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2002 DIGILAW 753 (SC)

Sanjayan v. Tahsildar

2002-06-17

B.N.SRIKRISHNA, G.SIVARAJAN

body2002
JUDGMENT : B.N. Srikrishna, J. Appeals admitted. Notices made returnable forthwith. Respondents in all three appeals waive service through learned counsel. By consent, appeals called out for hearing and heard. 2. In all these three appeals the vehicles of the appellants were seized on the allegation that they were illegally transporting sand from the river banks. In W.A.No.1286 and 1287 of 2002 by Ext. P2 order issued by the Sub Collector, Adoor, who is also the Revenue Divisional Officer, the appellants were informed that their lorries had been seized for unauthorised transporting of river sand and a sum of Rs. 25,000/- was imposed as tine for transporting river sand without any valid pass. The Tahsildar, Kozhencherry was directed to collect the sum of Rs. 25,000/- as fine and release the lorries after unloading the river sand from where it was collected. In W.A.No.1330 of 2002, by Ext. P4 order made by Tahsildar, Mallappally, purportedly under the Mines and Minerals (Development Regulation) Act, 1957 read with R.60Aof the Kerala Minor Minerals Concession Act, 1967, a sum of Rs. 25,000/- was levied as maximum penalty with a direction for re-depositing the sand from the lorry at Manimala river in the presence of the Village Officer, Mallappally. In these three cases the vehicles concerned had been seized and is in custody of the police authorities. 3. All three appellants challenged the orders passed against there by Original Petitions before the learned Single Judge. In each of the cases, the learned Single Judge made an interim order directing the authorities to release the vehicles concerned on receiving the tine amount. Being aggrieved thereby, the three appellants are before this Court. 4. The Kerala Minor Minerals Concession Rules, 1967 (hereinafter referred to as 'K.M.M.C. Rules') R.58 (1) provides that contravention of any provision of the rules shall be punishable with imprisonment for a term which may extend to one year, or with a fine which may extend to twenty five thousand rupees or with both, R.59 provides that no court shall take cognizance of any offence punishable under these rules, except upon complaint in writing made by a person authorised in this behalf by the State Government or the competent authority. R. 60A provides for compounding of offences before or after the initiation of the prosecution. R. 60A provides for compounding of offences before or after the initiation of the prosecution. The provisions of Ss.21(1 22 and 23A of the Mines & Minerals (Development & Regulation) Act are similarly worded as the present rules to which we have referred. A reading of the relevant provisions of the aforesaid Act and the K.M.M.C. Rules suggests that neither the Revenue nor the Police authorities have the power to impose any fine on a person who contravenes the provisions of the rules. Any person who extracts and transports any minor mineral as defined under Section 3 of the Act, 1957 without appropriate permission from the concerned authority is deemed to commit an offence. We do not see any provision in the Act or Rules empowering anyone other than a court of law to take cognizance of an offence punishable under the Act and the Rules upon a complaint by the appropriate person. We are, therefore, of the view that the order at Ext. P4 made by the first respondent in W.A. No. 1330 of 2002 is without jurisdiction. R. 60A of the K.M.M.C. Rules merely enables the concerned revenue officer to compound an offence before prosecution is instituted for infractions of the rules. Compounding necessarily means that the person desirous to compound it admits his liability. In the present case, there is no material to suggest that the appellant admits his liability or that there was any request made by the appellant for compounding the offence. Even before us, the learned counsel appearing for the appellant states that he is willing to take his chance of prosecution before the court of law. 5. Turning to the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Act 18 of 2001), we notice that the provisions are almost the same. Any person who removes sand without permission from the appropriate authority is deemed to commit an offence. Section 20 of Act 18 of 2001, provides that contravention of any of the provisions of this Actor Rules shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to twenty five thousand rupees or with both. Section 20 of Act 18 of 2001, provides that contravention of any of the provisions of this Actor Rules shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to twenty five thousand rupees or with both. Section 32 provides that nothing in the Act shall prevent any person from being prosecuted under any other law for the time being in force for any act or omission made punishable under the Act. Section 23 deals with confiscation of vehicles and provides that whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for seizure by the Police or Revenue officials. (Unfortunately, the English copy of the Act published in the gazatte uses the word 'seizure' though the caption of Section 23 is 'confiscation of vehicles'. Section 23 in the Malayalam version uses the word 'kandukettal', which means `confiscation'. It is time that the State Government looks into the matter of accurate translation of Acts in English for the benefit of the Judges who are required to interpret them in the High Court and whose knowledge in Malayalam may be nil or limited. R.27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2001 (Malayalam version) specifically provides for confiscation of the vehicles. The Rules empower the District Collector to take action for confiscation of the vehicles after following the procedure prescribed therein (English copy of the Rules is not made available to the Court). 6. Thus, it would appear to us that, whether the action is taken under the K.M.M.C. Rules read with the parent Act or under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 read with the Rules made thereunder, the power of imposition of fine rests only with the Court. All that the Revenue authorities have been empowered to do is to compound the offence. The three appellants deny that they admitted the liability and they are not willing to compound the offence. In order to avoid controversy, it is preferable that the competent authority gets an application in writing from the accused person for compounding the offence. 7. All that the Revenue authorities have been empowered to do is to compound the offence. The three appellants deny that they admitted the liability and they are not willing to compound the offence. In order to avoid controversy, it is preferable that the competent authority gets an application in writing from the accused person for compounding the offence. 7. In the result, the appeals are allowed and the three judgments of the learned Single Judge impugned therein are quashed and set aside. Ext. P4 in O.P. No. 9621 of 2002, Ext. P2 in O.P.No. 13372 of 2002 and Ext. P2 in O.P.No. 13353 of 2002 are held to be without jurisdiction and are liable to be set aside. Hence, we quash and set aside the aforesaid orders and direct the Revenue authorities to take action in accordance with law for prosecution of the appellants, if so decided. As far as confiscation of the seized vehicles is concerned, if action is sought to be taken under the provisions of the K.M.M.C. Rules, the Revenue authorities are free to move the Criminal Court after launching a prosecution or unless an application is received for compounding , in which case they are at liberty to compound the offence. In any of the concerned cases, if, confiscation of the vehicles is contemplated under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 read with Rules made thereunder, the Revenue authorities shall proceed and act in accordance with Rr. 27 and 28 of the Rules. 8. In the result, we direct the respondents to return the vehicles to the appellants within one week from today unless they initiate action for confiscation of the vehicles in accordance with law. 9. In view of this judgment, O.P. Nos. 13372 of 2002, 13353 of 2002 and 9621 of 2002 are allowed as aforesaid.