IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 30917 of 2004(E) ---------------------------------------- PETITIONER: ----------------------- C.K.SUNEESHAN, S/O.KUNJAN, CHERAI HOUSE, KATTAKAMPAL, THRISSUR, OWNER VEHICLE NO.KLZ 653. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENTS: ------------------------- 1. GOVERNMENT OF KERALA, REP. BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE DEPUTY COLLECTION (GENERAL), PALAKKAD. 3. THE COLLECTOR, PALAKKAD. 4. THE TAHSILDAR, OTTAPPALAM. 5. DEPUTY TAHSHILDAR, THE HEAD QUARTERS, OTTAPPALAM. 6. THIRUMITTACODE GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY. BY GOVERNMENT PLEADER SMT. N. SUDHADEVI – R1 TO R5 BY ADV. SRI.T.A.RAJAGOPALAN - R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30917/2004 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE OF REGISTRATION NO. KLZ 653. EXT.P2: COPY OF THE PERMIT NO.587 DTD. 5/02/2004 ISSUED BY THE 4TH RESPONDENT. EXT.P3: COPY OF THE JUDGMENT DTD. 12/02/2004 IN WP(C) 4767/2004 BEFORE THIS HON'BLE COURT. EXT.P4: COPY OF THE ORDER NO.LRG 3-6490/04 (2) DTD. 1/10/2004 BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.30917 OF 2004 ---------------------------------------- Dated this the 4th day of July, 2008 JUDGMENT The petitioner challenges Ext.P4 order of the District Collector, Palakkad whereby for illegal transportation of river sand in violation of the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001, an amount of Rs.25,000/- (Rupees twenty five thousand only) was directed to be recovered from the petitioner. The main contention of the petitioner is that before passing the impugned order, the petitioner was not afforded an opportunity of being heard. The other contention is that the Act does not confer powers on the District Collector to impose fine, which can be done only by the competent Criminal Court trying the offence under the Act. The petitioner relies on a Division Bench decision of this Court in Sanjayan V. Tahsildar [2007(4)KLT 597], wherein it has been held that the power of imposition of fine rests only with the Court, and not on the Collector. Further the petitioner challenges the validity of the Rules 27 and 28 of the Kerala Protection of W.P.(c)No.30917/04 2 River Banks and Regulation of Removal of Sand Rules 2002 as ultra vires the Rule making powers of the State. 2. The learned Government Pleader submits that the contention of the petitioner that the petitioner has not been afforded an opportunity of being heard is not correct. In paragraph 9 of the counter affidavit filed on behalf of the 3rd respondent, it is specifically stated that notices were issued to the petitioner but he did not turn up for hearing on 5.8.2004 when it was posted for hearing. Later, on 19.8.2004, one Sri. Suresh, Advocate for the petitioner appeared and filed vakalath as also a written statement on behalf of the petitioner requesting to drop all action against the petitioner. She would further submit that under Rule 27 of the Kerala Protection of River Banks and Regulation of removal of Sand Rules 2002, the District Collector has powers to recover amounts towards River Management Fund for returning vehicle, which has been seized for illegal transportation of river sand. 3. I have considered the rival contentions in detail. Apart from Ext.P2 licence, the petitioner has not produced any material whatsoever to prove before me that the petitioner is not guilty of the offence of illegal transport of river sand. The W.P.(c)No.30917/04 3 only contentions raised before me are the technical contentions. As regards the contention regarding the lack of opportunity of being heard, in view of the averments in paragraph 9 of the counter affidavit, I am not inclined to accept the same. The petitioner may be right in contending that the District Collector has no powers to impose fine, based on the decision of the Division Bench of this Court in Sanjayan’s Case (Supra). But in Rule 27 of the Rules, it is provided thus: “Procedure for confiscation of vehicles.-(1) The Police or Revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules. (2) In the case of seizure of vehicle under sub- section (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector. (3) The vehicle may be returned if the owner of the vehicle or the possessor remits an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure.” Therefore, under the Rules the District Collector certainly has powers to require the owner of the vehicle, who has used the seized vehicle for illegal transportation of river sand, to pay W.P.(c)No.30917/04 4 amounts towards River Management Fund as a condition for returning the vehicle. Of course, in ground No.17, there is a general challenge against the rules. But the Act and Rules are intended to regulate the removal of the river sand and for matters connected therewith. I am of opinion that in view of the increase in ecological problems caused because of indiscriminate sand minding in the State, stringent action is necessary to curb such indiscriminate sand mining for which only the Act and Rules have been framed. A Division Bench of this Court in Moosakutty V. State of Kerala [2008 (1) KLT 538] held that the District Collector has powers to confiscate the vehicles. For effective implementation of the objects of the Act, such powers on the Collector are absolutely essential. Since the Government have been conferred with the power to make Rules to carry out all or any of the purposes of the Act, I am not satisfied that the Rules are ultra vires the provisions of the Act, which is the contention raised by the petitioner. The very purpose of the Act is regulation of removal of river sand. The Act confers on the District Collector powers to confiscate vehicles used for illegal transportation of river sand. In addition to prosecuting the offenders under the Act, it is W.P.(c)No.30917/04 5 necessary to compensate the State for the damage caused to the ecology by the offender, for which purpose only realisation of certain amounts towards River Management Fund has been provided for in Rule 27, which is perfectly in tune with the objects of the Act. In fact the decision of the Division Bench in Moosakutty's case is sufficient to uphold the validity of the Rules although the decision does not deal with the validity of the Rules specifically. When the power of the Collector to confiscate the vehicle is upheld, the inclusion of a provision to realise amounts towards River Management Fund as a condition for release of the vehicle, cannot be held to be ultra vires the provisions of the Act. The fact that the decision in Moosakkutty's case (Supra) has been stayed by the Supreme Court does not alter the legal position as of now. 4. I also note in this case that the petitioner, after seizure of the vehicle at 7 a.m., obtained passes issued at 8 a.m. and produced the same as proof of the validity of the transport of the sand. This finding in the impugned order is not challenged before me. Such a person who would not hesitate to create documents to support his illegal act is not entitled to invoke the discretionary jurisdiction of this Court W.P.(c)No.30917/04 6 under Article 226 of the Constitution of India. 5. In the above circumstances, I do not find any merit in the challenge against the validity of the Rules. Admittedly, the vehicle has been released not by the District Collector himself, but only as per the orders of this Court pending finalisation of proceedings before the Collector. In so far as the guilt of the petitioner in transporting river sand illegally cannot now be disputed, the District Collector does have powers to require the petitioner to pay amounts towards River Management Fund as a condition for release of the vehicle once the Collector finally decides the matter against the petitioner. The facts that the vehicle has been released to the petitioner and the Collector has not specifically ordered confiscation of the vehicle does not affect the powers of the Collector to require the petitioner to pay certain amounts to the River Management Fund once the Collector holds that the petitioner has in fact transported river sands illegally. Of course, the vehicle has been released pursuant to orders of this Court. But still the liability does not cease. Since the District Collector does have powers to realize the amounts towards River Management Fund as a condition for returning W.P.(c)No.30917/04 7 the vehicle involved in illegal transportation of sand, I am of opinion that the realisation of Rs.25,000/- as per Ext.P4 can be considered as recovery of such amounts towards River Management Fund. Therefore, I do not find any merit in the challenge against Ext.P4. Accordingly, the writ petition is dismissed. If the petitioner pays an amount of Rs.25,000/- within a period of three weeks from today, the bank guarantee furnished by him for interim custody of the vehicle shall be released, failing which the District Collector would be free to encash the bank guarantee. 6. Before parting with the case I must bring to the attention of the Government the need for timely amendment of the Act and Rules. I am distressed by the fact that although this Court has pointed out the lacunae in the Act and Rules in several decisions from Sanjayan's case (supra), which was decided on 17.6.2002, especially the difference between the English and Malayalam versions of the Act in the matter of powers of confiscation, no attempt has been made by the powers that be to take suitable remedial action to clear the ambiguity in the legislation. In fact similar provisions are there in the Kerala Forest Act and the Abkari Act providing for W.P.(c)No.30917/04 8 confiscation of vehicles, which provisions are being implemented without the difficulties faced in the case of implementing the Kerala Protection of River Banks and Regulation of Removal of Sand Act. This is a piece of legislation vital to the ecology of the case. It is a pity that the Government is not bestowing enough attention in the matter of plugging the loopholes in the legislation to see that the offenders do not escape on the ground of technicalities arising from such loopholes. It is time that the powers that be wake up from their slumber and initiate appropriate amendment legislation in the matter for effective implementation of the Act so as to ensure better management of the ecology and natural resources of the State, lest they may even be likely to be accused of helping unscrupulous people to loot the natural resources of the state with impunity. 7. With the solemn hope that this would not fall on deaf ears as in the case of Retnavalli V. Ambalapadu Service Co-operative Bank Ltd [2005(3) KLT 320], wherein I had made a similar observation in the case of notifying commencement of Section 4A of the Payment of Gratuity Act, a very beneficial legislation to the employees W.P.(c)No.30917/04 9 covered by the Payment of Gratuity Act in the State, the implementation of which would not cast any financial burden on the State or the employer in any manner and at the same time would enable the employees to get amounts higher than the maximum gratuity prescribed under the Act. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.30917/04 10