Kerala High Court
K.M.George vs The Sub Inspector Of Police on 26 November, 2008
Author: V.Giri
Bench: V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34866 of 2008(A)
1. K.M.GEORGE, S/O.MATHAI, AGED 45 YEARS,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. THE DISTRICT COLLECTOR, PALAKKAD.
For Petitioner :SMT.T.D.RAJALAKSHMI
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :26/11/2008
O R D E R
V.GIRI,J.
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W.P ( C) Nos.34866 of 2008
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Dated this the 26th November, 2008
J U D G M E N T
Petitioner is the registered owner of a vehicle bearing registration No.KL-9M 9829, which was seized on the allegation that it was being used for illegal transportation of river sand. Second respondent is to pass final orders in terms of the provisions of the Kerala Protection of River Banks (Protection and Regulation of removal of sand) Act, 2002 and the Rules framed thereunder. Petitioner has sought for the release of the vehicle. The vehicle is now under the custody of the first respondent.
2. Taking note of the directions issued by this Court in the judgment in WP(C)No.15847/2008 and connected cases, petitioner is also entitled to move for interim custody of the vehicle pending final orders under Section 23 of the Act read with Rule 27(3) of the Rules, within a period of two weeks from the date of receipt of a W.P ( C) Nos.34866 of 2008 2 copy of this judgment. Those directions which have been incorporated in the Judgment in WP(C) No.15847/2008 and connected cases are extracted hereunder. The said directions read as follows:
"3. It is keeping in mind the impact of the power exercised by the District Collector that they should proceed to consider the objections and then pass the order in terms of Rules 27 and 28 of the Rules. I also take note of the submissions of the learned counsel for the petitioners that the Sand Act does not provide for an appeal against the order passed by the District Collector under Rule 27 or 28 of the Rules. Analogous provisions dealing with the infraction of the provisions under the Forest Act or the Abkari Act, which obviously have a similar kind of impact on the society, should be recalled. An order of confiscation passed under the Forest Act is vulnerable to an appeal before no less an authority than a District Judge and the same can be challenged in revision before this court under Section 115 of the Code of W.P ( C) Nos.34866 of 2008 3 Civil Procedure. An order of confiscation under the Abkari Act is also vulnerable to an appeal and revision before the competent court. The absence of such a provision in the Sand Act obviously is no indication that the provision relating to confiscation under the Sand Act can be exercised in a casual manner. In fact, it should impress the authority, who is conferred with the power, that he is required to do so, applying his mind and acting as a quasi judicial authority.
4. Once it is accepted that the power under Section 23 of the Sand Act, read with Rules 27 and 28 of the Rules, is a substantive power and is also, therefore, quasi judicial in character, then it follows as a logical consequence that the District Collector should also have the power to direct a release of any vehicle which is seized and produced before him, by way of interim custody. Such power would obviously be ancillary to the substantive power exercised under Section 23 of the Act read with Rules 27 and 28 of the W.P ( C) Nos.34866 of 2008 4 Rules. It is not for this court to exhaustively lay down the guidelines regarding the conditions that could normally be imposed, while releasing a vehicle on interim custody. But, going by the discussion made by me above and as a reflection of my own opinion, I feel the following safeguards may be taken by the District Collectors while passing orders for release of a vehicle on interim custody.
(1) Deposit of an appropriate amount as a pre-condition for the release of the vehicle on interim custody.
(2) A condition that the vehicle shall not be used for transportation of sand, pending final adjudication of the proceedings under Section 23 of the Act read with Rules 27 and 28 of the Rules. (3) That the vehicle shall not be used within the precincts of the Taluk or even the District, pending final adjudication by the District Collector. (4) A condition that the vehicle would be liable for immediate seizure and further proceedings if it is found involved in W.P ( C) Nos.34866 of 2008 5 any other illegal transportation while it is entrusted to the owner on interim custody, pending final adjudication under Section 23 of the Act read with Rules 27 and 28 of the Rules.
5. The list mentioned above is, by no means exhaustive, but only indicative. If there is delay in passing final orders beyond a reasonable period from the date within which the objections could be filed, at any rate, where there is a motion by the aggrieved party for release of the vehicle on interim custody, it is necessary for the District Collectors to pass an order on such application, pending adjudication under Section 23 of the Act."
6. It is made clear that if interim custody of the vehicle is granted, it will survive only till final orders are passed under Section 23 of the Act read with Rules 27 and 28 of the Rules. Such final orders shall be passed within three months from the date of receipt of a copy of this judgment, after hearing the petitioner or his authorised W.P ( C) Nos.34866 of 2008 6 representative.
The petitioner shall produce a copy of this judgment along with a copy of the writ petition before the first respondent.
(V.GIRI, JUDGE) ma W.P ( C) Nos.34866 of 2008 7 W.P ( C) Nos.34866 of 2008 8 (V.GIRI,JUDGE) ma W.P ( C) Nos.34866 of 2008 9 W.P ( C) Nos.34866 of 2008 10