Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942 WP(C).No.15724 OF 2020(M) PETITIONERS: 1 AYISHA K., AGED 41 YEARS, D/O.ABDUL RAHMAN K., KUNNARA HOUSE, CHATTANCHAL, THEKKIL, KASARAGOD, KERALA-671 541. 2 ASHRAF K., AGED 36 YEARS, S/O.ABDUL RAHMAN K., KUNNARA HOUSE, CHATTANCHAL, THEKKIL, KASARAGOD, KERALA-671 541. 3 SHAFI K., AGED 43 YEARS, D/O.ABDUL RAHMAN, NETTANIGE GRAMAM, KASARAGOD-671 543. BY ADVS. SRI.C.IJLAL SMT.UMMUL FIDA RESPONDENTS: 1 STATE OF KERALA, REP BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM-31. 2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, THAYALANGADI, KASARAGOD, KERALA -671 221. 3 STATION HOUSE OFFICER, BADIADKA POLICE STATION, BADIADKA, KASARAGOD DISTRICT, KERALA -671 551. 4 SUB INSPECTOR OF POLICE, BADIADKA POLICE STATION, BADIADKA, KASARAGOD DISTRICT, KERALA -671 551 OTHER PRESENT: SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.15724 OF 2020(M) 2
ALEXANDER THOMAS, J.
------------------------------------------- W.P.(C)No.15724 of 2020 ---------------------------------------------- Dated this the 18th day of August, 2020
JUDGMENT
The case set up in this Writ Petition (Civil) is as follows:- The petitioners are aggrieved by the illegal seizure of the vehicle by the forth respondent, Sub Inspector of Police without jurisdiction as contemplated under Section 23 of the Kerala protection of River Banks and Regulation of Removal of Sand Act, 2001 and consequential order passed by the Sub Divisional
Magistrate under section 23 A of the Sand Act. Exhibit P6 order
is passed on proceedings initiated without jurisdiction. The provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 is only applicable to river sand alone. There is no case for third and forth respondents that the petitioners have transported river sand. Exhibit P2 pass issued by the Department of Ports, Government of Kerala was in possession of the third petitioner when seizure was made. If at all any offence is committed, criminal liability can be fastened upon the petitioners under Indian Ports Act
WP(C).No.15724 OF 2020(M) 3
and Rules made there under. The Exhibit P2 vehicle pass makes it clear that the said pass was issued under Section 10 of the Indian Ports Act read with Rule 287 (6) of the Kerala Port Manual Rules, 1960. Section 54 of the Indian Ports Act, 1908, fastens criminal liability upon the offenders and Section 55 of the said Act provides that all the offences under the said Act shall be triable by a Magistrate. No authority has been granted to the Executive to try an offence which comes under the Act and thus Exhibit P6 order is liable to be quashed. It is in the light of the above factual averments and contentions that the petitioners have filed instant Writ Petition (Civil) with the following prayers:- “A. To call for records of the case leading to the passing of Exhibit P6 and quash the same. B. To direct the respondents to release the vehicle of the first petitioner along with the dredged sand forthwith. C. Issue such other appropriate order or direction as this Honorable Court deem fit and proper, in the circumstances of the case and to order costs in the case.”
2. Heard Sri.C.Ijlal, learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents.
3. The case of the petitioners is that they have lawfully WP(C).No.15724 OF 2020(M) 4
secured Ext.P-2 vehicle pass dated 15.02.2020, issued by the competent statutory authorities under Section 10(1) of the Indian Ports Act, 1908, and Rule 287(6) of the Kerala Ports Manual Rules, 1960, for transporting dredged sand and that the petitioners have lawfully transported the said dredged sand covered by Ext.P-2 in his vehicle covered by Ext.P-1 registration. That the 4th respondent-Sub Inspector of Police has illegally seized the said vehicle as per Ext.P-3 on 15.02.2020, on the ground that the case involved contravention of the provisions of the Mines and Minerals (Development and) Act, 2015. Now, the 2nd respondent-Revenue Divisional Officer has passed Ext.P-6 final order dated 08.06.2020 ordering confiscation of the vehicle under Section 23A(4) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. It is this proceedings that Ext.P-6, which is under challenge in this writ proceedings.
4. From the pleadings and materials on record it is seen
that even in Ext.P-3 seizure mahazar dated 15.02.2020, the facts
relating to the issuance of Ext.P-2 vehicle pass issued under Section 10(1) of the Indian Ports Act, 1908 and Rule 287(6) of the Kerala Ports Manual Rules, 1960, has been explicitly WP(C).No.15724 OF 2020(M) 5
referred to and recited. If, as a matter of fact, the sand found in the seized vehicle was dredged sand, then the respondents have not considered whether such material (dredged sand) covered by Ext.P-2 would come within the ambit of the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, for the simple reason that the said Act deals with river sand and that too obtained within the limits of the state of Kerala.
5. Further, by Ext.P-4 proceedings dated 17.02.2020,
the 3rd respondent-S.H.O. has forwarded the case to the 2 nd respondent-R.D.O. on the purported ground that the case involved contravention of the provisions of the Mines and Minerals (Development and Regulation) Act, 2015, and presumably the provisions contained in the Kerala State Minerals (Prevention of illegal mining, storage and transportation) Rules, 2015, framed under the said MMDR Act. Now, the 2nd respondent-R.D.O. has passed final order dated 08.06.2020 as per Ext.P-6 ordering confiscation of the seized vehicle on the ground that the case involved contravention of the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.
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6. From a reading of the said materials on record it is
seen that the respondents do not have any definite case that as to whether the case is to be dealt with under the MMDR Act or under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.
7. Further, petitioners have made substantial
contentions that since datas in relation to Ext.P-2 pass has been admitted in Ext.P-3 seizure mahazar, at best, only the competent authority under the Indian Ports Act, 1998 and the Rules framed thereunder (Kerala Ports Manual Rules) alone could have taken action and that too in strict compliance with the statutory procedure contemplated therein. From a reading of the impugned Ext.P-6 order dated 08.06.2020, it is seen that the above said vital contention raised by the petitioners was not even be remotely considered and interpreted to therein. For all these reasons the matter would require serious reconsideration at the hands of the 2nd respondent.
8. The petitioners would also contend that the 4 th
respondent-Sub Inspector of Police has no jurisdiction to seize the vehicle under the provisions of the above said River sand Act as the competent officer in that regard is the 3 rd respondent WP(C).No.15724 OF 2020(M) 7 S.H.O., who is of the rank of Inspector of Police. Hence it is contended that the seizure itself is illegal.
9. Accordingly the impugned Ext.P-6 order will stand
set aside and quashed and the matter will stand remitted to the 2nd respondent-Revenue Divisional Officer for consideration and decision, afresh. The 2nd respondent will afford reasonable opportunity of being heard to the petitioners through their authorised representative/counsel, if any, and then should also consider and advert to the above said contention of the petitioners regarding the applicability of the provisions contained in the Indian Ports Act and the Rules framed thereunder, as referred to in Ext.P-2 and should decide as to whether the 2nd respondent has jurisdictional competence to deal with the matter and then after taking into consideration all relevant aspects of the matter, shall take a considered decision on the matters raised therein and also consider the issue regarding the release of the vehicle, etc., in accordance with law, without much delay, so as to pass orders in the matter within one month from the date of production of a certified copy of this
judgment.
10. The petitioners shall give detailed written objections, WP(C).No.15724 OF 2020(M) 8 if any, in the matter before the 2 nd respondent, which they shall produce along with the certified copy of the judgment.
11. The petitioners will produce a certified copy of this
judgment as well as a copy of the memorandum of the writ
petition (civil) along with all the exhibits before the 2 nd respondent-Revenue Divisional Officer, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE Skk//0809 WP(C).No.15724 OF 2020(M) 9
APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING REGISTRATION NUMBER KL 60-A 3889. EXHIBIT P2s A TRUE COPY OF THE VEHICLE PASS DATED PETITIONER FOR TRANSPORTATION OF THE DREDGED SAND. EXHIBIT P3 A TRUE COPY OF THE SEIZURE MAHAZAR DATED 15/2/20 PREPARED BY THE 4TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE REPORT DATED RESPONDENT TO THE 2ND RESPONDENT WHICH HAS BEEN OBTAINED BY THE 2ND PETITIONER UNDER RIGHT TO INFORMATION ACT. EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT OBTAINED BY THE 2ND PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 8/6/20 PASSED BY THE SUB DIVISIONAL MAGISTRATE, KASARGOD.
RESPONDENTS' EXHIBITS: NIL