IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 15847 of 2008(J) -------------------------------------- PETITIONER: ------------------- SUBRAMANIAN, S/O. PARANGODANKUTTY, KIZHAKKETHIL HOUSE, KANJIRAMUKKU P.O., PONNANI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, MALAPPURAM. 3. THE TAHSILDAR, PONNANI TALUK, PONNANI, MALAPPURAM DISTRICT. 4. THE SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, PONNANI,MALAPPURAM DISTRICT. BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2008, ALONG WITH W.P.(C). NO. 27536/2008 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15847/2008-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PERMIT ISSUED BY THE SECRETARY, PONNANI MUNICIPALITY DTD. 09/10/2007. EXT.P.2: COPY OF THE ORDER NO.P5/47132/07 DTD. 05/11/2007 ISSUED BY THE R.2. EXT.P.3: COPY OF THE NOTICE NO.B3.6557/2007 DTD. 03/04/2008 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. “C.R.” V.GIRI, J. ------------------------------------------------------------ W.P.(C).No.15847, 27536, 27541, 27645, 27686, 27697, 27733, 27863, 27805,27926, 28078, 28756, 29047, 29272, 29355, 29408, 29609, 29672, 29707, 29708, 29719, 29960, 29961, 29963, 30666, 30825, 31414, 32817, 32886, 33830 & 34066 of 2008 ------------------------------------------------------------- Dated this the 19th day of November, 2008. JUDGMENT The constitutionality of certain provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as the “Sand Act”) and the validity of some of the provisions contained in the Rules framed thereunder (hereinafter referred to as “the Rules”) have been challenged in these writ petitions. 2. Challenge has been mounted in certain writ petitions against the proceedings taken for alleged contravention of the Act and the Rules framed thereunder, essentially resulting in the confiscation of the vehicles belonging to the petitioners. The competence of the State legislature to enact the Act in question itself has been questioned in some of the writ petitions, though the focus of the submissions W.P.(C).NO.15847/08 & con.cases :: 2 :: made by the learned counsel for the petitioners, in this regard, has also been centered around the validity of certain provisions in particular. Since, pleadings are complete in W.P.(C).No.15847 of 2008, I have taken up the same as the leading case. I have heard extensive arguments by the learned counsel for the petitioners, touching upon the legislative competence of the State legislature in passing the Act in question. 3. I heard learned Advocate General also in this regard. All the writ petitions were taken up for disposal by consent of parties. I will refer to the bare facts in W.P.(C).No.15847 of 2008 in the first instance. 4. Where the question of validity of the provisions have been challenged, those questions have been discussed first. W.P.(C).No.15847 of 2008 5. The petitioner is the registered owner of a lorry, bearing registration No.KL9- G/5124, seized by the Tahsidlar, Ponnani Taluk, 3rd respondent, on 9.10.2007, alleging unauthorised transportation of river sand. The petitioner W.P.(C).NO.15847/08 & con.cases :: 3 :: submits that the transportation of the sand was accompanied by the permit issued in this regard by the Secretary of the Regional Transport Authority, Ponnani. After seizure of the vehicle, there was no adjudication, as such, by the District Collector, either as to the validity of the seizure or on the plea raised by the petitioner for release of the vehicle contending that there is no unauthorised transportation of the sand and therefore, the seizure of the vehicle, in the first instance, is without any authority. 6. On 5.11.2007, the District Collector passed Ext.P2 order, imposing a fine of Rs.50,000/- and also fixed the value of the vehicle at Rs.70,000/-. Those amounts were ordered to be remitted to the River Management Fund, with a further direction that, if the amounts are not paid, further proceedings will be taken up as per the Sand Act. Ext.P3 consequential auction notice was issued by the Tahsildar. Exts.P2 and P3 are challenged in these writ petitions. The petitioner also prays for a declaration that Section 23 of the Sand Act is repugnant to the provisions contained in the Mines and Minerals W.P.(C).NO.15847/08 & con.cases :: 4 :: (Development and Regulation) Act, 1957 (hereinafter referred to as the “MMRD Act”) and the Kerala Minor Mineral Concession Rules, 1967 and consequently invalid in view of Article 254(1) of the Constitution. 7. No counter affidavit has been filed by the State. But, elaborate submissions have been made by the learned Advocate General in support of the provisions of the Sand Act. 8. I heard M/s.Babu S.Nair, Sunny Mathew, K.M.Firoz, Shoby K.Francis, Sageer Ibrahim, R.Sudhish and P.V.Kunhikrishnan, learned counsel for the petitioners and learned Advocate General Mr.C.P.Sudhakara Prasad, assisted by Mr.Hood, learned Government Pleader, for the State. 9. Learned counsel for the petitioners contends that the Sand Act contains elaborate provisions regulating the removal of river sand, which is also a minor mineral. The provisions of the Act, in general, provide for the control and removal of sand from the river banks and river beds. Though the preamble to the Act declares that the purpose of the legislation is to control the indiscriminate removal of sand from the rivers, W.P.(C).NO.15847/08 & con.cases :: 5 :: the provisions of the Act otherwise brings about a serious curtailment on the removal of sand from the river banks. It enables the Committee constituted under the Act to restrain the removal of sand from the river bed of any river, in any area. It enables a local authority, to insist that passes obtained from the Geological Department, on the recommendation of the Constituted District Expert Committee, be made available before any person is permitted to remove sand. It provides for the establishment of the River Management Fund for the management of the kadavu/river bank development. It enables the committee constituted under the Act or the Kadavu committee to fix the price of sand in each Kadavu. It also provides for penal provisions, as penalty for the contravention of the provisions of the Act. Removal of sand except in the manner provided in the Act is punishable. The entirety of the provisions of the Act, in pith and substance, constitutes a restriction and a regulation on the removal of sand, a minor mineral. It is contended that if that be so, the provisions of the Act, as a whole, and Section 23 of the Act in particular, which W.P.(C).NO.15847/08 & con.cases :: 6 :: provides for confiscation of the vehicle, which is used for transportation of the sand, a minor mineral, is an encroachment into a legislative field, completely occupied by the legislation passed by the Central Legislature viz., the MMRD Act. In other words, the Sand Act, essentially and effectively constitutes a regulation for the removal of sand from the river beds, which is a minor mineral and it is eligible to be treated as a legislation traceable to Entry 23 of List II (State list) of the 7th Schedule of the Constitution. If that be so, going by the express provision in Entry 23, it is subject to the provisions of List I, with respect to regulation and development under the control of the Union. A perusal of the provisions of the MMRD Act, contends the learned counsel for the petitioners, would show that it touches upon each and every aspect dealing with the mines and mineral development. This would, therefore, include sand in the river beds also. If that be so, the competence of the State legislature would stand abstracted, at least, insofar as those areas, which are otherwise comprehensively dealt with by W.P.(C).NO.15847/08 & con.cases :: 7 :: the Central legislation. Assuming that certain provisions of the Sand Act are not intended to regulate mines and mineral development, at least, those provisions of the Act, which come into a direct conflict with analogous provisions contained in the MMRD Act are liable to be treated as void, by virtue of Article 254 of the Constitution. Particular reference is made to the provisions contained in Section 23 of the Sand Act by which confiscation of the vehicle is possible for contravention of the Act or the Rules framed thereunder. 10. Learned Advocate General, on the other hand, submits that the Sand Act is not exclusively sourced to Entry 23 of List II of the 7th Schedule. It is sourced to Entries 5, 17, 18 and 23 of List II. In pith and substance, the Sand Act does not amount to a legislation dealing with the regulation of minor Mineral Development. It is a legislation intended to protect river banks and river beds from large scale dredging of river sand, to protect their biophysical environment system and regulate the removal of river sand and for matters connected therewith or incidental W.P.(C).NO.15847/08 & con.cases :: 8 :: thereto. The Central Act is not concerned with the protection of river banks and river beds. At any rate, the Central Act cannot purport to deal with the river banks and river beds, inasmuch as that, the said subject is exclusively comprehended by the State List. The question of abstraction of legislative competence of the State Legislature, therefore, does not arise. 11. The entirety of the Sand Act is sourced to legislative Entries in List II of the 7th Schedule of the Constitution. The entirety of the MMRD Act is sourced to Entry 54 of List I of the 7th Schedule of the Constitution. In such circumstances, the question of repugnancy, within the meaning of Article 254 of the Constitution, does not arise, it is contended. 12. It would be apposite to refer to the legislative entries, which are relevant for the purpose of these cases. 13. Entry 54 of List I and Entries 5, 17, 18, 23 and 64 of List II are the legislative entries, which are relevant and they are extracted hereunder: W.P.(C).NO.15847/08 & con.cases :: 9 :: “ List I 54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.” List II 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. 17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I. 18. Land, that s to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. 23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and W.P.(C).NO.15847/08 & con.cases :: 10 :: development under the control of the Union. 64. Offences against laws with respect to any of the matters in this List.” 14. The MMRD Act enacted by the Parliament declares it as an “Act to provide for the development and regulation of mines and minerals under the control of the Union”. The preamble is almost a verbatim reproduction of Entry 54 of List I of the 7th Schedule. Therefore, there obviously need not be any discussion whatsoever, as to the legislative Entry, to which the MMRD Act is sourced. It is apposite to straight away refer to Entry 23 in List II of 7th Schedule of the Constitution, where the State Legislature is entitled to pass a law, which also purports to regulate the mines and minerals, but the competence of the State Legislature is “subject to the provisions of Entry 54 of List I, insofar as the latter provides for the regulation and development under control of the Union”. In other words, the legislative competence of the State Legislature, under Entry 23 of List II, is subject to any law passed by the Central Legislature, expressly sourced to Entry 54 of List W.P.(C).NO.15847/08 & con.cases :: 11 :: I of the 7th Schedule. A conspectus of the provisions of the MMRD Act becomes necessary. 15. As stated above, it is intended for the development and regulation of mines and minerals under the control of the Union. Section 2 of the MMRD Act reads as follows: “2. Declaration as to the expediency of Union control:- It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.” 16. The control, with regard to the development and regulation of mines and minerals is, therefore, brought within its purview to the extent it is provided under the MMRD Act. Section 4 of the said Act is listed under the sub-heading “General Restrictions on Undertaking Prospecting and Mining Operations”. Section 4 deals with the reconnaissance licence granted under the provisions of the Act and the Rules made thereunder. Section 4A empowers the Central Government, after consultation with the State Government, to make a premature termination of a W.P.(C).NO.15847/08 & con.cases :: 12 :: prospecting licence or mining lease in respect of any mineral other than a minor mineral. Section 5 empowers the State to impose restrictions on the grant of prospecting licences. Sections 6,7 and 8 can be treated as ancillary provisions to section 4, insofar as the latter deals with the prospecting licences of minor mineral. Section 9 enables the imposition of royalty in respect of mining leases and Section 9A is the provision which deals with the imposition of dead rent. Section 13 empowers the Central Government to make provisions in respect of regulating the grant of reconnaissance permits, prospecting licences and mining leases in respect of minerals. But, Section 13 has to be read with Section 14, which makes it clear that the provisions of Sections 5 to 13 shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals. The power to make Rules in respect of minor minerals is conferred on the State Government under Section 15 and the Rule making power conferred under Section 15 extends to the manner in which applications for quarry leases, mining leases or other mineral leases in respect W.P.(C).NO.15847/08 & con.cases :: 13 :: minor minerals can be given. In other words, the power to regulate a minor mineral and regulate the development of the minor minerals is made available to the State Government. But, obviously, the power made available to the State, in this regard, is only as a delegate of the Union, which otherwise is constitutionally competent to bring about any regulation as regards the development of even a minor mineral. The authority given to the State Government is, therefore, only as a delegate of the Union, insofar as the matters which come under Section 15 of the MMRD Act is concerned. Section 21 of the Act deals with penalties and Section 21(1) reads as follows: “21(1). Whoever contravenes the provisions of sub-section(1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty- five thousand rupees, or with both.” 17. Section 21(5) of the Act reads as follows: W.P.(C).NO.15847/08 & con.cases :: 14 :: “Whenever any person raised, without any lawful authority, any mineral from any land, the State Government may, recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.” 18. Where, therefore, any person raises, without any lawful authority, any mineral from any land, the State Government may, recover from such person, the price thereof, and also recover from such person, rent, royalty or tax, as the case may be. 19. Since Section 4(1A) has not been specifically excluded from the ambit of minor mineral, the provisions providing for a contravention of Sub-section (1) or sub-section (1A) of Section 4 would apply in the case of minor mineral. Section 22 of the Act provides that “no court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by a person authorised in this behalf by the Central Government or the State W.P.(C).NO.15847/08 & con.cases :: 15 :: Government”. Section 23A deals with the compounding of offences. Section 23C empowers the State Government to make Rules for preventing illegal mining, transportation and storage of minerals. 20. Reference, at this juncture, will have to be made to Minor Mineral Concession Rules, 1967 framed by the State Government under Section 15 of the MMRD Act. A detailed conspectus of the provisions of the Rules need not be undertaken. But reference will have to be made to Rule 48, 48A and 58 of the Rules. 21. Under Rule 48K any consignment of minor mineral, without a valid Cash Memorandum, shall be considered as illicit and the competent authority may recover the minor mineral from the person and also seize the receptacles in which the same is found and the carts, vehicles or other conveyances used for carrying the goods. Rule 58 of the Rules provides for punishment in case there is a contravention of the provisions of the Rules. The contravention would be punishable with imprisonment for a term which may extend to one year or with a fine, which may extend to W.P.(C).NO.15847/08 & con.cases :: 16 :: Rs.5,000/- or with both. Obviously, since the sentence is punishable by imprisonment, such punishment could be imposed only by a competent court. Rule 60A deals with compounding of offences. 22. It is contended that storage and transportation of sand, which would include river sand, a minor mineral, is, therefore, regulated by the provisions of the MMRD Act and Rules framed thereunder. If that be so, the Central Act and the Rules framed thereunder legislatively cover each and every aspect dealing with the winning of river sand and transportation of sand. To that extent, the field is completely occupied by the Central Legislation sourced to Entry 54 of List I of 7th Schedule. 23. Expatiating on this, learned counsel for the petitioner submits that there is an ouster of competence of the State Legislature or abstraction of powers of the State Legislature, otherwise made available in Entry 23 of List II of 7th Schedule. Thus, any provision in the Sand Act, which purports to touch upon a field otherwise comprehended by the Central Act and the Rules W.P.(C).NO.15847/08 & con.cases :: 17 :: framed thereunder, would be per se bereft of legislative competence. Particular reference in this regard is made to Section 23 of the Sand Act and Rules 27 and 28 of the Rules, as a typical illustration of the absence of legislative competence of the State Legislature. 24. Reference will have to be made to the relevant provisions of the Sand Act in this regard. As stated above, I consider it necessary to extract the preamble of the Sand Act as hereunder: Preamble: WHEREAS it has come to the notice of the Government that indiscriminate and uncontrolled removal of sand from the rivers cause large scale river bank sliding and loss of property.” 25. Sections 2(b), 2(c), 2(e) and 2(f) of the Sand Act are relevant and are extracted hereunder: 2(b). “District Expert Committee” means the District Expert Committee constituted under Section 3. 2(c). “Fund” means the River Management Fund maintained under Section 17. 2(e). “Kadavu” means river bank, or water body where removal of sand is carried out. W.P.(C).NO.15847/08 & con.cases :: 18 :: 2(f). “Kadavu Committee” means the Kadavu Committee constituted under Section 4.” 26. Section 3 provides for the Constitution and composition of the District Expert Committee. Section 4 deals with the Constitution and composition of the Kadavu Committee. Section 9, which deals with the powers and functions of the District Expert Committee, is relevant and is extracted hereunder: “9. Subject to the other provisions of this Act and the rules made thereunder, the District Expert Committee shall have the following powers and functions, namely:- (a) to identify the Kadavu or river bank in a District in which, sand removal may be permitted; (b) to fix the total quantity of sand that can be removed from a Kadavu or river bank giving due regard to the guidelines of expert agencies like the Centre for Earth Science Studies and Centre for Water Resources Development and Management. (c) to control the transportation of sand from a Kadavu or river bank to another area; (d) to close a Kadavu or river bank W.P.(C).NO.15847/08 & con.cases :: 19 :: opened for sand removal; (e) to ensure the protection of river banks and keep them free from encroachment; (f) to consider the opinion of the Kadavu Committee and take suitable measures to achieve the objectives of this Act; (g) to ensure that the Kadavu Committees of the District are performing their powers and functions conferred on them by this Act; (h) to advise the Government on the measures to protect the biophysical environmental system of the river banks; (i) to recommend to the Government the necessity to ban sand removal from any river or Kadavu during any season of the year; (j) to carry out the Directions given by the Government from time to time; (k) to exercise such other powers and perform such other duties as are conferred on it by this Act and rules made thereunder; (l) to advise on any other matter to carry-out the provisions of this Act. 27. Chapter III of the Sand Act deals with the Protection of River Bank and Biophysical W.P.(C).NO.15847/08 & con.cases :: 20 :: Environment Systems. General conditions that could be imposed in the matter of sand removal are provided in Section 12. Section 13 empowers the State or the District Collector to order closure of a Kadavu opened for sand removal, notwithstanding anything contained in the Act or in any decree or order of any court. This would include the power of the District Collector to notify the ban on sand removal from any river or river bank during a particular period. 28. Section 14 empowers a Kadavu Committee, after taking into account the availability and accessibility of sand in any area to fix the price of sand for each Kadavu and such fixation shall be made by public auction. Section 15 is relevant and is therefore extracted. “15. Obligation of the Local Authorities to maintain the Kadavu or river banks in safe condition: (1) Every Local Authority in the State having Kadavu or river bank for sand removal shall maintain such Kadavu or river bank in a safe condition and protect its bio-physical environment system by taking effective steps to control river bank sliding. W.P.(C).NO.15847/08 & con.cases :: 21 :: (2) Every local authority shall erect concrete pillars at the Kadavu or river bank in such a way that no vehicle shall have direct access to the bank of the river. (3) The local authority shall establish a check post at each Kadavu or river bank and maintain proper account of the sand removed from the Kadavu. (4) Bamboo and “Attuvanchi” may be planted on the river bank with the help of Forest Department to control river bank sliding.” 29. Chapter IV dealing with the Regulation to Upkeep the Bio-Physical Environment, deals with the River Bank Management Fund and issue of Passes. The Director of Mining and Geology is also referred as the competent authority in this regard, by providing that the Department of Mining and Geology shall ensure that no pass is issued to the Local Authority without settling the accounts as provided in sub-section (5) of Section 17, which, in turn, provides that the amount payable towards contribution by