Noushadali P.T. v. The District Collector Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944 WP(C) NO. 1846 OF 2013** ## **PETITIONER/S:** NOUSHADALI P.T., AGED 41 YEARS, S/O.MOOSA, ATHANIKAL HOUSE, MAMPAD.P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.P.SAMSUDIN SMT.NIMA JACOB ## **RESPONDENT/S:** 1 THE DISTRICT COLLECTOR MALAPPURAM. 676 505. 2 THE SUB INSPECTOR OF POLICE KALIKAVU KALIKAVU-679 326, NILAMBUR TALUK, MALAPPURAM DISTRICT. 3 THE MAMPAD GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MAMPAD-679 334, NILAMBUR TALUK, MALAPPURAM DISTRICT. ## **OTHER PRESENT:** SRI. JACOB E. SIMON, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1846 OF 2013 ..2.. ## **JUDGMENT** This writ petition is filed by the petitioner, praying for a direction to call for the records leading to Ext.P6 order passed by the 1[st] respondent – District Collector, finalizing the proceedings for violation of the Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2001 (for short, “the Act”) and the Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2002 (for short, “the Rules”). 2. The petitioner's vehicle, a mini lorry bearing Reg.No.KL-57 A 9299, having valid permit, was seized by the 2[nd] respondent on 21.03.2012, allegedly, for transporting river sand in violation of the provisions of the Act and the Rules. The allegation of the 2[nd] respondent, at the time of seizure, was that the date of the permit was tampered from 20.03.2012 to WP(C) NO. 1846 OF 2013 **==> picture [31 x 8] intentionally omitted <==** 21.03.2012. According to the petitioner, due to oversight, the driver of the vehicle handed over the permit issued on 20.03.2012, to the 2[nd] respondent, instead of the permit issued on 21.03.2012. It is further submitted that the 'kadavu register' dated 20.03.2012 & 21.30.2012, which are produced as Exts.P3 & P4, would show the entries with respect to the permits issued to the vehicle of the petitioner. Pursuant to the seizure, the vehicle was kept in the Police Station premises exposed to sun and rain. Aggrieved by the non release of the vehicle, the petitioner has approached this Court with this writ petition. 3. A counter affidavit has been filed by the 1[st] respondent, contending that the 1[st] respondent – the District Collector, after having considered all the documents and statements, came to the conclusion that the vehicle was used for illegal transportation and as per Ext.P6, ordered to WP(C) NO. 1846 OF 2013 **==> picture [31 x 8] intentionally omitted <==** confiscate the vehicle under Section 23 of the Act. It is further contended that the order passed by the District Collector is the final order under the Act and the Rules framed thereunder. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The learned counsel for the petitioner submits that the petitioner was issued with permits on 20.03.2012 as well as on 21.03.2012 for transportation of river sand and by mistake, the driver of the vehicle handed over the permit issued on 20.03.2012 instead of 21.03.2012 to the seizure officer and that was the circumstance, which led to the seizure of the vehicle. It is further submitted that there was valid permit issued to the petitioner as per the Act and the Rules. The learned counsel for the petitioner further submits that, no copy of seizure mahazar was marked to the owner or possessor of the WP(C) NO. 1846 OF 2013 **==> picture [31 x 8] intentionally omitted <==** vehicle and as such, there is a violation of Rule 27(2). The learned counsel placed reliance on a decision of this Court in **Subramanian** v. **State of Kerala & Others** [2009 (1) KHC 1], wherein this Court held that on seizure of the vehicle, a mahazar is to be drawn, in the presence of two witnesses and a copy of the same is to be straight away supplied to the person possessing the vehicle and a copy will have to be sent to the District Collector. 6. The learned counsel for the petitioner today handed over a copy of the judgment in CC No.643/2012 of the Judicial First Class Magistrate-I, Manjeri, which was filed by the Sub Inspector of Police, Kalikavu (the 2[nd] respondent herein) alleging the offence under Section 20 r/w Section 23 of the Act against the driver of the vehicle, who was in charge of the vehicle on 21.03.2012. On a perusal of the said judgment, it is seen that the issue regarding the issuance of WP(C) NO. 1846 OF 2013 **==> picture [31 x 8] intentionally omitted <==** permits on 20.03.2012 and 21.03.2012 was considered by the court below in detail along with other allegations and finally, the accused/driver in CC No.643/2012 was acquitted, holding that he is not guilty of the offence alleged. 7. Ext.P6 order was passed by the 1[st] respondent – District Collector on 30.11.2012. On a reading of the said order, it is seen that the 1[st] respondent has considered the permit issued on 20.03.2012, however, there is no mention of the permit issued on 21.03.2012. It is discernible from Exts.P3 & P4 that permits were issued to the petitioner on 20.03.2012 and 21.03.2012 as well, which is not seen opposed in the counter affidavit filed by the 1[st] respondent. The 1[st] respondent–District Collector, while considering the issue, has not gone into the details regarding the issuance of permit on the two dates and its legal validity. Hence, on a consideration WP(C) NO. 1846 OF 2013 **==> picture [31 x 8] intentionally omitted <==** of the entire issue in this case, I am of the opinion that the writ petition can be disposed of, with a direction to the 1[st] respondent to reconsider the issue, taking into consideration the judgment in CC No.643/2012 of the Judicial First Class Magistrate Court-I, Manjeri. In the result, this writ petition is disposed of as follows; - (a) Ext.P6 order passed by the 1[st] respondent is set aside. - (b) The 1[st] respondent is directed to reconsider the matter afresh, in accordance with law, with notice to the petitioner and after affording an opportunity of being heard to the petitioner. Needless to say, the 1[st] respondent shall take into consideration all contentions raised by the petitioner at the time of hearing as well as the judgment in CC No.643/2012 of the Judicial First Class Magistrate Court-I, Manjeri. WP(C) NO. 1846 OF 2013 **==> picture [31 x 8] intentionally omitted <==** (c) The 1[st] respondent shall pass such orders within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner shall produce a certified copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. ## **Sd/-** ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** bka/- WP(C) NO. 1846 OF 2013 ..9.. ## **APPENDIX OF WP(C) 1846/2013** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE MAHASAR DATED 21.03.2012 - EXHIBIT P2 TRUE COPY OF THE PERMIT NO.10424 DATED 21.03.2012 ISSUED TO THE PETITIONER BY THE MAMPAD GRAMA PANCHAYATH - EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE KADAVU REGISTER DATED 20.03.2012 KEPT BY THE 3RD RESPONDENT PANCHAYATH - EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE KADAVU REGISTER DATED 21.03.2012 KEPT BY THE 3RD RESPONDENT PANCHAYATH - EXHIBIT P5 TRUE COPY OF THE RECEIPT FOR DEPOSIT OF RS.1,08,000/- - EXHIBIT P6 TRUE COPY OF THE ORDER DATED 30.11.2012 PASSED BY THE 1ST RESPONDENT - EXHIBIT P7 COPY OF THE REQUEST TO ACCEPT THE AMOUNT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - EXHIBIT P8 COPY OF THE DEMAND DRAFT DATED 04.02.2013