Kerala High Court
Biju Honack vs The District Collector Pathanamthitta on 16 July, 2012
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934
WP(C).No. 15581 of 2012 (W)
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PETITIONER(S):
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BIJU HONACK, AGED 31 YEARS
S/O. HONACK, MALIKAYIL VEEDU, PADANADU MURI
PADANADU VILLAGE, CHENGANNUR TALUK
ALAPPUZHA DISTRICT.
BY ADV. SRI.AJITH MURALI
RESPONDENT(S):
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1. THE DISTRICT COLLECTOR PATHANAMTHITTA
PATHANAMTHITTA DISTRICT-689 645.
2. THE REVENUE DIVISIONAL OFFICER
THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 645.
3. THE DEPUTY TAHSILDAR
THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 645.
4. THE SUB INSPECTOR OF POLICE
PULIKEEZHU POLICE STATION
PATHANAMTHITTA DISTRICT-689 645.
5. THE VILLAGE OFFICER
PADANADU VILLAGE, CHENGANNUR TALUK, PIN-689 121.
BY GOVERNMENT PLEADER SRI. MOHAMMED SHAH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 15581 of 2012 (W)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF THE ORDER NO.D-M-12971/3/2012 DATED, 8.2.2012 ISSUED
BY THE DISTRICT COLLECTOR, PATHANAMTHITTA.
EXT.P2 : COPY OF THE ORDER NO.4284/11/B1 DATED, 29.10.2011 ISSUED BY
THE 2ND RESPONDENT RDO THIRUVALLA.
RESPONDENT'S EXHIBIT : NIL
// TRUE COPY //
P.A. TO JUDGE
sou.
T.R.RAMACHANDRAN NAIR, J.
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W.P(C). No.15581 OF 2012
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Dated this the 16th day of July, 2012
JUDGMENT
Petitioner's vehicle, namely a tipper lorry bearing Regn.No.KL-60B/5346 was seized by the police alleging illegal transportation of river sand. This writ petition is filed challenging Ext.P1 order passed by the District Collector directing the petitioner to pay an amount of Rs.8,00,000/- before the river management fund, as value of the vehicle, to get the release of the vehicle.
2. In Ext.P1, reference is made to an order dt. 29.10.2011 of the Sub Divisional Magistrate, Thiruvalla. Thereafter the petitioner obtained a copy of the order and has produced it as Ext.P2 along with I.A.9641/2012. A reading of the said order shows that the vehicle was confiscated after finding that the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act has been violated.
3. Ext.P1 is now passed by the District Collector by fixing the value of the vehicle. Learned counsel for petitioner submits that the order passed by the Sub Divisional Magistrate is dated 29.10.2011 and the ordinance conferring jurisdiction of WP(C).No. 15581/2012-W -2- the Revenue Divisional Officer, Thuiruvalla lapsed on 13.7.2011. Petitioner's case is that at the time of filing this writ petition he had not received the order of the 2nd respondent and by the time the order was passed by the 2nd respondent the ordinance had lapsed and hence the order is without jurisdiction. The entire proceedings will have to be declared as null and void.
4. Legal position in this regard has been declared by a learned Single Judge of this court in the judgment in Raju Vs. Circle Inspector (2012 (2) KLT 350) wherein it was noticed that ordinance had lapsed on 13.7.2011 and hence thereafter the Sub Divisional Magistrate will not have jurisdiction.
5. In the light of the above legal position both the orders viz, Ext.P1 and P2 cannot survive and hence they are quashed.
6. Now the 1st respondent will have to take fresh steps for having final adjudication in terms of the provisions of the Act. The petitioner has also prayed for a direction to the 4th respondent to file a report of seizure before the jurisdictional Magistrate in the light of the direction by this court in Sujith Vs. State of Kerala and others (2012 (2) KLT 547).
7. In Sujith's case (supra), the Division Bench has issued the following directions in para 13:
WP(C).No. 15581/2012-W -3-
"It is hereby ordered that the revenue and police authorities, while effecting seizure, shall ensure that any revenue official effecting the seizure, notifies such seizure, also to a police official, over and above the requirement in S.22 of the Act and the Rules. That police official may effect seizure of those goods and report such seizure to the jurisdictional Magistrate in accordance with law and any police officer effecting seizure shall, apart from reporting any such seizure to the jurisdictional Magistrate, also place a report of such seizure before the concerned revenue authority so that action can follow through the criminal court and through the revenue authority in terms of the laws. Following the aforesaid, it is further ordered that in all pending cases, the competent police officer shall effect seizure and report the same to the jurisdictional magistrate, if not already done and the competent revenue authority shall make appropriate complaint to the jurisdictional Magistrate at the earliest. This would also enable the owners of the goods or vehicles to apply for interim custody in terms of S.451 or 457 Cr.P.C., as the case may be. In ordering release, the Judicial Magistrate shall be guided by the terms laid down by the Full Bench of this Court in Shan v. State of Kerala (2010 (3) KLT 413 (FB). The appropriate authorities shall also file complaints for initiating prosecution in all cases, where offences WP(C).No. 15581/2012-W -4- under the Act are disclosed. These directions shall apply in dealing with sand and vehicles, seized by the police or revenue authority under the provisions of the Act or the Code of Criminal Procedure, over and above the directions in Moosakoya (2008 (1) KLT
538) and Shoukathali (2009 (1) KLT 640), until appropriate legislative provisions are brought in."
8. In the light of the above there will be a direction to the 4th respondent to submit a report before the Sub Divisional Magistrate, Thiruvalla with regard to seizure of the vehicle within a period of ten days from the date of receipt of a copy of this judgment for enabling the petitioner to file a proper application under Section 451 or Section 457 of Crl.P.C. The 1st respondent will complete the adjudication afresh under the relevant provisions of the Act and the Rules within a period of 3 months after notice of the petitioner.
T.R.RAMACHANDRAN NAIR, JUDGE.
okb.