Kerala High Court
Remya R vs District Collector on 2 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942
WP(C).No.10782 OF 2020(W)
PETITIONER/S:
REMYA R.
REMYA NIVAS, OTTOOR, MANAMBOOR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.M.R.SASITH
SRI.M.R.SARIN
RESPONDENT/S:
1 DISTRICT COLLECTOR
2ND FLOOR CIVIL STATION BUILDING, CIVIL STATION
ROAD, THIRUVANANTHAPURAM, KERALA 695 043.
2 THASILDAR,
MINI CIVIL STATION, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM KERALA, 695 306.
3 DEPUTY TAHSILDAR (RR),
MINI CIVIL STATION, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM, KERALA 695 306.
4 DISTRICT GEOLOGIST,
VIVEKANAND NAGAR, KESAVADASAPURAM,
THIRUVANANTHAPURAM , KERALA 695 004.
5 STATION HOUSE OFFICER,
ATTINGAL, THIRUVANANTHAPURAM , KERALA 695 101.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 02.06.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.10782 OF 2020(W)
..2..
ALEXANDER THOMAS, J.
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WP(C) No. 10782 of 2020
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Dated this the 2nd day of June, 2020
JUDGMENT
The prayers in this writ petition are as follows:
"1. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondents to report seizure of MGV Tipper bearing no KL-02-AA-2067 forthwith to concerned Magistrate having juridiction.
2. Issue a writ of cerotrari or any appropriate writ, order to quash the Ext P2 to extent to Ext P2 order effecting the petitioner's vehicle bearing no KL-02-AA -2067 and release petitioner vehicle to him forthwith .
3. Grant such other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. Heard Sri.Sasith Panicker, the learned counsel for the petitioner and Sri.Saigi Jacob Palatty, the learned Senior Government Pleader.
3. The complaint of the petitioner is that the petitioner's vehicle, MGV Tipper bearing Reg.No.KL-02-AA-2067, has been seized by the 3 rd respondent - Deputy Tahsildar (RR) on the allged ground that the vehicle was used for transporting excarted rock from unauthorized quarry on 05.03.2020 at about 6.30 pm. The complaint of the petitioner is that the correct facts in this case do not disclose WP(C).No.10782 OF 2020(W) ..3..
contravention of the provisions of the Mines and Minerals (Developments & Regulation) Act, 1957 (for short, "the MMDR Act") and the Kerala Minor Mineral Concession Rules, 2015 framed thereunder. Futher, it is the complaint of the petitioner that if as a matter of fact, any of the provisions to the MMDR Act and Rules have been violated in the use of the aforesaid vehicle, then, the 4 th respondent - District Geologist has to file a requisite complaint before the jurisdictional magistrate concerned and thereupon, the party concerned will get the right to file a requisite application seeking interim release/interim custody of the vehicle. The petitioner would urge that so far the said statutory procedure has not been adopted by the 3rd respondent and the vehicle is lying idle exposed to rain and sun.
4. This Court in Prakash Nayak v. District Collector [2016 (4) KLT 102 (FB)] held in paragraph 27 as follows:
"27. 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 sub-section (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 WP(C).No.10782 OF 2020(W) ..4..
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 sub- section (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."
5. After hearing both sides, it is ordered that it is open for the 4 th respondent District Geologist to examine the matter in relation to Ext.P2 seizure mahazar and if he finds that the facts would disclose contravention of the provisions to the MMDR Act and Rules framed thereunder, it will be open to him to file an appropriate complaint before the jurisdictional magistrate concerned in the matter of the alleged contravention of the MMDR Act and Rules framed thereunder. Such a complaint should be filed by the 4 th respondent - District Geologist within three weeks from the date of receipt of a certified copy of this judgment. Thereupon, the 4 th respondent would immediately send a letter by registered post intimating the petitioner about the factum of filing such a complaint and also as to before WP(C).No.10782 OF 2020(W) ..5..
which Magistrate Court the complaint has been filed. Thereupon, it will be open to the petitioner to file an application before the jurisdictional magistrate concerned seeking for orders from such court for interim release/interim custody of the said vehicle. The jurisdictional magistrate may consider the application after affording opportunities of being heard to the petitioner's counsel and the learned Public Prosecutor appearing for the State.
6. In case, the 4th respondent - District Geologist does not file the requisition complaint within the aforesaid time limit of three weeks from the date of receipt of a copy of this judgment, then, it will be open to the petitioner to approach the 4th respondent - District Geologist seeking for grant of interim release/interim custody of the seized vehicle, upon which it shall be ensured that orders are passed by the 4th respondent - District Geologist granting such interim release/interim custody of the petitioner's vehicle on the petitioner executing a simple bond, which shall be without prejudice to the right of the 4th respondent to file an appropriate complaint before the jurisdictional magistrate concerned subsequently in accordance with law. The petitioner will produce a certified copy of this judgment along with copies of the memorandum of the writ petition along with all exhibits before respondents 2 to 4 for necessary information and WP(C).No.10782 OF 2020(W) ..6..
further action.
With these observations and directions, this WP(C) stands accordingly disposed of.
Sd/-
ALEXANDER THOMAS JUDGE Bka/ WP(C).No.10782 OF 2020(W) ..7..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF RC BOOK OF THE
PETITIONERS VEHICLE.
EXHIBIT P2 TRUE COPY OF SEZIURE MAHAZAR PREPARED
BY THE 3RD RESPONDENT TO 2ND
RESPONDENT.
EXHIBIT P3 TRUE COPY OF COMMON ORDER IN WPC NO.
8980 & 8996 /2020 OF HIGH COURT OF
KERALA.