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2012 DIGILAW 1115 (KER)

Muhamad Shafi v. State of Kerala

2012-12-31

A.M.SHAFFIQUE

body2012
JUDGMENT : A.M. Shaffique, J. 1. Petitioner claims to be a driver of Lorry bearing Registration No. KL-10-A-6107 which was seized by the revenue authorities on 11.1.2007 for having transported illicit sand. 2. After issuing notice to the petitioner, Ext.P3 order is passed by the District Collector under R.27(3) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 (hereinafter referred to as the Rules). The District Collector permitted the vehicle to be released on condition of depositing an amount of Rs. 50,000/- and the value of the sand, failing which it was indicated that steps will be taken for sale of the vehicle as provided under R.28(2) of the Rules. 3. The complaint of the petitioner is that while so, Ext.P2 revenue recovery notice has been issued on 12.11.2008 purported to be a follow-up action for recovering Rs. 50,750/- in terms with Ext. P3 order dated 23.3.2007 of the District Collector. According to the petitioner, he was only the driver of the 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 inter-alia contending that the amount as directed by the District Collector was not paid. But, it seems that thereafter one Sri. Udaya Kumar had obtained a letter for release of the vehicle from the Judicial First Class Magistrate Court-II, Perinthalmanna on certain conditions. It is also stated that the owner of the vehicle had violated the terms and conditions imposed by the Magistrate Court. 5. Heard learned counsel for the petitioner and learned Government Pleader. 6. The only question that arises for consideration in the present Writ Petition is whether revenue recovery proceedings can be initiated against the petitioner on the basis of Ext.P3 order. 7. It is not in dispute that as per R.27(2) of the Rules, revenue officials has the power to seize the vehicle used for transporting sand in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as the Act) and the vehicle can be returned to the owner of the vehicle or the possessor on either of them remitting an amount fixed by the District Collector towards River Management Fund. Apparently Ext.P3 is not complied with. 8. Apparently Ext.P3 is not complied with. 8. But, going by the counter affidavit filed by the respondents, it seems that without paying any such amount, the vehicle is released to another person as per orders issued by the Magistrate court. The question will be whether in such circumstances the amount as directed to be remitted by the District Collector under powers vested on him as per R.27(3) of the Rules can be recovered by revenue proceedings. 9. Non-remittance of amount as specified under R.27(3) of the Rules can amount to the only consequence of sale of the vehicle seized in terms of R.28 which reads as under: "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. No other power is seen vested with the District Collector other than effecting sale of vehicle if there is failure to pay the amount as specified under R.27(3) of the Rules. Going by the provisions of the Act, Chapter V deals with situations in regard to imposition of penalty by way of imprisonment and payment of fine etc. Confiscation of vehicle is covered by Section 23 of the Act and Rules 27 and 28 of the Rules are in furtherance of the said right of the Police and Revenue Officials to confiscate the vehicle. The offence under the Act is cognizable only on a complaint being filed by an authorised person in this behalf by the Government or District Collector or Geologist in the Department of Mining and Geology. 11. Having regard to the provisions of the Act and the Rules framed thereunder, I do not find any specific provision which enables the District Collector to recover the amount imposed under R.27(3) of the Rules. Failure to pay the said amount can only result in sale of the vehicle as provided under R.28 of the Rules. 12. 11. Having regard to the provisions of the Act and the Rules framed thereunder, I do not find any specific provision which enables the District Collector to recover the amount imposed under R.27(3) of the Rules. Failure to pay the said amount can only result in sale of the vehicle as provided under R.28 of the Rules. 12. Unfortunately, in the case on hand, the vehicle was released by orders of the Magistrate on certain conditions which we are not fully aware of. Whatever that may be, it is open for the revenue authorities to approach the concerned Magistrate Court to obtain necessary orders against any person who had taken the vehicle and obtain further orders in regard to the same in accordance with law. 13. In the result, reserving the right of the respondents to initiate necessary action against the vehicle involved in the illegal sand mining in accordance with the prescribed procedure, Ext.P2 revenue recovery proceedings against the petitioner is hereby quashed. Writ Petition is allowed as above.