Dismissed

Saidalavi v. the District Collector

Kerala HC27 Oct 2016WP(C)/26950/2008

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging the District Collector's order forcing petitioners to remit vehicle value and fine. Petitioners operated coconut shell transporters stopped near seized river sand. The court held sand presence in the compound in violation of transport rules. Seizure and confiscation were upheld.

What did the court decide?

The writ petition was dismissed and the order of the District Collector directing payment of fine and vehicle value was maintained.

Saidalavi Vs the District Collector — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

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WP(C).No. 26950 of 2008 (G)

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PETITIONER(S):

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1. SAIDALAVI, S/O.KUNHIMOHAMMED, THOTTUNGAPARAMBIL HOUSE, CHAMRAVATTOM POST, TIRUR, MALAPPURAM DISTRICT.

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2. SHOUKATHALI,

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S/O. ASEES, THOTTUNGAL PARAMBIL HOUSE, CHAMRAVATTOM POST, TIRUR, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.P.SUDHEER.

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, MALAPPURAM.

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2. THE TAHSILDAR, TIRUR, TALUK OFFICE, TIRUR, MALAPPURAM DISTRICT.

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3. THE SUB INSPECTOR OF POLICE, TIRUR, MALAPPURAM DISTRICT.

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BY GOVT. PLEADER SMT.PRINCY XAVIER.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 26950 of 2008 (G)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE LICENCE NO.A2-63/08-09 ISSUED BY TRIPRANGODE GRAMA PANCHAYATH TO THE 1ST PETITIONER.

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EXT.P2 COPY OF THE SEIZURE MAHAZAR DATED 16/07/2008 PREPARED BY THE 3RD RESPONDENT.

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EXT.P3 COPY OF THE JUDGMENT DATED 30/07/2008 IN WP(C).NO.22731/2008 PASSED BY THIS HON'BLE COURT.

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EXT.P4 COPY OF THE ORDER NO.P-5/39011/2008(1) DATED 18/08/2008 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER.

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EXT.P5 COPY OF THE ORDER NO.P-5/39011/2008(2) DATED 18/08/2008 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER.

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EXT.P6 COPY OF THE JUDGMENT DATED 05/12/2007 IN WP(C).NO.32252/2007 OF THIS HON'BLE COURT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

P.V.ASHA, J.

W.P.(C) No.26950 of 2008

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Dated this the 27^th day of October, 2016

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JUDGMENT

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The petitioners challenge Ext.P5 order passed by the District Collector by which both of them were directed to remit a sum of Rs.10,000/- (Rupees Ten thousand only) each to the River Management Fund towards the value of the vehicle seized for violation of Rule 29(8), in accordance with Rule 27(3) of Kerala Protection of River Bank and Regulation of Removal of Sand Rules 2002.

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The petitioners' case is that they were engaged in the business of coconut and for that purpose they were using vehicles bearing registration Nos.KL-55-A-4951 and KL-55-A-9876 and they were conducting the business on the basis of Ext.P1 license issued by the Grama Panchayat. The 3^rd respondent Sub Inspector of Police, Thirur seized their vehicles alleging that they were using those vehicles for transporting river sand where as according to the petitioners those vehicles were being used for transporting coconut shells, coconut fibres and they have never transported river sand.

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In Ext.P2 seizure mahazar, the case of the 3^rd respondent is that on 16.7.2008, river sand near Chamravattom canal was being loaded in ape autorikshaws illegally. Seeing the police party both the

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:2:

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W.P.(C) No.26950 of 2008

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vehicles fled to the compound of the 1^st petitioner. Vehicle No.KL-55A-4951 was stopped at the porch of the house after unloading the sand in front of his house and filled the vehicle with coconut fibre. The vehicle KL-55-A-9876 was also halted on the other side of the house, after unloading river sand in that compound and filled the vehicle with coconut shells. Particles of river sand were seen in the body of both the vehicles. 2 loads of river sand were seen collected on the north western corner of the compound and more than two nisans of river sand were seen stored near the compound wall on the south western side of the house of first petitioner where the auto with no.KL-55A9876 was halted. The first petitioner who is the owner of the house did not furnish any explanation as to how the loads of river sand were stored in his compound and did not produce any document for transporting or storing the river sand there. It is stated that on information from the 3^rd respondent, the Tahsildar, Tirur came to the site and proceedings were initiated for seizing the two loads of river sand and the vehicles.

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The petitioners thereafter approached this court in WP(C) No.22731/2008 and this court by Ext.P3 judgment directed the District Collector to pass final orders in the matter within a period of seven days from the date of receipt of a copy of the judgment. Thereafter the

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:3:

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W.P.(C) No.26950 of 2008

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District Collector passed Exts.P4 and P5 orders, after hearing the petitioners. District Collector found that petitioners were indulged in illegal transporting of sand. The petitioners in both the cases were directed to remit a sum of Rs.10,000/- (Rupees Ten thousand only) towards River Management Fund towards the value of the vehicles and a sum of Rs.5,000/- (Rupees Five thousand only) towards fine under rule 27(3).

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Exts.P4 and P5 orders show that the petitioners were heard by the 1^st respondent. The District Collector found violation of rule 29(8) and therefore held that they were liable to make payment of fine and to remit the value of the vehicles seized in accordance with rule 27(3) of the Rules.

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The respondents have filed counter affidavit stating that vehicles were seized on 16.7.2008, in a massive operation conducted against the vehicles engaged in illegal transportation of river sand near Chamravattom canal. Seeing the police party those vehicles fled to the compound of first petitioner and unloaded river sand and halted the vehicles there and got them filled with coconut shell and fibre and there were heaps of river sand in the compound near the vehicle. The vehicles were seized as it was found to have indulged in illicit transporting of sand.

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:4:

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W.P.(C) No.26950 of 2008

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The case of the petitioners is that the vehicles were not seized while transporting the sand. Vehicles were seized when the vehicles were halted and kept filled with coconut shells and coconut fibre and not river sand. It is their further case that the punishment is effected not for transportation of sand but under the provisions contained in rule 29(8).

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But the contention of the respondents is that the petitioners unloaded the river sand in the compound of 1^st petitioner as soon as they saw the Police Officers and kept the vehicles filled with coconut shell. They did not have any explanation for the loads of river sand collected and kept in the compound of the 1^st petitioner. Therefore the seizure and the proceedings Ext.P4 are legal.

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I heard the learned counsel for the petitioners and the learned Government Pleader. The finding in Ext.P4 is that the vehicles were used for illegal transportion of river sand in violation of Rule 29(8) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 (for short 'the Rules'). Rule 29(8) provides that those who purchase sand shall obtain the pass and keep the same and shall not transport or keep the sand at any place, without the said pass. According to the respondents, the petitioners could not give any satisfactory reply regarding collection of sand in the compound of the

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:5:

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W.P.(C) No.26950 of 2008

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1^st petitioner where both the vehicles were halted. The District Collector found that the vehicles were used for transporting the sand seen stored in the compound of 1^st petitioner.

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Petitioners did not deny the fact that the sand was seen collected near the house of the 1^st petitioner at the time when the vehicles were seized. Ext.P2 does not show that the seizure was at the time when the vehicles were loaded with sand. It is seen that there were remnants of sand particles in the said vehicles and sand was stored inside the compound of the 1^st petitioner. The petitioners have not produced any documents enabling them to store sand or as to sand particles found in their vehicles. As per the mahazar both the autos were seen with particles of sand, but filled with coconut shells and coconut fiber above it and halted near the loads of river sand.

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The petitioners rely on Ext.P6 judgment dated 5.11.2007 in WP(C) No.32252/2007 in which it was held that the attempt to load river sand cannot invite any action under the provisions of the Rules 2002 and in the absence of finding that there has been loading and transportation of river sand Rule 27 will not apply.

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In this case, there is a finding that there were two loads of sand in front of the house where autos were seen halted. Rule 27 provides for procedure for confiscation of vehicles involved in

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:6:

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W.P.(C) No.26950 of 2008

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transporting sand in violation of the provisions of the Act. In this case, it is true that as contended by the petitioners that mahazar do not show that the vehicles were seen loaded with sand and that vehicles were not seized while transporting sand. Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 provides that whoever transports sand without complying with the provisions of the Act shall be liable to be punished and the vehicle used for transportation shall be liable for confiscation by the Police or Revenue Official. Under Rule 27, seizure of the vehicles used for transportation of sand is permitted under the Rule. But it is not stated that seizure should be while transportation was being carried out. From the judgment referred to by the petitioners, it is not clear whether there were loads of sand near the vehicles or in the compound where the vehicles were halted as in the present case. The factual circumstances arising in this case appear to be different.

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In the above circumstances, I do not find any reason to interfere with Ext.P5 order. The writ petition is dismissed.

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Sd/-

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P.V.ASHA JUDGE

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rkc

Saidalavi v. the District Collector

Case brief

What is this about?

What did the court decide?

Saidalavi v. the District Collector

Case brief

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What did the court decide?

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