State of Kerala and Others v. First Respondent (W.A. No.1611 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** **WA NO. 1611 OF 2015** **AGAINST THE ORDER/JUDGMENT WPC 16239/2011 OF HIGH COURT OF** **KERALA** ## **APPELLANT/S:** 1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DISTRICT COLLECTOR KOTTAYAM-686001. 3 THE REVENUE DIVISIONAL OFFICER KOTTAYAM-686001. 4 THE TAHSILDAR KOTTAYAM-686001. 5 THE DEPUTY TAHSILDAR KOTTAYAM-686001. 6 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,KOTTAYAM-686001. 7 THE VILLAGE OFFICER ONAMTHURUTHU VILLAGE OFFICE, KOTTAYAM DISTRICT686602. BY ADV GOVERNMENT PLEADER 1 LISSY SUNNY S. MANAKULANGRA HOUSE, VILLOONNI P.O., KOTTAYAM, 686008. 2 V.G.AMBUJAKSHAN PUTHENPURAYIL HOUSE, VARIKKAMKUNNU, VADAKARA P.O.,VAIKOM, KOTTAYAM-686605. BY ADVS. D.KISHORE P.M.ZIRAJ MINI GOPINATH ## **RESPONDENT/S:** ## **OTHER PRESENT:** SR.GP.K.P.HARISH **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1611 of 2015 -2- ## **JUDGMENT** Dated this the 06[th] day of October, 2023 ## _**V.G.Arun, J.**_ The State and its officials are in appeal, aggrieved by the judgment in W.P(C)No.16239 of 2011, by which the learned Single Judge quashed the proceedings and the confiscation order issued against the first respondent's vehicle bearing registration No.KL-5Y-2900. The essential facts are as under; The goods vehicle belonging to the first respondent was intercepted and seized by the revenue special squad on 27.01.2010, on the allegation that the vehicle was being used for illegal transportation of river sand. The seizure under Ext.P3 mahazar was followed by Ext.P7 proceedings of the Tahasildar. The matter was thereafter placed before the District Collector for consideration and Ext.P8 order issued, W.A.No.1611 of 2015 -3- directing confiscation of the first respondent's vehicle, in exercise of the power under Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 and Section 23A of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 ('the Sand Act' for short). Under the order, the first respondent was granted the liberty to take back her vehicle after depositing Rs.6,50,000/-, fixed as the value of the vehicle. Aggrieved, the first respondent preferred W.P.(C) No.16637 of 2010 and, by Ext.P9 judgment dated 05.10.2010, this Court set aside Ext.P8 confiscation order. The matter was considered by the Revenue Divisional Officer thereafter and Ext.P13 order passed on 05.04.2011, once again directing confiscation of the vehicle and granted liberty to the first respondent to get her vehicle released by depositing Rs.6,50,000/-. The first respondent challenged Ext.P13 and the proceedings W.A.No.1611 of 2015 -4- leading to that order mainly on the ground that, the vehicle was transporting ordinary sand with a valid pass issued under the Kerala Minor Mineral Concession Rules, 1967. The other contention urged was that, Ext. P13 order was passed without any conclusive proof that the seized sand was river sand. These contentions having found favour with the learned Single Judge, the impugned judgment was rendered. 3. Adv.K.P.Harish, the learned Senior Government Pleader appearing for the appellants, contends that the writ petition ought to have been dismissed _in limine_ in view of efficacious alternative remedies available to the first respondent. It is pointed out that as against an order of confiscation under Section 23A of the Sand Act, the aggrieved person has the remedy of filing revision to the District Collector under Section 23B and a further remedy of appeal under Section 23C to the District Court. Reliance is W.A.No.1611 of 2015 -5- placed on the decision in _**Special Director and Another v Mohd.Ghulam Ghouse and Another [(2004)**_ _**3 SCC 440]**_ to contend that, writ courts should not ordinarily exercise the jurisdiction under Article 226 if the petitioner has not exhausted the other remedies available. It is argued that the learned Single Judge should not have relied on the deposition of the Assistant Geologist, given during the course of his cross-examination before the Revenue Divisional Officer since, Section 23A of the Sand Act does not provide for the examination of witnesses, while deciding whether the seized property is liable to be confiscated or not. 4. In answer to the contention regarding maintainability, Adv.D.Kishore, learned Counsel appearing for the first respondent, submitted that the question of exhaustion of remedies under the Sand Act would arise only if the sand seized W.A.No.1611 of 2015 -6- from the vehicle is found to be river sand. It is argued that the specific case of the first respondent is that the vehicle was seized while it was transporting ordinary sand and, that too, with a valid pass issued under the Kerala Minor Mineral Concession Rules, 2015. As such, penal action, if any, can be initiated only in accordance with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 ('MMDR Act' for short) and the Kerala Minor Mineral Concession Rules, 2015. The only piece of evidence before the adjudicating authority was Ext.P10 report of the Senior Geologist, Department of Mining and Geology, District Office, Kottayam, the finding in which was only that the sample received for analysis resembles river sand. It is submitted that to a specific query under the Right to Information Act, the Senior Geologist had replied that no technical analysis is conducted in the Kottayam District W.A.No.1611 of 2015 -7- Mining and Geology Department Office and all such tests and analysis are done at the Analytical Laboratory in the Departmental Directorate (Headquarters) at Thiruvananthapuram. Attention is also drawn to Ext.P17 reply received from the Directorate of Mining and Geology Department, clarifying that no sample was received for analysis from Kottayam during the period 25.01.2010 to 15.02.2010. It is contended that Ext.P10 report of the Senior Geologist is of no evidentiary value and hence the learned Single Judge was fully justified in quashing the proceedings. 5. As rightly contended by the learned Counsel for the first respondent, the question whether the writ petition was maintainable without the first respondent exhausting the remedies under the Sand Act would arise for consideration only if the seized sand is proved to be ‘river sand’. Pertinently, the Kerala ## W.A.No.1611 of 2015 -8- Protection of River Banks and Regulation of Removal of Sand Act, 2001 is introduced with the objective of protecting river banks and river beds from large scale dredging of ‘river sand’ and to regulate the removal of ‘river sand’. Yet another important aspect is that, ‘ordinary sand’ falls within the meaning of 'minor mineral' under the MMDR Act and its excavation and removal is governed by the Kerala Minor Mineral Concession Rules, 2015. 6. In the case at hand, the authorities have relied on Ext.P10 report of the Senior Geologist, Kottayam to hold that the sand seized from the first respondent's vehicle is river sand. Being contextually relevant, Ext.P10 report is extracted hereunder; _'The megascopic analysis related to grain size, sphericity of the grains, less content of organic matter and the silt content in the said sample sent from your office vide reference cited, reveals that_ W.A.No.1611 of 2015 -9- _the sand sample resembles to fluvial origin (River Sand)'_ . Apart from the fact that Ext.P10 does not amount to a conclusive opinion, there is an admission by the Senior Geologist in Ext.P15 communication that the tests for classification of land soil (ordinary sand), river sand, sand mixed with mud are done at the Analytical Laboratory in the Departmental Directorate (Headquarters) at Thiruvananthapuram. Further, as evident from Ext.P17 communication issued from the Departmental Directorate, no sample for analysis was received from Kottayam during the period 25.01.2010 to 15.02.2010. To top this all, the the Assistant Geologist admitted during his cross-examination before the Revenue Divisional Officer that the sample of sand mentioned in Ext.P10 can be treated as ordinary sand as per the provisions of the MMDR Act. Therefore, as rightly held by the learned Single Judge, the ## W.A.No.1611 of 2015 -10- confiscation order, issued on the premise that the seized sand is river sand, is patently illegal. Being so, the challenge against maintainability of the writ petition on the ground that the first respondent has got efficacious remedies under that Sand Act is also liable to be discarded. We also find no merit in the contention urged on behalf of the appellants that the learned Single Judge grossly erred by placing reliance on the statement made by the Assistant Geologist during his cross-examination in the proceedings under Section 23A. This argument is advanced on the ground that Section 23A does not provide for examination of witnesses. The contention is of no avail since a confiscation order under Section 23A(4) can be issued by the Sub Divisional Magistrate only if the explanation offered by the owner is not satisfactory and on being satisfied that the properties seized are liable to be ## W.A.No.1611 of 2015 -11- confiscated. For arriving at such satisfaction, the authority can permit the parties to adduce evidence. It is the settled legal position that a quasi-judicial decision making process involves the following requisites; (a) presentation of the case by the parties to the dispute and (b) in case the dispute is with respect to a question of fact, ascertainment of facts by means of evidence adduced by the parties to the dispute. The Revenue Divisional Officer, in his capacity as the Sub Divisional Magistrate, having undertaken the exercise of ascertaining the facts by letting the parties adduce evidence, the learned Single Judge was not at fault in placing reliance on the statement given during crossexamination. While failure to abide by the principles of natural justice may render an order illegal, excessive compliance will not. W.A.No.1611 of 2015 -12- For the aforementioned reasons, the writ appeal is dismissed. Sd/- **A.J.Desai Chief Justice** sd/- **V.G.Arun Judge** scl