Kerala High Court

Jose Paul vs The State Of Kerala on 6 July, 2021

  CRP.133/12                        1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
    TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                         CRP NO. 133 OF 2012
 AGAINST THE ORDER/JUDGMENT IN CMA 31/2011 OF DISTRICT COURT&
                  SESSIONS COURT,THODUPUZHA, IDUKKI
REVISION PETITIONER/S:

           JOSE PAUL
           S/O. PAULOSE, AGED 47 YEARS, KODIYANPARAYIL,
           KALLARKUTTY P.O., VALLATHOOVAL VILLAGE, DEVIKULAM,
           IDUKKI DISTRICT.

           BY ADVS.
           SRI.T.B.HOOD
           SMT.M.ISHA
           SRI.AMAL KASHA



RESPONDENT/S:

    1      THE STATE OF KERALA
           REPRESENTED BY DIST COLLECTOR, IDUKKI, IDUKKI COLONY
           P.O.-685601.

    2      THE SUB COLLECTOR (SDM) IDUKKI
           IDUKKI COLONY P.O.-685601.

    3      THE SUB INSPECTOR OF POLICE
           SANTHANPARA POLICE STATION, SANTHANPARA P.O.-685619.


OTHER PRESENT:

           SR.GP-SRI.JOHNSON M.I




     THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 30.6.2021, THE COURT ON 06.07.2021 DELIVERED THE FOLLOWING:
   CRP.133/12                            2



                              V.G.ARUN, J.
               -----------------------------------------------
                        C.R.P.No. 133 of 2012
               -----------------------------------------------
               Dated this the 6th day of July, 2021

                                ORDER

The petitioner's vehicle, a mini lorry bearing registration No.KL-

45-B-9943, was seized by the Santhanpara Police on the midnight of

31.10.2010, alleging that the vehicle was engaged in illegal

transportation of river sand. Upon seizure, Crime No.445 of 2010 was

registered by the Police for the offences under Sections 17(4) and 23

read with Section 20 of the Kerala Protection of River Banks and

Regulation of Removal of Sand Act, 2001 ('the Act', for short). Later,

confiscation proceedings under Section 23A was initiated and the

Sub Divisional Magistrate, Devikulam issued order dated 18.5.2011

confiscating the vehicle and directing payment of the value of the

vehicle to be paid in lieu of fine. Aggrieved by the order, petitioner

preferred a revision before the District Collector, Idukki. By order

dated 21.7.2011, the revision was rejected, finding the revision to

have been filed beyond the time stipulated in Section 23B of the Act.

The orders of the Sub Divisional Magistrate and the District Collector

were challenged by the petitioner in appeal, before the District Court,

Thodupuzha. The learned District Judge dismissed the appeal by

judgment dated 16.1.2012. Hence, this Civil Revision Petition.

2. Assailing the findings in the impugned orders/judgment,

Sri.T.B.Hood, learned counsel for the petitioner, advanced the

following contentions.

3. The order of the Sub Divisional Magistrate is vitiated, since

the value of the vehicle was fixed without authority. Even though the

Sub Divisional Magistrate is empowered to confiscate the property

seized under Section 23, as per the proviso to Section 23A(4), only

the Collector can fix the value of the confiscated vehicle. As per

Section 2(aa),'District Collector' means, the Collector of the District

and hence, the value should have been fixed by the Collector and not

the Sub Divisional Magistrate. The revisional authority, namely the

District Collector, went wrong in finding the revision to have been

filed beyond the time prescribed in Section 23B. The time stipulated

is 15 days from the date of original order and the District Collector

can condone the delay up to 15 days. The order against which the

revision was filed is dated 18.5.2011. The petitioner had obtained

copy of the order only on 27.5.2011 and the revision was filed on

8.6.2011. Therefore, the revision was well within time and finding to

the contrary, is erroneous. In fact, rejection of the revision, finding it

to have been filed beyond time was held to be wrong by the learned

District Judge. Unfortunately, after entering such finding, the appeal

was dismissed holding on the premise that no purpose will be served

by remanding the case to the District Collector, as no further

evidence, than what was produced before the Sub Divisional

Magistrate, would be forthcoming. Having found the rejection to be

illegal, the learned District Judge committed an illegality in dismissing

the appeal. The District Collector having failed to consider the

revision on merits, the appellate court went wrong in holding that no

purpose will be served by remanding the matter.

4. The learned Government Pleader fairly admitted that, having

found the reason for rejecting the revision to be unsustainable, the

learned District Judge ought to have remanded the matter, rather

than proceeding to dismiss the appeal on merits. It is submitted that

in the event of the matter being remanded by this Court, the

petitioner may be directed to produce the vehicle, if so required.

5. I find substantial merit in the contentions urged. The illegality

in the District Collector having rejected the revision for reason of

delay, is dealt with in paragraph 10 of the appellate judgment

extracted hereunder;

"10. As regards the order of the District Collector is concerned, the District Collector dismissed the revision on the ground that it was filed beyond 15 days of the date of order of the Sub Collector and no valid reason was given for

the delay. It may be mentioned here that the order of the Sub Collector was passed on 18.5.2011 and the revision was filed on 8.6.2011. It is true that it was filed beyond 15 days of the date of order. It is seen from the records that the Sub Collector had communicated the order to the District Collector by reference No.B3-4026/2010 dated 23.5.2011 and that was received in the District Collector's Office on 7.6.2011. But in the appeal memorandum filed before this court it was mentioned by the petitioner that he received the order only on 27.5.2011 that could be possible because the order should have been sent to the party also on the same date on which it was sent to the District Collector and so the party may be able to file the appeal only after receipt of the order and that the time can be reckoned only from that date onwards. But this fact was not considered by the District Collector. Further the District Collector can after hearing the revision petitioner condone the delay for another 15 days but though the revision petitioner appeared in person this aspect has not been considered by the District Collector at all and simply dismissed the revision petition stating that no valid reason was given. So the order passed by the District Collector appears to be not correct as after the date of service of order on the party is taken then the revision was filed within time."

6. As has been rightly contended, having found the reason for

rejection to be unsustainable, the appeal should not have been

dismissed, based on an assumption that no purpose will be served by

remanding the matter. At any rate, the challenge against the original

order to the extent of the Sub Divisional Magistrate having fixed the

value of the vehicle without authority, is liable to be re-considered.

To effectuate such consideration, the order of the Sub Divisional

Magistrate, to the extent of fixing the value of the vehicle at

Rs.5,50.000/- is set aside.

In the result, the Civil Revision Petition is allowed by setting

aside the judgment in C.M.A.No.31 of 2011 of the District Court,

Thodupuzha, order No.E9-45606/10 dated 21.7.2011 of the District