Vibheesh C. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **WP(C).No.3206 OF 2019(A)** ## **PETITIONER:** **VIBHEESH.C, AGED 30 YEARS S/O. RAVEENDRAN C., 'PADMASREE', POOKODE P.O., PATHAYAKUNNU, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT-676 505. 3 THE DISTRICT COLLECTOR, MALAPPURAM 675 505. BY ADV. SRI PAUL ABRAHAM VAKKANAL- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3206 OF 2019(A) -2- ## **JUDGMENT** The petitioner, who is the registered owner of a Heavy Goods Vehicle bearing Registration No.KL-58/R-2325, which was seized by the Police, in connection with Crime No.650/2018 of Tirur Police Station, alleging offences under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, as amended by the Kerala Protection of River Banks and Regulation of Removal of Sand (Amendment) Act, 2013, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent District Collector to release vehicle bearing Registration No.KL-58-R/2325 covered by Ext.P1 Certificate of Registration, on payment of 30% of the value of the vehicle fixed in Ext.P3 order of confiscation dated 24.01.2019 issued in exercise of the powers under Section 23A of the said Act. 2. On 04.02.2019, when this writ petition came for admission, the learned Government Pleader sought time to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the WP(C).No.3206 OF 2019(A) -3- respondents. 4. The pleadings and materials on record would show that the goods carriage of the petitioner covered by Ext.P1 Certificate of Registration was seized under Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, alleging illegal transportation of river sand, punishable under Section 20 of the said Act. The proceedings initiated against the petitioner culminated in Ext.P3 order of confiscation dated 24.01.2019 of the 2[nd] respondent Revenue Divisional Officer, under Section 23A of the Act. In Ext.P3, the value of the vehicle is fixed as Rs.5,00,000/-, based on Ext.P2 Valuation Certificate dated 07.01.2019 issued by the Joint Regional Transport Officer, Tirur. In the absence of a revision filed by the petitioner before the 3[rd] respondent District Collector, under Section 23B of the Act, Ext.P3 order of confiscation attained finality. Now the petitioner seeks return of the confiscated vehicle on payment of 30% of the value fixed in Ext.P3 order of confiscation based on Ext.P2 Valuation Certificate. 5. Section 23A of the Act deals with confiscation of sand, vehicle, etc. As per sub-section (1) of Section 23A, where any WP(C).No.3206 OF 2019(A) -4- property is seized under Section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure before the judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of property is received, the Police Officer concerned shall take steps under Section 102 of the Code of Criminal Procedure, 1973. As per sub-section (2) of Section 23A, where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall be taken as per the provisions of the Code of Criminal Procedure, 1973 and, if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them is not satisfactory, they shall be subjected to confiscation under sub-section (4). As per first proviso to sub-section (2), the release of the properties seized WP(C).No.3206 OF 2019(A) -5- to any person, for its safe custody, to any person for its disposal, shall be on sufficient security and such release or disposal shall only be till the completion of the confiscation proceedings under this Act. As per the second proviso to subsection (2), the sand seized shall not, for any reason, be released to any person and the same shall be subjected to confiscation under sub-section (4). 6. As per sub-section (3) of Section 23A, where a report under sub-section (1) is received before a Sub-Divisional Magistrate, a notice requiring to furnish in writing within the stipulated time as stated in the notice, the reasons, if any, for not confiscating the property seized under Section 23, shall be issued to the owner of, or the person having control of, the vehicle, tool, implements, loading equipment, or other article. As per sub-section (4) of Section 23A, where the owner of the properties seized or the person having control of, the same does not furnish explanation or the explanation given is not satisfactory, and the Sub-Divisional Magistrate is satisfied that the properties seized under Section 23 are to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed in writing to its owner or the person having its WP(C).No.3206 OF 2019(A) -6- control. As per the first proviso to sub-section (4), the owner of the properties seized or the person having its control shall be given the liberty to reclaim it, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, _in lieu_ of the properties confiscated. As per the second proviso to sub-section (4), the sand confiscated shall not for any reason, be released by realising the value. 7. As per sub-section (5) of Section 23A, the amount received under sub-section (4) shall, subject to the provisions of Section 23D, be remitted to the River Management Fund. As per sub-section (6) of Section 23A, the sand confiscated under sub-section (4) shall be sold to Nirmithi Kendra or to 'Kalavara' at such rate, as may be fixed by the Public Works Department from time to time and such amount shall be remitted to the River Management Fund. As per sub-section (7), the confiscation under this Section shall be in addition to the penalty provided for the offence under this Act. 8. Section 23D of the Act deals with return of confiscated article or the amount paid in lieu of confiscation. As per Section 23D, where the District Collector, in a revision filed under Section 23B or the District Court in an appeal filed under WP(C).No.3206 OF 2019(A) -7- Section 23C, amend or cancel an order under Section 23A or Section 23B, as the case may be, the articles confiscated or the amount paid in lieu of confiscation shall be returned to the owner or person having its control and in case of refund of the amount it shall be paid from the River Management Fund. 9. Relying on the judgment of a Full Bench of this Court in _**Shan v. State of Kerala**_ **[2010 (3) KLT 413]** , the learned counsel for the petitioner would contend that the petitioner is entitled for the release of the vehicle confiscated vide Ext.P3 order, on payment of 30% of the value of that vehicle. A reading of the decision in **Shan's case** would show that in that case the Full Bench was dealing with the question as to whether interim custody of the vehicle can be granted, pending confiscation proceedings. Therefore, the law laid down in that judgment has no application to the facts of the case on hand. 10. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory WP(C).No.3206 OF 2019(A) -8- obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodiancum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR WP(C).No.3206 OF 2019(A) -9- 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) ## 11. In **Oriental Bank of Commerce v. Sunder Lal Jain** **[(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and WP(C).No.3206 OF 2019(A) -10- imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others WP(C).No.3206 OF 2019(A) -11- who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all WP(C).No.3206 OF 2019(A) -12- the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public WP(C).No.3206 OF 2019(A) -13- functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to WP(C).No.3206 OF 2019(A) -14- their case." 12. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he WP(C).No.3206 OF 2019(A) -15- has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." ## 13. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC** **259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) WP(C).No.3206 OF 2019(A) -16- SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. ## 14. In **Vinod Kumar v. District Geologist and others** **[2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention WP(C).No.3206 OF 2019(A) -17- of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. 15. The learned counsel for the petitioner could not point out any provision, which enables the petitioner to claim custody of a vehicle confiscated under Section 23A of the Act, on payment of 30% of the value fixed by the authorised officer. As per the mandate of the first proviso to sub-section (4) of Section 23A of the Act the owner of the property seized or the person having its control can reclaim it, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, in lieu of the properties confiscated. Therefore, any direction to release the confiscated vehicle on payment of 30% of its value fixed by the Authorised Officer cannot be granted in exercise of the writ jurisdiction, as no mandamus can be issued to do something which is contrary to law. In the result, this writ petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** VV WP(C).No.3206 OF 2019(A) -18- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF THE REGISTRATION IN RESPECT OF THE VEHICLE KL-58R 2325.** **EXHIBIT P2 A TRUE COPY OF THE VALUATION CERTIFICATE SUBMITTED BY THE JOINT REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, TIRUR DATED 7-1-2019 ALONG WITH THE COVERING LETTER.** **EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 24-1-2019.** //TRUE COPY// PA TO JUDGE