Mahesh Thonath and Aneesh Babu P. v. Geologist Department of Mining and Geology, District Office, Manjeri; Tahsildar, Nilambur Taluk; Village Officer, Pullippadam; Sub Inspector of Police, Nilambur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **WP(C).No.12244 OF 2020(E)** ## **PETITIONERS:** - **1 MAHESH THONNATH, AGED 36 YEARS S/O.RAJAN THONNATH, THONNATH HOUSE, THANA, PULLIPPADAM, NILAMBUR, MALAPPURAM DISTRICT 676 542.** - **2 ANEESH BABU.P., AGED 35 YEARS S/O. UNNITHARI @ BABU, PUTHIYARA HOUSE, KANNANCHAMKUNNU, AMARAMBALAM, NILAMBUR, MALAPPURAM DISTRICT 679 339.** **BY ADV. SRI.R.RANJITH (MANJERI)** ## **RESPONDENTS:** - **1 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, MANJERI, MALAPPURAM 676 121.** - **2 THAHSILDAR, NILAMBUR TALUK, NILAMBUR 679 329.** - **3 THE VILLAGE OFFICER, PULLIPPADAM VILLAGE, PULLIPPADAM 676 542.** - **4 THE SUB INSPECTOR OF POLICE, NILAMBUR POLICE STATION, MALAPPURAM DISTRICT 676 525.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 12244 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 12244 of 2020 -----------------------------------Dated this the 22[nd] day of June, 2020 ## **JUDGMENT** The case set up in this writ petition (C) is as follows: _The first petitioner herein is the owner of vehicles, KL-57C-5365, an Earth Mover and KL-57C-4796, a tipper, and the second petitioner is the owner of KL-02AF-7321, a tipper. The vehicles of the petitioners were seized while levelling the land of one Abdullakutty Kurikkal, with an extend of 72.87 Ares. The land was being levelled and developed for construction of a building for the above person. It is submitted that the petitioners never transported the soil taken to anywhere else out of the property of the owner of the land. The soil taken was deposited in the same property. Mere levelling of land is permissible and there is no need of any permit for doing the same. More than that, the waste from a nearby farm is also being dumbed in the property of the said Abdullakutty Kurikkal for improving the soil fertility. Pits were also made in the property for storing the waste from the nearby farm. It is humbly submitted that while the vehicles of the petitioners' were engaged in levelling of the said land, the 2 respondent came to the property and seized the vehicles of the petitioners. Even going by the Exhibit P5 report of the village officer the soil extracted were deposited in the property itself. It is humbly submitted that the respondents do not have a case that the subjected property is not classified as paddy land or wet land and that the provisions of any other law has been_ W.P(C). No. 12244 of 2020 3 _violated. The 1[st] respondent has not reported or preferred any complaint before the Jurisdictional Magistrates Court concerned, alleging the contraventions of the Mines and Minerals (Development & Regulation) Act, 1957 or the provisions under Kerala Minor Mineral Concession Rules, 2015 framed under the above said Act. It is assumed by the petitioners that the seizure was not reported for the reason that there is no violation as per the Act or Rules. Therefore the petitioners are not in a position to seek interim custody of the vehicles by filing appropriate petitions. It is submitted that the vehicles of the petitioners were seized unlawfully and kept under the sun and rain since 25/05/2020. The petitioners approached the respondents explaining the situation with the documents, but all went in deaf ears. Though the need for getting interim custody of the vehicles was explicated and pleaded, the respondents were not prepared to accept any petitions or tried to understand the pitiable situation of the petitioners. The livelihood of the petitioners is solely depended on the vehicles seized by the respondents. Now the lives of the petitioners and their family members including children and age old parents, during this pandemic time, are at stake._ It is in the light of these averments and contentions, that the petitioners have filed this Writ Petition (C) seeking the following reliefs: - _i) Issue a writ of mandamus or other appropriate writ or direction commanding the respondents to release the vehicles bearing registration Nos.KL-57C-5365, KL-57C-4796, KL-02AF-7321, to the petitioners_ W.P(C). No. 12244 of 2020 4 _forthwith._ - _ii) Declare that the seizure of the vehicles of the petitioners by the respondents is per se illegal on the basis of the averments set out in Ext.P5 report._ _iii) Grant such other reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case._ 2. Heard Sri.R.Renjith (Manjeri), learned counsel appearing for the petitioners and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. The case involves alleged use of the petitioners’ vehicle in alleged contravention of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Kerala Minor Mineral Concession Rules, 2015 framed thereunder. The Full Bench of this Court in the case in _**Prakash Nayak v. District Collector**_ ## _**[2016 (4) KLT 102 (FB)]**_ has held as follows in Para.27 thereof. _“The general powers of the police for arrest and seizure under the Code of Criminal Procedure are not specifically ousted or excluded by any of the provisions of the MMDR Act. On the other hand the offence punishable under Section 21 is made specifically cognizable also. That the offence is made cognizable means that any police officer, competent and empowered to act under the Code of Criminal Procedure, is competent to make arrest and to make seizure of properties, but prosecution can be launched only by the persons authorised by the Government under Section 22 of the MMDR Act. Contraband articles including minerals are liable to confiscation by court orders under subsection (4A) of Section 21 of the MMDR Act. The latter part of the sub-section provides that the property shall be disposed of in accordance with the directions of such court. This means that appropriate orders including confiscation orders can be passed_ W.P(C). No. 12244 of 2020 5 _by the court having jurisdiction to take cognizance of an offence punishable under sub-section (1) of Section 21, on a complaint brought by any officer authorised under Section 22 of the MMDR Act. Appropriate orders meant under sub-Section (4A) will include even interim orders authorising interim custody under Section 451 of the Code of Criminal Procedure. The object of subsection (4A) of Section 21 is not that the property seized under sub-section (4) shall be liable to confiscation in all situations. What we find on an analysis of the various provisions is that confiscation of properties is authorised under sub-section (4A), by orders of the court having jurisdiction. However the court is competent to pass appropriate orders, for disposal of the properties. In appropriate cases where the facts and situations are of extreme violation confiscation will have to be ordered by the court. However, in the case of minerals illicitly transported or imported, confiscation must be the rule. But in the case of vehicles and other articles, appropriate orders including confiscation orders can be passed by the court having jurisdiction, and such properties can be appropriately dealt with.”_ 4. From the pleadings and materials on record, it is seen that the 2[nd] respondent Tahsildar has taken steps for seizure of the petitioners’ vehicle for the alleged contravention of the provisions of the MMDR Act &KMMC Rules and Ext.P5 report dated 27-05-2020 has been submitted by the 3[rd] respondent Village Officer to the 2[nd] respondent in the matter. The petitioners seek interim release of the vehicle subject to finalisation of the proceedings. 5. Taking note of the facts and circumstances of the case, the following directions and orders are passed: - _i) The 2[nd] respondent will immediately report about the factum of the seizure of the vehicle as per Ext.P5 proceedings dated 27-05-2020, if not_ W.P(C). No. 12244 of 2020 6 _already reported, within a period of one week from the date of production of a certified copy of this judgment._ _ii) Thereafter the 1[st] respondent District Geologist will examine the records and may ascertain as to whether the case involves contravention and provisions of the MMDR Act and KMMC Rules framed thereunder and depending upon the said consideration the 1[st] respondent will be at liberty to file a complaint before the Jurisdictional Magistrate Court concerned (Judicial First Class Magistrate Court), within three weeks from the date of receipt of the report of the 2[nd] respondent as aforedirected._ _iii)_ _Thereafter the 1[st] respondent District Geologist will immediately intimate the petitioners by sending a registered letter, stating as to the factum of the filing of such complaint and also as to before which Judicial First Class Magistrate Court the complaint has been filed._ _iv) Thereafter the petitioners will be at liberty to file a requisite application before the Judicial First Class Magistrate Court concerned seeking for interim release of the vehicle upon which, the Judicial First Class Magistrate Court concerned will pass orders on the said application of the petitioners for grant of interim release of the_ W.P(C). No. 12244 of 2020 7 _vehicle, after affording reasonable opportunity of being heard to the petitioners as well as to the 1[st] respondent District Geologist, without much delay preferably within a period of three weeks from the date of filing of such application._ _v) Further it is ordered that, in case the 1[st] respondent District Geologist does not file the requisite complaint before the Judicial First Class Magistrate Court concerned within the abovesaid outer time limit of three weeks from the date of receipt of the report of the 2[nd] respondent, then the petitioners will be entitled to seek interim custody of the vehicle by filing appropriate application and in which case the 1[st] respondent will consider the said plea and grant interim release of the vehicle subject to the petitioners executing a bond and subject to the petitioners filling an affidavit for undertaking that the vehicle will not be transferred, sold or encumbered in any manner before the finalisation of the proceedings and that the vehicle will not be used for contravention of any law etc,._ _vi) However such interim release of the vehicle will be without prejudice to the right of the 1[st] respondent to subsequently file a complaint before the Jurisdiction Magistrate Court concerned but in accordance with law._ W.P(C). No. 12244 of 2020 8 6. The petitioners will produce a certified copy of this judgment along with copy of the memorandum of W.P(C) with all the Exhibits before the respondent Nos.1 to 3 for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 12244 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS** **EXHIBIT P1** **A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLES BEARING REGISTRATION NOS. KL-57C-5365.** **EXHIBIT P1 (A) A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLES BEARING REGISTRATION NO. KL-57C-4796.** **EXHIBIT P2** **A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLE BEARING REGISTRATION NO. KL-02AF-7321.** - **EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT, DTD 10/04/18 ISSUED BY MAMPAD GRAMA PANCHAYATH.** **EXHIBIT P4 TRUE COPY OF THE DEVELOPMENT PERMIT,. DATED 24/04/18 ISSUED BY MAMPAD GRAMA PANCHAYATH.** **EXHIBIT P5 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT WITH REGARD TO THE SEIZURE OF THE VEHICLES OF THE PETITIONERS DATED 27/05/2020.** **RESPONDENT'S/S EXHIBITS :** NIL