P.V. Anumood vs State of Kerala and Others

Antony Dominic, J.—The Appellant/Petitioner is the registered owner of a vehicle bearing Registration No. KL-04/V 7750. On 11.4.2010 the vehicle of the Appellant was seized by the 5th Respondent on the allegation that it was used for transportation of river sand in violation of the provisions contained in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Thereafter a notice was issued to the Appellant and he was heard. By Ext.P5 order passed by the second Respondent on 23.6.2010 the vehicle was held to be liable for confiscation. It was further ordered that on the Appellant remitting its value, the vehicle will be released to him. It is challenging the said order the writ petition was filed. The learned Single Judge dismissed the writ petition by judgment dated 7th July, 2010. Aggrieved by the said judgment, this writ appeal is filed.

Although several contentions are raised on behalf of the Appellant, as we had already noticed, Ext.P5 order was passed by the second Respondent on 23.6.2010. Admittedly, with effect from 14.6.2010 the Act was amended and under the amended Act the power u/s 23 has been conferred on the Sub Divisional Magistrate. That being so, on 23.6.2010, the second Respondent could not have exercised the power u/s 23 of the said Act. Therefore, Ext.P5 is an order passed without jurisdiction and for that reason itself Ext.P5 order deserves to be set aside and we do so.

For the aforesaid reason, we set aside the judgment of the learned Single Judge and allow the writ petition by quashing Ext.P5 order passed by the second Respondent. We direct that on the production of a copy of this judgment the second Respondent will transmit the papers concerning the proceedings against the vehicle in question to the jurisdictional Sub Divisional Magistrate who shall issue notice to the Appellant, hear him and then pass fresh orders in accordance with law. It is clarified that this Court has not expressed anything on the merits of the issue and it is for the Sub Divisional Magistrate to consider the issue and pass appropriate orders. The orders as above shall be passed by the concerned Sub Divisional Magistrate, at any rate, within two months from the date of production of a copy of this judgment.

Writ appeal is disposed of as above.