Abdul Majeed Kalathil Vs. the District Collector, - Court Judgment

Excerpt:
- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - now, it is well settled that, right to life includes right to livelihood. though the statute does not provide for a hearing, the omission of the legislature will be made good by the principles of natural justice. (2) any officer empowered under sub-section (1) shall forthwith report to the government or the authorised officer in detail any seizure made by him and till the receipt of their orders, may detain in custody anything so seized or take such other steps for its safe custody, as he may think fit. so, if the sub inspector is subjectively satisfied that any vehicle has been used or is being used or is about to be used for commission of any anti-social activity, he can seize it and report about the seizure to the district magistrate, who, in turn, can confiscate it. if a provision, providing for confiscation of property, like a vehicle used to run a business, is vague, it will fall foul of articles 14 and 19(1)(g). 8. in krishian v. 130. it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. more so uncertain and undefined words deployed inevitably lead citizens to 'steer far wider of the unlawful zone .than if the boundaries of the forbidden areas were clearly marked'.the vague provisions of law, which affect the right to carry on trade or business, are liable to be struck down. thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purposes of legislation, is to be preferred. according to him, this act is designed to meet organised crime when the normal provisions of law have failed to contain the same. but, in this context, we remind ourselves one of the fundamental principles of rule of law, that, even the worst criminal is entitled to get justice according to law and the judge is not free to deny it. if the parties will, at my hand call for justice, then whether it my father stood on the one side and the devil on the other (his cause being good), the devil should have the right. when justice holmes was going to the court, justice learned hand said, well, sir, good bye. if the vehicles are to be dealt with under the provisions of the act, better and more specific provisions other than section 17 are required to be introduced in it.balakrishnan nair, j.1. the common point that arises for decision in this batch of writ petitions is the constitutional validity of section 17 of the kerala anti-social activities (prevention) act, 2007 and so, they are heard and disposed of by this common judgment.w.p.(c) no. 9925 of 2009: 2. this writ petition is treated as the main case, for the purpose of referring to the exhibits. the point that arises for decision in this case is the validity of the steps taken by the district magistrate, malappuram for confiscation of the goods carriage, bearing registration no. kl 11-b/6651, owned by the petitioner. the constitutional validity of section 17 of the kerala anti-social activities (prevention) act, 2007 (hereinafter referred to as, 'the act') is also raised for decision.3. the brief facts of the case, as stated by the petitioner, are the following:he is the registered owner of the vehicle bearing registration no. kl 11-b/6651. the said vehicle was seized by the second respondent, sub inspector of police. at the relevant time, it was not loaded with sand. the report of seizure of the vehicle was made before the first respondent, district collector(district magistrate), malappuram by the second respondent. a copy of the said report dated 11.3.2009 is produced as ext.p1. as per the report, the second respondent has been empowered by the district collector, invoking his power under section 17(1) of the act, to seize the vehicles suspected to be used in the commission of anti-social activities, as defined under section 2(a) of the act. a true copy of the said order of the district collector is ext.p2. apprehending that the vehicle may be confiscated by the district collector/district magistrate under section 17(3) of the act, the writ petition was filed, seeking appropriate reliefs. the petitioner prayed for quashing exts.p1 and p2. he also prayed for a declaration that section 17 of the act is ultra vires of the provisions of the constitution of india. other incidental reliefs were also sought. 4. on behalf of the 4th respondent, state of kerala, a counter affidavit has been filed, supporting the constitutional validity of the provisions of the act and supporting the impugned orders, in w.p.(c) no. 10846/99, which is one of the connected writ petitions posted along with this case. adopting the said counter affidavit, a memo has been filed in this writ petition.5. we heard sri. babu s. nair, learned counsel for the petitioner and also the learned counsel appearing in the connected writ petitions. on behalf of the respondents, we heard learned additional director general of prosecutions, sri. k.k. ravindranath. the learned counsel for the petitioner submitted that there is no substantive provision in the act, prohibiting the use of vehicles for anti-social activities and also providing for confiscation of such vehicles. the act also does not lay down any procedure to be followed for confiscation of the vehicles involved in anti-social activities. there is no provision providing any appellate remedy under the act to the aggrieved person. the learned counsel also submitted that mere subjective satisfaction of the sub inspector of police that the vehicle has been or is being or is about to be used for committing any anti-social activity, is sufficient to seize the vehicle. upon receipt of report of such seizure made, based on the subjective satisfaction of the police officer, the district magistrate decides to confiscate the vehicle. the said provision is highly arbitrary, discriminatory and unjust. the same offends the petitioner's fundamental rights under articles 14 and 300a of the constitution of india. the learned counsel appearing in the connected cases pointed out that the seized vehicles were the only source of livelihood for the petitioners. by the arbitrary action, their livelihood has been affected. the same would amount to infringing their fundamental rights under article 21 of the constitution. now, it is well settled that, right to life includes right to livelihood. they also submitted that the petitioners' fundamental rights under article 19(1)(g) are also infringed by section 17 of the act and by the impugned actions of the sub inspector of police and the district magistrate concerned. therefore, the impugned provision of the act and the actions of the sub inspector and the district collector taken under the said provision, are unconstitutional. the restriction being unreasonable, will not be saved by article 19(6) of the constitution, it is submitted.6. the learned additional director general of prosecutions submitted that anti-social activities are activities, which are already prohibited by various other provisions of law. section 17(3) of the act permits the district magistrate to confiscate the vehicles involved in anti-social activities. even if no procedure is prescribed, the district magistrate can proceed only in accordance with the principles of natural justice. though the statute does not provide for a hearing, the omission of the legislature will be made good by the principles of natural justice. so, the confiscation would be ordered only after affording a reasonable opportunity of being heard to the owner of the vehicle, or the person in possession of it. the act is designed to protect among other things, environment also. the vehicles of the petitioner and of others in the connected writ petitions were involved in illegal transport of river sand. so, they were seized and confiscated to protect the environment. it is settled law that, every law dealing with environmental protection should be interpreted liberally to advance the object of the law. so, the discretionary jurisdiction of this court may not be invoked to save the depredators of environment, accepting the technical contentions raised by them, it is submitted by the learned additional director general of prosecutions.7. we considered the rival submissions made at the bar. we went through the relevant provisions of the act. section 17 of the act reads as follows:17. power to search.- (1) the government or the authorised officer may, by general or special order, empower any police officer to search any place, stop and search any vessel, vehicle or animal, and may seize anything which he has reason to believe has been, is being or is about to be used for committing any anti-social activity. (2) any officer empowered under sub-section (1) shall forthwith report to the government or the authorised officer in detail any seizure made by him and till the receipt of their orders, may detain in custody anything so seized or take such other steps for its safe custody, as he may think fit. (3) the government or the authorised officer may make such order as they deem fit, for the disposal of anything seized under sub-section (1) by destruction, confiscation or in such other manner, as they may direct.'.in this case, it is not disputed that the district collector is the authorised officer for the purpose of the above section. it is also not in dispute that the district collector has empowered the police officers not below the the rank of sub inspector of police to exercise the powers under sub-sections (1) and (2) of section 17 of the act. though the petitioner challenges the validity of ext.p2 order, he does not dispute the existence of such power in the district magistrate to issue that order. so, the sub inspector of police, on finding that the vehicle of the petitioner was used for transporting river sand, which is an anti-social activity, has seized the vehicle and produced the report of seizure before the district collector/district magistrate. before going into the validity of section 17 of the act quoted above, we will refer to other relevant provisions of the act. anti-social activity is defined under section 2 (a) as follows:(a) 'anti social activity' means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred to in clauses (c), (e), (g), (h), (i), (l), (m), (n), (q) and (s) of this section. the clauses (c), (e), (g), (h), (i), (l), (m), (n), (q) and (s) mentioned in the definition of anti-social activity are defined as follows: (c) 'bootlegger' means a person who distils, manufactures, stores, transports, or takes away, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicating substances in contravention of the abkari act, (1 of 1077) and the rules and orders issued there under or any of the provisions contained in any other law for the time being in force, or knowingly spent or utilises money or give support or give aid to do any of the matters mentioned above, by any person or through any person by providing any animal, vehicle, vessel, other conveyances or any tank, any other articles whatever it may be, or the person who abets to do any such matter in any manner; (e) 'counterfeiter' means any person who knowingly and wilfully makes, stocks or distributes counterfeit coins and currency or valuable security defined in section 30 of the indian penal code (central act 45 of 1860) and includes a person who knowingly abets any such activities. (g) 'depredator of environment' means a person who, by any direct act by which he derives pecuniary or commercial benefit, commits an offence under any law relating to protection of environment or rivers or under any law relating to sand mining from any place or under any law relating to quarrying or mining, or who commits or abets the commission of offences punishable under any law relating to conservation of forests or wildlife; (h) 'digital data and copyright pirate' means any person who knowingly and deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and includes any person who illegally enters through the identity of the user and illegally uses any computer or digital network for any illegal personal profit by deceiving any person or any computer system; (i) 'drug offender' means any person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the narcotic drugs and psychotropic substances act, 1985 (central act 61 of 1985) or in contravention of any other law for the time being in force, or who knowingly does anything abetting or facilitating any such activity; (l) 'hawala racketeer' means any person who illegally buys or sells or deals in indian currency or foreign currency under circumstances from which it can be reasonably inferred that he is doing so as a member of any organised group; (m) 'hired ruffian' means any person who receives pecuniary consideration in cash or kind for use of unlawful force either by himself or through any person for causing injury to any person or for criminally intimidating any person or for damaging any property belonging to any person or for illegally dispossessing any person from any movable or immovable property in his possession; (n) 'immoral traffic offender' means a person who commits or abets the commission of any offence under the immoral traffic (prevention) act, 1956 (central act 104 of 1956); (q) 'loan shark' means a money lender or any person engaged, by the money lender or by someone acting on his behalf, who uses or threatens to use physical violence, directly or otherwise or through any person against any person for the purpose of collecting any part of the loan or interest thereon or any instalment thereof or for taking away any movable or immovable property connected with the loan transaction or the realization of whole or part of the loan amount or interest thereon; (s) 'property grabber' means a person who illegally takes possession, either for himself or on behalf of others, of any movable or immovable property belonging to government or government owned institutions or of any person and includes a person who creates illegal tenancies or lease or licence agreements or any other agreements, express or implied, in respect of such illegal possession of such properties or construction of unauthorised structures thereon or who attempts to collect from any possessors of such properties, rent, compensation or other charges by criminal intimidation or who evicts or attempts to evicts any such possessor by force without resorting the lawful procedure or who abets in any manner or doing of any of the above mentioned acts;so, apart from the activities specifically mentioned in the definition of anti-social activity, the actions of bootleggers, counterfeiters, depredators of environment, digital data and copy right pirates, drug offenders, hawala racketeers, hired ruffian, immoral traffic offenders, loan sharks, property grabbers etc., will also be anti-social activity. so, if the sub inspector is subjectively satisfied that any vehicle has been used or is being used or is about to be used for commission of any anti-social activity, he can seize it and report about the seizure to the district magistrate, who, in turn, can confiscate it. going by the provisions of the act, we do not find any substantive provision prohibiting the use of vehicle for commission of anti-social activities and also providing for the consequence of confiscation of the vehicle, if it is so used. we feel that, if a vehicle is to be seized for its involvement in an anti-social activity, there must be a substantive provision in the act, prohibiting the use of the vehicle for the commission of any anti-social activity. the statute should also provide the consequence of involvement of vehicle for anti-social activity, as its confiscation. we do not find any such provision in the act. it is a fundamental principle of law that all actions of citizens entailing penal consequence should be defined with precision and notified in advance, so that they can avoid doing that. in this case, on the subjective satisfaction of the sub inspector of police relating to involvement of the vehicle, it will be seized and a report will be filed before the district magistrate. on receipt of the report, the district magistrate can destroy the vehicle or confiscate it. what are the circumstances under which the district magistrate can order destruction or confiscation, or let off the vehicle, are not specified in sub-section (3) of section 17 of the act. if a vehicle is involved in an abkari offence or a forest offence, the owner of the vehicle can save the vehicle, if he is able to satisfy the authorised officer that the use of the vehicle in violation of the provisions of the abkari act or forest act was without the knowledge or connivance of the owner of the vehicle, or his agent, or the person in charge of the vehicle. in this case, we find that there is no provision spelling out the conditions under which the seized vehicle could be confiscated or could be let off. the provisions of the act does not provide for a hearing of the affected party. but, it is true, the omission of the legislature will be supplied by the rules of natural justice. therefore, the district magistrate, even in the absence of any provision in the act, is bound to hear the other side before ordering confiscation. but, upon such hearing, the owner of the vehicle would not be knowing what are the possible defences available to him, and what are the circumstances under which the district magistrate can release the vehicle without confiscation. on the subjective satisfaction of a police officer, the vehicle reaches the hands of the district magistrate. the ultimate order that can be passed is one of destruction or of confiscation. but, what are the grounds for the confiscation and what are the grounds for the owner to get the vehicle without confiscation etc. are completely absent in section 17 of the act. so, the provisions of section 17 suffer from the vice of vagueness. a mere subjective satisfaction of the sub inspector of police, concerning the use of the vehicle for anti-social activity, is sufficient for confiscation of the vehicle. if that be so, the said provision cannot stand scrutiny in the light of articles 14 and 19(1)(g) of the constitution. if a provision, providing for confiscation of property, like a vehicle used to run a business, is vague, it will fall foul of articles 14 and 19(1)(g).8. in krishian v. bd. of regents (1967) 385 us 589, douglas, j. held as follows:.a law fails to meet the requirements of the due process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and juror free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.... certainly one of the basic purposes of the due purpose clause has always been to protect a person against having the government to impose burdens upon him except in accordance with the valid laws of the land. implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. our apex court, in kartar singh v. state of punjab : (1994) 3 scc 569, held as follows:130. it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. vague laws offend several important values. it is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. vague laws may trap the innocent by not providing fair warning. such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. more so uncertain and undefined words deployed inevitably lead citizens to 'steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked'. the vague provisions of law, which affect the right to carry on trade or business, are liable to be struck down. this position is covered by the constitution bench decision of the apex court in harakchan v. union of india : air 1970 sc 1453. in the said decision, at paragraph 18, it was held as follows:section 27(2)(d) of the act states that a valid licence issued by the administrator 'may contain such conditions, limitations and restrictions as the administrator may think fit to impose and different conditions, limitations and restrictions may be imposed for different classes of dealers'. on the face of it, this sub-section confers such wide and vague power upon the administrator that it is difficult to limit its scope. in our opinion, section 27(2)(d) of the act must be struck down as an unreasonable restriction on the fundamental right of the petitioners to carry on business. the above principle was reiterated by the constitution bench decision in k.a. abbas v. union of india : air 1971 sc 481, wherein it was held as follows:the real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting the construction sought to be placed on it, must be in accordance with the intention of the legislature. thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purposes of legislation, is to be preferred. where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the constitution as was done in the case of goonda act. 9. going by the above principles, we feel that the provisions of section 17 of the act impose an unreasonable restriction on the rights of the petitioner under article 19(1)(g) of the constitution. the petitioner may lose his vehicle on the subjective satisfaction of the sub inspector of police. the fundamental principles of rule of law will frown up on any such statutory provision.10. in this context, we will refer to the contentions raised by the additional director general of prosecutions. according to him, this act is designed to meet organised crime when the normal provisions of law have failed to contain the same. the act has been pressed into service in this case, to deprive the depredators of environment of their vehicles. the other provisions of the act, when read in the light of the objects and reasons for framing them, will give sufficient guidelines for the exercise of power under section 17, it is submitted. we have gone through all the provisions of the act. we did not find any provision to guide the exercise of discretion by the authorised officer under section 17. even if we apply liberal principles of interpretation, it is impossible to attain the result suggested by the learned additional director general of prosecutions. it is also pointed out by him that the impugned provision has been used to clip the wings of 'sand mafia'. so, this court may not invoke its discretionary jurisdiction in favour of the petitioner herein and those in the connected writ petitions, it is submitted. we are not oblivious to the fundamental duties of every citizen enjoined by article 51a(g) of the constitution, to protect and improve the natural environment including forest, lakes, rivers, wild life etc. we are also aware of the directive principles of state policy contained in article 48a, concerning protection and improvement of environment and safeguarding of forests and wildlife. we are also conscious of the role, the courts have to play, in protecting the environment. but, in this context, we remind ourselves one of the fundamental principles of rule of law, that, even the worst criminal is entitled to get justice according to law and the judge is not free to deny it. benjamin n. cardozo in his 'judicial process' has stated as follows:the judge, even when he is free, is still not wholly free. he is not to innovate at pleasure. he is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. he is to draw his inspiration from consecrated principles. he is not to yield to spasmodic sentiment, to vague and unregulated benevolence. he is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life'.john f. dillon in laws and jurisprudence of england and america, has stated:the most satisfactory ideal, i have ever been able to form of justice is embodied in the picture of a judge, courageous enough 'to give the devil his due', whether he be in the right or in the wrong. thomas moore said:if the parties will, at my hand call for justice, then whether it my father stood on the one side and the devil on the other (his cause being good), the devil should have the right. justice learned hand in 'the spirit of liberty' mentions about the sarcastic remarks of justice holmes on 'justice'. on a morning they drove together and got down at the capitol. when justice holmes was going to the court, justice learned hand said, 'well, sir, good bye. do justice. justice holmes replied: that is not my job. my job is to play the game according to the rules'. no one will think that justice holmes did not care for justice. he was answering to another eminent judge, indicating that he will do justice according to law only. 11. we are bound to do justice without fear or favour, affection or ill-will. though we are lovers of environment, we cannot exercise our discretion, according to our private opinion, while dealing with the constitutional rights of parties. in this context, we remember the words of justice felix frankfurtter in west virgina state board of education v. bernatte 319 u.s. 624, which read as follows:as a member of this court, i am not justified in writing my private notions of policy into the constitution, no matter how deeply i may cherish them or how mischievous i may deem their disregard. in scott v. scott, 1913 ac 417, lord shaw remarked thus:to remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. quoting the said statement, professor wade in his 'administrative law' comments that, 'there are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion'.12. in the result, we declare that the vehicle of the petitioner cannot be confiscated, relying on the vague provisions of section 17 of the act. but, the matter does not end there. as the vehicle of the petitioner is alleged to have been involved in the transport of river sand, it can be dealt with under section 23 of the kerala protection of river banks and regulation of removal of sand act, 2001 and rule 27 of the kerala protection of river banks and regulation of removal of sand rules, 2002. the vehicles used for commission of anti-social activity are, in fact, used in commission of offences under various other enactments, which provide for dealing with vehicles. for example, if the vehicle is used by the bootlegger, it can be confiscated under the abkari act, or if the vehicle is used for transporting forest produce illegally, it can be confiscated under the forest act. if there are no relevant provisions under the concerned act, then it can be dealt with under the provisions of the code of criminal procedure. if the vehicles are to be dealt with under the provisions of the act, better and more specific provisions other than section 17 are required to be introduced in it. in this case, we notice that the vehicle of the petitioner has already been released on payment of rs. 25,000/- and also executing a bond, undertaking not to alienate or encumber the vehicle. in this case, the district collector may proceed against the vehicle under the kerala protection of river banks and regulation of removal of sand act and the rules there under, within a period of one month from the date of receipt/production of a copy of this judgment. if proceedings under the said act are not initiated within the above-said time limit, the release of the vehicle made as per the interim order, shall be treated as unconditional and the amount deposited by him shall be released to him and other conditions imposed shall stand vacated. if proceedings under the above mentioned act are initiated within one month of the receipt of a copy of this judgment, the conditions imposed for release of the vehicle will remain in force until final orders are passed in that proceedings. the final orders shall be passed within one month of initiation of the proceedings. the writ petition (civil) no. 9925 of 2009 is disposed of as above.w.p. (c) nos. 556, 5531, 5535, 6230, 6234, 6615, 6648, 6950, 7343, 8472, 8501, 8528, 9583, 10279, 10280, 10282, 10288, 10289, 10435, 10479, 10492, 10502, 10590, 10628, 10631, 10688, 10689, 10692, 10693, 10694, 10695, 10696, 10697, 10807, 10846, 10870, 10891, 10937, 11001, 11004, 11014, 11022, 11051, 11071, 11083, 11084, 11086, 11094, 11095, 11096, 11118, 11125, 11126, 11141, 11150, 11157, 11159, 11203, 11207, 11210, 11211, 11215, 11218, 11219, 11220, 11221, 11223, 11226, 11233, 11330, 11403, 11406, 11407, 11408, 11414, 11415, 11422, 11423, 11444, 11456, 11457, 11458, 11459, 11460, 11462, 11463, 11482, 11498, 11614, 11616, 11643, 11734, 11786, 11813, 11814, 11819, 11894, 11927, 11962, 12011, 12041, 12096, 12130, 12157, 12213, 12236, 12242, 12255, 12257, 12258, 12262, 12264, 12275, 12276, 12277, 12282, 12288, 12289, 12295, 12324, 12326, 12327, 12334, 12353, 12363, 12371, 12375, 12379, 12381, 12382, 12383, 12388, 12407, 12408, 12444, 12471, 12472, 12514, 12515, 12540, 12550, 12668, 12722, 12734, 12737, 12855, 12904, 12951, 13051, 13052, 13080, 13224, 13226, 13227, 13228, 13266, 13267, 13412, 13546, 13574, 14369, 14479, 14501, 14524, 14528, 17543, 17568, 17658, 17690, 17691, 17752 and 17754 of 2009: the judgment in w.p.(c) no. 9925 of 2009 and the directions therein will govern these writ petitions also. the confiscation order, if any, passed in any of the cases, will stand quashed. in all cases, irrespective of whether there was a confiscation order or not, the district collector shall decide whether proceedings under the kerala protection of river banks and regulation of removal of sand act and the rules there under should be initiated against the vehicle concerned, within one month from the date of receipt/production of a copy of this judgment. if proceedings are initiated, the same shall be finalised within one month. if the petitioners desire release of their vehicles, which are not so far released, pending final decision, the same shall be released to them forthwith by the district collector, subject to the conditions imposed by this court for releasing the vehicle in w.p.(c) no. 9925 of 2009. the writ petitions are disposed of as above.