Suresh Kumar.K v. The District Collector, Malappuram and The Revenue Divisional Officer, Perinthalmanna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941** ## **WP(C).No.14122 of 2019** ## **PETITIONER:** **SURESH KUMAR.K, AGED 42 YEARS, S/O.RAJU K, CHERIKKALIL (H), ERAMAM.P.O, PAYYANNOOR, THALIPARAMBU, KANNUR DT.** **BY ADV. SHRI.T.K.AJITH KUMAR** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR, MALAPPURAM, CIVIL STATION UP HILL(PO), MALAPPURAM DT. PIN-676 505** **2 THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA(PO), MALAPPURAM DT. PIN-679 321.** ## **SRI K.P. HARISH - SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14122 of 2019 2** ## **JUDGMENT** The petitioner who is a registered owner of a lorry bearing Registration No.KL-59/G-2741, which was seized on 21.08.2014 at 11.30 p.m. by the District Sand Squad, Malappuram, alleging violation of the provisions under the the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2nd respondent Revenue Divisional Officer to release the vehicle, as directed in Ext.P1 office memorandum dated 15.03.2019 issued by the Judicial First Class Magistrate Court, Malappuram, whereby the 2nd respondent is directed to release the said vehicle to the petitioner. 2. On 22.05.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 3. A counter affidavit has been filed on behalf of the 2 nd respondent, opposing the relief sought for in this writ petition. Along with the said counter affidavit, Ext.R2(a) order dated 16.01.2018, which has been published in the official Gazette on 20.03.2018, is placed on record. Paragraph 4, 5 and 6 of the said **WP(C).No.14122 of 2019 3** counter affidavit filed by the 2nd respondent read thus; “ 4. It is submitted that as per trial notice No.S2/8380/16 dated 04.10.2017 of this office published in Mathrubhumi daily and Madhyamam dated on 10.12.2017 instruction had given to the owners of the vehicles which were seized for illegal sand mining to submit show cause statement within 20 days for not taking actions related to confiscation. The owner of the vehicle No.KL-59-G-2741 had not appeared and submitted any explanation/reasons for not confiscating the vehicle. As per confiscation order of 670 vehicles published in Kerala Gazette 7th volume dated 20.03.2018 and published in Deshabhimani Daily dated 05.04.2018, the vehicle No.KL-59-G-2741 is included as SI.No.369 in the advertisement. True copy of the confiscation order No.S2/8380/2016 dated 16.01.2018 is produced herewith and marked as Exhibit R2(a). Instruction had given to the vehicle owners to submit revision petition of any within 15 days before District Collector, Malappuram as per Section 23(B) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001. But the owner of the vehicle did not submit any petition as instructed. 5. It is submitted that the vehicle owner of KL59/G-2741 submitted a petition CMP No.506/2019 before the Hon'ble JFCM Court Malappuram on 06.02.2019. He stated that he had used the vehicle for legal sand transportation and the sand squad seized the vehicle by mistake. Bu the vehicle No.KL59/G-2741 was seized on 21.08.2014 at 11.30 p.m. **WP(C).No.14122 of 2019 4** from the Chaliyar river since there is no permission to extract and transport river sand before 7.00 a.m. and after 4.00 p.m. It is clear that the vehicle was used for illegal river sand mining and transportation. it is a clear violation of provisions of the Kerala protection of River Banks and Regulation of Removal of Sand Act, 2001. The owner of the vehicle No.KL-59/G-2741 had not submitted any petitions before this office for trial notice No.S2-8380/16 dated 04.10.2017. He did not submit any petition before District Collector Malappuram against the confiscation order dated 20.03.2018 of Kerala Gazette and published in Newspaper dated 05.04.2018. 6. It is submitted that the owner of the vehicle No.KL-59/G-2741 misrepresented the Hon'ble JFCM Court Malappuram in his petition CMP No.506/2019 dated 06.02.2019. Hon'ble JFCM Court Malappuram ordered to release vehicle No.KL-59/G-2741 in interim custody to the owner and the same was intimated to the 2nd respondent by Ext.P1 official memorandum dated 15.03.2019 in CMP No.506/19. The petitioner has not produced the order in CMP No.506/19 before this Hon'ble Court. The petitioner had been given many chances to furnish his arguments against the confiscation proceeding but he did not respondent to any of the notice and hence it is clear that the petitioner had no valid reason to furnish against confiscation. As per 1st proviso to Section 23A(2) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001 any order passed by the **WP(C).No.14122 of 2019 5** Judicial Magistrate regarding interim custody will be subject to the orders of confiscation made by the Sub Divisional Magistrate under Sub Section (4) of Section 23A of the Act. Hence the confiscated vehicle cannot be released in interim custody s per law. Hence a detailed report has been submitted before Hon'ble JFCM Court Malappuram for appropriate order as per No.S1/11301/14 dated 29.04.2019 if this office, and this case is still pending in JFCM Court. True copy of the report submitted before Hon'ble JFCM Court Malappuram is produced herewith and marked as Exhibit R2(b).” 4. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 5. The petitioner's vehicle, which was seized on 21.08.2014, alleging transportation of river sand in violation of the provisions under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the rules made thereunder, has already been confiscated by Ext.R2(a) order dated 16.01.2018 of the 2nd respondent, which has been published in the Kerala Gazette dated 20.03.2018. The said order relates to confiscation of about 570 vehicles, which were seized for illegal transportation of river sand, and were lying at different places. Such a course has been adopted by the 2nd respondent, taking note of the judgment of the Apex Court in **General** **WP(C).No.14122 of 2019 6** ## **Insurance Council v. State of Andhra Pradesh [(2010) 6 SCC 768]** 6. During the course of arguments, the learned counsel for the petitioner has made available for the perusal of this Court a copy of the report dated 26.02.2019 of the 2nd respondent to the Assistant Public Prosecutor in the Judicial First Class Magistrate Court, Malappuram. 7. Per contra, the learned Government Pleader would point out that the 2nd respondent has already submitted Ext.R2(b) report dated 29.04.2019 before the Judicial First Class Magistrate, Malappuram explaining the facts and circumstances. 8. Having considered the submissions made by the learned counsel on both sides, this Court finds that if the petitioner is feeling aggrieved by Ext.R2(a) order of confiscation, it is for him to challenge the same in appropriate proceedings. 9. The learned counsel for the petitioner would contend that Ext.R2(a) order is one issued in violation of the principles of natural justice, inasmuch as the publication of notice referred to in Ext.R2(a) order was not made in a newspaper having circulation in Kannur district, where he is residing. Without expressing anything as to the aforesaid contention **WP(C).No.14122 of 2019 7** raised by the petitioner, this writ petition is closed, without prejudice to the right, if any, of the petitioner to challenge Ext.R2(b) before appropriate forum, raising appropriate contentions. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** sru **WP(C).No.14122 of 2019 8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **OFFICIAL MEMORANDUM DATED 15.3.2019 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE, MALAPPURAM, DIRECTING THE 2ND RESPONDENT TO RELEASE THE VEHICLE OF THE PETITIONER** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R2(A):** **TRUE COPY OF THE CONFISCATION ORDER NO.S2/8380/2016 DATED 16/01/2018 PUBLISHED IN THE GAZETTE AS NO.12 DATED 20/03/2018** **EXHIBIT R2(B):** **TRUE COPY OF THE REPORT SUBMITTED BEFORE HON'BLE JFCM COURT MALAPPURAM**