Satheeshan and Others v. The Tahsildar, Kozhencherry, Pathanamthitta District and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938 WP(C).No. 216 of 2010 (B) -------------------------- ## PETITIONER(S): - ------------- 1. SATHEESHAN, S/O. GANGADHARAN, AGED 48 YEARS, ASWATHY BHAVAN, CHERUKOL,, CHENNITHALA, MAVELIKKARA, ALAPPUZHA DISTRICT. 2. VIPINRAJ, S/O. DEVARAJAN, AGED 21 YRS, SHREESHYLAM, ERUVA SOUTH, NORTHERN KARA,, KAYANKULAM, ALAPPUZHA DISTRICT. 3. N.KRISHNANKUTTY, S/O. NANU, AGED 52 YEARS, RAMYASADHANAM, CHETTIKULANGARA,, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. SRI.SAKIR.K.H. ## RESPONDENT(S): - -------------- 1. THE TAHSILDAR, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. 2. THE DISTRICT COLLECTOR, PATHANAMTHITTA DISTRICT. 3. THE REVENUE DIVISIONAL OFFICER, ADOOR, PATHANAMTHITTA DISTRICT. 4. THE CANAL OFFICER, OFFICE OF THE CANAL OFFICER, THOTTAPPALLY. 5. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. VIJU THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 216 of 2010 ## APPENDIX EXHIBITS P1 (SERIES)TRUE COPY OF THE ANNUAL LICENSES RELATING TO THE 1ST PETITIONER'S CANOES P2TRUE COPY OF THE ANNUAL LICENSE RELATING TO THE 2ND PETITIONER'S CANOE P3 (SERIES)TRUE COPY OF THE ANNUAL LICENSES RELATING TO THE 3RD PETITIONER'S CANOES P4TRUE COPY OF THE COMMON ORDER BEARING NUMBER C9-26267/2009 DATED 16.7.09 PASSED BY R2 P5TRUE COPY OF THE INTERIM ORDER DATED 7.12.2009 PASSED BY THIS HONOURABLE COURT IN WP(C).28666 OF 2009 //True Copy// P.S.To Judge ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - W.P.(C).216 of 2010 - - - - - - - - - - - - - - - - Dated 4[th] April, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** - 1.The petitioners have approached this Court challenging the confiscation proceedings initiated under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, and the Rules framed there under. - 2.The 1[st] petitioner claims to be the owner of seven canoes bearing Vessel Nos.5316 KQN, 5593 KQN, 5401 KQN, 5345 KQN, 5387 KQN, 5456 KQN and 5296 KQN. Ext.P1 series are the annual licence for vessels in Form-A which reveals the ownership of the vehicles in the name of the 1[st] petitioner. The 2[nd] petitioner claims to be the owner of one canoe bearing vessel No.5595 KQN and the 3[rd] petitioner claims to be the owner of two canoes bearing vessel Nos.5583 KQN and 5762 KQN. Exts.P2 and **WP(C).216/10** 2 Ext.P3 series are respectively the licences issued to the 2[nd] as well as the 3[rd] petitioner. - 3.According to the petitioners, on 6.6.2009 while the petitioners were taking the canoes to Pandalam for the purpose of renting it out, the canoes were seized. It is asserted by the petitioners basing on Ext.P4 proceedings, that at the time of seizure of the canoes, the same did not contain any river sand or other prohibited items. Ext.P4 is the proceeding dated 16.7.2007 as per which the 2[nd] respondent has proceeded with under Section 23 of Act 18 of 2001 for confiscation of the canoes. The only contention of the petitioner is that as the canoes were not used for any unauthorized purpose or illegal transportation of river sand, initiation of confiscation proceedings is bad under law. - 4.The learned counsel appearing for the petitioners 3 ## **WP(C).216/10** relies on the judgment of this Court in **Johnson** - **and Others v. District Collector, Thrissur and Others (2014 (1) KHC 137)** to substantiate his contention. - 5.It is further submitted that as per interim order dated 5.1.2010, this Court had directed the 2[nd] respondent to release to the petitioners the canoes belonging to them subject to conditions. - 6.The learned Government Pleader would oppose the contentions of the petitioners and would contend that the assertion of the learned counsel that no sand was found in the canoe is not correct. According to the learned Government Pleader, traces of river sand was found in the canoe and the petitioners cannot rely on the facts of the judgment in **Johnson** (supra). - 7.I have heard the rival submissions. - 8.In **Johnson** (supra), this Court had held that **WP(C).216/10** 4 when there was no sand at the time of seizure of the canoes or the vehicle there is no question of “transportation”. Holding so, it was held that there cannot be any confiscation of the vehicles and therefore, the vehicles are to be released to the petitioners. It was held as follows: _“The further question to be considered in this case is whether the 3[rd] respondent can proceed with the confiscation proceedings” as contemplated under Section 23 of the Act. The said provision states that whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for seizure by the police or revenue officials. Admittedly, there was no sand at the time of seizure and as such, there is no question of “transportation” as well. This being the position, there cannot be any 'confiscation' of the vehicles and as such, they are to be released to the petitioners. But by virtue of the mandate under Section 20 of the Act, whoever contravenes any of the provisions of the Act or Rules thereunder, shall be proceeded with steps for prosecution and punishment as prescribed. This is more so, in view of the Law declared by this_ **WP(C).216/10** 5 _Court as per the decision reported in 2012 (2) KLT 547) Surjith Singh v. State of Kerala.”_ - 9.I am of the considered view that the principles laid down in the above judgment will apply on all fours to the instant case as well. The contention of the learned government pleader that traces of sand was found on the canoes is not borne out from the materials on record. The confiscation proceedings are therefore liable to be set aside. However, if proceedings are pending before the learned Magistrate having jurisdiction over the area in respect of the offence, the said proceedings shall continue as has been held by the Division Bench of this Court in **Surjith Singh v. State of Kerala (2012 (2) KLT 547).** 10.In the result, Ext.P4 proceedings initiated by the 2[nd] respondent under S.23 of the Act is quashed. If **WP(C).216/10** 6 the proceedings are pending before the concerned Magistrate court having jurisdiction in respect of the offence stated to have been committed by the petitioners, the same shall continue to its logical culmination. The writ petition is disposed of as above. Sd/- **RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/4.4.2016 //True Copy// P.S.To Judge