Allowed

M.Krishnan Nair v. the Dist. Collector and Others

Kerala HC6 Feb 2017WP(C)/37357/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a Writ Petition challenging a fine imposed by the District Collector under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The Court held that the Collector's order was invalid as there was no proof of multiple loads or corrections in the pass, relying solely on the unverified driver's statement.

What did the court decide?

Writ Petitions allowed; Ext.P7 in WP(C) No. 37357/09 and Ext.P6 in WP(C) No. 37358/09 quashed.

M.Krishnan Nair Vs the Dist. Collector and Others — Environment and Pollution | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938

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WP(C).No. 37357 of 2009 (L)

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PETITIONER:

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M.KRISHNAN NAIR, S/O.P.K.MADHAVAN NAIR, AGED 59 YEARS, KRISHNA NIVAS, P.O.KULAPPULLY, SHORNUR - 2.

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BY ADVS.SRI.SANTHEEP ANKARATH SMT.BINDU GEORGE

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD.

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2. THE CIRCLE INSPECTOR OF POLICE, OTTAPALAM POLICE STATION.

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3. THE SUB INSPECTOR OF POLICE, SHORANUR POLICE STATION.

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4. M.DEVADASAN, CIRCLE INSPECTOR OF POLICE, VIGILANCE SPECIAL CELL, KOZHIKODE.

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R1-R3 BY GOVERNMENT PLEADER SMT MABLE C KURIAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2017, ALONG WITH WPC. 37358/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WPC 37357 OF 2009:

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APPENDIX

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PETITIONERS EXHIBITS:

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P1; COPY OF REGISTRATION CERTIFICATE OF THE PETITIONER'S VEHICLE NO KL 4024.

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P2; COPY OF FIRST INFORMATION REPORT DATED 24.6.2009 IN CRIME NO 240/09 OF SHORNUR POLICE STATION.

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P3: COPY OF ORDER DATED 6.8.2009 IN CMP NO 2339/09 PASSED BY JFCM, OTTAPALAM.

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P4: COPY OF THE SEIZURE MAHAZAR PREPARED BY THE 2ND RESPONDENT AND DATED 24.6.2009.

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P5; COPY OF CERTIFICATE DATED 3.7.2009 ISSUED BY SHORANUR MUNICIPALITY

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P6: COPY OF THE KADAVU REGISTRAR ISSUED BY THE MUNICIPALITY AND DATED 8.7.2009.

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P7: COPY OF ORDER NO LRG3-2009/38481/9 DATED 1.12.2009 ISSUED BY THE 1ST RESPONDENT.

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RESPONDENT EXHIBITS : NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

A.M. SHAFFIQUE, J.

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=============== W.P. (C) Nos. 37357 & 37358 of 2009

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=======================

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Dated this, the 6^th day of February, 2017

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J U D G M E N T

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Petitioners in these cases have approached this Court challenging an order passed by the District Collector under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the Rules framed thereunder by which the vehicles of the petitioners were directed to be released on the petitioners remitting `1 lakh each towards River Management Fund.

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The main contention urged by the petitioners is that the vehicles were having valid transportation pass for transporting river sand. In WP(C) No. 37357/09, the petitioner had a valid transportation pass which is certified by the Municipality as per Ext.P5 dated 3/7/2009 by which he was permitted to transport river sand as per transportation pass dated 24/6/2009 from Mundaya Smasanam manal kadavu in vehicle No.KLL 4024 between 11.40 a.m and 3.40 p.m. In WP(C) No. 37358/09, petitioner was permitted to transport river sand from Paruthipra Manal kadavu in vehicle KL-07X 1657 between 11.10 a.m and 5.10 p.m. The contention is that the

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W.P(C) Nos.37357 & 37358/09

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-:2:-

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vehicles were seized alleging transportation of river sand from the respective kadavus about one hour prior to the stipulated time on the ground that the driver had given a statement that it was the second load and there were corrections in the transportation pass in regard to the timing.

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The District Collector having considered the matter observed that there is no reason to disbelieve the statement of the driver which is recorded in the seizure mahazar and therefore imposed the aforesaid fine.

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The petitioners had produced Ext.P5 dated 3/7/2009 issued by the Municipality as well as the register maintained in the kadavu in order to prove the fact that only one load was taken during the relevant time. It is also pointed out that the petitioners are vehicle owners and the passes are issued in the name of the persons who required river sand.

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Counter affidavit has been filed on behalf of the 1^st respondent supporting the stand taken in the matter.

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The short question to be considered in the above writ petitions is in regard to the validity of the orders passed by the District Collector.

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There is no dispute about the fact that the petitioners

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W.P(C) Nos.37357 & 37358/09

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-:3:-

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had valid pass for transportation of sand. The police had seized the same during transportation and it is alleged that there was correction in the transportation pass. But it is pointed out that even assuming that there is a correction, the certificate issued by the Municipality clearly indicates the time which is actually shown in the transportation pass itself. In fact, the petitioners have a case that correction was made by the police themselves. Even otherwise, when the time corresponds to the time as shown in the certificate, Ext.P5, there is no reason to arrive at a conclusion that there was correction.

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The only reason under which the police had seized the vehicles is based on the statement given by the driver that it is the second load that is being transported. There is no material to indicate that the driver had given such a statement. The Collector also has only relied upon the seizure mahazar wherein police had indicated so. If at all reliance could have been placed on the driver's statement, a signed statement from the driver ought to have been taken by the police at the relevant time which is lacking in the case. Another aspect which had been noticed by the police is that the running time to reach the kadavu was only one hour whereas the vehicles were seized at a later point of

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W.P(C) Nos.37357 & 37358/09

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time. I do not find any infirmity in the above factual situation. Time is granted between 11.40 a.m to 3.40 p.m in one case and from 11.10 a.m to 5.10 p.m in the other case. This time is given for carrying one load. There is no mandate that the vehicles should reach at 11.40 am and 11.10 a.m itself at the kadavu and thereafter depending upon their turn, take the vehicles. Merely for the reason that the vehicles were seen transporting sand within the time specified by itself does not indicate that it is the second load that is being transported. Such assumptions cannot be raised unless there is sufficient proof to indicate that the vehicle was carrying the second load. The materials now relied upon is not sufficient enough to arrive at such a conclusion.

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Under such circumstances, I am of the view that this writ petitions are liable to be allowed and accordingly I do so. Ext.P7 in WP(C) No. 37357/09 and Ext.P6 in WP(C) No. 37358/09 are quashed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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//True Copy//

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P.S to Judge

M.Krishnan Nair v. the Dist. Collector and Others

Case brief

What is this about?

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M.Krishnan Nair v. the Dist. Collector and Others

Case brief

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