(2012) 243 KLR 688 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN TUESDAY, THE 13TH DAY OF MARCH 2012/23RD PHALGUNA 1933 WP(C).No. 5885 of 2012 (I) -------------------------- PETITIONER: ----------- P.V.RAJU, AGED 42 YEARS, S/O. VELAYUDAN, PADINJAREPUTHUKADU HOUSE, SOUTH PARAVUR.P.O., UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.NATESAN RESPONDENTS: ------------ 1. THE CIRCLE INSPECTOR OF POLICE, TRIPUNITHURA POLICE STATION, TRIPUNITHURA.P.O., ERNAKULAM DISTRICT. PIN-682 301. 2. THE SUB INSPECTOR OF POLICE, UDAYAMPEROOR POLICE STATION, UDAYAMPEROOR.P.O., ERNAKULAM DISTRICT. PIN-682307. 3. THE SUB DIVISIONAL MAGISTRATE (REVENUE DIVISIONAL OFFICER) FORT KOCHI, ERNAKULAM. PIN-682 001. 4. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, ERNAKULAM. PIN-682030. BY GOVERNMENT PLEADER, SRI. VINCENT K.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-03- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST WP(C).No. 5885 of 2012 (I) -------------------------- APPENDIX PETITIONER'S EXHIBITS :-
RESPONDENTS' EXHIBITS :NIL // TRUE COPY// P.A. TO JUDGE DST S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 5885 of 2012 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 13th day of March, 2012. Head Note:- Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 - Sections 9 and 23 - Jurisdiction - Original Authority - Held, the power to pass final orders in the matter of seizure of vehicles for illegal transportation of river sand was on the District Collector. But, by an Amendment Ordinance, the Act was amended conferring jurisdiction on the Sub Divisional Magistrate for passing final orders in respect of the seizure of vehicle for illegal transportation of river sand with a right of revision to the District Collector and a further right of appeal before the District Court. But, that Amendment Ordinance lapsed in June, 2011. The Government has not re-introduced the Ordinance also. Therefore, from June, 2011 onwards, the Sub Divisional Magistrate ceased to have jurisdiction to pass original orders and the District Collector ceased to have powers of revision also. The Government would do well to act fast at least in the present budget session of the legislature to remedy the situation. J U D G M E N T A tipper lorry belonging to the petitioner was seized on allegations of illegal transportation of river sand in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. A First Information Report has been registered, wherein the allegation is that the vehicle was seized at 11.30 a.m. on 25.11.2011 while loading river sand without having any permit or licence. The petitioner contends that actually the vehicle was seized at 8.30 p.m. on 25.11.2011 from the petitioner's residence and that the vehicle was not used for transporting sand and there was no sand in the lorry. He would submit that at the relevant time, the petitioner was under treatment after a road accident and therefore he had no occasion to use the lorry for any purpose. According to the petitioner, a false case has been foisted on the petitioner. The petitioner's case was supported by 39 persons including the neighbours of the petitioner, who submitted a mass petition before the 4th respondent-District Collector against the respondents 1 and 2. The Sub Divisional Magistrate, the 3rd respondent herein, considered the matter under the provisions of the Act and passed Ext.P4 order holding that the case of the police is false and that the vehicle was not involved in any transportation of river sand. On that finding, the 3rd respondent directed release of the vehicle to the petitioner unconditionally. The petitioner's grievance is that although the order was passed on 18.2.2012, the vehicle has not been released to the petitioner yet. The petitioner seeks the following reliefs: "(i) To grant a writ of mandamus or any appropriate writ, or direction or order directing the 1st and 2nd respondents to release the tipper lorry bearing Reg. No. KL-32-6708 to the petitioner unconditionally. (ii) To grant appropriate writ or order or direction directing the 1st and 2nd respondents to pay adequate compensation to the petitioner due to the unauthorized and illegal seizure and custody of the vehicle. (iii) To grant appropriate writ or order or direction directing the 3rd and 4th respondents to implement Ext.P4 order." 2. The learned Government Pleader submits that respondents 1 and 2 have approached the District Collector against Ext.P4 order and the District Collector has passed an order setting aside Ext.P4 order, remanding the matter to the Sub Divisional Magistrate for fresh consideration. 3. I have considered the rival contentions in detail. 4. I am distressed that the revenue officials of the State are not aware of the law applicable in the matter of passing orders under the Act. I am also distressed that the Government does not act when urgent action is called for from the Government in respect of the subject matter. My above observations relate to the legal position obtaining in respect of the Kerala Protection of River Banks and Regulation of Removal of Sand Act as on today. Formerly, the power to pass final orders in the matter of seizure of vehicles for illegal transportation of river sand was on the District Collector. But, by an Amendment Ordinance, the Act was amended conferring jurisdiction on the Sub Divisional Magistrate for passing final orders in respect of the seizure of vehicle for illegal transportation of river sand with a right of revision to the District Collector and a further right of appeal before the District Court. But, that Amendment Ordinance lapsed in June, 2011. The Government has not re-introduced the Ordinance also. Therefore, from June, 2011 onwards, the Sub Divisional Magistrate ceased to have jurisdiction to pass original orders and the District Collector ceased to have powers of revision also. Despite the said legal position, Ext.P4 order has been passed by the Sub Divisional Magistrate on 18.2.2012, at which point of time, the Sub Divisional Magistrate did not have jurisdiction to pass that order and strangely the District Collector, who is the original authority as per the Act obtaining now, has exercised revisional powers and remanded the matter to the Sub Divisional Magistrate for fresh consideration. I am completely dismayed by the conduct of the Sub Divisional Magistrate and the District Collector, who are expected to uphold rule of law in this State. This is not peculiar to this particular Sub Divisional Magistrate or the particular District Collector only. In writ petitions coming up before me, such instances are many. I am further distressed that even after this being brought to the attention of the learned Government Pleader several times, the Government has not chosen to step in to remedy the situation. I am of opinion that the Government would do well to act fast at least in the present budget session of the legislature to remedy the situation. 5. As far as this case is concerned, insofar as Ext.P4 order has been passed by the Sub Divisional Magistrate without jurisdiction, I do not think that I will be justified in directing implementation of the same. More over, it is submitted by the learned Government Pleader that the District Collector has, in exercise of a non-existent revisional jurisdiction, set aside Ext.P4 order also remanding the matter to the Sub Divisional Magistrate who does not have jurisdiction to decide the issue. But, at the same time, the grievance of the petitioner has to be considered by somebody who has the jurisdiction to do so. As the Act stands now, the original authority to consider the same is the District Collector. Therefore, I am of opinion that the District Collector himself shall take evidence, decide the issue and pass final orders expeditiously. Accordingly, the writ petition is disposed of with a direction to the 4th respondent to exercise his original jurisdiction under the Act without reference to the Amendment Ordinance, which has already lapsed and pass appropriate orders after hearing the petitioner as well as respondents 1 and 2 as expeditiously as possible at any rate within two weeks from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/ |
