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Shoukathali Vs. District Collector

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  • Decided on : Nov-17-2006

LegalCrystal Citation : legalcrystal.com/729905

Court : Kerala

Reported in : 2007(1)KLT86

Judge : Kurian Joseph, J.

Subject : Civil

Decided On : Nov-17-2006

Acts : Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 - Sections 20, 21, 23, 25 and 26; Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 - Rule 27

Case Number : W.P.(C) No. 28406 of 2003

Appellant : Shoukathali

Respondent : District Collector

Advocate for Appellant : K.P. Mujeeb, Adv.

Advocate for Respondent : Smitha, Government Pleader

Excerpt:
The conjoint reading of the provisions, would clearly show that a vehicle under the provisions of the Act and Rules is liable to be proceeded against only if the same is used for transportation of sand. However, they are well within their powers to proceed against the offending vehicle in case the vehicles are used for transportation of sand and not otherwise. Therefore, the impugned action is clearly ultra vires.

Judgment:

Kurian Joseph, J.

1. Whether the vehicle accompanying a lorry involved in illegal transportation of sand can be confiscated is the main issue to be considered in this case. The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, is intended to protect the river banks and river beds from large scale dredging of river sand and to protect their biophsical environment system and regulate the removal of river sand and for matters connected therewith.

Section 20 provides penalty for contravention of this Act, which reads as follows:



20. Penalty for contravention of this Act: Whoevercontravenes any of the provisions of this Act or rules made thereunder shall, on conviction be punished with imprisonment for a term of which may extend to two years or with fine which may extend to twenty-five thousand rupees or with both and in case of continuing contravention with an additional fine which may extend to one thousand rupees for every day during which such contravention continues.

Section 21 provides for abetment of offences, which reads as follows:

21. Abetment of offences: Whoever abets any offence punishable by or under this Act or attempts to commit any such offence shall be punished with the penalty provided by this Act for committing such offence.

Section 23 provides for confiscation of vehicles, which reads as follows:



23. confiscation of vehicles: 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.

Section 25 deals with procedure of cognizance of offences, which reads as follows:

25. Cognizance of offence: No court shall take cognizance of any offence punishable under this Act. except upon a complaint in writing made by a person authorised in this behalf by the Government or the District collector or a Geologist of the Department of Mining and Geology.

The rules are made by virtue of power under Section 26 of the Act. Rule 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002, reads as follows:



27. Procedure for confiscation of vehicle:

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 an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure.

The conjoint reading of the provisions, would clearly show that a vehicle under the provisions of the Act and Rules is liable to be proceeded against only if the same is used for transportation of sand. In the instant case, the vehicle involved is a motor cycle. The allegation is only that the vehicle escorted and assisted the illegal transportation of river sand in Mini Lorry No. KL-10/Q-3466. Thus admittedly the motor cycle is not used for transporting the river sand.

2. Learned Government Pleader submits that the action has been taken under Section 21 of the Act for abetment of the offence. If the action is under Section 20 or 21, it is for the Court of competent jurisdiction to convict the offender on a duly instituted complaint by a person authorised under the Act. That is not what is done in this case. The prosecutor himself acted as a judge. The Act or the Rules only permit the Revenue Authorities, to initiate and institute prosecution proceedings against the offender under the Act before the court of competent jurisdiction. However, they are well within their powers to proceed against the offending vehicle in case the vehicles are used for transportation of sand and not otherwise. Of course against the person involved, prosecution under Section 21 for abetment can be launched. But the action for seizure and confiscation of the vehicles can be taken only if they are used for the illegal transportation of sand. Therefore, the impugned action is clearly ultra vires. The same is quashed. The amount deposited shall be refunded to the petitioner forthwith. The judgment however shall not stand in the way of the authorised officer initiating appropriate proceedings in accordance with law against the petitioner.

The Writ Petition is disposed of as above.

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