Shaji Andrews v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 21ST DAY OF MAY 2019/31ST VAISAKHA, 1941** **W.A.No.1814 OF 2015** **AGAINST THE JUDGMENT IN W.P(C).NO.5615/2009 of HIGH COURT OF KERALA DATED 08-04-2015** ## **APPELLANT/PETITIONER:** **SHAJI ANDREWS AGED 47 YEARS, S/O.ANTHRAYOS, RESIDING AT THEKKEKERAMAKKAPALLIL HOUSE, PUTHENCHANTHA.P.O, VAKATHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT,PIN - 686 538.** **BY ADV. SRI.MANJU ANTONEY** ## **RESPONDENTS/RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM,**| ||**PIN 685 001.**| |**2**|**THE DISTRICT COLLECTOR**| ||**COLLECTORATE KOTTAYAM, INCLUDING**| ||**REPRESENTING DISTRICT EXPERT COMMITTEE,**| ||**KOTTAYAM UNDER THE ACT 18 OF 2001 AND**| ||**RULES MADE, THEREUNDER. PIN. 686 002.**| |**3**|**THE DEPUTY SUPERINTENDENT OF POLICE**| ||**KOTTAYAM, OFFICE AT COLLECTORATE,**| ||**KOTTAYAM. PIN 686 002.**| |**4**|**THE SUB INSPECTOR OF POLICE**| ||**KOTTAYAM EAST POLICE STATION,**| ||**KOTTAYAM. PIN 686 002.**| |**5**|**UNION OF INDIA**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**MINISTRY AND DEPARTMENT OF LAW,**| ||**NEW DELHI. PIN 100 001.**| |**6**|**MINERAL REVENUE INSPECTOR**| ||**DEPARTMENT OF MINING AND GEOLOGY,**| ||**DISTRICT OFFICE, KOTTAYAM, KOTTAYAM DISTRICT.**| ||**PIN 686 001.**| **W.A.No.1814/2015 : 2 :** **BY SHRI.P.VIJAYAKUMAR, ASG OF INDIA BY SRI.SURINE GEORGE IPE, GOVT. PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **W.A.No.1814/2015 : 3 :** ## **J U D G M E N T** ## **A.K. Jayasankaran Nambiar, J.** The writ petitioner in W.P.(C).No.5615/2009 is the appellant before us, aggrieved by the judgment dated 8.4.2015 of the learned Single Judge in the writ petition. The facts in the writ petition would indicate that a vehicle bearing registration No.KL-5L 9722 [an Eicher mini lorry], belonging to the petitioner was seized by the revenue authorities in terms of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 [hereinafter referred to as the “2001 Act”] for alleged use in the transportation of river sand without authorisation. The mahazar that was drawn up in connection with the alleged offence was produced in the writ petition as Ext.P5, and in response to the notice issued to the petitioner by the District Collector in terms of the 2001 Act, the petitioner preferred Ext.P6 reply disputing the averments in the notice issued to him. The adjudication proceedings that followed culminated in Ext.P9 order of the District Collector that imposed an amount of Rs.3,96,000/- on the petitioner, of which, Rs.1,98,000/- was towards the cost of the vehicle and the balance Rs.1,98,000/- towards fine. The petitioner impugned the said order of the District Collector before this Court through W.P.(C).No.28553/2006, which was disposed by Ext.P10 judgment dated 25.7.2008, which found the action of the District Collector in imposing a fine on the petitioner illegal, in view of the decision of a Division Bench of this Court in **Sanjayan v. Tahsildar - [2007 (4) KLT 597]** . **W.A.No.1814/2015 : 4 :** It was found that, under the 2001 Act, the District Collector was authorised only to confiscate the vehicle and could not have imposed any fine in connection with such confiscation. The impugned order of the District Collector was therefore quashed, and a direction was issued to the District Collector to pass fresh orders in the matter, after hearing the petitioner. It would appear that pursuant to the directions in the said judgment, the District Collector proceeded to pass Ext.P16 order dated 30.1.2009, once again confiscating the vehicle and imposing a fine of Rs.25,000/- in terms of Rule 27(3) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002. An amount of Rs.1,98,000/- was also found due from the petitioner towards the value of the vehicle. It is apparent therefore that, by Ext.P16 order, the District Collector had imposed a fine of Rs.25,000/- and an amount of Rs.1,98,000/- towards value of the vehicle in lieu of confiscation. It was the said order that was impugned by the petitioner in W.P. (C).No.5615/2009. The learned Single Judge, who considered the matter, found force in the contention of the learned counsel for the petitioner that the District Collector had no authority to impose a fine in respect of the offence detected, as was observed by this Court in Ext.P10 judgment in an earlier round of litigation. Accordingly, the learned Single Judge quashed that portion of Ext.P16 order that imposed the fine of Rs.25,000/- on the petitioner. On the aspect of legality of the confiscation of the vehicle by the District Collector, however, the learned Single Judge found that, prior to 2013, when the 2001 Act was amended to enumerate a detailed procedure for confiscation of vehicles that were found to be involved in the commission of an offence under the Act, the erstwhile provisions did not offer **W.A.No.1814/2015 : 5 :** any clarity with regard to whether or not any prosecution had to be completed in accordance with the Cr.PC before confiscating a vehicle that was found to be involved in the commission of any offence under the 2001 Act. Referring to the divergent decisions of this Court on the said issue, the learned Single Judge was of the view that the Division Bench decisions that held the field had clearly indicated that the completion of a prosecution was not a necessary pre-condition for the revenue/police authorities to order the confiscation of a vehicle found to have been involved in the commission of an offence under the 2001 Act. The decision of a learned Single Judge, to the contrary, was held to be per incuriam by the learned Single Judge, who proceeded to uphold the confiscation by the District Collector in Ext.P16 order. The writ petition was thereafter disposed, by permitting the petitioner to make payment of the balance amount after deducting the amount of Rs.35,000/- that had already been paid by the petitioner in the meanwhile, for the purposes of redeeming the vehicle and avoiding the confiscation that was ordered in Ext.P16 order. It is not in dispute that the writ petitioner/appellant before us, did not pay the balance amount towards the value of the vehicle, as permitted by the learned Single Judge in the judgment under appeal. The authorities also did not repossess the vehicle from the appellant herein during the pendency of the writ appeal, notwithstanding the permission granted to them to do so in the event of any default committed by the appellant. 2. When the matter came up for hearing today before us, the learned counsel for the appellant would, while impugning the judgment of the learned **W.A.No.1814/2015 : 6 :** Single Judge, point out that the vehicle in question continues to remain in his possession pursuant to the payment of Rs.35,000/-, which he had made during the pendency of the writ petition. It is his case before us that the appellant is a poor agriculturist, and, at this stage, is unable to raise the finance required for obtaining a redemption of the vehicle in question. It is also submitted that the appellant is unable to put the vehicle for any productive use or to take steps to sell the vehicle on his own. Under such circumstances, he would pray for a direction upholding the confiscation of the vehicle so as to enable the State authorities to enforce the confiscation ordered of the District Collector and return the amounts paid by him for redemption of the vehicle in lieu of confiscation. On considering the said submission of the learned counsel for the appellant, and finding that Ext.P16 of the District Collector had only contemplated the payment of the value of the vehicle, in lieu of confiscation, if the confiscation is now upheld, as it should be, the appellant/writ petitioner should also be entitled to return of any amount that he had paid during the pendency of these proceedings towards redeeming the vehicle. We therefore dispose the Writ Appeal, by rejecting the contention of the appellant on the legality of the confiscation ordered by the District Collector, and direct the appellant to forthwith surrender the vehicle to the District Collector, who shall, on getting possession of the vehicle, treat the same as 'confiscated', pursuant to Ext.P16 order passed by him. On the surrender of the vehicle by the petitioner, the District Collector shall also ensure that the amount of Rs.35,000/- that was paid by the appellant/petitioner towards part redemption of the vehicle, is returned to him within a period of one **W.A.No.1814/2015 : 7 :** month from the date of surrender of the vehicle. Needles to say, in the event of the appellant not surrendering the vehicle, as directed, the District Collector would be within his rights, to proceed against the appellant for the balance amount towards the value of the vehicle as determined in Ext.P16 order. The Writ Appeal is disposed as above. **Sd/HRISHIKESH ROY CHIEF JUSTICE** **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** prp/22/5/19 **W.A.No.1814/2015 : 8 :** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1: COPY OF THE RELEVANT PAGES OF THE R.C.BOOK OF THE PETITIONER'S VEHICLE, EICHER 1090, BEARING NO.KL-5 L 9722. EXT.P1(A): COPY OF THE INSURANCE CERTIFICATE DATED 23.5.2006 OF THE VEHICLE. EXT.P1(B): COPY OF THE PERMIT DATED 3.6.2002 OF THE VEHICLE. EXT.P2: COPY OF THE PASS DATED 9.10.2006 BEARING NO.977, ISSUED IN THE NAME OF THE DRIVER OF THE PETITIONER'S VEHICLE PURUSHOTHAMAN. EXT.P3: COPY OF THE PASS DATED 7.10.2006 BEARING NO.946. EXT.P3(A): COPY OF THE PASS DATED 8.6.2006. EXT.P4: COPY OF THE BILL OF THE REPAIRING OF THE PETITIONER'S VEHICLE DATED 9.10.2006, ISSUED BY THE NATIONAL MOTOR WORKS, KOTTAYAM. EXT.P5: COPY OF THE MAHAZAR DATED 9.10.2006 PREPARED BY THE 4TH RESPONDENT. EXT.P6: COPY OF THE REPRESENTATION/OBJECTION DATED 13.10.2006 FILED BY THE PETITIONER TO THE 2ND RESPONDENT DISTRICT COLLECTOR. EXT.P7: COPY OF THE NEWS ITEM DATED 26.10.2006 IN RASTRADEEPIKA EVENING DAILY. EXT.P8: COPY OF THE PASS DATED 17.1.2006. EXT.P9: COPY OF THE ORDER DATED 12.1.2007 PASSED BY THE 2ND RESPONDENT DISTRICT COLLECTOR. EXT.P10: COPY OF THE JUDGMENT DATED 25.7.2008 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.28553/2006. EXT.P11: COPY OF THE INTERIM ORDER DATED 3.11.2006 PASSED BY THIS HONOURABLE HIGH COURT IN W.P.(C).NO.28553/2006. EXT.P12: COPY OF THE RECEIPT DATED 6.11.2006 OF RS.35,000/-. EXT.P13: COPY OF THE REGISTRATION PARTICULARS OF PETITIONER'S VEHICLE DATED 6.11.2006 ISSUED BY JOINT R.T.O. CHANGANACHERRY. **W.A.No.1814/2015 : 9 :** EXT.P14: COPY OF THE ORDER DATED 13.11.2006 ISSUED BY 2ND RESPONDENT FOR RELEASE OF PETITIONER'S VEHICLE. EXT.P15: COPY OF THE NOTICE DATED 1.11.2006 ISSUED BY CENTRAL BANK OF INDIA TO THE PETITIONER FOR REVENUE RECOVERY PROCEEDINGS. EXT.P16: COPY OF THE ORDER DATED 30.1.2009 PASSED BY 2ND RESPONDENT DISTRICT COLLECTOR. EXT.P17: COPY OF THE INTERIM STAY ORDER DATED 19.6.2007 PASSED BY THIS HON'BLE COURT IN I.A.NO.7023/2007 IN W.P.(C).NO.28553/2006. ANNEXURE A1: COPY OF MY REPRESENTATION DATED 30.7.2016 TO THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION. ANNEXURE A2: COPY OF REPLY DATED 31.10.2016 ISSUED BY THE 2ND RESPONDENT TO ME ALONG WITH ITS ENGLISH TRANSLATION. ## **RESPONDENTS EXHIBITS:** NIL. //TRUE COPY// P.S. TO JUDGE