P.M. Nizar v. The District Collector, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938** **WA.NO. 2131 OF 2010 ( ) IN WP(C).13757/2010 --------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 13757/2010 OF HIGH COURT OF KERALA DATED 22-11-2010** **APPELLANT(S)/IST PETITIONER: ----------------------------** **P.M.NIZAR S/O.P.M.MUHAMMED, PULAYARVALAVIL, MARAVANTHURUTHU P.O. KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK KOTTAYAM DISTRICT, PIN-686615.** **BY ADVS.SRI.K.RAMAKUMAR (SR.)** **RESPONDENT(S)/PETITIONERS:** **--------------------------** **1. THE DISTICT COLLECTOR AND OTHERS ERNAKULAM, DISTRICT COLLECTORATE, KAKKANAD ERNAKULAM, PIN-682030.** **2. THE SUB INSPECTOR OF POLICE, HILL PALACE POLICE STATION, TRIPUNITHURA, ERNAKULAM TRIPUNITHURA P.O., PIN-682310.** **3. THE DISTRICT GEOLOGIST, ERNAKULAM, DISTRICT COLLECTORATE, KAKKANAD ERNAKULAM, PIN-682030.** **4. MANOJ P.G., AGED 45 YEARS, SON OF GOPALAN, PADATHURUTHEL KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK KOTTAYAM DISTRICT, PIN-686615.** **WA.NO. 2131 OF 2010** **5. VIJEESH, AGED 23 YEARS, SON OF VIJAYAN, VIJESH BHAVAN KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK KOTTAYAM DISTRICT, PIN-686615.** **R,R4 BY ADV. SMT.JAYASREE MANOJ R1 BY SENIOR GOVERNMENT PLEADER SHRI P.I. DAVIS R BY SRI.BECHU CHERUKARA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2016, THE COURT ON 21.03.2016 DELIVERED THE FOLLOWING:** ## **ASHOK BHUSHAN, C.J. and A.M. SHAFFIQUE, J.** **==================================== W.A. No.2131 of 2010 ==================================== Dated this the 21[st] day of March, 2016** ## **J U D G M E N T** ## **Ashok Bhushan, C.J.** This Writ Appeal been filed against the judgment dated 22.11.2010 in W.P(C) No.13757 of 2010. Appellant was the 1[st] petitioner in the aforesaid Writ Petition. Writ Petition was filed challenging the order passed by the District Collector dated 20.04.2010 by which the District Collector has directed the appellant to remit the value of the vehicle within 15 days failing which the vehicle will be put to auction. 2. Brief facts necessary for deciding the Writ Appeal are: Appellant who was the 1[st] petitioner in W.P (C) No. 13757 of 2010 was owner of Tipper Lorry bearing Reg. No.Kl-36/A-1329. On 04.01.2010 the said vehicle was intercepted by the 2[nd] respondent, Sub Inspector of ## **W.A. No. No.2131 of 2010** -: 2 :- Police at Tripunithura. The vehicle was seized. A mahazar was prepared in the presence of three witnesses where it was mentioned that the vehicle was carrying river sand. The vehicle was taken into custody by the police. Report was submitted by the Sub Inspector of the Police to the District Collector on the basis of which notice was issued by the District Collector to the appellant. Appellant submitted an application for release of the vehicle. The Regional Transport Officer has fixed the value of the vehicle as Rs.6,00,000/-. An order was issued by the District Collector to the appellant to deposit one half of the said amount for temporary release. The District Collector heard the parties on 16.04.2010 and passed an order on 20.04.2010 holding that river sand had been illegally transported in the said vehicle, hence the owner should remit Rs.6,00,000/- being the present value of the vehicle within 15 days failing which proceedings for selling the vehicle will be initiated. Apart from the vehicle of the appellant two other vehicles belonging to ## **W.A. No. No.2131 of 2010** -: 3 :- petitioners 2 and 3 in W.P(C) No.13757 of 2010 were also seized on the same day alleging illegal transportation of river sand. Mahazar was prepared and the District Collector passed identical order on 20.04.2010 after hearing them also. All the three petitioners including the appellant filed W.P(C) No.13757 of 2010 challenging the order of the District Collector, Exts.P7 to P9 with a direction to the respondents to release the vehicles seized. Writ Petition was heard by the learned Single Judge and by judgment dated 22.11.2010 the same was dismissed. This Writ Appeal has been filed by the 1[st] petitioner, i.e., P.M.Nizar, challenging the order of the learned Single Judge whereas petitioners 2 and 3 did not appeal. 3. We have heard Shri K.Ramakumar, learned Senior Counsel for the appellant and Shri P.I. Davis, learned Senior Government Pleader. 4. It is contended by the learned Senior Counsel that the entire proceedings before the District Collector deserve to be set aside on the ground of **W.A. No. No.2131 of 2010** -: 4 :- violation of Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 (hereinafter referred to as “the Rules”). It is contended that copy of mahazar having been not served on the appellant who was the owner of the vehicle, the entire proceeding is liable to be set aside. It is further contended that there was violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as “the Act”) and the Rules, hence the proceedings were liable to be dropped. It is contended that what was being transported in the vehicle was ordinary sand for which necessary pass was obtained. In the proceedings before the District Collector the respondent could not prove that what was transported by the appellant was river sand. The burden to prove that river sand was transported was on the respondents. 5. Shri P.I. Davis, learned Senior Government Pleader refuting the submissions of learned Senior Counsel for the appellant contended that there was no **W.A. No. No.2131 of 2010** -: 5 :- violation of Rule 27 in the proceedings of seizure and confiscation. It is contended that mahazar was prepared and copy of the same was given to the driver of the vehicle who has also signed the mahazar. It is contended that there was ample materials on record including police report to prove that river sand was transported in the vehicle. 6. We have heard the learned counsel for the parties and perused the records. 7. First submission raised by the learned Senior Counsel for the appellant is with regard to violation of Rule 27. Rule 27 of the Rules is as follows: “27. **Procedure for consfiscation of vehicles** .- (1) The Police or Revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules. (2) In the case of seizure of vehicle under subsection (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District ## **W.A. No. No.2131 of 2010** -: 6 :- Collector. (3) The vehicle 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.” Submission which has been pressed by the learned Senior Counsel for the appellant is that copy of the mahazar which was prepared was not served on the appellant who was the owner of the vehicle, hence provision of Rule 27 (2) is violated. Copy of the mahazar which was prepared regarding the seizure of the vehicle of the appellant is Ext.P4. Exhibit P4 indicate that mahazar was signed by the driver of the vehicle, one Manoj and was witnessed by two more persons. 8. Whether Rule 27(2) of the Rules contemplated that mahazar is to be served on the owner of the vehicle and what is the consequence of non-serving of the mahazar to the owner of the vehicle are the questions to be answered. From the facts on record it is clear that mahazar was prepared on 04.01.2010 in the presence of **W.A. No. No.2131 of 2010** -: 7 :- two witnesses which is mandatory requirement. Rule 27 (2) further requires that “one copy of the the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector”. Thus requirement of law is to give copy of the mahazar to the person who is possessing the vehicle, the person possessing the vehicle is the person in actual possession of the vehicle. When the owner is not in the vehicle at the time of seizure it is the driver who shall be treated to be the person in possession of the vehicle. The mahazar having been duly signed by the driver of the vehicle there is compliance of Rule 27(2) and the submission that Rule 27(2) has not been complied with cannot be accepted. The second submission which has been pressed by the learned Senior Counsel for the appellant is that there was no material to indicate that what was carried in the vehicle was river sand. In this context it is relevant to note the details of Ext.P4, mahazar which was prepared on 04.01.2010 that the vehicle was filled up by river sand. It is useful **W.A. No. No.2131 of 2010** -: 8 :- to extract the following statements in the mahazar (translation). “It is seen that the platform of the vehicle is filled with river sand and it can be seen that water is dripping from the sand. There are air-filled six old tyres for the vehicle and its engine condition is good. As per law, sample of the sand in the vehicle was taken in a white plastic cover on which a paper in which the driver, witnesses and I signed along with the specimen seal was kept along with the plastic of sand and the same was again covered with a brown paper and sealed it. The sample sand for testing the same by the geologist and the sand in the tipper lorry are taken into custody. The District Collector heard the parties, taken note of the police report and was satisfied that what was being transported was river sand. The mahazar prepared on the spot is a relevant material to find out the state of affairs at the time of seizure of the vehicle. Submission of the learned Senior Counsel that there was no material to prove that river sand was being transported thus cannot be accepted. Learned Senior ## **W.A. No. No.2131 of 2010** -: 9 :- Counsel for the appellant submitted that under the Right to Information Act, appellant has submitted an application asking one of the questions as question No.3 “what is the difference between river sand, lake sand and ordinary sand”, answer of which is given is that major differences are negligible. The above question answer does not indicate that there is no difference between river sand and ordinary sand. 9. Counter affidavit has been filed by the respondents where it was mentioned that P Form which was produced by the vehicle owner was with regard to ordinary sand. Transportation of river sand on P Form is clear violation of the Act and Rules. The District Collector after hearing the appellant and after looking into the materials has recorded a finding that what was being transported on 04.01.2010 was river sand. No other material including any scientific material has been produced by the appellant on the basis of which the District Collector could have come to the conclusion that what was transported was not river ## **W.A. No. No.2131 of 2010** ## -: 10 :- sand. Learned Single Judge in the judgment also upheld the findings recorded by the District Collector that what was transported was river sand. 10. Learned Senior Counsel for the appellant has also placed reliance on the judgment of this Court in **Subramanian v. State of Kerala** (2009 [1] KLT 77). In the aforesaid case, learned Single Judge held that powers exercisable by the District Collector under Rules 27 and 28 are statutory and quasi judicial in nature. In paragraph 54 the following has been stated: “54. Thus, under R.27(1), the police or the revenue officials are empowered to seize a vehicle which is used for transportation of sand in violation of the provisions of the Sand Act and the Rules. It requires to be mentioned in this context that the provisions in R.27(2) are mandatory. On seizure of a 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. I have no doubt that a violation of the procedure contemplated under R.27(2) would definitely give rise to **W.A. No. No.2131 of 2010** ## -: 11 :- an attack against the seizure itself, as being illegal and this Court would be certainly justified in upholding the contention raised by any person, who alleges the haphazard manner in which R.27(2) is violated in several cases.” In the present case mahazar was prepared as per the procedure prescribed in Rule 27(2) of the Rules, i.e., in the presence of two witnesses and copy of the same was supplied to the person possessing the vehicle which is evident by the signature of the driver appended who was possessing the vehicle at that time. The aforesaid case in no manner help the appellant. 11. It is well settled that this Court in exercise of the jurisdiction under Article 226 of the Constitution shall not reappraise the evidence on record or record its own finding and unless the order passed by the Statutory Authority is perverse or based on no material, no interference is warranted in exercise of the writ jurisdiction. 12. In view of the foregoing decision, we are of ## **W.A. No. No.2131 of 2010** -: 12 :- the view that no error was committed by the learned Single Judge in dismissing the Writ Petition. There is no merit in the Writ Appeal and the same is dismissed. **ASHOK BHUSHAN, CHIEF JUSTICE.** **A.M. SHAFFIQUE, JUDGE.** vsv