IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 8671 of 2009(D) ------------------------- PETITIONER(S): ------------------ SULAIMAN, MANJORAMMAL, PULIKKOTH DESOM, MADAVOOR AMSOM, PADANILAM, KUNNAMANGALAM, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): ------------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE GEOLOGIST, DISTRICT OFFICE, MINING AND GEOLOGY, CIVIL STATION, KOZHIKODE. 3. THE HEAD INCHARGE, SURFACE WATER DIVISION, CENTRE FOR WATER RESOURCES DEVELOPMENT AND MANAGEMENT, KUNNAMANGALAM, KOZHIKODE-673 571. 4. THE SUB INSPECTOR OF POLICE, KUNNAMANGALAM POLICE STATION, KOZHIKODE. 5. THE ASSISTANT COLLECTOR, KOZHIKODE. GOVT.PLEADER SRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 8671 OF 2009 (D) ===================== Dated this the 31st day of March, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P4 order dated 15.09.2008 passed by the 1st respondent, the District Collector, Kozhikode exercising his powers under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 2. Facts of the case are that on 26/8/2008, the lorry bearing Regn.No.KL-11/D.9763 of the petitioner was taken into custody by the Sub Inspector of Police , Kunnamangalam on the suspicion that the vehicle was involved in the unauthorised transportation of river sand. Pursuant to the judgment of this Court in WP(C) No.26150/2008 dated 29/8/2008, taking note of the contention raised by the petitioner that what was transported was not river sand, reports are said to have been called for from the Geologist and the Centre for Water Resources Development and Management. Ext.P2 report of the Geologist suggests that the sand in question was not river sand. However, the Centre for Water Resources Development and Management in Ext.P3 report WPC 8671/09 :2 : confessed that though they do not have the facility to conduct detailed laboratory analysis, but on visual observation reported that the lorry contained river sand suitable for civil construction. It was accordingly that the matter was considered by the District Collector. 3. A reading of Ext.P4 shows that in view of Exts.P2 and P3 contradictory reports referred to above, the District Collector got the sand in question inspected once again by the Assistant Collector (u/t), Kozhikode and Executive Magistrate cum Special Judicial magistrate on 15/9/2008 duly assisted by the Project Manager, District Nirmithi Kendra. On the material so collected, it was concluded that the vehicle in question was transporting river sand in violation of the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and on that basis by Ext.P4, petitioner was called upon to remit an amount of Rs.2 lakhs towards the value of the vehicle and Rs.25,000/- towards fine. 4. Although Ext.P4 was challenged before this Court in WP(C) No.28117/08 and Exts.P5 and P6 interim orders were issued, that writ petition was got dismissed as withdrawn by the WPC 8671/09 :3 : petitioner. Accordingly, the petitioner moved the Judicial First Class Magistrate, Kunnamangalam by filing CMP No.4373/08 in Crime No.306/08. Ext.P7 order was passed imposing conditions. That was challenged before this Court in Crl.M.C.No.103/2009. Taking into account the finality that Ext.P4 had attained, the Crl.M.C. was dismissed. It is thereupon this writ petition was filed once again challenging Ext.P4. 5. Counsel mainly relied on Exts.P2 and P3 contradictory reports submitted by the Geologist and the Centre for Water Resources Development and Management. True there is an apparent contradiction between the reports. The fist one saying that it is not river sand and the second one certifying that it is river sand. It was precisely for this reason that the District Collector got the sand examined once again by the Assistant Collector duly assisted by the Project Manager of the District Nirmithi Kendra. It was on that basis, District Collector concluded that the sand in question was river sand. 6. One has to accept the fact that the Project Manager, District Nirmithi Kendra is a technical expert and distinction between river sand and M-sand which was allegedly being WPC 8671/09 :4 : transported, is obvious on a visual examination itself. It was on that basis the sand in question was confirmed to be river sand. Therefore, the view taken by the District Collector cannot be faulted. 7. Be that as it may, I cannot hold up the fine that is imposed by the District Collector, for which he lacks power. Therefore, the writ petition is disposed of quashing Ext.P4 to the extent Rs.25,000/- is levied on the petitioner. ANTONY DOMINIC, JUDGE Rp