WP(C)/408/2009 of MUHAMMED SHAFI Vs STATE OF KERALA on 31 December 2012

J U D G M E N T

Petitioner claims to be a driver of Lorry bearingRegistration No.KL-10-A-6107 which was seized by the revenueauthorities on 11/1/2007 for having transported illicit sand.

2. After issuing notice to the petitioner, Ext.P3 order ispassed by the District Collector under Rule 27(3) of the KeralaProtection of River Banks and Regulation of Removal of SandRules, 2002 (hereinafter referred to as 'the Rules'). The DistrictCollector permitted the vehicle to be released on condition ofdepositing an amount of Rs.50,000/- and the value of the sand,failing which it was indicated that steps will be taken for sale ofthe vehicle as provided under Rule 28(2) of the Rules.

3. The complaint of the petitioner is that while so, Ext.P2revenue recovery notice has been issued on 12/11/2008purported to be a follow-up action for recovering Rs.50,750/-, interms with Ext.P3 order dated 23/3/2007 of the DistrictCollector. According to the petitioner, he was only the driver ofthe vehicle and since he has no obligation to pay any amount, revenue recovery proceedings is bad in law.

4. The respondents have filed a counter affidavit interalia contending that the amount as directed by the DistrictCollector was not paid. But, it seems that thereafter oneSri.Udayakumar had obtained a letter for release of the vehiclefrom the Judicial First Class Magistrate Court-II, Perinthalmannaon certain conditions. It is also stated that the owner of thevehicle had violated the terms and conditions imposed by theMagistrate Court.

5. Heard learned counsel for the petitioner and learnedGovernment Pleader .

6. The only question that arises for consideration in thepresent writ petition is whether revenue recovery proceedingscan be initiated against the petitioner on the basis of Ext.P3order.

7. It is not in dispute that as per Rule 27(2) of the Rules,revenue officials has the power to seize the vehicle used fortransporting sand in violation of the provisions of the KeralaProtection of River Banks and Regulation of Removal of SandAct, 2001 (hereinafter referred to as 'the Act') and the vehicle

can be returned to the owner of the vehicle or the possessor oneither of them remitting an amount fixed by the DistrictCollector towards River Management Fund. Apparently Ext.P3is not complied with.

8. But, going by the counter affidavit filed by therespondents, it seems that without paying any such amount, thevehicle is released to another person as per orders issued by theMagistrate court. The question will be whether in suchcircumstances the amount as directed to be remitted by theDistrict Collector under powers vested on him as per Rule 27(3)of the Rules can be recovered by revenue proceedings.

9. Non-remittance of amount as specified under Rule 27(3) of the Rules can amount to the only consequence of sale ofthe vehicle seized in terms of Rule 28 which reads as under:

“28. Sale of the vehicle seized.- (1) TheDistrict Collector shall consider every objectionsubmitted within seven days of seizure of anyvehicle under Rule 27 and the decision ofDistrict Collector thereon shall be final.(2)In the case of sale of the vehicle undersub-section (1), if the fine and amount undersub-section (3) of Section 27 of these rules has not been remitted, the District Collector shallsell the vehicle by auction.sell the vehicle by auction.

(3) The amount received from auction undersub-section (2) shall be credited to the RiverManagement Fund after deducting theexpenditure of auction.”

10. No other power is seen vested with the DistrictCollector other than effecting sale of vehicle if there is failure topay the amount as specified under Rule 27(3) of the Rules.Going by the provisions of the Act, Chapter V deals withsituations in regard to imposition of penalty by way ofimprisonment and payment of fine etc. Confiscation of vehicle iscovered by Section 23 of the Act and Rules 27 and 28 of theRules are in furtherance of the said right of the Police andRevenue Officials to confiscate the vehicle. The offence underthe Act is cognizable only on a complaint being filed by anauthorised person in this behalf by the Government or DistrictCollector or Geologist in the Department of Mining and Geology.

11. Having regard to the provisions of the Act and theRules framed thereunder, I do not find any specific provisionwhich enables the District Collector to recover the amount

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imposed under Rule 27(3) of the Rules. Failure to pay the saidamount can only result in sale of the vehicle as provided underRule 28 of the Rules.

12. Unfortunately, in the case on hand, the vehicle wasreleased by orders of the Magistrate on certain conditions whichwe are not fully aware of. Whatever that may be, it is open forthe revenue authorities to approach the concerned MagistrateCourt to obtain necessary orders against any person who hadtaken the vehicle and obtain further orders in regard to the samein accordance with law.

In the result, reserving the right of the respondents toinitiate necessary action against the vehicle involved in theillegal sand mining in accordance with the prescribed procedure,Ext.P2 revenue recovery proceedings against the petitioner ishereby quashed.

Writ petition is allowed as above.

(sd/-)

(A.M.SHAFFIQUE, JUDGE)

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