IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WA.No. 3005 of 2007 --------------------- AGAINST THE JUDGEMENT IN WPC.35151/2007 Dated 28/11/2007 .................... APPELLANT/ PETITIONER ------------------------ ISMAYIL, S/O.ENI, ULLADAN HOUSE, OORGATTIRI, MALAPPURAM. BY ADV. SRI.BABU S. NAIR RESPONDENTS/RESPONDENTS -------------------------- 1. DEPUTY TAHSILDAR, ERANAD TALUK, MALAPPURAM DISTRICT. 2. SUB INSPECTOR OF POLICE, ARICODE POLICE STATION, ARICODE P.O., MALAPPURAM DISTRICT. 3. DISTRICT COLLECTOR, MALAPPURAM DISTRICT. BY ADDL.ADVOCATE GENERAL ADV. MR. RENJITH THAMPAN BY GOVERNMENT PLEADER ADV. MR. HANAL KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2010, ALONG WITH WA NO. 201 OF 2008 AND CONNECTED CASES , THE COURT ON 14.03.2011 DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. ............................................................................................ W. A. Nos. 3005 OF 2007, 201, 300, 1628 of 2008 & 648 & 1128 of 2009 & 998, 999, 1004, 1488, 1493, 1584, 1911 & 1945 of 2010 & W.P. (C) Nos. 4847 OF 2008 ........................................................................ Dated this the 14th March, 2011 J U D G M E N T P.R. Ramachandra Menon,J. Constitutional validity of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 ('Sand Act' in short); the Rules framed under Sec. 26 of the Said Act and the relevant provisions of the Ordinance bearing No.38/10 whereby the provisions regarding the confiscation and the further steps have been detailed and incorporated as per Sections 23 and 23A to 23D, is under challenge in most of these cases, particularly the Appeals and some of the writ petitions; while the other cases have been tagged on with the former group. The main contention is that, it is beyond power and competence of the State, as the entire topic with regard to the W. A. Nos. 3005 OF 2007 and connected cases 2 legislation for minor minerals has been taken over by the Union as enlisted under Entry No.54 of List I; giving no room for the State to legislate on the same subject with reference to Entry No.23 of List II of the 7th Schedule of the Constitut of India. 2. The challenge raised before this Court takes its origin from the orders passed by the concerned District Collector of various districts, pursuant to seizure of the vehicles, in which the river sand was being transported, contrary to the relevant provisions of the 'Sand Act', arriving at a finding in this regard and making it known under Rule 27(3) that the vehicle could be released on payment of the amount, equal to the value of the vehicle as fixed by the District Collector to the 'River Management Fund' (along with the fine in some cases); lest it should lead to further proceedings. 3. In the concerned Writ Petitions which form the subject matter of the relevant Writ Appeals, the challenge raised by the petitioners, with regard to the power and competence of the District Collector to order confiscation of the vehicles and also as to the power and competence of the State to pass the 'Sand Act' and Rules thereunder, which are allegedly ultra vires to the 'MMDR Act' [The Mines and Minerals (Development and Regulation)Act,1957] and Rules made by W. A. Nos. 3005 OF 2007 and connected cases 3 the State invoking the power under Section 15 of the said Act (The Kerala Minor Mineral Concession Rules, 1967) was repelled by the learned Single Judge, holding that the validity of the 'Sand Act'/Rules stands already upheld by the decision rendered by this Court as reported in Subramanian vs. State of Kerala (2009(1) KLT 77). The appeals have been preferred stating that the observations made by the learned Single Judge are not correct and that the decision rendered by the learned single Judge in 2009(1) KLT 77 (cited supra) requires re-consideration. 4. The arguments on behalf of the appellants/writ petitioners were led mainly by learned Counsel Mr.Sunny Mathew and Mr. Babu S. Nair, while the case of the respondents/State was asserted by Mr. Renjith Thampan, the learned Addl. Advocate General. Both the sides were heard at length, with reference to the facts, law and the judicial precedents cited in support thereof. 5. As pointed out already, the challenge raised from the part of the appellants/ petitioners is mainly that the 'Sand Act'/Rules is beyond the legislative competence of the State, in view of the 'MMDR Act' enacted to provide development and regulation of mines and W. A. Nos. 3005 OF 2007 and connected cases 4 minerals under the control of the Union by virtue of Entry 54* of List I of 7th Schedule of Constitution of India. It is also pointed out that the power of a State to legislate on the subject involving mines and minerals as provided in Entry 23** of List II of 7th Schedule, is obviously subject to Entry 54 of List I and since the Parliament has already declared the expediency in public interest to have the legislation and control to be vested with the Centre ( by virtue of the declaration under Section 2 of the MMDR Act), the entire topic has been taken over by the Central Government, which is very much inclusive of 'minor minerals' as well (as defined under Section 3 (e) of the MMDR Act) and as such, nothing is left out to be legislated by the State, resorting to Entry 23 of the State List (List II of 7th Schedule), ----------------------------------------------------------------------------- 54* Regulation of mines and minerals development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. 23** Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. W. A. Nos. 3005 OF 2007 and connected cases 5 submits the learned Counsel for the appellants/petitioners. Reliance is sought to be placed mainly on the decisions rendered by the Apex Court in Baijnath Kedia vs. State of Bihar (AIR 1970 SC 1436), India Cement Ltd vs. State of Tamilnadu [(1990) 1 SCC 12] & Orissa Cement Ltd. Vs. State of Orissa (AIR 1991 SC 1676). It is further contended that, though the preamble of the 'Sand Act' refers to protection of river banks/ river beds, from large scale dredging of river sand and to protect their bio-physical environmental system, the Statute essentially governs the removal of river sand and the matters connected therewith and hence it is a colourable exercise of power. Reliance is sought to be placed on the decision rendered by the Apex Court in Saurashtra Cement and Chemical Industries vs. Union of India (AIR 2001 SC 8) as well. 6. It is argued from the part of the learned Counsel for the appellants/petitioners that, even if the legislative competence is held in the affirmative, referring to some or other source of power to enact the 'Sand Act' and the rules, the relevant provisions, particularly as to the 'confiscation' and to impose fine are beyond W. A. Nos. 3005 OF 2007 and connected cases 6 the competence, power and jurisdiction of the Revenue authorities. It is stated that confiscation can only be pursuant to an order of the competent Court and no such power can be exercised by the District Collector without an order of conviction based on evidence adduced before the Court, upon a 'complaint in writing' preferred by the 'authorised officer' in this regard. Referring to the mandate under Section 21 of the Central Act and Rule 59 of the Kerala Minor Mineral Concession Rules ( framed by the State invoking the power under Sec.15 of the 'MMDR Act'), it is contended that no Court shall take cognizance of any offence punishable under the said Rules, except upon a complaint in writing made by a person authorised by the State Government in this behalf as published in the Gazette and since such power is exclusively vested upon a competent Court, the Scheme of the 'MMDR Act/Rules' (framed by the State under Section 15 - 'KMMC Rules' in short) cannot be watered down/modified/varied in any manner by the State conferring such power upon the revenue authorities, substituting or dispensing with the role of the Court in this regard. 7. It is contended that the revenue authorities do not have W. A. Nos. 3005 OF 2007 and connected cases 7 the power to impose any 'fine' or 'imprisonment' as punishment, which power is vested with the Court. With reference to the Central Act (MMDR Act) and 'KMMC Rules' made by the State, the learned Counsel for the appellants/petitioners further submits that the MMDR Act/Rules form a self-contained and exhaustive code, so as to deal with the necessity for obtaining the requisite permits/passes for raising or removal/transportation of the minor minerals and also as to the consequences to follow, in case of any violation. Specific reference is made to Section 21 of the 'MMDR Act' prescribing the penalties and also to Rule 58 of the Kerala Minor Mineral Concession Rules in this regard. It is stated that the penalty prescribed under Section 20 of the 'Sand Act' is rather otiose, in view of the position already taken care of by the 'MMDR Act'/KMMC Rules. Similarly, it is contended that by virtue of Section 21(4A) of the Central Act, Section 23 of the State Act (now re- numbered as Section 23A in Ordinance 38/10) providing for confiscation is 'non est'. Reliance is sought to be placed on the decision reported in AIR 2004 SC 2647 (Constitution Bench) (Association of Natural Gas vs. Union of India.), particularly paragraph 41 and 43 by the learned Counsel Mr. Babu S. Nair, who W. A. Nos. 3005 OF 2007 and connected cases 8 made the submissions in this regard. 8. In response to various contentions raised from the part of the appellants/petitioners, the learned Addl. Advocate General submits that the idea and understanding of the appellants/petitioners as to the scope of the 'Sand Act/Rules' and the area occupied by the 'MMDR Act' with the rules framed under Section 15 thereunder, are quite wrong and misconceived and that they operate in two entirely different spheres. It is pointed out that the 'Sand Act', as discernible from the preamble itself is an Act to protect the river banks and river beds from large scale dredging of river sand and to protect their biophysical environment system and regulate the removal of river sand and for matters connected therewith or incidental thereto; whereas the 'MMDR Act' ( Act 67 of 1957) is an Act to provide for the development and regulation of mines and minerals under the control of the Union. Referring to the necessity to preserve the virtues of Nature, applying the Public Trust Theory and Precautionary Principle and also the specific observations of the Apex Court in M.C. Mehta vs. Kamal Nath [(1997)1 SCC 388] and in M.C. Mehta vs. Union of India and W. A. Nos. 3005 OF 2007 and connected cases 9 others [(2004) 12 SCC 118], it is pointed out that the purpose of the enactment made by the State stands entirely on a different pedestal, which is essentially to protect the river, river banks and bio-physical environment, while the reclamation of river sand is incidental, in turn, to be regulated. It is also stated that unlike the mining activities contemplated under the 'MMDR Act' or the Rules framed thereunder, the reclamation of river sand and regulatory measures are in respect of the permissible activities which could be pursued by the local authorities who are the owners; the rivers (which term is inclusive of river beds) being vested with the concerned local authorities by virtue of Section 218 of the Kerala Panchayat Raj Act and Section 208A of the Kerala Municipality Act. The right of the petitioners/appellants arises only on the sale of the river sand by the concerned local authorities, on the strength of valid passes and subject to control and regulatory measures exercised by Kadavu Committee/District Expert Committee etc . 9. The learned Addl. Advocate General, with reference to the legislative history, submits that this Court had time and again W. A. Nos. 3005 OF 2007 and connected cases 10 alerted the Government as to the necessity to bring about sufficient regulatory measures to protect the rivers/river banks/environment from ecological degradation/diversion/drying out and it was accordingly, that appropriate Government Orders were issued in 1993 followed by other relevant orders in the due course. Later, specific directions were given by a Division Bench of this Court as per the decision reported in 2002(1) KLT 723 (Association for Environment Protection (Regd. ) vs. State of Kerala). It was taking note of all these turn of events that the State badly felt the necessity to bring about an exhaustive enactment to protect the rivers/river banks and the bio-physical environment system, regulating the removal of the river sand in a systematic and scientific manner, on the recommendation of the Expert Committee to be constituted in this regard. The 'Sand Act' was enacted by the State providing for the constitution of Expert Committees like 'District Expert Committee' (to be constituted with various officers/authorities from different fields as mentioned in clauses (a) to (o) of section 3) and 'Kadavu Committee' , (consisting of different members specified under clause (a) to (i) of Section 4), simultaneously prescribing the specific powers of the said W. A. Nos. 3005 OF 2007 and connected cases 11 Committees as provided under Section 9 and 11 respectively of the Act. Reference is also made to the provisions like S.14 stipulating the control on the sand price;. Sec. 15- obligations of the Local authorities to maintain the Kadavu or river banks in safe condition; Sec. 16 - River Bank Development Plan; Sec.17- River Management Fund and issuance of passes; Section 19- providing to transfer the funds collected by the District Collector to River Management Fund; Sec. 29- Sand auditing, enabling the Government to ensure protection of every river, by providing for periodical measurement of the quantity of sand available for removal by such methods and the manner as may be prescribed. Further reference is made to other relevant provisions as well and it is asserted that the source of power for the said enactments, is mainly referable to Entry 17 of List II of 7th schedule, also read with Entries 5 and 23 of the very same List . Referring to the scope of the 'pith and substance' theory as explained by the Apex court in Union of India vs. Shah Goverdhan L. Kabra Teachers' College (2002 (8) SCC 228) and the Entry 29 of 11th Schedule as to the necessity for maintenance of community assets coupled with powers and responsibilities of the local authority/Panchayat under W. A. Nos. 3005 OF 2007 and connected cases 12 Article 243G of the Constitution of India, the learned Addl. Advocate General submits that the State enactment is perfectly within the four walls of law and the decision rendered by the learned single judge of this Court in 2009(1) KLT 77 (cited supra), sustaining the validity of the Act/Rules thereunder, does not call for any interference. 10. With regard to the contentions of the appellants/petitioners that there cannot be any 'Confiscation' without an order of conviction by a Court of law and also as to the power and procedure under section 21(4A) of the 'MMDR Act (allegedly making the power and procedure under Section 23 of the 'Sand Act' non est), the learned Addl. Advocate General submits that the above two provisions are not similar and that they do not operate in the same field. While Section 21(4A) is rather of criminal in nature ( to be pursued by a Magistrate on a complaint preferred by the authorised officer in writing), the power and procedure under Section 23 (now substituted by Sec.23A of Ordinance 38 /2010) are quasi civil proceedings, which could be pursued by an Executive Magistrate/Sub Divisional Magistrate without complaint and W. A. Nos. 3005 OF 2007 and connected cases 13 irrespective of the fact whether prosecution has been initiated or not. It is also pointed out that unlike Section 102 of the Cr.P.C., no report needs to be filed before the Magistrate in the case of the latter and the role of the Magistrate comes into picture only later. Under the 'Sand Act', the matter could be compounded even before filing any complaint by the authorised officer before the competent Court. This is a markable deviation from other statutes like Section 22 (2) of the Drugs and Cosmetics Act, Section 53 (A)(2) of the Kerala Abkari Act, Section 52 (2) of the Forest Act etc. where a report is to be preferred before the Magistrate on seizure of the property/vehicle; to be followed by the consequential proceedings. Even under the MMDR Act, no such report needs to be made before the Magistrate except under sub section 4 of section 22. Reference is made to AIR 2004 SC 2915 (Karnataka Rare Earth vs. Sr. Geologist, Dept of Mines and Geology).(Paragraph 7 ), 2004 (4) SCC 129 (State of W.B. and others vs. Sujit Kumar Rana) (paragraphs 36 and 43); the decision rendered by a Division Bench of this Court in Moosakoya vs. State of Kerala (2008(1) KLT 538) (paragraph No. 3 and 4), and the decision of a learned Judge of this Court reported in 1999 (2) KLT 836 (Sasidharan vs. W. A. Nos. 3005 OF 2007 and connected cases 14 Forest Range Officer) (paragraph 13) 11. With reference to Sec. 21(4) of the 'MMDR Act', the learned Addl. Advocate General submits that no notification has been issued by the Central Government notifying the officer or authority specifically empowered to seize the material/tools/vehicles on contravention of the statutory prescription and that similar lacuna, inadequacy and inapplicability is very much there in the 'MMDR Act' and also in the Rules framed by the State under Section 15 of the said Act, which in turn do not serve the situation to meet the requirement as taken care of by the 'Sand Act'/Rules. Even if any such notification has been issued by the Central Government under sub section (4) of Section 21, it is argued that the situations contemplated under the two enactments are entirely different and that there is no encroachment by the State to the field of the Union in any manner. It is also pointed out that, though power is conferred on the State Government to make rules for 'preventing' illegal mining, transportation and storage of minerals by way of Sec. 23C (of the MMDR Act), such power does not provide for any 'confiscation' and that the power of 'confiscation' is provided W. A. Nos. 3005 OF 2007 and connected cases 15 only on committing the offence, when a complaint has to be filed before the concerned Magistrate and 'confiscation' can only be as ordered by the Court. Similarly, reference is also made to sub rules (3) and (4) of Rule 58 dealing with the 'penalties' in the Kerala Minor Mineral Concession Rules, 1967, pointing out that the said rules only refer to 'seizure' and no power of 'confiscation' is provided anywhere therein, in respect of a Minor Mineral. 12. Referring to the observations made by the learned Single Judge in 2009 (1) KLT 77 (cited supra), (paragraph Nos. 42, 43, 46 and 47) and the Scheme of the Constitution, the learned Addl. Advocate General submits that the question of repugnancy is not at all involved for the reason that such question will arise only when the enactment is made by the Union as well as by the State with reference to any entry as contained in the Concurrent list (List III of 7th Schedule of the Constitution of India), which is not the position herein as the Central Legislation is with reference to Entry No.54 of List I, while the State Legislation is based on the 'source of power' as derived from Entry No.17 of List II read with Entry 5, 23 and 64 of the very same List, which hence stand on two different pedestals W. A. Nos. 3005 OF 2007 and connected cases 16 without transgressing to the realm of the other, in any manner, and hence liable to be sustained by virtue of their separate scope, object and existence. 13. Mr. Sunny Mathew, the learned Counsel appearing for the appellants/petitioners in some cases submits that the 'legislative history' or 'legislative bonafides' is not a relevant factor on the competence of legislature, as held by the Constitution Bench of the Apex Court in K.C.G. Narayan Deo vs. State of Orissa (AIR 1953 SC 375) (paragraph 9). Reference is also made to the decision of another Constitution Bench of the Apex Court in R.M.D.C.(Mysore) Private Ltd. vs. State of Mysore (AIR 1962 SC 594)(paragraph 14). The learned Counsel further submits that it is not a matter of repugnancy, but a matter of total lack of jurisdiction, as the entire topic of Minor Minerals has been taken over by the Union under Entry 54 of List 1 and no residual extent is left over to be dealt with by the State. Reference is made to the decision of the Apex Court in B. Viswanathan & Co. vs. State of Karnataka (1991) 3 SCC 358 (paragraph 4 onwards and more particularly, sub paragraph 14 of paragraph 5). In response to the arguments made by the Addl. Advocate General with reference to W. A. Nos. 3005 OF 2007 and connected cases 17 Article 243G dealing with the power of the State to legislate on a subject relating to the functions of Local Authority, it is stated that the said power is always subject to the provisions of the Constitution and in turn, the said Article is controlled by Article 246, asserting that there cannot be any encroachment by the State into any entry in List 1. 14. In the course of reply, Mr. Babu S. Nair, learned Counsel appearing for some of the appellants/petitioners in the concerned Writ Appeals/Writ Petitions submits that the challenge raised by the concerned parties is mainly with regard to the power and procedure for 'Confiscation', more particularly, brought in by virtue of the amendment of the provisions as per the Ordinance No.38/2010. The learned Counsel, referring to the meaning of the word 'Confiscation', submits that it is not uniform as given in various texts/Commentaries/Dictionaries like the 'Law Lexicon' (by P. Ramanatha Aiyar), the Black's Law Dictionary, the Chambers' Dictionary (20th Century Edition) etc. The learned Counsel submits that Sec.21 (1) of the 'MMDR Act' deals with the punishment to be imposed upon persons concerned, whereas Sec.21(4A ) deals with W. A. Nos. 3005 OF 2007 and connected cases 18 the proceedings against the properties (mineral, tool, equipment, vehicle or any other thing ) seized under sub-section (4). It is also pointed out that the Government has already issued a notification under Section 22 of the 'MMDR Act', designating the officer concerned, who is authorised to file complaint before the concerned Court for taking cognizance of the offence (G.O.(Ms) 917/97). The scheme of the Kerala Rules, as distributed among different Chapters II, III, IV etc of the Kerala Minor Mineral Concession Rules framed by the State, ( invoking the power under Section 15 of the 'MMDR Act'), is also sought to be explained, contending that the entire field in respect of the minor minerals was taken over by the 'MMDR Act' and the 'KMMC Rules' framed by the State under the said Act and this being the position, nothing remains further for the State to have enacted the 'Sand Act' and Rules thereunder in respect of 'river sand', as it is a 'minor mineral' as defined under Section 3 (e) of the 'MMDR Act' and by the ordinary meaning of the term 'sand' as given in various dictionaries. Reference and reliance is also placed on the decision rendered by the Constitution Bench of the Apex Court in AIR