NASSAR MTP v. The Sub Collector Kasaragod, Village Officer, Madikkai Village, Kanhangad; Sub Inspector of Police, Nilesswaram Police Station, Kasaragod; District Geologist, Ernakulam District (Impleaded suo motu)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944** ## **WP(C) NO. 7564 OF 2014** ## **PETITIONER:** NASSAR MTP, AGED 45 YEARS, S/O. AHAMAD, 12/545, NARIMALAM HOUSE, CHAYOTH P.O., KINANUR KARINTHALAM GP, KASARAGOD DISTRICT. BY ADV SRI.I.V.PRAMOD ## **RESPONDENT:** 1 THE SUB COLLECTOR KASARAGOD AT KANHANGAD, SUB COLLECTOR'S OFFICE, HOSDURG, KASARAGOD, PIN-671315. 2 VILLAGE OFFICER, MADIKKAI VILLAGE, KANHANGAD, KASARAGOD, PIN-671315. 3 SUB INSPECTOR OF POLICE, NILESWARAM POLICE STATION, KANHANGAD, KASARAGOD DISTRICT-671315. ADDL.R4 THE DISTRICT GEOLOGIST, ERNAKULAM DISTRICT ADDL.R4 IS IMPLEADED _SUO MOTU_ VIDE JUDGMENT DATED 14.12.2022 IN WP(C) NO.7564/2014 ## **OTHER PRESENT:** SRI. JACOB E.SIMON - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** ## **JUDGMENT** The petitioner has filed this writ petition for a direction to the respondents to release the vehicle bearing Reg.No.KL-60D-3815 to the petitioner and also to declare that the respondents are not having any authority to proceed against the vehicle on the strength of Ext.P2 and the Village Assistant in charge of a Village Officer is not an authorized officer under the provisions of the Kerala Minor Mineral Concession Rules, 1967 (for short, “the KMMC Rules”) and Mines and Mineral (Development and Regulation) Act, 1957 (for short, “the MMDR Act”) to seize the vehicle of the petitioner. 2. The case of the petitioner is that the vehicle belonging to him was seized by the Village Assistant in charge of the Village Officer of Madikkai Village on 26.12.2013 violating the aforementioned provisions. WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** 3. The learned counsel for the petitioner submits that as per the Government Order, G.O (MS) No.20/14/1D dated 12.2.2014, the Village Assistant in charge of a Village Officer does not have the power or competence to have effected seizure of the vehicle belonging to the petitioner and as per the said Government Order, the competent authority/officers have been notified. 4. The learned Government Pleader submits that as per the aforementioned Government Order, the competent authority for adjudication in this case is the District Geologist, Ernakulam District and the said officer is not in the party array. 5. The District Geologist, Ernakulam District, is _suo motu_ impleaded as additional 4[th] respondent. 6. When the case came up for consideration on 18.03.2014, an interim order was passed WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** granting interim custody of the vehicle to the petitioner, on satisfying a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with the 3[rd] respondent. The 3[rd] respondent was directed to keep the said amount in deposit, to be appropriated towards compounding fee later, if necessary, and await further orders of this Court before appropriating the amount. 7. The issue regarding the power and competence of the Deputy Tahsildar to effect seizure of the vehicle was considered by this Court in W.P.(C) No.4143 of 2015 ( **Jayarajan** v. **The Deputy Tahasildar** ) and it was held that even if the seizure by the concerned officer was not proper, nothing prevents the competent authority, who is actually vested with the power as per statute and also as notified by the Government, from filing necessary proceedings before the Judicial Magistrate's Court having jurisdiction over the area, in respect of the offence, if any. WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** It is further held that, if any offence is involved, it is, of course, liable to be investigated by the concerned Magistrate having jurisdiction over the area. 8. In the above circumstance, this Court finds that the seizure effected by the Village Assistant in charge of a Village Officer has to be reported to the competent officer/authority as per the Act/Rules within two weeks from the date of receipt of a copy of this judgment, upon which it is for the competent authority to file appropriate proceedings before the concerned Judicial Magistrate's Court having jurisdiction, if not already done, so as to prosecute the matter, if any offence is involved. If the petitioner opts, it is always open for him to have the offence compounded, by virtue of enabling provisions under Section 23A of the MMDR Act and the relevant rule under the KMMC Rules. 9. The question whether prosecution WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** proceedings could be pursued further once the offence is compounded in accordance with the relevant provisions of the MMDR Act/KMMC Rules, has already been considered and decided by this Court in **Digil v. Sub Inspector of Police** [2013 (1) KLT 600], holding that, once the offence is compounded, there cannot be any further prosecution proceedings. The directions given as per the above verdict are extracted below; “i) In cases where compounding applications have been acted upon as per the interim orders passed by this Court and the offences have been compounded and compounding fees have been collected and vehicles have been released, it is declared that no further proceedings can be taken for confiscation of the vehicles; ii) In cases where complaints have been filed before the Court but compounding applications have been entertained and offences have been compounded, appropriate applications will be filed before the Courts and the concerned Courts will pass appropriate orders in the matter with regard to the closure of the cases pending; iii) In cases where compounding applications are yet to be filed by the parties concerned, it is open to them to file applications which will be dealt with by the officer concerned in accordance with law and they will be free to pass appropriate orders on it. If no applications are filed within a period of three weeks from today and if compounding is not being allowed, it is open to the concerned officers to complete the WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** procedures as enjoined by law.” 10. After hearing both the sides, this Court finds that the petitioner is also entitled to have the similar relief. 11. In the above facts and circumstances, if the petitioner expresses willingness to have the offence compounded, this Court finds it fit and proper to direct the competent authority to compound the offence, if not already done, if the petitioner satisfies/has satisfied a sum of Rs. 25,000/-. It is made clear that the amount, if any, deposited by the petitioner pursuant to the interim order passed by this Court, shall be adjusted towards the compounding fee. Once the offence is compounded, no prosecution proceedings will lie against the petitioner in view of the law declared by this Court as per the decision reported in **Digil** ( _supra_ ). It is made clear that, if the petitioner does not opt for compounding, the competent officer shall proceed further, in WP(C) NO. 7564 OF 2014 **==> picture [31 x 8] intentionally omitted <==** accordance with law. The writ petition is disposed of accordingly. The petitioner shall produce a certified copy of this judgment along with a copy of this writ petition before the concerned respondent/ competent authority for further steps. **Sd/-** **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- WP(C) NO. 7564 OF 2014 ..9.. ## **APPENDIX OF WP(C) 7564/2014** PETITIONER EXHIBITS EXHIBIT P1- A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING REGISTRATION NO. KL 60 D 3815. EXHIBIT P2- A TRUE COPY OF THE MAHAZAR DATED 26-12-2013 PREPARED BY VILLAGE ASSISTANT, IN CHARGE OF VILLAGE OFFICER, MADIKKAI.