Riyas vs State Of Kerala

Shaji P.Chaly, J

This writ petition is filed by the owner of a mini tipper lorry bearing registration No.KL-07/BD 4495 challenging the constitutional validity of rules 27 and 28 of the Kerala River Banks and Regulation of Removal of Sand Rules, 2002, hereinafter called “Rules, 2002”; a writ of mandamus to the District Collector, Alappuzha - 2nd respondent, to produce the files relating to Exhibit P1 order of confiscation passed under the Rules, 2002 and quash the same by issuing a writ of certiorari; and for an order to conduct investigation by appropriate authority into Exhibit P5 complaint filed by the petitioner before the 2nd respondent.

Brief material facts for the disposal of the writ petition are as follows; The vehicle above belonging to the petitioner was taken into custody by the Sub-Inspector of Police- 3rd respondent on 18.8.2012 alleging transportation of river sand without a pass from the appropriate statutory authority. Based on the same, Exhibit P2 FIR was registered. While so, confiscation proceedings were undertaken by the District Collector and passed Exhibit P1 order confiscating the vehicle belonging to the petitioner, however, with an option for the petitioner to pay an amount of Rs.4,10,000/- instead of the order of confiscation. It is thus challenging the legality and correctness of Exhibit P1 order of District Collector basically the writ petition is filed. Petitioner has also challenged rules 27 & 28 of the Rules, 2002, whereby the procedure for confiscation of vehicles and sale of the vehicle respectively are prescribed.

In so far as the issue with respect to the seizure and confiscation of the vehicle, it is submitted that there was no analysis of sand samples allegedly taken from the lorry and Exhibit P1 order is not specific or clear whether the sand is river sand or not. It is also submitted that the District Collector has not taken any advice from the appropriate scientific agency to identify the nature of the sand. It is also submitted that the District Collector has not cared to verify Exhibits P6 & P8 reports of the Tahsildar, Cherthala and therefore, Exhibit P1 order passed without taking into consideration the entire aspects of the matter, is illegal and arbitrary, liable to be interfered with by this Court.

According to the petitioner, a reading of Exhibit P3 mahazar would prove the illegality and violation of the rules and non-application of mind in the matter by the District Collector. That apart it is contended that there are two mahazars prepared by the Police i.e., Exhibit P2 FIR submitted before the learned Magistrate, and Exhibit P3 mahazar filed before the 2nd respondent. It is further pointed out that in Exhibit P2 FIR, the alleged incident is stated to have occurred at 8.30 a.m. and in Exhibit P3 mahazar, the time of incident is shown as 9.30 a.m. It is also submitted that the Inspector of Police has given Exhibit P4 statement before the District Collector stating that the incident had occurred at 9.30 a.m. That apart it is stated that the 2nd respondent was duty bound to consider and verify the version of the petitioner and in fact, he filed Exhibit P5 complaint for a proper investigation, which was not undertaken by the District Collector. It is also submitted that 3rd respondent Sub Inspector of Police is attempting to wreck vengeance against the petitioner for non payment of bribe demanded by the Police. In so far as the challenge to the constitutional validity of rules 27 & 28 of Rules 2022, It is stated that the rules confer unlimited powers on the District Collector without any sanction under the provisions of the Act. Therefore, the said rules are unconstitutional. Other contentions are also raised.

I have heard learned counsel for petitioner Smt.Sulfia M.A., learned Senior Government Pleader Sri. Joby Joseph and perused the pleadings and materials on record.

In so far as the contention advanced with respect to the unconstitutionality of rules 27 & 28 for the reason that unbridled power is conferred on the District Collector to adjudicate the issue, in my view, the rules are made in accordance with the power conferred on the State Government under section 26 of the Kerala River Banks and Regulation of Removal of Sand Act, 2001, from now on called, “Act, 2001”. Sub-section 1 to section 26 specifies that the Government, by notification in the Gazette, make rules to carry out all or any of the purposes of the Act. Sub-section (2) thereto specifies that every rule made under the Act shall be laid as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or two successive sessions and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no consequence, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rules. So that it can be seen that the State Government is vested with powers to frame rules to implement the provisions of Act 2001 in its letter and spirit, and the petitioner has no case that the procedure in contemplation of law is not adhered to by the Government after framing the rules.

Rule 27 deals with the procedure for confiscation of vehicles, which reads thus:

“27. Procedure for confiscation of vehicles.-(1) The Police or Revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules.

(2) In the case of seizure of vehicle under sub-section (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector.

(3) The vehicle may be returned if the owner of the vehicle or the possessor remits amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure.”

Therefore, on a reading of the said provisions, it is clear that in the case of seizure under sub-section (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector. There is no case for the petitioner that the said mandatory requirements are not followed by the police .

9.The procedure in regard to the confiscation and sale is dealt with under rule 28 of the Rules, 2002, which reads thus:

“28. Sale of the vehicle seized.- (1) The District Collector shall consider every objection submitted within seven days of seizure of any vehicle under Rule 27 and the decision of District Collector thereon shall be final.

(2) In the case of sale of the vehicle under sub-section (1), if the fine and amount under sub-section (3) of Section 27 of these rules has not been remitted, the District Collector shall sell the vehicle by auction.

(3) The amount received from auction under sub-section (2) shall be credited to the River Management Fund after deducting the expenditure of auction.”

10./ On an analysis of the said provision, it is clear that the District Collector after considering every objection submitted within seven days of seizure of any vehicle under rule 27 of the Rules 2002, is to take a decision, and the conclusion so arrived at shall be final, as the law stood originally. Petitioner has no case that he was not heard on the basis of the objection submitted by him.

Moreover the issue with respect to the constitutional validity of the provisions of the Act, 2001 and the Rules 2002 was considered by a Division Bench of this Court in Ismayil v. Deputy Tahsildar [2011 (2) KLT 322] and has upheld the constitutional validity of the provisions of the Act 2001 and the Rules 2002 after taking into consideration the principles of law laid down by the Apex Court in various judgments. Therefore, the challenge made by the petitioner against rules 27 & 28 of the Rules, 2002, cannot be sustained under law.

Now the sole question remains to be considered is whether any interference is required to the order passed by the District Collector ? The paramount contention advanced by the petitioner is that on a reading of Exhibit P3 mahazar filed before the District Collector, it is clear that when the vehicle was seized, there was no sand in it. However, from Exhibit P3 mahazar, what I could gather is that when the vehicle was attempted to be intercepted by the Sub Inspector of Police, the driver of the vehicle did not stop the vehicle and the Police had to seize the vehicle chasing it. At that point of time, the driver of the lorry has unloaded the sand. Therefore, the contention advanced by the petitioner that there was no sand in the lorry at the time of seizure cannot be sustained under law.

In Exhibit P5 complaint filed before the District Collector, petitioner has stated that the vehicle was seized after unloading the ordinary sand in accordance with the pass issued by the Geologist; near the civil station by a person, who has identified himself to be a civil police officer of Poochakkal Police Station and demanded a bribe of Rs.5,000/-. It is also submitted therein that when the driver refused to pay the money, he was manhandled by the Police. In fact the said aspect raised by the petitioner was considered by the District Collector especially due to the fact that the petitioner has earlier approached this Court by filing W.P.© No.20861/2012, in which, a direction was issued to the District Collector to take a decision within three months, after providing an opportunity of hearing to the petitioner. In fact, the District Collector has passed the confiscation order after hearing the petitioner and the Sub Inspector of Police. The District Collector has also taken into account the mahazar prepared and the evidence tendered by the rival parties. This is clear from Exhibit P1 order, wherein it is clearly specified that when the Sub Inspector of Police attempted to intercept the vehicle, the driver has not stopped the vehicle and the Police had to chase the lorry and in that process, the driver of the vehicle suddenly stopped the vehicle and unloaded the sand on the road. It is also clear from the said order that the Sub Inspector of Police has tendered evidence before the District Collector that when he ascertained as to whether the river sand is being transported on the basis of the pass issued, the driver could not produce any pass for the transportation of the river sand. Therefore, the case put forth by the petitioner cannot be sustained under law. It is also clear from the documents produced by the petitioner that the said issue revolves around various factual circumstances and the District Collector had passed the order taking into account the said aspects and therefore, the contention advanced by the petitioner that none of the aspects are considered by the District Collector before the confiscation of the vehicle cannot be sustained under law.

Therefore from Exhibit P1, it is pretty straightforward and evident that all opportunity for participation in the proceedings was provided to the petitioner, and the District Collector has passed the confiscation order taking into account the contentions put forth by the petitioner. In that view of the matter, under no circumstances it can be said that the order is violative of the principles of natural justice and thereby, arbitrary and illegal. I could not locate any illegality, arbitrariness, or other legal infirmities justifying my interference in exercising the power of judicial review conferred under Article 226 of the Constitution of India, mainly because the findings in the impugned order are based on multiple factual situations.

Needless to say, the writ petition fails, accordingly, it is dismissed.