High Court of KeralaSingle Judge2022-08-19Writ petition allowed; Ext. P3 quashed; matter ...

W.P.(C) No. 3462/2013: Abdul Salam.K.P. v. District Collector, Malappuram; Sub Divisional Magistrate, Tirur; Sub Inspector of Police, Kalpakanchery

Case / Petition Number:W.P.(C) No. 3462 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shaji P. Chaly
Judgment Date: 2022-08-19
Court Decision / Holding: The Ext. P3 order confiscating the vehicle is quashed. The District Collector, Malappuram, is directed to reconsider the issue at the earliest, and in any case within one month from the date of receipt of a copy of this judgment, after providing notice of hearing to the petitioner and all concerned, and to decide in accordance with law after considering the objections raised.
Final Disposition: Writ petition allowed; Ext. P3 quashed; matter remitted to District Collector to reconsider within one month with notice/hearing

Parties to the Case

Appellants / Petitioners

Abdul Salam.K.P.

Respondents

District Collector, Malappuram
Sub Divisional Magistrate/ Revenue Divisional Officer, Tirur
Sub Inspector of Police, Kalpakanchery Police Station

Legal Representation & Advocates

Counsels for Petitioners

• Adv Shoby K. Francis

Counsels for Respondents

• Adv. Sri. Joby Joseph, Sr. Government Pleader

Case Synopsis & Summary

Abdul Salam.K.P., the registered owner of a tipper lorry KL-10/U-2956, challenged Ext. P3, a District Collector order (dated 03.01.2013) confiscating his vehicle under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, on the allegation of river sand transport. The seizure originated on 17.05.2011 by Kalpakanchery Police; the petitioner contends the vehicle carried ordinary sand with mud from dry land and not river sand, and that no seizure mahazar was served. He filed Ext. P1 objections before the RDO. He later relied on Ext. P2 judgment in W.P.(C) No. 14697/2011 directing the District Collector to decide custody of the vehicle consistent with law and the Full Bench observations in Shan C.T v. State of Kerala. The District Collector subsequently fixed the vehicle’s value at Rs. 1,70,000 and permitted interim custody on remittance of 30% of the value; the petitioner deposited Rs.52,000 and obtained interim custody. Ext. P3 confiscated the vehicle with an option to deposit the value. The Court found no adjudication of the disputed issue in Ext. P3 and, without hearing the objection, quashed Ext. P3 and remitted the matter for proper reconsideration with notice and hearing within a month. The petition is allowed.

Provisions of Law Cited

Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Act, 2001)Section 23 of the Act, 2001Section 27(3) of the Rules, 2002

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the vehicle was carrying ordinary sand with mud and earth from dry land, not river sand. No seizure mahazar was served at seizure, and Ext. P1 objection before the RDO was not adequately considered. Despite Ext. P2 directing consideration of interim custody in light of Law and Shan C.T, the District Collector did not adjudicate the dispute and relied on alleged admission by the owner. The order Ext. P3 is arbitrary and illegal because due process under Act 2001 and Rules 2002 was not followed, and the matter requires factual adjudication after hearing.

Contentions of Respondents

The District Collector concluded there was illegal transport of river sand; existing records and seizure documents justify confiscation under Section 23 read with Section 27(3) of the Rules. The petitioner’s admission of transporting river sand is reflected in the materials; Ext. P2 judgment guided interim custody, which was already complied with; no necessity for chemical analysis where evidence shows river sand transport.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Shan C.T v. State of Kerala	2010 (3) KHC 333	Positive	Cited for the proposition that where objections are raised under the Act, the District Collector must adjudicate the issue and consider relevant provisions and evidence before passing an order.
W.P.(C) No. 14697 of 2011	W.P.(C) No. 14697/2011	Mentioned Only	Ext. P2 judgment directing the District Collector to consider interim custody in light of law; referenced to show prior directive influencing procedural posture, not as binding precedent on the current factual dispute.

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Extracted Judgment Text

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W.P.(C) No. 3462/2013 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 ## WP(C) NO. 3462 OF 2013 ## PETITIONER/S: ABDUL SALAM.K.P., AGED 34 YEARS, S/O MOIDEEN KUTTY, KOOTHUPARAMBIL HOUSE, ATHALOOR P.O., VIA THAVANOOR, MALAPPURAM DISTRICT-679 573. (REGISTERED OWNER OF KL-10/U-2956). BY ADV SRI.SHOBY K.FRANCIS ## RESPONDENT/S: - 1 DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM-676 505. - 2 SUB DIVISIONAL MAGISTRATE/REVENUE DIVISIONAL OFFICER OFFICE OF THE R.D.O, TIRUR, TIRUR P.O., MALAPPURAM-676 101. - 3 SUB INSPECTOR OF POLICE, KALPAKANCHERY POLICE STATION, KALPAKANCHERY P.O., MALAPPURAM DISTRICT-676 551. BY ADV. SRI. JOBY JOSEPH, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 3462/2013 : 2 : ## **SHAJI P. CHALY, J.** --------------------------------------------------------W.P.(C). No. 3462 of 2013 --------------------------------------------------------Dated this the 19[th] day of August, 2022. **JUDGMENT** The petitioner, a registered owner of a tipper lorry bearing registration No. KL-10/U-2956, has filed this writ petition seeking to quash Ext. P3 order dated 03.01.2013 passed by the District Collector, Malappuram under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 ('Act, 2001' for short), whereby the tipper lorry belonging to the petitioner bearing registration No. KL-10/U-2956 was confiscated for allegedly transporting river sand. However, an option was given to the petitioner to pay an amount of Rs.1,75,000/- towards the value of the vehicle to get the vehicle released to him, after deducting an amount of Rs.52,500/already remitted by the petitioner in the river management fund. 2. The case of the petitioner is as follows: On 17.05.2011, the Sub Inspector of Police, Kalpakanchery Police Station, Malappuram District, respondent No.3, seized the petitioner's vehicle alleging illegal transportation of the river sand. It is submitted W.P.(C) No. 3462/2013 : 3 : that ordinary sand was being carried in the vehicle and it was on the basis of a misunderstanding that the material contained in the vehicle is river sand, the third respondent seized the vehicle. It is also contended that no seizure mahazar has been served on the petitioner at the time of seizure. Anyhow, in Ext. P1 objection submitted before the Revenue Divisional Officer, Tirur, the petitioner has stated that the vehicle was not carrying river sand and it was ordinary sand with mud and earth taken from the dry land. 3. According to the petitioner, in spite of receipt of Ext. P1 objection, no action has been taken by the Sub Divisional Magistrate, respondent No.2 and consequently, the petitioner has filed W.P.(C) No. 14697 of 2011 and secured Ext. P2 judgment, whereby the District Collector, respondent No.1, was directed to consider and pass orders with regard to the interim custody of the vehicle in accordance with law and taking note of the observations made by the Full Bench of this Court in _**Shan C.T v. State of Kerala**_ [2010 (3) KHC 333]. 4. Pursuant to the same, the second respondent has passed an order dated 27.03.2012 fixing the value of the vehicle at Rs.1,70,000/and directing the petitioner to remit 30% of the value of the vehicle to W.P.(C) No. 3462/2013 : 4 : get the vehicle on interim custody. Accordingly, in compliance with the said directions, the petitioner has deposited Rs.52,000/- in the office of the first respondent and got the vehicle released to him on interim custody. 5. Thereafter, on 28.11.2012, the District Collector issued a notice for hearing on 12.12.2012 and passed Ext. P3 impugned order confiscating the vehicle with an option to the petitioner to deposit the value of the vehicle fixed by the District Collector and get the custody of the vehicle. The case projected by the petitioner is that even though an objection was raised against the invocation of the provisions of the Act, 2001, the District Collector has not considered the same. It is also pointed out that even though the District Collector in Ext. P3 order has stated that the petitioner has conceded that he has transported the river sand, and a decision was taken accordingly confiscating the vehicle, the same cannot be sustained, in view of the fact that the allegations raised against the petitioner was stoutly opposed before the District Collector. 6. Therefore, according to the learned counsel for the petitioner, the order of the District Collector is arbitrary and illegal, liable to be interfered with by this Court. W.P.(C) No. 3462/2013 : 5 : 7. The District Collector has filed a counter affidavit justifying the stand adopted in the impugned order, however, stating that after verifying the statement and the relevant records, the District Collector, Malappuram came to the conclusion that the vehicle was seized for the illegal transportation of the river sand and accordingly, ordered to confiscate the vehicle as per Section 23 of the Act, 2001 r/w Section 27(3) of the Rules, 2002 and permitted the owner of the vehicle to get the vehicle released by remitting the balance amount of Rs.1,22,500/after adjusting an amount of Rs.52,500/- already remitted. However, it is stated in the counter affidavit that since the transportation of the river sand was admitted, there was no need to further send the sample for chemical analysis as contended by the petitioner. 8. A reply affidavit is filed reiterating the stand adopted in the writ petition. 9. I have heard Sri. Shoby K. Francis for the writ petitioner and the learned Senior Government Pleader Sri. Joby Joseph, and perused the pleadings and materials on record. 10. On going through Ext. P3 impugned order passed by the District Collector, I find that there is no adjudication of the issue W.P.(C) No. 3462/2013 : 6 : basically for the reason that the District Collector has stated in the order that the owner of the vehicle appeared in person on 12.12.2012 before the Deputy Collector (LA) and admitted the offence. But, at the same, it is stated that after verification of the seizure mahazar and all the attendant documents, it is seen that the petitioner has violated the provisions of the Act, 2001 and the Rules, 2002 and therefore, the vehicle is liable to be confiscated. 11. In the writ petition as well as in Ext. P1 objection before the collector, the petitioner had raised a case that ordinary sand along with mud was being transported and therefore, it would not come under the provisions of the Act, 2001. 12. After analysing the situation, I am of the considered opinion that since the petitioner refutes the finding rendered by the District Collector that the petitioner has admitted the offence, there is no requirement for adjudication, in my view cannot be sustained under law. In my considered opinion, when an objection was filed disputing the allegations, the District Collector ought to have adjudicated the issue taking into account the requirements of the provisions of the Act, 2001 and the Rules, 2002. Having not done so, it is only appropriate that the W.P.(C) No. 3462/2013 : 7 : matter be remitted back to the District Collector, Malappuram to reconsider the issue taking into account the objection submitted by the petitioner. 13. In that view of the matter, I quash Ext. P3 order dated 03.01.2013 passed by the District Collector and direct the District Collector to reconsider the issue at the earliest and at any rate within a month from the date of receipt of a copy of this judgment, after providing a notice of hearing to the petitioner and all concerned. This writ petition is allowed as above. sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ W.P.(C) No. 3462/2013 : 8 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE WRITTEN OBJECTION CUM REQUEST SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 20.05.2011. EXT.P2: TRUE COPY OF THE JUDGMENT IN WPC 14697/2011 DATED 31.05.2011. EXT.P3: TRUE COPY OF THE FINAL ADJUDICATION ORDER DATED 03.01.2013 IN DM 6-24527/12 ISSUED BY THE FIRST RESPONDENT. EXT.P4: TRUE COPY OF THE NOTICE DATED 28.11.2012 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ rv PS To Judge.