of powers under Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, as it stood prior to its substitution by Act 15 of 2013, read with Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002. 2. In W.P.(C).No.3854/2010, the petitioner is the registered owner of a tipper lorry bearing registration No.KL7/M-9174, which was seized by the Sub Inspector of Police, Cheruthuruthy on 5.6.2009 alleging illegal transportation of river sand. The petitioner moved Ext.P1 application dated 9.6.2009 before the District Collector, Thrissur for release of the lorry. The District Collector by Ext.P2 order bearing No.B7.30780/09 dated 3.11.2009 ordered confiscation of the vehicle and the petitioner was directed to a remit a sum of 2,20,000/- towards river management fund within seven₹ days, failing which the vehicle will be disposed of as provided under W.P.(C).Nos.3854 & 8258 of 2010 2 the Rules and the sale proceeds will be remitted in the River Management Fund. 3. On 5.2.2010, while admitting the writ petition this Court directed release of the vehicle in question on the petitioner depositing half of the total value of the vehicle shown in Ext.P2 order and executing a bond furnishing security for the balance amount to the satisfaction of the District Collector concerned. The petitioner was directed to furnish an undertaking to produce the vehicle as and when directed and not to transfer/alienate the same pending proceedings or to cause any damage to the vehicle so as to reduce its value and utility. 4. In W.P.(C).No.8258/2010 the petitioner is the registered owner of a lorry bearing registration No.KL-10/N-2619, which was seized by the Sub Inspector of Police, Erumapetty Police Station on 11.8.2009 alleging illegal transportation of river sand. The District Collector by Ext.P1 order bearing No.B7-41703/09 dated 3.11.2009 ordered confiscation of the vehicle and the petitioner was directed to a remit a sum of 1,75,000/- towards River Management Fund₹ within seven days, failing which the vehicle will be disposed of as W.P.(C).Nos.3854 & 8258 of 2010 3 provided under the Rules and the sale proceeds will be remitted in the River Management Fund. 5. On 12.3.2010, while admitting the writ petition this Court directed release of the vehicle in question on the petitioner depositing half of the amount covered by Ext.P1 order and on furnishing a bond for the remaining amount with two solvent sureties. The petitioner was directed not to encumber the vehicle or transfer the same to any person and not cause any damage to the vehicle so as to reduce its value and utility. 6. Today when these writ petitions were taken up for final hearing, it was noticed that Ext.P2 order of the District Collector, Thrissur, dated 3.11.2009 in W.P.(C).No.3854/2010 is the verbatim reproduction of Ext.P1 order dated 3.11.2009 in W.P.(C). No.8258/2010 of the very same District Collector, except the changes in vehicle number, value of vehicle, etc. 7. Heard the learned counsel for the petitioner in the respective writ petitions and also the learned Government Pleader representing the respondents. W.P.(C).Nos.3854 & 8258 of 2010 4 8. The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 was enacted to protect river banks and river buds from large scale dredging of river sand and protect their bio-physical system and regulate the removal of river sand and for matters connected therewith or incidental thereto. Section 23 of the Act, as it stood prior to its substitution by Act 15 of 2013, provides that, whoever transports sand without complying with the provisions of the Act shall be liable to be punished and the vehicle used for transportation is liable for confiscation by the police or revenue officials. In exercise of the rule making power under Section 26 of the said Act, the Government made the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002. Rule 27 of the said Rules provides for the procedure for confiscation of vehicles used for transportation of sand in violation of the Acts and Rules made thereunder. As per sub-rule (3) of Rule 27, a vehicle ordered to be confiscated may be returned if the owner of the vehicle or the possessor remits an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure. W.P.(C).Nos.3854 & 8258 of 2010 5 9. A reading of the provisions under the said Acts and the Rules made thereunder makes it explicitly clear that, while ordering confiscation of a vehicle used for transporting river sand in violation of the statutory provisions and ordering release of the said vehicle, if the owner or possessor remits an amount equal to the price fixed together with fine, the District Collector exercises a power which is quasi-judicial in character. Therefore, while ordering confiscation of a vehicle and releasing on payment of the price fixed in terms of Sub-rule (3) of Rule 27, a proper application of mind by the District Collector is highly essential. 10. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as W.P.(C).Nos.3854 & 8258 of 2010 6 elaborate as in the decision of a court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 11. In **Breen v. Amalgamated Engineering Union (1971 (1) All. E.R. 1148)** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decisiontaker to the controversy in question and the decision or conclusion arrived at. 12. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank and others Vs. P.C.Kakkar (2003) 4 SCC 364)** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the W.P.(C).Nos.3854 & 8258 of 2010 7 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 13. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India and others (1992 (4) SCC** **605)** that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and W.P.(C).Nos.3854 & 8258 of 2010 8 synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 14. In **B.A.Linga Reddy v. Karnataka State Transport Authority (2015 (4) SCC 515)** , the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Articles 14 and 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them. 15. In the instant cases, a reading of the impugned orders passed by the District Collector dated 3.11.2009 would not W.P.(C).Nos.3854 & 8258 of 2010 9 demonstrate as to how the District Collector has given due consideration to the points in controversy, with specific reference to the objections, if any, made by the registered owner or possessor of the vehicle in question. When the orders passed by the District Collector in exercise of the powers under Section 23 of the Act read with Rule 27 of the Rules are open to challenge invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, a proper consideration of the objections, if any, raised by the owner or possessor of the vehicle with reference to the relevant statutory provisions is highly essential to infer that the District Collector has given due consideration to the points in controversy. In that view of the matter, the orders impugned in these writ petitions are vitiated by total non-application of mind, warranting an interference of this Court under Article 226 of the Constitution of India. 16. In the said circumstances, Ext.P2 order in W.P.(C) No.3854/2010 and Ext.P1 order in W.P.(C)No.8258/2010 are set aside and the District Collector, Thrissur is directed to reconsider the matter and pass a reasoned order after considering the rival W.P.(C).Nos.3854 & 8258 of 2010 10 contentions and after affording an opportunity of being heard to the respective petitioners. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge