IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
WP(C) NO. 19010 OF 2022
PETITIONER:
ANSAR A
AGED 60 YEARS
S/O ABDUL RAHUMAN,
PERUMKUZHIYIL HOUSE,
MUKUNDAPURAM P.O, CHAVARA,
KOLLAM DISTRICT.
BY ADVS.
P.DEEPAK
NAZRIN BANU
RESPONDENTS:
1 THE DISTRICT COLLECTOR,KOLLAM
OFFICE OF THE DISTRICT COLLECTOR,
CIVIL STATION, KOLLAM-691013.
2 THE GEOLOGIST,
KOLLAM, DISTRICT OFFICE, ASRAMAM,
KOLLAM-691002.
3 THE VILLAGE OFFICER,
CHAVARA VILLAGE OFFICE, SANKARAMANGALAM,
CHAVARA, KOLLAM-691 583.
4 UNNIKRISHNA PILLAI,
MEMBER, BOARD OF DIRECTORS,
MSN INSTITUTE OF MANAGEMENT & TECHNOLOGY,
VYSHNAVAM, MADAPPALLY, MUKUNDAPURAM P.O,
CHAVARA, KOLLAM DISTRICT-691585.
5 BABU,
MANNOORKHANNA, MUKUNDAPURAM P.O,
CHAVARA, KOLLAM DISTRICT-691585.
W.P.(C) No.19010/2022
:2:
6 JEROME,
JEROME DALE, CHAVARA,
KOLLAM DISTRICT-691583.
BY GOVERNMENT PLEADER SRI. SYAMANTHAK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 24.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.19010/2022
:3:
N. NAGARESH, J.
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W.P.(C) No.19010 of 2022
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Dated this the 24th day of June, 2022
JUDGMENT
~~~~~~~~~ The petitioner, who is registered owner of a tipper lorry, is before this Court seeking to quash Ext.P2 Mahazar and to declare that the seizure and continued detention of the petitioner's vehicle under the cover of Ext.P2 Mahazar is illegal and ultra wires under Section 19 of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
2. The petitioner states that he is owner of a tipper lorry bearing registration No.KL-23G-1990. On 01.06.2022, the vehicle laden with ordinary earth was seized by the 3 rd respondent-Village Officer. According to the petitioner, the vehicle was seized from the premises of the MSN Institute of Management and Technology, Eruveli, Chavara. According to the petitioner, the vehicle was engaged by the 4 th W.P.(C) No.19010/2022 :4: respondent, who is a member of the Board of Directors of the MSN Institute, for delivering ordinarily earth for the purpose of re-laying the College Garden.
3. The ordinary earth was procured from a place near Parippally and was transported on the strength of a Transit Pass issued by the 2nd respondent-Geologist. The petitioner would submit that the seizure of the vehicle is in violation of the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008.
4. The vehicle was seized even without preparing a Mahazar, contended the counsel for the petitioner. It was only on the next day, ie., on 02.06.2022, that the petitioner was served with a copy of Ext.P2 Mahazar. Witnesses were made to sign the Mahazar on the next day. The vehicle was not seized when it was used or deemed to have been used for any activity in contravention of the provisions of the Act, 2008.
5. Section 19 of the Act, 2008 does not empower statutory authorities to seize any vehicle or other conveyance W.P.(C) No.19010/2022 :5: on an anticipated breach of the provisions of the Act, 2008. The vehicle is therefore liable to be released forthwith, contended the counsel for the petitioner.
6. Government Pleader entered appearance on behalf of respondents 1 to 3 and resisted the writ petition. The Government Pleader pointed out that the vehicle was seized when it was loaded with ordinary earth, which is a mineral. The ordinary earth was intended to convert a paddy land. The vehicle was seized by the Village Officer following due process of law. A Scene Mahazar was prepared and was signed by witnesses. The petitioner has to approach the competent authorities notified under the Act, 2008 for getting the vehicle released. A writ petition is not maintainable at this stage of the proceedings, asserted the Government Pleader.
7. I have heard the learned counsel for the petitioner and the learned Government Pleader representing respondents 1 to 3. Notice to respondents 4 to 6, is dispensed with, in the facts of the case. W.P.(C) No.19010/2022 :6:
8. The tipper lorry bearing registration No.KL-23G-1990 owned by the petitioner was seized on 01.06.2022 at about 6.40 p.m. When the vehicle was seized, it was laden with ordinary earth. The lorry was seized by the 3rd respondent from the premises of the MSN Institute of Management and Technology, Eruveli, Chavara.
9. Ext.P2 is the Scene Mahazar prepared by the respondents. The petitioner would contend that the said Ext.P2 Scene Mahazar was prepared only on the next day, i.e., on 02.06.2022 and the witnesses were made to sign the same on the said subsequent date. A perusal of Ext.P2 Mahazar would show that the vehicle was seized when "It was preparing to deposit the ordinary earth". The Scene Mahazar would also show that even at the time of seizure, the load was accompanied by a Transit Pass issued by the Geologist.
10. The contention of respondents 1 to 3 is that the persons accompanying the lorry were about to unload the ordinary earth in the premises of the Institute. However, this W.P.(C) No.19010/2022 :7: Court finds that no ordinary earth was deposited in the premises. As long as no ordinary earth is deposited in the land, it cannot be said that an offence is committed. This is especially so, when the ordinary earth was supported by Transit Passes issued by the competent authority.
11. This Court considered a similar issue in Amity Rock products (M/s.) v. District Collector, Kottayam and another [2021 (2) KLT 32]. That was also a case where the vehicle in question was seized on an apprehension that the vehicle was transporting minerals for the purpose of reclamation of paddy land. This Court held that Section 19 of the Act, 2008 can be invoked only if the vehicle has been used for the purpose of reclamation of paddy land or wetland. Mere apprehension will not justify seizure of a vehicle under the provisions of the Act, 2008.
In the circumstances, following the judgment of this Court in Amity Rock Products (M/s.) (supra), this writ petition is allowed. The seizure and continued detention of the petitioner's vehicle under Ext.P2 Mahazar is declared as W.P.(C) No.19010/2022 :8: illegal. Consequently, the 3rd respondent is directed to order release of the vehicle of the petitioner bearing registration No.KL-23G-1990 to the petitioner forthwith.
Sd/-
N. NAGARESH, JUDGE aks/27.06.2022 W.P.(C) No.19010/2022 :9: APPENDIX OF WP(C) 19010/2022 PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF KL-23-G-1990.
Exhibit P2 A TRUE COPY OF THE MAHASER DATED 1.6.2022.
Exhibit P3 COPY OF PHOTOGRAPHS OF VEHICLE AT THE TIME OF SEIZURE.
RESPONDENT'S ANNEXURES Annexure R3(a) True copy of the stop memo dated 3/2/22 issued to the owner of the property Annexure R3(b) True copy of the transit pass Annexure R3(c) True copy of the photographs taken at the time of seizure of the vehicle