IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 28906 of 2011(K) -------------------------------- PETITIONER(S): ------------------ JAMES JACOB, AGED 43 YEARS, S/O.JACOB, KANNOOKKADAN HOUSE, VELLANCHIRA P.O., THAZHEKKAD, THRISSUR. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): ------------------- 1. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 001. 2. SUPERINTENDENT OF POLICE, ALUVA RURAL, ALUVA, ERNAKULAM DIST., PIN-683 101. 3. COMMISSIONER OF POLICE, KOCHI CITY, ERNAKULAM, PIN-682 016. 4. SUPERINTENDENT OF POLICE, AYYANTHOLE, THRISSUR, PIN-680 003. 5. DIRECTOR OF MINING AND GEOLOOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM-695 001. SR. GOVERNMENT PLEADER SRI.T.P.SAJID SR. ADV. SRI.RENJITH THAMPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28906 of 2011(K) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE JUDGMENT OF THIS HON. COURT IN WPC. 23314/11 DT.05/09/11. EXT.P2:- TRUE COPY OF THE JUDGMENT OF THIS HON. COURT IN WPC.26895/11 DT.12/10/11. EXT.P3:- TRUE COPY OF THE REGISTRTION CERTIFICATE, ISSUED UNDER THE KERALA VALUE ADDED TAX RULES DT. 01/04/11. EXT.P4:- TRUE COPY OF the LICENSE ISSUED BY THE KODAKARA GRAMAPANCHAYAT DATED 02/05/11 EXT.P5:- TRUE COPY OF THE PROCEEDINGS OF THE DEPARTMENT OF INDUSTRIES DT. 06/02/10 EXT.P6:- TRUE COPY OF THE CONSENT LETTER ISSUED BY THE POLLUTION CONTROL BOARD DT. 22/02/10 EXT.P7:- TRUE COPY OF THE RETURNS FILED BY THE PETITIONER DT. 14/09/11 EXT.P8:- TRUE COPY OF THE COMMUNICATION ISSUED BY THE DIRECTOR OF MINING ND GEOLOGY DT. 06/03/11 EXT.P9:- TRUE COPY OF the RETAIL INVOICE DATED 30/09/11 EXT.P10:- TRUE OCPY OF THE LETTER DT. 19/10/11 OF THE SENIOR GEOLOGIST DISTRICT. EXT.P11:- TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 18/10/11 EXT.P12:- TRUE COPY OF the PURCHSE BILL ISSUED BY THE PETITIONER'S COMPANY FRIENDS SAND ON 05/08/11 EXT.P12(a):- TRUE COPY OF the PURCHASE BILL ISSUED BY THE PETITIONER'S COMPANY FRIENDS SAND ON 09/07/11. EXT.P12(b):-TRUE COPY OF the PURCHASE BILL ISSUED BY PETITIONER'S COMPANY FRIENDS SAND ON 23/09/11 EXT.P12(c):-TRUE COPY OF the PURCHASE BILL ISSUED BY PETITIONER'S COMPANY FRIENDS SAND ON 19/09/11 EXT.P12(d):-TRUE COPY OF THE PURCHASE BILL ISSUED BY PETITIONER'S COMPANY FRIENDS SAND ON 12/08/11. WP(C).No. 28906 of 2011(K) RESPONDENTS' EXTS ANNEXURE-R4(a):- A TRUE COPY OF THE GO(MS) NO.180/11 DATED 19/08/11 //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ W. P. C. No.28906 of 2011 ------------------------------------------------ Dated this the 8th day of December, 2011 JUDGMENT Pius C. Kuriakose The petitioner deals in weathered rock sand known in common parlance as “mattimanal”. He is having his own establishment under the name “Friends Sand” at Perambra near Kodakara in Thrissur District. According to him, The Government as well as the Director of Mining and Geology have categorically declared that weathered rock sand is not a minor mineral coming within the scope of Minor Mineral Concession Rules and also that for the sale, storage and transportation of weathered rock sands sanction under the Kerala Minor Mineral Concession Rules is not necessary. The grievance which the petitioner voices is that police officers are constantly interfering with the transportation of weathered rock sand sent by him under the guise that weathered rock sand is a minor mineral and that to transport W. P. C. No.28906 of 2011 -2- the same a permit under the Minor Mineral Concession Rules is necessary. Petitioner complains that the police officers have intercepted and seized his vehicles and the vehicles are detained for days together resulting in considerable loss and damage to the petitioner. This action of the police officers amounts to sheer harassment and hence, this Writ Petition seeking the following reliefs:- “(i) Issue a writ in the nature of mandamus commanding the respondents 1 to 3 and their subordinate officers not to harass the petitioner by seizing vehicles transporting weathered rock sand (mattimanal) under the guise that sanction under the Minor Mineral Concession Rules is necessary. (ii) Issue a writ in the nature of mandamus commanding the 1st respondent to consider and pass orders on Ext.P11 after affording an opportunity of hearing to the petitioner within such time as may be fixed by this Hon'ble Court.” 2. The 4th respondent the Superintendent of Police, Thrissur has filed a detailed statement pursuant to a direction issued by us. Produced as Annexure-R4(a), along with the above statement is copy of G.O(MS) No.180/2011/IND dated 19/08/11, an order which the W. P. C. No.28906 of 2011 -3- Government had issued in modification of an earlier order G.O (MS) No.85/2010/IND dated 05/04/2010. It is pointed out in the statement that as per condition No.1 of Annexure-R4 (a) sanction shall be obtained from the District Collector and the Geology Department for extraction of granites and mattimanal, it is pointed out, is the product obtained on procession of weathered rock which is another form of granite. It is further pointed out as per condition No.6 that it is obligatory that in cases of large scale extraction or manufacture of sand sanction is to be obtained from the District Collector, RDO, PCB etc. The insistence of the petitioner that the police authorities shall not interfere with the manufacturing and transportation of weathered rock sand cannot be allowed as there is every likelihood of the petitioners and other persons engaging in illegal sand mining and transportation business. 3. After hearing Sri.Ranjith Thampan, the learned counsel for the petitioner and Sri.T.P.Sajid, the learned senior Government Pleader for some time, an issue which W. P. C. No.28906 of 2011 -4- became controversial at the Bar was whether weathered rock sand requires any licence from the Mining and Geology Department or from any other department for its transportation. Accordingly, on 21/11/11 we directed the learned senior Government Pleader to seek specific instructions from the 5th respondent in that context and to file a statement. Pursuant to that order on behalf of the 5th respondent, a statement has been filed on 25/11/11. 4. Shorn of details, the pith and substance of the contentions raised in the above statement is that for storage, sale and transportation of weathered rock sand no sanction under the Kerala Minor Mineral Concession Rules, 1967 is necessary. But at the time of obtaining quarrying permit it is mandatory that the applicant shall submit an affidavit stating that “mattimanal” will be used only for filling up pits in the quarries. The learned senior Government Pleader in fact placed before us a format of the affidavit which is expected to be filed by the applicant before he is issued with quarrying permit. The affidavit is essentially to W. P. C. No.28906 of 2011 -5- the following effect:- 5. It will be ensured that the quarrying of granite will not create any pollution problems for the local people and that explosives will not be used in such a fashion as to give room for complaints by the neighbouring owners and also that matti stones and the powder sand (obviously quarry dust including matti sand) will be used for the purpose of filling up the pits which are formed as a result of quarrying. It will be ensured that endeavour will be made for making the property suitable for cultivation. 6. It was very extensive submissions which were addressed before us by Sri.Ranjith Thampan, the learned senior counsel for the petitioner and Sri.T.P.Sajid, the learned Senior Government Pleader. Our attention was drawn by Sri.Ranjith Thampan to Exts.P1 and P2 judgments passed by this Court in identical situations. Those judgments have attained finality and according to the learned senior counsel vehicles which carry weathered rock sand are not liable to be intercepted. Drawing our attention to Exts.P3, W. P. C. No.28906 of 2011 -6- P4, P5, P6, P7, P8, P9 and P10, the learned senior counsel submitted that frequent interception and seizure of lorries carrying weathered sand transported by the petitioner who has been issued with all necessary permits registration licences etc. by various statutory authorities and Government amounts to sheer harassment. Such harassment may be stopped and specific directions be issued to the police officers not to intercept the vehicles which transport weathered sand, so submitted the learned senior counsel. 7. Sri.T.P.Sajid, the learned Senior Government Pleader would oppose the submissions of the learned senior counsel. Sri.Sajid would draw our attention to salient portions of the statements filed by the Dy.S.P. and also on behalf of the 5th respondent. According to Sri.Sajid, a blanket order forbidding interception of lorries carrying materials transported by the petitioner cannot be granted. At least for the purpose of ensuring that it is weathered rock sand and not “karimanal” or any other objectionable materials which W. P. C. No.28906 of 2011 -7- needs licence that is being transported, the lorries have to be intercepted and checked. The direction to be issued by this Court should be cautiously worded so that possibilities of misuse should be ruled out. Senior Government Pleader also submitted that an affidavit in terms of the format submitted by us is yet to be filed by the petitioner. 8. We have given our anxious considerations to the submissions addressed at the Bar. We have considered the pleadings raised by the parties. We have also gone through various materials placed on record. The submission of the learned Senior Government Pleader that a blanket order restraining interception and seizure of vehicles transporting materials belonging to the petitioner cannot be issued certainly has force. The position emerging from the various documents placed on record particularly Ext.P1, Ext.P2, the statement filed by the 5th respondent and Ext.P8 is that the petitioner is entitled to transport weathered rock sand and does not require any separate licence (other than the licences already secured by him W. P. C. No.28906 of 2011 -8- and placed on record) from the 5th respondent or any other authority, if it is weathered rock sand or “mattimanal” that is being transported by the petitioner. Respondents 1 to 4 and the police personnel under them will not be justified in seizing the vehicles used for such transportation. The argument of the learned Senior Government Pleader, on the basis of the contention raised in the last sentence of the penultimate paragraph of the statement dated 25.11.2011 submitted by the 5th respondent, that the petitioner should file an affidavit does not appeal to us. We do not find any reason as to why we should not accept the explanation of the petitioner given through paragraph 5 of his reply affidavit that the petitioner procures weathered rock sand not from quarries but from barren lands where there were “matti stones”. 9. The views expressed herein above means that respondents 1 to 4 and officers under them are entitled to intercept vehicles carrying materials belonging to the petitioner only for the limited purpose of finding out W. P. C. No.28906 of 2011 -9- whether it is weathered rock sand that is being transported. Once it is found that it is weathered rock sand that is being transported, then the officer who intercepted the vehicle shall readily release the vehicle and shall not seize the same. 10. With the above directions, we dispose of this writ petition. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns & cl/- //True Copy// P. A. TO JUDGE