IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 15505 of 2009(G) --------------------------------------- PETITIONER(S): --------------------- SADANANDAN S/O.VISWAMBARAN, MADAMBIKATTIL (H) MINALOOR P.O.,TRISSUR DISTRICT. BY ADV. MR.H.BADARUDDIN SMT.AYSHA RAHMAN SMT.B.SHAMEERA SMT.ARCHANA.M. SMT.M.SHAZIA SULTHANA RESPONDENT(S): ------------------------ 1. DISTRICT COLLECTOR THRISSUR. 2. THE SUB INSPECTOR OF POLICE, WADAKKANCHERRY, THRISSUR. R1 & R2 BY MR.RENJITH THAMPAN, ADDL. ADVOCATE GENERAL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON 28/10/2009 DELIVERED THE FOLLOWING: rs. V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 15505 OF 2009 = = = = = = = = = = = = = == = = = = = = = Dated this the 28th day of October 2009. JUDGMENT Petitioner claims to be the owner in possession of a lorry bearing Registration No. KL-08-L-3308. The said vehicle was seized on 24.01.2009, when it was transporting river sand allegedly in an unauthorized manner, by the Sub Inspector of Police, Wadakkancherry. Petitioner approached this Court in W.P.(C).No.3139/2009 for release of the vehicle. Proceedings under the Kerala Protection of River Banks (Protection and Regulation of Removal of Sand) Act were pending before the first respondent. Taking note of the said fact also, this Court by Ext.P1 judgment dated 30.01.2009, permitted the petitioner to move an application for interim custody of the vehicle. This Court directed the District Collector to consider such application for interim custody within a time frame in accordance with the law laid down by this Court in Subramanian Vs. State of Kerala [2009 (1) KLT 77). The vehicle was thereafter W.P.(C). No. 15505 OF 2009 2 released on interim custody and subsequently after conduct of hearing, the District Collector passed Ext.P5 order directing confiscation of the vehicle under Section 27(3) of the Act. The same has been challenged in this writ petition. 2. I had called for the files leading to Ext.P5. Learned Government Pleader produced the files and I have perused the same. I heard Mr. H.Badruddin, learned Counsel for the petitioner and Mr. Renjith Thampan, learned Additional Advocate General. Learned Additional Advocate General made submissions not only in relation to the order impugned in the present case, but also on certain general aspects involved in the matter of involvement of vehicles in the illegal transportation of river sand, and also with regard to certain aspects arising from the enforcement of provisions of the Act and the Rules framed therein. 3. The case of the petitioner, before the District Collector and reiterated in this writ petition challenging Ext.P5 order is that no doubt the vehicle in question was used for the transportation of river sand but such transportation was authorized and was supported by a pass issued by the competent W.P.(C). No. 15505 OF 2009 3 authority. It is contended that Ext.P4 pass was issued on 24.01.2009 by the Kadavu Supervisor of the Desamangalam Panchayath and the sand that had been transported in the vehicle at the time of the seizure was that which was collected and permitted to be transported as per Ext.P4 pass. The only reason for the seizure of the vehicle and its ultimate confiscation is that the vehicle was seized at Minaloor while the shortest route to Pavaratty was via Koorancherry and this aspect was highlighted by the Police Constable who had represented the Sub Inspector of Police, the officer who had seized the vehicle. The proceedings of the District Collector in which the vehicle was ordered to be confiscated is Ext.P5 dated 28.04.2009. The file contains an order dated 11.06.2009 which had actually fixed the amount that had to be remitted by the petitioner to avoid confiscation as Rs.2,10,000/-. I have gone through the said order also. 4. Ext.P5 order does not contain a specific finding of the District Collector that the vehicle was transporting river sand without a pass legitimately issued in this regard. Nor is there a finding that the owner of the vehicle had not produced a genuine W.P.(C). No. 15505 OF 2009 4 pass. In fact, the records do not reveal that a proper enquiry was conducted by the District Collector. 5. Reading of Ext.P5 order shows that the only reason for inferring an illegal transportation of the river sand in the vehicle in question is that as per the pass, the consignment of the sand was to be transported from Kattuvettoorkadavu in Desamangalam Panchayath to the Pavaratty Panchayath. The vehicle was apparently seized at Minaloor and the shortest way to Pavaratty is through Kooranchery and not through Minaloor. Learned Counsel for the petitioner submitted that once a pass is issued as per the Act and the Rules by the Kadavu Supervisor who is competent in this regard, then it is up to the owner or the driver of the vehicle as a case may be to take the vehicle through such route as is convenient. It would also be necessary for the driver of the vehicle, in certain legitimate circumstances, to take the vehicle through a route other than the shortest. Learned Counsel further contended that a route map as such is not appended to a pass issued by the Kadavu Supervisor and therefore an abuse of the pass or infraction of the Rules cannot be inferred merely because the driver of the vehicle had chosen W.P.(C). No. 15505 OF 2009 5 a route other than what is perceived to the shortest route by the Sub Inspector of Police or the Revenue Officials as the case may be. Learned Additional Advocate General submitted that the State has come across several instances where passes are subjected to misuse and abuse by the owners or drivers of the vehicles as the case may be. He further submitted that there must be some tenable explanation on the part of the owner or driver of the vehicle for not choosing the shortest route from one point to another especially when the vehicle is loaded with sand. He also submitted that the Department has come across cases where the owner / driver of the vehicle transport several consignments of river sand with only one pass. It is to avoid such rampant misuse or abuse of the passes issued by the Kadavu Supervisor that the Officials of the Department generally verify whether the vehicles, while transporting river sand, use the shortest route possible. 6. Section 4 of the Act provides for the constitution and composition of the Kadavu Committee. The Committee is constituted by the District Collector in terms of the provisions of the Act. The powers and functions of the Kadavu Committee are W.P.(C). No. 15505 OF 2009 6 those mentioned in Section 11 of the Act which reads as follows:- “ 11. Powers and functions of the Kadavu Committee:- Subject to the other provisions of this Act and the rules made thereunder, the Kadavu Committee shall supervise and monitor all activities of sand removal and recommend to the District Expert Committee on the following matters, namely:- (a) the suitability of the Kadavu or river bank for sand removal; (b) the quantity of sand that may be removed from a particular Kadavu; (c) the additional measures to be taken for protection of the Kadavu or river bank; (d) the necessity to ban sand removal during any season of the year; (e) to recommend to the Grama Panchayats and the Municipalities for publication of list of country boats used for and labourers engaged in sand removal operations; (f) to carry out the instructions issued by the Government and the District Expert Committees, from time to time; and (g) advise on any other matter to carry out the provisions of this Act.” Section 12 of the Act provides for the general conditions for the sand removal operations in a Kadavu. Section 12 reads as follows:- W.P.(C). No. 15505 OF 2009 7 “ 12. General conditions for the sand removal operations in a Kadavu.- (1) The Grama Panchayat or the Municipality concerned shall, before carrying out the sand removal operation obtain passes from the Geology Department which shall issue them on the recommendation of the District Expert Committee for a period of one month in advance, on payment of royalty as provided for in the law applicable for the payment of royalty. (2) No sand removal operation shall be carried out in a Kadavu before 6 a.m. and after 3 p.m. (3) The Grama Panchayat or Municipality concerned shall subject to the other provisions of this Act and the rules made thereunder, make necessary arrangements to carry out the sand removal operations. (4) Removal of sand shall be permitted only from the river bed and no sand removal operation shall be done within 10 metres of the river bank. (5) No sand removal operation shall be done within a distance of 500 metres from any bridge or any irrigation project. (6) The vehicle for loading sand shall be parked at a distance of at least 25 metres from the river bank, and no vehicle shall be brought to the river bank for loading. (7) No sand removal shall be done in a Kadavu or river bank in excess of the quantity W.P.(C). No. 15505 OF 2009 8 fixed by the District Expert Committee. (8) No 'Kollivala', pole scooping or any mechanized method shall be carried out in the sand removal operation. (9) No sand removal shall be done where there is likelihood of saline water mixing with river water. (10) No sand removal shall be done in a river or in any river bank where Government have expressly prohibited the same by general or special order.” 7. Rule 15 of the Rules framed under the Act called the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 deals with the powers and functions of the Kadavu Committee. Rule 17 deals with the powers and functions of the Local Self Government Institutions. This would include the power to erect concrete pillars in a Kadavu or a river bank in such a way as to prevent the entry of vehicles directly to river banks and to establish check posts to inspect the transportation of sand from the Kadavu. It also includes the powers to regulate the sale and auction of sand from all Kadavus. Certain additional provisions of sand mining activities are provided for in Rule 29 of the Rules. Rule 29 inter alia provides that the permit shall W.P.(C). No. 15505 OF 2009 9 contain the name and address of the person to whom pass is issued, the register number of the vehicle, the travel route of the vehicle and the period of permit. Rule 29 further provides that a separate pass must be issued for removing sand from each Kadavu and such pass must contain the name of the Kadavu, the concerned Panchayath within the limit of which the Kadavu situated, the number and date of the receipt evidencing remittance of amount with the Department of Geology, the quantity of sand that may be transported, the details of the vehicle which is being used for the transportation and it should also contain the signature of the concerned Tahsildar and also the Secretary of the concerned local authority and counter signed by the authority authorized in this regard by the District Collector. The original of the pass must be issued to the person who is transporting the river sand and the duplicate must be retained by the officer authorized by the District Collector and the same must be later submitted to the District Collector through the concerned local authority. These details must also find a place in a register, that should contemporaneously be maintained as per Rule 29 (1) (b). W.P.(C). No. 15505 OF 2009 10 8. The aforementioned aspects of the Act and Rules indicate that passes which are issued from a Kadavu for transportation of river sand must contain the relevant details as mentioned in Rules 29 of the Rules. It should be signed not only by the Secretary of the concerned Panchayath and also the concerned Tahsildar but counter signed by the competent authority authorized by the District Collector. It should specify the quantity of the sand being transported and the pass should also specify the route, the vehicle should take. This Court is constrained to take note of the fact that these conditions which are stipulated in the statute are more often than not observed in the breach. As it is the Rule provides for a fairly comprehensive statutory mechanism to regulate the activities relating to removal of sand from any Kadavu and transportation of the same in a legitimate manner. The provision for confiscating a vehicle used in the illegal transportation of river sand is also a part of the mechanism so provided to check the illicit transportation of river sand. But as has been held by this Court in Subramanian Vs. State of Kerala [2009 (1) KLT 77), the power exercised by the District Collector under W.P.(C). No. 15505 OF 2009 11 Section 23 of the Sand Act is quasi judicial in character and there has to be a proper enquiry before a vehicle is ordered to be confiscated. The reasons given by the District Collector while ordering confiscation of a vehicle under the provisions of the Act should stand the test of judicial review. 9. I am, therefore, of the view that the Government should take earnest steps to see that the provisions of the Act and the Rules, in general and Rule 29 of the Rules in particular are enforced in a strict manner, with immediate effect, all over the state. The Government shall ensure that passes for transportation of the river sand from any Kadavu in any Panchayath of the State, if issued, must strictly confirm to Rule 29 of the Rules. Any pass which does not confirm to the requirement of Rule 29 of the Rules should be treated as inadequate for the purpose of legitimizing the transportation of the river sand and such inadequate pass or passes should not be accepted by the authorities concerned. 10. In so far as the facts of the present case are concerned, I am of the view that Ext.P5 does not reflect a proper exercise of the quasi judicial power that is conferred on the District W.P.(C). No. 15505 OF 2009 12 Collector. The question as to whether the pass issued in the present case was legitimately issued by a competent authority of the Panchayath is a matter that has to be decided after notice to the concerned local authority also. In fact, it is the responsibility of the owner of the vehicle also to produce adequate materials to substantiate the contention that the pass stated to have been issued to the driver of the vehicle as Ext.P4, was legitimately issued by the competent authority and it was therefore not misused or abused. A fresh enquiry shall be conducted by the District Collector. 11. In the result, Ext.P5 order shall stand set aside. The first respondent shall pass fresh orders as regards the seizure/confiscation/release of the vehicle bearing Registration No. KL-08-L-3308 after notice to the petitioner and after conducting appropriate enquiry, within four months from the date of receipt of a copy of this judgment. Petitioner shall extend all co-operation for the proper conduct of the enquiry. Since the vehicle was earlier released on interim custody subject to certain conditions, the petitioner shall be permitted to use the vehicle on such interim custody subject to the conditions under W.P.(C). No. 15505 OF 2009 13 which such interim custody has been allowed, till final orders are passed by the District Collector as aforementioned. The learned Additional Advocate General is requested to communicate this order to the concerned wing of the Government with an intention to see that the observations made in the judgment are taken note of and proper action is taken to enforce the provisions of the Act of the Rules, especially those highlighted in the judgment. Writ petition is disposed of as above. (V.GIRI) JUDGE kkms/