WA Nos. 1617 & 1618 of 2010 (Against the judgment in WPC 14583/2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR &** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933** **WA.No. 1617 of 2010() ---------------------** ## **AGAINST THE JUDGEMENT IN WPC.14583/2010 Dated 05/08/2010** **....................** ## **APPELLANTS/PETITIONERS 1 & 3 & 5** **1. SUPRAN, S/O.VELAYUDHAN, PADINJARE PUDUKKAD, SOUTH PARAVOOR P.O., MANAKKUNNAM VILLAGE, KANAYANNUR TALUK,** **ERNAKULAM DISTRICT-682320.** **2. PRIYA, W/O.BIJU, AGED 32, KOOMBEL HOUSE, CHEMBU P.O., CHEMBU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686615.** **3. BINDU KRISHNAKUMAR, W/O.KRISHNAKUMAR, AGED 41 YEARS, MANIMANDIRAM, KATTIKKUNNU, CHEMBU P.O., CHEMBU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686615.** **4. SUDHEESH, S/O.SUKUMARAN, AGED 28, KOOMBEL HOUSE, CHEMBU P.O., CHEMBU VILLAGE,** **VAIKOM TALUK, KOTTAYAM DISTRICT-686615.** **BY ADV. SRI.K.S.BHARATHAN** ## **RESPONDENTS/RESPONDENTS 1 TO 4 & PETITIONER 4 IN WP(C).** **1. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT COLLECTORATE, KAKKANAD, ERNAKULAM-682030.** **2. THE S.I.OF POLICE, HILL PALACE POLICE STATION, TRIPUNITHURA, TRIPUNITHURA-682301.** **3. THE DISTRICT GEOLOGIST, ERNAKULAM, DISTRICT COLLECTORATE, KAKKANAD, ERNAKULAM-682030.** ## **WA.No. 1617 of 2010()** ## **---------------------------------** **4. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **5. RATHEESHKUMAR, S/O.RAJAPPAN,** **AGED 31 YEARS, KOOMBEL, PUTHENTHARA HOUSE, CHEMBU P.O., CHEMBU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686615.** **R1-4 BY SENIOR GOVERNMENT PLEADER SRI.BENNY GERVASIS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, ALONG WITH WA NO. 1618 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA.No. 1617 of 2010()** **--------------------------------** ## **APPENDIX** **----------------** ## **PETITIONER'S EXHIBITS** **------------------------------------** **EXT.P1. COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL.39-A 849.** **EXTP2. COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL.36-7119.** **EXT.P3. COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL.4-U 7561.** **EXT.P4. COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL.36-4572.** **EXT.P5. COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL.36A-690.** **EXT.P6. COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NO.KL.36 2741.** **EXT.P7. COPY OF MAHAZAR DATED 19.12.2009. EXT.P8. COPY OF MAHAZAR DATED 19.12.2009.. EXT.P9. COPY OF MAHAZAR DATED 19.12.2009.. EXT.P9. COPY OF MAHAZAR DATED 19.12.2009. EXT.P10. COPY OF MAHAZAR DATED 19.12.2009.. EXT.P11. COPY OF MAHAZAR DATED 19.12.2009..** **EXT.P12. COPY OF MAHAZAR DATED 19.12.2009..** **EXT.P13. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT. EXT.P14. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT. EXT.P15. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT. EXT.P16. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT. EXT.P17. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT.** **WA.No. 1617 of 2010()** **--------------------------------** **EXT.P17. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT.** **EXT.P18. COPY OF THE ORDER DATED 20.4.2010 BY THE FIRST RESPONDENT. EXT.P19. COPY OF THE ORDER IN WA NO.499/2010 DATED 17.3.2010.** **EXT.P20. COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT DT. 9.2.2010.** **EXT.P21. COPY OF THE REPLY DT. 19.2.2010.** **RESPONDENT'S EXHIBITS : NIL** **------------------------------------** **/ TRUE COPY /** **P.A. T JUDGE** **VK** ## **J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NOs. 1617 & 1618 OF 2010 =======================** ## **Dated this the 29[th] day of July, 2011** ## **J U D G M E N T** ## **Antony Dominic, J.** The unsuccessful petitioners in WP(C)Nos.14583/2010 and 14570/2010 are the appellants in these writ appeals. 2. The appellants are owners of the vehicles which were seized by the respondents on the allegation that the vehicles were used for transportation of river sand in violation of the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 3. In so far as WA No.1617/2010 is concerned, Exts.P13 to P18 in the writ petition are the final orders passed by the District Collector. Similarly in WA No.1618/2010, Exts.P10 to P12 in the writ petition are similar orders passed. By these orders, after holding that the vehicles were used for illegal transportation of river sand, appellants have been directed to pay the value of the vehicle towards the River Management Fund. It was challenging the aforesaid orders, the writ petitions were filed. 4. Before the learned Single Judge, two contentions were WA Nos.1617 & 1618/2010 : 2 : raised. The first contention was that Rules 27 and 28 of the Rules framed under the Act are unconstitutional. The second contention raised was that the District Collector did not comply with the procedure prescribed under the Act for seizure and confiscation of the vehicles. 5. In so far as the first contention is concerned, the learned Judge held that the issue raised was covered by the judgment in _**Subramanian v. State of Kerala**_ (2009(1) KLT 77) and that therefore the plea had no merit. 6. In so far as the second contention that the District Collector did not comply with the procedure laid down in the Act for seizure and confiscation of the vehicles, the learned Judge declined to entertain the plea stating that this contention was not raised before the District Collector. On this basis, the writ petitions were dismissed and it is against the said judgments, these appeals have been filed. 7. When the appeals were taken up for hearing, the contention raised by the learned counsel for the appellants was that as per the law laid down by this Court in **Subramanian's Case** (supra), on seizure of the vehicles, mahazar is to be WA Nos.1617 & 1618/2010 : 3 : prepared in terms of the provisions contained in Rule 27 of the Rules and copy is to be served on the person possessing the vehicle and that in the event of non compliance thereof, the seizure itself will be rendered invalid. Counsel for the appellants placed reliance on para 54 of the judgment, where it has been held that “On seizure of a vehicle, a mahazar is to be drawn, in the presence of two witnesses and a copy of the same is to be straight away supplied to the person possessing the vehicle and a copy will have to be sent to the District Collector. I have no doubt that a violation of the procedure contemplated under R.27(2) would definitely give rise to an attack against the seizure itself, as being illegal and this Court would be certainly justified in upholding the contention raised by any person, who alleges the haphazard manner in which R.27(2) is violated in several cases”. 8. Counsel contended that on seizure of their vehicles, mahazars were not served on them as required under R.27(2) and that, it was after the District Collector passed the impugned orders, that on applications made by the appellants under the provisions of the Right to Information Act, they were served copies of the mahazars. It was therefore contended that these WA Nos.1617 & 1618/2010 : 4 : are cases where admittedly the mandatory provisions of Rule 27 were violated and therefore the seizure and the confiscation ordered is liable to be interfered with. 9. We have considered the submission and we confess our inability to accept the contention. The impugned orders passed by the District Collector show that before orders were passed, notice was issued to the appellants and they were represented by their counsel. In the impugned orders, each of the contentions raised on their behalf have been recorded and these contentions have all been dealt with and are rejected. A reading of the orders indicate that the appellants have not raised a plea of non compliance of R.27(2) before the District Collector. Apart from that, a perusal of the writ petitions also show that the petitioners have not even pleaded that such a contention was urged and that the same has not been dealt with by the District Collector. If that be so, the factual finding of the learned Single Judge that this contention was not urged before the District Collector and therefore cannot be entertained does not suffer from any infirmity. 10. Even apart from all this, we should also take note of WA Nos.1617 & 1618/2010 : 5 : yet another aspect of the matter. According to the appellants, the sand in question transported by them was not river sand, but ordinary sand. If it were ordinary sand which was transported by the appellants, its procurement and transportation should have been on the basis of permits obtained by them under the provisions of the Kerala Minor Mineral Concession Rules. If that were so, they could have produced copies of these documents before the District Collector, which admittedly was not done. Not only that such permits/passes were not produced before the District Collector, such documents are not produced even before this Court. Therefore the appellants have also not succeeded in establishing their case that the sand transported by them was not river sand but ordinary sand. 11. We also take note of the counter affidavit filed by the 1[st] respondent District Collector in WA No.1617/2010, where it has been stated thus:- _“It may be pertinent to note that the appellants had neither produced any permit duly issued to them from the competent authorities under the Kerala Minor Mineral Concession Rules, 1967 nor had they pleaded that they were transporting ordinary sand in their representations filed before this respondent for interim release of the_ WA Nos.1617 & 1618/2010 : 6 : _vehicles. It is respectfully submitted that the drivers of the vehicles were not able to produce any permit or pass either issued under River Sand Act and Rules or under the Kerala Minor Mineral Concession Rules. The contentions now raised it is respectfully submitted is only an afterthought by the appellants to get over the confiscation proceedings and the final orders issued by this respondent.”_ 12. The appellants have not filed any affidavit contradicting the aforesaid averments. In the light of the above, we see absolutely no reason to interfere with the judgments of the learned Single Judge. For the aforesaid reasons, the writ appeals are only to be dismissed and we do so. **J.CHELAMESWAR CHIEF JUSTICE.** **ANTONY DOMINIC JUDGE.** Rp