WP(C). Nos. 8980 of 2020 and 8996 of 2020 (Anil Kumar J vs District Collector, Thiruvananthapuram and Others; Midhun M vs District Collector, Thiruvananthapuram and Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** ## **WP(C).No.8980 OF 2020(V)** ## **PETITIONER:** **ANIL KUMAR J AGED 45 YEARS YAKSHIKAVU VILA, KURUMANDAL B PARAVUR P.O., KOLLAM.** ## **BY ADV. SRI.M.R.SASITH** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR 2ND FLOOR, CIVIL STATION BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM, KERALA, PIN-695 043.** - **2 THASILDAR, MINI CIVIL STATION, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, KERALA, PIN-695 306.** - **3 DEPUTY TAHSILDAR(RR), MINI CIVIL STATION, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, KERALA, PIN-695 306.** - **4 DISTRICT GEOLOGIST, VIVEKANAND NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM, KERALA, PIN-695 004.** - **5 STATION HOUSE OFFICER, ATTINGAL, THIRUVANANTHAPURAM, KERALA, PIN-695 101.** **BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2020, ALONG WITH WP(C).8996/2020(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 8980 & 8996 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** ## **WP(C).No.8996 OF 2020(Y)** ## **PETITIONER:** **MIDHUN.M, AGED 45 YEARS** **19/32, PANCHAMI, ANATHALAVATTOM P.O., ATTINGAL, THIRUVANANTHAPURAM.** **BY ADV. SRI.M.R.SASITH** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR 2ND FLOOR CIVIL STATION BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM, KERALA, PIN-695043.** - **2 THASILDAR, MINI CIVIL STATION, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, KERALA, PIN-695306.** - **3 DEPUTY TAHSILDAR (RR), MINI CIVIL STATION, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, KERALA, PIN-695306.** - **4 DISTRICT GEOLOGIST, VIVEKANAND NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM, KERALA, PIN-695306.** - **5 STATION HOUSE OFFICER, ATTINGAL , THIRUVANANTHAPURAM, KERALA, PIN-695101.** **BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2020, ALONG WITH WP(C).8980/2020(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 8980 & 8996 of 2020 3 ## ALEXANDER THOMAS, J. ------------------------------------ ## W.P(C). No. 8980 & 8996 of 2020 -----------------------------------Dated this the 20[th] day of March, 2020 ## **JUDGMENT** The prayers in the Writ Petition (C) No.8980/2020 are as follows. - _i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3[rd] respondent to report seizure of MGV Tipper bearing No.KL-01-E-3056 forthwith to concerned Magistrate having jurisdiction._ - _ii) Issue a writ of certiorari or any appropriate writ, order to quash Ext.P1 to extent to Ext.P1 order effecting the petitioner's vehicle bearing No.KL-01-E-3056 and release petitioner's vehicle to him forthwith by the respondents._ - _iii) Grant such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case._ - The prayers in the Writ Petition (C) No.8996/2020 are as ## follows. - _i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3[rd] respondent to report seizure of MGV Tipper bearing No.KL-35-E-779 forthwith to concerned Magistrate having jurisdiction._ - _ii) Issue a writ of certiorari or any appropriate writ, order to quash Ext.P1 to extent to Ext.P1 order effecting the petitioner's vehicle bearing No.KL-35-E-779 and release petitioner vehicle to him forthwith by the respondents._ - _iii) Grant such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case._ W.P(C). No. 8980 & 8996 of 2020 4 2. Heard Sri.Sasith Panicker, learned counsel appearing for the petitioners in these two cases and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents in these cases. 3. According to the respective petitioners in these two cases, their respective vehicles (MGV Tippers) have been seized by the 3[rd] respondent Deputy Tahsildar for alleged violation of the provisions of the Mines and Mineralas (Developmnets and Regulation) Act, 1957 and the Kerala Minor Mineral Concession Rule, 2015 etc,. Further that it is reliably learnt that now the 3[rd] respondent has referred the matter to the 4[th] respondent District Geologist on the premise that, the latter is a competent officer. But that the 4[th] respondent of the authority concerned has not so far filed the complaint before the Jurisdictional Magistrate Court concerned and that so the respective petitioners have been incapacitated even for maintaining an application for release of the vehicle. Therefore it is pointed out that apart from the fact that the impugned criminal proceedings are not maintainable, the abovesaid inaction on the part of the respondents would amount to deterioration of the property right of the petitioners to enjoy their vehicles, without following the due procedure which is illegal etc,. The Full Bench of this Court the case in _**Prakash**_ W.P(C). No. 8980 & 8996 of 2020 5 ## _**Nayak v. District Collector [2016 (4) KLT 102 (FB)]**_ has held as follows in Para.27 thereof. _“The general powers of the police for arrest and seizure under the Code of Criminal Procedure are not specifically ousted or excluded by any of the provisions of the MMDR Act. On the other hand the offence punishable under Section 21 is made specifically cognizable also. That the offence is made cognizable means that any police officer, competent and empowered to act under the Code of Criminal Procedure, is competent to make arrest and to make seizure of properties, but prosecution can be launched only by the persons authorised by the Government under Section 22 of the MMDR Act. Contraband articles including minerals are liable to confiscation by court orders under subsection (4A) of Section 21 of the MMDR Act. The latter part of the sub-section provides that the property shall be disposed of in accordance with the directions of such court. This means that appropriate orders including confiscation orders can be passed by the court having jurisdiction to take cognizance of an offence punishable under sub-section (1) of Section 21, on a complaint brought by any officer authorised under Section 22 of the MMDR Act. Appropriate orders meant under sub-Section (4A) will include even interim orders authorising interim custody under Section 451 of the Code of Criminal Procedure. The object of subsection (4A) of Section 21 is not that the property seized under sub-section (4) shall be liable to confiscation in all situations. What we find on an analysis of the various provisions is that confiscation of properties is authorised under sub-section (4A), by orders of the court having jurisdiction. However the court is competent to pass appropriate orders, for disposal of the properties. In appropriate cases where the facts and situations are of extreme violation confiscation will have to be ordered by the court. However, in the case of minerals illicitly transported or imported, confiscation must be the rule. But in the case of vehicles and other articles, appropriate orders including confiscation orders can be passed by the court having jurisdiction, and such properties can be appropriately dealt with.”_ 4. Accordingly, it is ordered that the 4[th] respondent District Geologist or the Officer before whom the records in relation to the impugned Ext.P2 Seizure Mahzar are pending, should immediately W.P(C). No. 8980 & 8996 of 2020 6 take steps to ensure that the 4[th] respondent or the competent officer concerned files complaint in the abovesaid matter arising out of Ext.P2 Seizure Mahzar before the Jurisdictional Magistrate Court Concerned within three weeks from the date of production of the certified copy of this judgment. The 4[th] respondent should also thereupon immediately intimate the respective petitioners, the fact that the complaint in this regard has been duly filed and also as to before which Court the complaint has been filed. Thereupon the petitioners may file appropriate application before the Jurisdictional Magistrate Court concerned, who is dealing with the said complaint, seeking for release of the vehicle, upon with the said Court shall consider and pass orders on the said request, in accordance with law, and may also consider imposing of conditions for release of the vehicle in accordance with law. 5. On the other hand, if the complaint as aforedirected is not filed by the 4[th] respondent or officer concerned within the said outer time limit of three weeks, then the 4[th] respondent shall pass orders for granting custody of the vehicle to the petitioners on the petitioners executing a simple bond. In such a contingency, it will be without prejudice to the right of the 4[th] respondent or other W.P(C). No. 8980 & 8996 of 2020 7 competent/authorised officer concerned to file appropriate complaint in the abovesaid matters immediately thereafter, but in accordance with law. With these observations and directions the above Writ Petitions (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 8980 & 8996 of 2020 8 ## **APPENDIX OF WP(C) 8980/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF RC BOOK OF THE PETITIONER'S VEHICLE.** **EXHIBIT P2 TRUE COPY OF SEIZURE MAHAZAR PREPARED BY THE 3RD RESPONDENT TO 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL** W.P(C). No. 8980 & 8996 of 2020 9 # **APPENDIX OF WP(C) 8996/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF RC BOOK OF THE PETITIONER'S VEHICLE.** **EXHIBIT P2 TRUE COPY OF SEIZURE MAHAZAR PREPARED BY THE 3RD RESPONDENT TO 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**