Disposed

Biju P v. the Geologist

Kerala HC20 Jan 2023WP(C)/363/2023

Case brief

AI extract

What is this about?

A writ petition filed by a vehicle owner seeking interim custody of his JCB seized under the Mines and Minerals Act for alleged illegal excavation. The court refused interim custody, directing the respondents to report the seizure to the Jurisdictional Magistrate court.

What did the court decide?

Directing respondents to report the seizure of the vehicle to the Jurisdictional Magistrate within seven days; liberty to approach the Magistrate for interim custody.

Biju P Vs the Geologist — Public Procurement and Tenders | Kerala HC (2023)

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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 N.NAGARESH

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FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944

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WP(C) NO. 363 OF 2023

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PETITIONER

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BIJU P
S/O. MUKUNDAN, AGED 43 YEARS,
PADANNAYIL HOUSE, KARIMBANAPALAM,
VATAKARA, KOZHIKODE DISTRICT PIN – 673105]

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BY ADV K.RAKESH

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RESPONDENTS

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1 THE GEOLOGIST ERANHIPAALAM, CIVIL STATION, PALATTUTHAZHAM,KOZHIKODE DISTRICT

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PIN – 673020

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2THE TAHSILDAR
TALUK OFFICE, MINI CIVIL STATION,
VATAKARA, KOZHIKODE DISTRICT
PIN – 673101

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3 THE VILLAGE OFFICER NADAKKUTHAZHA, KOZHIKODE TALUK, KOZHIKODE DISTRICT PIN – 673104

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BY GOVERNMENT PLEADER SMT.VIDYA KURIAKOSE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.363 of 2023

J U D G M E N T

Dated this the 20^th day of January, 2023

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The petitioner, who is the registered owner of JCB bearing registration No.KL18-G-2153, is before this Court seeking to get the custody of his vehicle.

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The petitioner states that his JCB was seized by the 3^rd respondent-Village Officer on 06.12.2022, alleging that it has been used for transportation of red earth. The petitioner submits that JCB is an excavator which cannot be used for transportation of red earth as alleged in Ext.P1 Mahazar. It is evident that Ext.P1 Mahazar is prepared by filling up relevant columns in a template and all these facts would clearly show that the siezure is absolutely illegal and unreasonable. The petitioner therefore prays to direct respondents 2 and 3 to release the JCB forthwith to the petitioner.

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The Government Pleader entered appearance and resisted the writ petition. The Government Pleader submitted that an error occurred in preparing the Mahazar. In the Mahazar it was stated that the JCB was used for

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WP(C) No.363 of 2023

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transportation of red earth, whereas it was actually used for excavation. In view of the said error, the Mahazar was corrected. That by itself will not give a reason for the petitioner to get the JCB released.

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The Government Pleader submitted that the JCB was used for illegal excavation. Under the Mines and Minerals (Development and Regulation) Act, 1957, any equipment or tool used for illegal raising or transportation of minor minerals can be seized. Therefore, there is no illegality in the seizure. If the petitioner wants custody of the vehicle, the petitioner has to approach the Jurisdictional magistrate.

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I have heard the learned counsel for the petitioner

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and the learned Government Pleader representing the respondents.

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The specific case of the petitioner is that his JCB was not used for any illegal excavation or transportation of red earth. The Mahazar initially prepared shows that the excavator was used for transportation. An excavator cannot be used for transportation as it is basically an instrument for lifting soil and

WP(C) No.363 of 2023

earth.

From the pleadings, it is evident that the petitioner’s

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JCB was seized on 06.12.2022 when it was found involved in excavation of red earth. It is the case of the Government Pleader that there was no permit whatsoever for excavating and transporting the red earth.

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Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 provides that whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. Therefore, if the petitioner’s JCB is found involved in illegal raising or transportation of minor mineral, it is liable to be seized.

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The petitioner urged that in the Mahazar prepared initially, the allegation is that the petitioner’s JCB was used for

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WP(C) No.363 of 2023

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transportation. Since a JCB cannot be used for transportation of any materials, the petitioner’s JCB is liable to be released. It has come out on record that the description of the petitioner’s vehicle in the Mahazar that it was used for transportation, was an error and what was intended was that the petitioner’s JCB was used for raising minor minerals illegally. The respondents have made corrections/changes to the Mahazar. Therefore, the petitioner cannot be heard to contend that the petitioner’s vehicle should be released in view of the erroneous Mahazar.

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In view of all the facts as stated above, I am not inclined to pass any orders granting interim custody of the vehicle to the petitioner. However, the petitioner will be at liberty to approach the Jurisdictional Magistrate Court to get the interim custody of the vehicle.

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In view of the above, the writ petition is disposed of directing respondents 1 and 3 to report seizure of the vehicle to the Jurisdictional Magistrate concerned forthwith, within a period of seven days, if it is not already reported. If the petitioner moves the Jurisdictional Magistrate Court, I am sure

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WP(C) No.363 of 2023

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that the Jurisdictional Magistrate will consider the aspects projected by the petitioner while considering the application for

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interim custody.

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Sd/-

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N. NAGARESH, JUDGE

smm

WP(C) No.363 of 2023

APPENDIX OF WP(C) 363/2023

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PETITIONER EXHIBITS

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Exhibit P1A TRUE COPY OF THE SEIZURE MAHASSER
PREPARED BY THE 3RD RESPONDENT DATED
26-12-2022

Biju P v. the Geologist

Case brief

What is this about?

What did the court decide?

Biju P v. the Geologist

Case brief

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