Shihabudheen vs The Secretary
2024 Latest Caselaw 5945 Ker

Kerala High Court

Shihabudheen vs The Secretary on 23 February, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
         THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
 FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
                         WP(C) NO.5525 OF 2024
PETITIONER:

             SHIHABUDHEEN, AGED 38 YEARS
             S/O.MUHMMEDKUTTY, KANAKKANCHERY HOUSE,
             ALIPARAMBA P.O., MALAPPURAM DISTRICT, PIN - 679357
             BY ADVS.
             BABU S.NAIR
             SMITHA BABU


RESPONDENTS:

     1       THE SECRETARY
             KOZHIKKODE MUNICIPAL CORPORATION, MUNICIPAL OFFICE,
             MANANCHIRA, KOZHIKKODE, PIN - 673032
     2       THE SUB DIVISIONAL MAGISTRATE/REVENUE DIVISIONAL
             OFFICER, ERANHIPALAM, KOZHIKKODE,
             KOZHIKKODE DISTRICT, PIN - 673020
             BY SRI.V.KRISHNA MENON
                SMT.DEVISHREE, GOVERNMENT PLEADER


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   23.02.2024,   THE     COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.5525 of 2024                  2



                                  JUDGMENT

The petitioner is the registered owner of a

goods carriage/tanker lorry bearing registration

No.KL-36-D-1063. The said vehicle was seized by

the Health Inspector attached to the Kozhikode

Municipal Corporation on the allegation that it

was used for discharging excreta at a place near a

residential house. Ext.P2 is the seizure mahazar.

After the seizure, a report was sent to the 2 nd

respondent, the Sub Divisional Magistrate, for

initiating proceedings under Section 340B of the

Kerala Municipality Act, 1994 [for brevity, 'the

Act']. According to the petitioner, the seizure is

illegal since it was only on the apprehension of

intention to discharge excreta the vehicle was

seized and no case is made out under Section 340A

or 340B of the Act and those Sections are

attracted only if deposit of rubbish, filth or

excreta is made in water bodies or water sources.

2. Those are matters for the 2nd respondent to

consider in the proceedings initiated under

Section 340B of the Act, 1994. However, taking

note of the fact that the vehicle was seized early

as on 01.02.2024 and to avoid the same from being

rusted and ruined, I am of the view that the

vehicle can be released to the petitioner on

executing a bond to the effect that he will

produce the vehicle as and when required before

the 2nd respondent.

Accordingly, this writ petition is disposed of

with the following directions:

"i. The 2nd respondent shall release

the goods carriage/Tanker Lorry bearing

registration No.KL-36-D-1063 to the

petitioner, on executing a bond for

Rs.2,00,000/-, with two solvent sureties

to the like sum before the 2nd respondent

and on condition that the petitioner will

produce the same as and when required by

the 2nd respondent.

              ii.         If    the     bond       is         executed      as

       directed           above,       the     vehicle              will   be

released within three days from the date

of production of the bond.

iii. The petitioner will not transfer

the vehicle till the 2nd respondent

conclude the proceedings and the

petitioner shall not do any illegal

activity with the vehicle.

Sd/-

MURALI PURUSHOTHAMAN JUDGE sp/23/02/2024

APPENDIX

PETITIONER'S EXHIBITS:-

Exhibit P1 A TRUE COPY OF THE PERMIT IN RESPECT OF THE VEHICLE OWNED BY THE PETITIONER DATED, 26-8-2022 Exhibit P2 A TRUE COPY OF THE SEIZURE MAHAZAR DATED, 1-2-2024 PREPARED BY THE HEALTH INSPECTOR, KOZHIKKODE MUNICIPAL CORPORATION Exhibit P3 A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.24276/2023 DATED, 16-8-2023 OF THIS HON'BLE COURT