IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 26803 of 2010(A) ---------------------------------------- PETITIONER(S): ------------------------ PRAKASHAN. K., S/O.TANKU, KIZHEKKEKARA HOUSE, CHELLOOR, PAZHOOR P.O., TIRUR TALUK, MALAPPURAM. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE CHAIRMAN, KADAVU COMMITTEE KUTTIPPURAM, REPRESENTED BY THE PRESIDENT KUTTIPPURAM GRAMA PANCHAYATH TIRUR TALUK, MALAPPURAM, KUTTIPPURAM P.O., PIN-679 571. 3. THE KUTTIPPURAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY TIRUR TALUK, MALAPPURAM, KUTTIPPURAM P.O., PIN-679 571. *ADDL. R4 TO R7 IMPLEADED ADDL. R4: V.P. SHAJI, S/O.ABOOBACKER, VELUTHAPARAMBIL HOUSE, KUTTIPURAM P.O. ADDL. R5: C. MOHAN, CHENGANAYIL HOUSE, KUTTIPPURAM PO., MALAPPURAM DISTRICT. ADDL. R6: KAMBATH MOIDEENKUTTY, S/O.UMMER, P.O. PAZHOOR, PAKARANELLOOR, KUTTIPPURAM. WP(C).No. 26803 of 2010(A) ADDL. R7: PURUSHOTHAMAN, S/O.NANU, PARRARUMADATHIL, KUTTIPPURAM. *ADDL. R4 TO R7 ARE IMPLEADED AS PER ORDER DATED 31/08/2010 IN I.A.12001/2010. R1 BY GOVT. PLEADER MR.K. RAMESH. R2 & R3 BY SRI.K.P. DANDAPANI, SENIOR ADVOCATE, ADV. SRI.MILLU DANDAPANI. ADDL. R4 TO R7 BY ADV. SRI.V.RAJENDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26803 of 2010(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE BUILDING PERMIT OF HAMZA DATED 15/03/2010. EXT.P2: COPY OF THE DECISION OF THE PANCHAYATH VIA NO.A4-003/2009 DATED 16/08/2010. EXT.P3: COPY OF THE BUILDING PERMIT ISSUED IN THE NAME OF MR.HAMZA DATED 15/03/2010. EXT.P4: COPY OF THE SALE AGREEMENT DATED 29/03/2010. RESPONDENT'S EXHIBITS: EXT.R3(1): COPY OF THE DECISION NOS.3(1) AND 3(2) DATED 07/08/2010 OF THE 3RD RESPONDENT PANCHAYATH. EXT.R4(a): COPY OF THE EXTRACT OF THE REGISTRATION PARTICULARS OF THE VEHICLE NO.KL-05-2917. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 26803 OF 2010 -------------------------- Dated this the 16thday of September, 2010 J U D G M E N T The petitioner, who is a driver by profession and who claims to be the owner of a goods vehicle bearing registration No.KL-5B 2917, has filed this writ petition seeking the following prayers: “(a) To issue a writ of certiorari or any appropriate writ or direction to call for records leading to Ext.P2 order and set aside the same. (b) To issue a writ of mandamus or any appropriate writ or direction directing the respondent to issue passes to all vehicles which qualifies for issuance of pass.” 2. It is stated that the petitioner obtained an order to transport river sand from Sri.Hamza, son of Abdulla, who is constructing a building within the limits of Kaladi Grama Panchayat on the strength of Ext.P3 building permit. It is further stated that when the petitioner approached the Kadavu committee for obtaining a pass to transport river sand, the Chairman of that committee, who is also the President of the Kuttipuram Grama Panchayat, informed the petitioner that passes will not be issued to him for transporting river sand in view of the decision taken by the Kuttipuram Grama Panchayat in its meeting held on 7.8.2010 that pases need be WPC No.26803/2010 2 issued in the months of August and September, 2010 only to vehicles which have already been registered and that no fresh registration of vehicles need be done during the aforesaid period of two months. Ext.P2 is challenged inter alia on the ground that it is arbitrary and discriminatory and violates Article 14 of the Constitution of India and that the provisions of the Kerala Panchayat Raj Act or the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 do not empower the Panchayat to restrict issue of passes in the manner done in Ext.P2. 3. A counter affidavit dated 28.8.2010 has been filed on behalf of respondents 2 and 3. It is stated that during the months of June and July the District Collector had prohibited mining of sand invoking the provision in that regard contained in Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and that when pending applications were taken up on 7.8.2010, taking note of the pendency of a large number of applications, the committee of the Panchayat decided to issue passes only to those vehicles which are in the list, for the months of August and September, 2010 and not to register new vehicles during the said two months. It is stated that in that meeting a suggestion was also made that the entire quantity of WPC No.26803/2010 3 sand mined in the various Kadavus of Kuttipuram Grama Panchayat should be distributed among the consumers directly and not to lorry owners and that since there was no required majority to deviate from the earlier decision, in view of the provisions contained in Rule 11 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules 1995, no final decision in the matter could be taken. When the writ petition came up for hearing Sri. K.P.Dandapani, the learned Senior Advocate appearing for respondents 2 and 3, brought to my notice that the committee of the Panchayat that met on 4.9.2010 has resolved to amend its earlier decision and to distribute the entire quantity of sand mined in the various Kadavus of Kuttipuram Grama Panchayat to customers and not to lorry drivers/owners. A copy of the said resolution was also made available for perusal. The petitioner has filed I.A. No 12149 of 2010 and produced along with it the agreement entered into by him for purchasing the goods vehicle referred to in the writ petition. 4. I heard Sri. Jamsheed Hafiz, learned counsel appearing for the petitioner, Sri. K.P.Dandapani, learned Senior Advocate appearing for respondents 2 and 3 and Sri.V.Rajendran, the learned counsel appearing for additional respondents 4 to 7. I have also WPC No.26803/2010 4 gone through the pleadings and the materials on record. The main contention raised by the petitioner is that the Panchayat committee cannot limit the grant of passes to vehicles already registered prior to August and September, 2010 and that the issue of passes should be left open to all lorry drivers/owners who have been engaged to transport river sand by customers who are registered with the Panchayat. The petitioner has not produced any document to show that Sri. Hamza, referred to in Ext.P3 building permit, who is admittedly residing in another Panchayat has registered his name with the Kadavu committee of Kuttipuram Grama Panchayat. There is no material to show that Sri.Hamza had made any attempt to buy sand from any of the Kadavus within the local limits of Kuttipuram Grama Panchayat. The need put forward by the petitioner being that of Sri.Hamza, it was necessary for him to plead and prove that Sri.Hamza was desirous of obtaining river sand from any of the Kadavus of Kuttipuram Grama Panchayat. That having not been done, I am of the opinion that the petitioner, a lorry driver who has no direct need for river sand, cannot be said to be a person who is aggrieved by the decision taken by the Panchayat on 7.8.2010 to issue passes only to vehicles which have already been registered WPC No.26803/2010 5 prior to August and September, 2010. It is evident from the decision later taken by the Panchayat on 4.9.2010 that the Panchayat has decided to dispense with practice of issuing passes to vehicles and to issue passes in respect of the river sand mined in the local limits of the Panchayat only to customers. In such circumstances, I am of the opinion that the reliefs prayed for by the petitioner cannot be granted. The writ petition fails and is accordingly dismissed with the observation that the dismissal of this writ petition will not stand in the way of the petitioner from transporting river sand in his lorry, if his lorry is hired by any customer who has purchased river sand from Kuttipuram Grama Panchayat. P.N.RAVINDRAN, (JUDGE) vps WPC No.26803/2010 6