THONIKKADAVATH SHOUKATHALI Vs. STATE OF KERALA

JUDGEMENT

(1.) Not what the ideal law ought to be -- not even whether the provisions in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'the Act') are constitutionally valid and proper; but only ascertainment of the binding law which Subordinate Courts and functionaries now have to follow is the short question, but the big challenge, before me in these cases.

(2.) The state of the law -- substantive and procedural, in respect of seizure / confiscation of vehicles under the Act and the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 (for short 'the Rules') leaves very little to be desired. It is perhaps a very sad commentary on the system that the controversy as to whether the Act and the Rules contemplate confiscation or mere seizure of the vehicles continue even now without authentic resolution. S.23 of the Act has the heading 'confiscation of vehicles'; but the body of the Section speaks of only 'seizure'. The conflict between the Malayalam and the English versions of the Act and the Rules, though pointed out by the Courts from early days, continues even now. The law wing of the State Government must hang its head down in shame that this unsatisfactory state of the law continues even now though this Act was enacted in 2001 and the Rules were promulgated in 2002. The amount of time, energy and resources that the Courts, litigants and the State have been forced to waste on account of such unsatisfactory state of the law is huge and enormous. Every day in this jurisdiction before this Court a number of petitions come up raising claims for release of vehicles and complaining of non release by the Magistrates. The learned counsel submit that unscrupulous public officials are taking advantage of the ambiguity of the law and are resorting to corrupt practices. But the system remains unmoved. The opportunity for the unprincipled functionaries to indulge in corrupt practices taking advantage of the ambiguity of law should not be afforded by any system wanting good governance. All this does not appear to have triggered the State to take necessary remedial action. The learned Advocate General and the learned Director General of Prosecutions have been requested to appear and explain They were requested to persuade the powers that be to undertake the necessary exercise to bring clarity and certainty into the law on the subject. Nothing has been done though sufficient time has been granted.

(3.) In these petitions, there is no challenge before me against the constitutional validity on the ground that the law relating to confiscation in the Act and Rules is 'imperfect, ineffective, vague, unworkable and expropriatory' in nature as indicated by the Hon'ble Mr. Justice V. Ramkumar in Ahammed Kutty v. State of Kerala, 2008 (1) KHC 868 : 2008 (1) KLT 1068 : 2008 (1) KLD 382 : 2008 (1) KLJ 809. These petitions relate only to cases where seizure has been effected by the police or revenue officials of vehicles alleging violation of the provisions of the Act and Rules. In some cases seizure has been effected by the police while in some others such seizure has been effected by the revenue officials. In some cases crimes have been registered. In some others crimes have not been registered. In some the seizure of the vehicle has been reported the Learned Magistrate; whereas in some others seizure has been reported only to the District Collector. In some cases seized vehicles have been produced before the Magistrate. In some others they have not been so produced. In some cases such vehicles produced before the Court have been got released by the officials and seizure has later been reported to and / or the vehicles have been produced before the District Collectors concerned.