Biju P vs The Geologist
2023 Latest Caselaw 1501 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE N.NAGARESH
    FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                       WP(C) NO. 363 OF 2023
PETITIONER

             BIJU P
             S/O. MUKUNDAN, AGED 43 YEARS,
             PADANNAYIL HOUSE, KARIMBANAPALAM,
             VATAKARA, KOZHIKODE DISTRICT PIN - 673105]

             BY ADV K.RAKESH

RESPONDENTS

    1        THE GEOLOGIST
             ERANHIPAALAM, CIVIL STATION,
             PALATTUTHAZHAM,KOZHIKODE DISTRICT
             PIN - 673020

    2        THE TAHSILDAR
             TALUK OFFICE, MINI CIVIL STATION,
             VATAKARA, KOZHIKODE DISTRICT
             PIN - 673101

    3        THE VILLAGE OFFICER
             NADAKKUTHAZHA, KOZHIKODE TALUK,
             KOZHIKODE DISTRICT
             PIN - 673104

             BY GOVERNMENT PLEADER SMT.VIDYA KURIAKOSE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.363 of 2023
                                  2



                          JUDGMENT

Dated this the 20th day of January, 2023

The petitioner, who is the registered owner of JCB

bearing registration No.KL18-G-2153, is before this Court

seeking to get the custody of his vehicle.

2. The petitioner states that his JCB was seized by the

3rd respondent-Village Officer on 06.12.2022, alleging that it

has been used for transportation of red earth. The petitioner

submits that JCB is an excavator which cannot be used for

transportation of red earth as alleged in Ext.P1 Mahazar. It is

evident that Ext.P1 Mahazar is prepared by filling up relevant

columns in a template and all these facts would clearly show

that the siezure is absolutely illegal and unreasonable. The

petitioner therefore prays to direct respondents 2 and 3 to

release the JCB forthwith to the petitioner.

3. The Government Pleader entered appearance and

resisted the writ petition. The Government Pleader submitted

that an error occurred in preparing the Mahazar. In the

Mahazar it was stated that the JCB was used for WP(C) No.363 of 2023

transportation of red earth, whereas it was actually used for

excavation. In view of the said error, the Mahazar was

corrected. That by itself will not give a reason for the petitioner

to get the JCB released.

4. The Government Pleader submitted that the JCB was

used for illegal excavation. Under the Mines and Minerals

(Development and Regulation) Act, 1957, any equipment or

tool used for illegal raising or transportation of minor minerals

can be seized. Therefore, there is no illegality in the seizure. If

the petitioner wants custody of the vehicle, the petitioner has

to approach the Jurisdictional magistrate.

5. I have heard the learned counsel for the petitioner

and the learned Government Pleader representing the

respondents.

6. The specific case of the petitioner is that his JCB was

not used for any illegal excavation or transportation of red

earth. The Mahazar initially prepared shows that the excavator

was used for transportation. An excavator cannot be used for

transportation as it is basically an instrument for lifting soil and WP(C) No.363 of 2023

earth.

7. From the pleadings, it is evident that the petitioner's

JCB was seized on 06.12.2022 when it was found involved in

excavation of red earth. It is the case of the Government

Pleader that there was no permit whatsoever for excavating

and transporting the red earth.

8. Section 21(4) of the Mines and Minerals

(Development and Regulation) Act, 1957 provides that

whenever any person raises, transports or causes to be raised

or transported, without any lawful authority, any mineral from

any land, and, for that purpose, uses any tool, equipment,

vehicle or any other thing, such mineral, tool, equipment,

vehicle or any other thing shall be liable to be seized by an

officer or authority specially empowered in this behalf.

Therefore, if the petitioner's JCB is found involved in illegal

raising or transportation of minor mineral, it is liable to be

seized.

9. The petitioner urged that in the Mahazar prepared

initially, the allegation is that the petitioner's JCB was used for WP(C) No.363 of 2023

transportation. Since a JCB cannot be used for transportation

of any materials, the petitioner's JCB is liable to be released. It

has come out on record that the description of the petitioner's

vehicle in the Mahazar that it was used for transportation, was

an error and what was intended was that the petitioner's JCB

was used for raising minor minerals illegally. The respondents

have made corrections/changes to the Mahazar. Therefore,

the petitioner cannot be heard to contend that the petitioner's

vehicle should be released in view of the erroneous Mahazar.

10. In view of all the facts as stated above, I am not

inclined to pass any orders granting interim custody of the

vehicle to the petitioner. However, the petitioner will be at

liberty to approach the Jurisdictional Magistrate Court to get

the interim custody of the vehicle.

In view of the above, the writ petition is disposed of

directing respondents 1 and 3 to report seizure of the vehicle

to the Jurisdictional Magistrate concerned forthwith, within a

period of seven days, if it is not already reported. If the

petitioner moves the Jurisdictional Magistrate Court, I am sure WP(C) No.363 of 2023

that the Jurisdictional Magistrate will consider the aspects

projected by the petitioner while considering the application for

interim custody.

Sd/-

N. NAGARESH, JUDGE smm WP(C) No.363 of 2023

APPENDIX OF WP(C) 363/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE SEIZURE MAHASSER PREPARED BY THE 3RD RESPONDENT DATED 26-12-2022