IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 30390 of 2009(P) --------------------------------------- PETITIONERS: --------------------- 1. UPPUTHARA GRAMA PANCHAYAT, UPPUTHARA P.O., IDUKKI DISTRICT, REPRESENTED BY ITS PRESIDENT. 2. PIOUS JOSEPH, PRESIDENT, UPPUTHARA GRAMA PANCHAYAT, UPPUTHARA P.O., IDUKKI DISTRICT. 3. SURESH BABU, MEMBER, UPPUTHARA GRAMA PANCHAYAT, UPPUTHARA P.O., IDUKKI DISTRICT. BY ADVS. MR.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, MR.BRIJESH MOHAN, MR.T.R.SADEESAN, SMT.DHANYA CHANDRAN. RESPONDENTS: ------------------------ 1. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, CIVIL STATION, PAINAVU, IDUKKI. 3. THE SUPERINTENDENT OF POLICE, CIVIL STATION, PAINAVU, IDUKKI. 4. THE DEPUTY SUPERINTENDENT OF POLICE, KATTAPPANA. W.P.(C). NO.30390/2009-P: 5. THE CIRCLE INSPECTOR OF POLICE, PEERUMEDU. 6. THE SUB INSPECTOR OF POLICE, UPPUTHARA. 7. THE SUB INSPECTOR OF POLICE, PEERUMEDU. R1 TO R7 BY GOVT. PLEADER MR. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. 'CR' THOTTATHIL B. RADHAKRISHNAN, J. -------------------------------------- W.P.(C) No.30390 OF 2009 -------------------------------------- Dated this the 28th day of October, 2009 J U D G M E N T ~~~~~~~~~~~ The 1st petitioner is the Upputhara Grama Panchayat. The 2nd petitioner is the President and the 3rd petitioner is a member of that Grama Panchayat. This Panchayat has three authorised kadavus, as defined in Section 2(e) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001(herein after referred to as 'the Act'). Regarding yet another kadavu, the matter is pending consideration before this Court. 2. The complaint of the Grama Panchayat is that there is large scale unauthorised mining of sand from Thapasi kadavu, which is one among the kadavus of the Panchayat. It has pleaded that it has material even in the form of video clippings to that effect. The specific allegation is about the operations of the sand mafia. The Panchayat is unable to control the situation and seeks orders for the intervention of the District Collector, W.P.(C) No.30390/2009 2 Idukki, the Superintendents of Police and different police officers under his command. The Director of Panchayat Is also made a party to this Writ Petition. 3. I heard the learned counsel for the petitioner and the learned Government Pleader. 4. The Act in hand was enacted to protect the river banks and river beds from large scale dredging of river sand and to protect their bio-physical environmental system and regulate the removal of river sand and for matters connected therewith or incidental thereto. This legislation was preceded by a notification issued in June, 1993, which dealt with the management of different rivers. The Act was brought into force because it had come to the notice of the Government that there is indiscriminate and uncontrolled removal of sand from rivers cause large scale river bank sliding and loss of property; large scale dredging of river sand disturb the bio-physical environmental system of the river in different degrees. It was found that in public interest it is expedient to provide regulatory W.P.(C) No.30390/2009 3 measures for the protection of river banks and removal of sand from rivers. The Act was intended to take care also of complaints regarding hardship to the employees engaged in construction work due to the executive regulatory orders, which were in force before the Act. Thus, this piece of legislation, ultimately, aim at preserving the environment and applying the principle of sustainable development, balancing the needs of the society to have river sand for different activities. It also takes care of the need of the labour force, which may include even those who are involved in mining river sand. The Act is intended to be operationalised with a long term strategy to provide sustained management of the water bodies, bereft of which, the future generations would be in peril, about which, there can be no doubt. 5. Sustainable development, when sought to be brought up in a regulated manner, unregulated hounding of the natural resources, not only deprives the environment, but also defeats the constitutional goals in terms of the directive principles of State policy, apart from the concept of right to live, including W.P.(C) No.30390/2009 4 right to potable water etc., generated by judicial precedents relatable to Article 21 and also Article 14 of the Constitution of India. The fundamental duties of a citizen enlisted in Article 51A of the Constitution of India enjoins that it shall be the duty of every citizen of India, among other things, to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Compassion is a mental element. It is said to flow from the heart - not, the biological one. One may or may not have it. But, no one can conduct himself, in any manner and annihilating the promotion, protection and improvement of the natural environment. The moment he steps to do that, he is in conflict with the Constitution. In my view, he would not be able even to seek different remedies in law, unless, he, if challenged, shows that he abides by the Constitution. 6. The Land Revenue Department under the Collectorate of each District is given the responsibilities to keep in check, illegal sand mining. Issuance of pass to transport of sand in lorries are thus in place. If there is transportation without such W.P.(C) No.30390/2009 5 passes, the Act provides for confiscation and imposition of fine etc. District wise standardisation of forms is also permissible, if needed. The ultimate requirement is to regulate the methodology of preventing unscrupulous mining of river sand in violation of the laws and ensuring that whatever river sand is available for being utilised, that could be passed on for bonafide use. It has to be remembered that the one, who offers the sand, is Mother Nature. No human being manufactures sand in the river bed. It is the natural consequence of the holistic existence of the five elements and the working of the Nature. All that is permissible is to mine or take, or if I may say, harvest, the product that Mother Nature offers as sand. Any illegal activity in relation to the removal of sand from the river beds or river banks is nothing, but rape of the Nature. She is not liable to be touched beyond what she permits. That will be an affront to her modesty. Forced to the hilt, she may turn out to be turbulent and violent; which may make, not only those who attack her, but also the innocents, run for up. We have seen the swaying perils of Nature, increasing day by day, reflecting on the global temperature and other matters, which by this time should caution each and every W.P.(C) No.30390/2009 6 sane human being to be always vigilant to protect the Nature and to vigorously stand when an affront is seen. 7. The Act in hand provides for the constitution of a District Expert Committee headed by the District Collector, which is empowered in terms of Section 9 to identify the kadavus from which sand removal may be permitted and to fix the total quantity of sand that can be removed, on the basis of expert guidelines by CESS or CWRDM; to control the transportation of sand from a kadavu to another area; to close a kadavu or to open it; to ensure protection of river banks and keep them free from encroachment; to consider different other matters and ensure that the Kadavu Committees of the District are performing their powers and functions and to advise the Government on the measures to protect the bio-physical environmental system of the river banks. The District Expert Committee is also empowered to recommend to the Government, for the necessity to ban sand removal from any river or kadavu during any season of the year and is bound to carry out the directions given by the Government from time to time and to advise on any other matters for carrying out the provisions of the Act. W.P.(C) No.30390/2009 7 8. Once the District Expert Committee discharges its duties and responsibilities in terms of what is noted above, the Kadavu Committee headed by the Panchayat President acts, essentially, as the Executing Agency, thereby operationalising the decision of the District Expert Committee, in so far as the specific kadavus are concerned. The Act, therefore, provides a wholesome authority to regulate activities in relation to removal of sand and to ensure the protection of the river banks and river beds. 9. There is also great room for executive exercise in the form of governmental directions and directions by the District Expert Committee. This is so conceived because, no legislation is expected to provide every rule to regulate every situation, particularly, in matters, where the regulations required to be applied would change, having regard to the local conditions, local problems etc. The manner, in which the local authorities are given the power in terms of the rules, is only to supervise. They do not have the power to physically prevent or to take action. This is what appears from a superficial reading of Rules W.P.(C) No.30390/2009 8 16 and 17 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 (hereinafter referred to as 'the Rules'). Those rules require a deeper look. The power to make those rules are given as per Section 26 of the Act. Sub-section (1) of that Section provides that the Government may, by notification in the Gazette, make rules to carry out all or any of the purposes of this Act. It does not enumerate any particular matter, which alone could be regulated by the rules. The intention of the rules as a whole, shall, therefore, be the carrying out of all or any of the purposes of the Act. The purposes of the Act, as already noticed, are to protect river banks and river beds; to protect their bio-physical environmental system and to regulate the removal of river sand. Those objects has to be achieved by the working of the Act and Rules in a synchronized manner. The purposive approach in interpreting the bunch of provisions contained in the Act and Rules has necessarily to lead to the deliverance of the objects sought to be achieved by the Act. This is more particularly so, because there is nothing in the Rule, which in conflict with the Act. If that were so, the powers and functions of the Secretaries of the Local Self Government W.P.(C) No.30390/2009 9 Institutions as enumerated in Rule 16 of the Rules include the power to implement the ban imposed by the Government or District Collector on sand mining and to implement the decisions of the Kadavu Committees. The powers of the Local Self Government Institutions, as enumerated in Rule 17 of the Rules, include the power to ensure the compliance of restrictions imposed on sand mining in the Act and Rules. The Local Self Government Institution is duty bound and empowered to follow and implement the instructions given by the Government, the District Expert Committee and the District Collector, from time to time. The Local Self Government Institution is bound to supervise the sale and auction of sand from all kadavus. It is even empowered to assist the Collector in confiscating implements, boats etc. used for unauthorised sand removal. The power of supervision envisaged by those rules is not merely the power to apply one among the five senses of perception and merely to 'see' what is happening. The decision making process as to whether a particular administrative or executive action shall be taken or not has to be arrived at by the Local Self Government Institution or its Secretary, exercising the authority W.P.(C) No.30390/2009 10 of supervision, if, it believes that the Act, Rules or directions of the Government, District Collector, District Expert Committee or the Kadavu Committee is/are being violated; or considers the violation so probable that a prudent man ought, under such circumstances, to act under the supposition of the imminent likelihood of the violation of the law and executive directions governing the field. The power of supervision given under Rules 16 and 17 include the power of aiding in confiscation. This necessarily shows, the availability of the police power of the State with the Local Self Government Institution and the Secretary. Therefore, even the staff of Local Self Government Institution are not only entitled and empowered, but duty bound to do the best in their command to even physically obstruct the unauthorised removal of sand, in case of situations, where the police help is not readily available. To support this conclusion, it also needs to be remembered that in a given situation, every citizen has also the power of arrest and it is the duty of the public servants to prevent the commission of offences to the extent possible and to report promptly the occurrence. Section 252(1)(b) of the Kerala Panchayat Raj Act, 1994, (herein after W.P.(C) No.30390/2009 11 referred to as 'the K.P.R. Act') provides that it shall be the duty of every police officer to assist the Local Self Government Institution, if President or the Secretary demands in writing for such an aid and it shall be lawful for the President and the Secretary to require the intervention of police. Sub-section (2) of Section 252 makes the refusal or omission of any police officer to perform such duty, an offence punishable under Section 41 of the Kerala Police Act, 1960. The provision in Section 252 (1)(b) for an application for police help in writing may be relevant only to saddle an erring police officer with the criminal liability referable to Section 252(2) of the K.P.R. Act read with Section 41 of the Police Act. It does not mean that the police officer is not otherwise duty bound to immediately act even on an oral request, either through a messenger or over telephone. The law does not conceive that information should come to the police in writing, even regarding the commission of cognizable offences. Therefore, to ignite the preventive police power, it is unnecessary for the police to wait for a written request of the LSGI authority. The police has to immediately rush and ensure that necessary protective action is taken. The police have W.P.(C) No.30390/2009 12 themselves a duty to do so, because the violations of the provisions of the Act would result in offences and prevention of commission of offences is within the powers of the police, primarily, for the reason that it is the police force of a State and more importantly, because those duties and responsibilities are referable to the provisions of the Code of Criminal Procedure 1973 and the provisions of the Police Act. 10. With the aforesaid in view, before this Court is an LSGI which falls within the framework of Part IX of the Constitution incorporated by amendment to achieve the sustenance of Panchayat Raj System, as the grass root level institution of management, in the concept of decentralisation of power. The Panchayat has been driven to the state of compelling it to request for judicial intervention in exercise of authority under Article 226 of the Constitution of India to direct the police to, promptly, take action. I further proceed with no assumption that the police has refused to act; may be, it is a case of omission to act. W.P.(C) No.30390/2009 13 11. When the CESS or CWRDM gives its expert opinion, the District Expert Committee has to modulate the different aspects of removal of sand during a particular season. This can be guided even by regulatory executive orders by the Government. I do not find the absence of power for the District Collector and the District Expert Committee to modulate its own methodology, including by guidelines, to ensure that there is regulated and transparent method of removing the sand and also to ensure that there is equal distribution of such material in a regulated manner. 12. The Constitution envisages securing to all its citizens, among other things, economic justice. Among the directive principles of state policy, Article 38 provides the guiding beacon that State shall try to promote the welfare of the people by securing and protecting, as effectively as it may, a social order, in which, justice, social, economic and political, shall inform all the institutions of the national life. The State is required to strive to minimise the inequalities. Article 39(b) and (c) enjoin that the State shall, in particular, direct its policy towards W.P.(C) No.30390/2009 14 securing that the ownership and control of material resources of the community are so distributed, as best to sub-serve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. This principle ought to lie embedded in every action taken by the Government, the District Expert Committee, the Kadavu Committee, the LSGI and their officials in the matter of distribution of sand that is collected and to ensure that no sand is collected by any illegal means. 13. Viewed in the afore-conspectus, Section 9(j), which obliges the District Expert Committee, to carry out the directions given by the Government from time to time, necessarily, indicates the legislative sanction for the Government to issue directions from time to time. Adverting to Section 27, the Government have also the power to issue directions to take further proceedings on the basis of reports, files etc. relating to a District Expert Committee or a Kadavu Committee or a local authority. While the power under Section 27 is to be exercised qua a particular District Expert Committee, Kadavu Committee W.P.(C) No.30390/2009 15 etc., the Government have the inbuilt power and the duty to issue directions of executive nature in relation to the management of the rivers of the entire State. This duty is salutary in terms of the Constitution. 14. There is no inhibition in the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, in any manner, abridging the executive power of the State to issue directions, unless they would contradict the provisions of the said legislation. Therefore, the Government are not only empowered to issue directions in the form of executive orders, but are also enjoined and duty bound to ensure that the District Expert Committees act in terms of those directions, having regard to the statutory obligation of those Committees as referable to Section 9(j). 15. With the aforesaid view, it needs to be noticed that, in the case in hand, the District Collector has not, as of now, issued any directions for the regulation of the mining or for the sale of the river sand for the current year. It is required to be issued on W.P.(C) No.30390/2009 16 a year to year basis. Uniform regulatory directions may or may not be feasible for the entire State. This is why, there is a rule for District level and Kadavu level management of the matter. 16. In 2007, the District Collector, Thrissur had issued certain directions laying down the format of guidelines for booking river sand purchase in a Single Window Clearance Mechanism. That was challenged before this Court in W.P.(C) No.9306/2007. At the stage of admission, the fundamental issue raised was that the District Collector did not have the power to issue such guidelines. Going by the provisions, which have noticed above, the power is available with the District Expert Committee. The District Collector is the head of that Committee. The matter is not one that relates to anything, but the management of the environment. Even if, the District Collector issued orders of executive nature, it will always be open to the District Expert Committee to ratify it. The procedure of ratification is an inbuilt administrative mechanism for the smooth functioning of any establishment. Hearing W.P.(C) No.9306/2007 for admission, an interim order was issued on W.P.(C) No.30390/2009 17 27.3.2007 to the following effect. ................... ......................... ................... .................. ......................... .................. “2. The fundamental issue raised in this writ petition is the authority of the District Collector to issue Ext.P1. It is argued that the authority under Act 18 of 2001 is the Kadavu committee or the Panchayat. Whatever that be, the Panchayat has not objected to the impugned Ext.P1. 3. However, having considered the merits of the matter and the interest to ensure that the ground realities are addressed, it is directed that, as of now, the terms of the impugned Ext.P1 will be treated as part of this order and will govern all concerned as directions issued by this Court to govern the movement of sand, in public interest. The question of authority of the District Collector is left open for consideration in this writ petition.” The document referred to as Ext.P1 in that order are the guidelines issued by the District Collector of Thrissur for the year 2007. W.P.(C) No.30390/2009 18 17. Thereafter, the petitioner in that case appeared to have obtained the disposal of that Writ Petition on 4.7.2008 on the ground that, if he still had any grievance left, he will approach the District Collector. 18. As of now, neither the Government nor the District Collector of Idukki has issued any guidelines, which will govern the District of Idukki. Therefore, there can be no mining of river sand from any part of rivers flowing through the Idukki, particularly, within the territory of the petitioner, Panchayat. 19. For the aforesaid reasons, this Writ Petition is ordered directing that the District Collector, District Superintendent of Police and all police officers under the command of the 3rd respondent, shall ensure that there is no removal of sand from any portion of any river flowing within the territory of Upputhara Grama Panchayat, in particular, Thapasi kadavu of Periyar river, in relation to which the Writ Petition is filed. This prohibition and enforcement will continue with strict vigil, till the District Expert Committee considers the matter and issues guidelines providing W.P.(C) No.30390/2009 19 for an appropriate regulatory mechanism of distribution of sand in the light of what is stated above and taking a cue even from the guidelines that were framed in 2007 for the Thrissur District, if necessary. The learned Government Pleader will ensure that the 2007 guidelines of Thrissur, which was Ext.P1 in W.P.(C) No.9306/2007, a copy of the interim order in that case and a copy of this judgment shall gain the attention of the Chief Secretary to the Government of Kerala, the Principal Secretary to the Government of Kerala in the LSGI Department and the 1st respondent, Director of Panchayats for appropriate action. The District Collector, Idukki, will ensure that the District Expert Committee is convened, at the earliest, having regard to the urgency of the situation and the matter is thoroughly gone into and decisions issued, promptly. The Writ Petition is ordered accordingly. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) ps