IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 37653 of 2008(G) -------------------------- PETITIONER: -------------- M.S. HAMEED, AGED 43 YEARS, S/O. SULAIMAN, MUDATH HOUSE, KALADY VILLAGE, ALUVA TALUK. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENTS: ---------------- 1. THE KALADY GRAMA PANCHAYATH REP. BY ITS SECRETARY, KALADY, PERUMBAVOOR. 2. THE SUB INSPECTOR OF POLICE, KALADY POLICE, STATION, PERUMBAVOOR. R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN R2 BY GOVERNMENT PLEADER, SMT. N. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 37653/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 07.10.08. RESPONDENT'S EXHIBITS: EXT.R1(A) : TRUE COPY OF THE MINUTES OF THE DISTRICT EXPERT COMMITTEE, DATED 18.05.07. EXT.R1(B) : TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, DATED 07.10.08. EXT.R1(C) : TRUE COPY OF THE RESOLUTION NO.II(2) PASSED BY THE 1ST RESPPONDENT DATED 24.09.08. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 37653 OF 2008 ------------------------------------------------- Dated this the 19th day of June, 2009 JUDGMENT The petitioner is the owner of a lorry. He is a resident of the 1st respondent Panchayat. His house is situated by the side of the Periyar river abutting a Kadavu, from where the 1st respondent is selling river sand. The petitioner’s grievance in this writ petition is that the petitioner’s lorry is not being permitted to be used for the purpose of transporting river sand for consumers. According to the petitioner, the Panchayat will issue passes for transport of river sand only to lorry owners of their preference. Petitioner would contend that if there is a willing consumer who wants to use the petitioner's lorry for sand purchased by the consumer and the Panchayat refuses permission to the petitioner for using his lorry for transportation of river sand, the same would be a violation of his fundamental rights guaranteed under Article 19(1) (g) of the Constitution of India. Petitioner therefore seeks the following reliefs: “i. issue a writ of mandamus or such other writ, order or direction, directing the 1st respondent to issue passes to the petitioner for transportation of sand from any of its 'kadavu', on WPC :37653/08 -:2:- request and payment of the required charges for the sand to be transported. ii. Declare that the 1st respondent has no authority under any law to recognise any vehicle or it's owner for transportation of sand from the 'kadavu' of the 1st respondent.” 2. A counter affidavit has been filed by the 1st respondent, wherein it is stated that the Ernakulam District Expert Committee constituted under the Kerala Protection of River Banks & Regulation of Removal of Sand Act, 2001, in exercise of powers conferred under Section 9 of the said Act, by Ext.R1(a) resolution dated 18.05.07, directed the Panchayat to follow the directions contained therein for the purpose of transportation of river sand, in their attempt to curb irregularities found out in connection with the collection and sale of river sand. One of the directions therein was that lorry which is transporting river sand from Panchayat kadavus must register their vehicle with the Panchayat and only such registered vehicle should be allowed to transport river sand from the Panchayat kadavu. Accordingly, for the year 2007-08, 88 vehicles were registered for transporting river sand from the kadavu. For the year 2008-09 also the Panchayat sanctioned only the same number of kadavus and same number of loads of sand as in the previous year. In view of WPC :37653/08 -:3:- that fact, it was not found necessary for registering any more lorries and accordingly, for the year 2008-09, no additional lorries were registered. Petitioner did not apply for registration for the year 2007-08. Therefore, there was no occasion for the Panchayat to consider the application for registration of the petitioner’s vehicle for the year 2008-09. It is under the above circumstance, the petitioner was not given registration is the contention raised by the 1st respondent Panchayat. 3. The contention of the petitioner is that this would cause inconvenience and loss not only to the petitioner but also to the consumers who would have availed of the services of the lorries registered at the rates demanded by them, which according to the petitioner is onerous and unreasonable to the consumers who must have a choice in the matter of deciding as to which lorry should be engaged for their purpose. According to the petitioner, he is a citizen who owns a lorry and he pays both vehicle tax and other taxes to both the Government and the Panchayat. That being so, the Panchayat cannot arbitrarily refuse permit to the petitioner’s lorry to transport sand, if a particular consumer wants to use the petitioner’s WPC :37653/08 -:4:- lorry for such transportation. According to the petitioner, that would amount to violation of his fundamental rights. 4. I have considered the rival contentions in detail. I have perused Ext.R1(a) the minutes of the meeting of the expert committee constituted under the above said Act. The operative portion of the same reads thus: “Malayalam Portion” “Malayalam Portion” “Malayalam Portion” WPC :37653/08 -:5:- “Malayalam Portion” “Malayalam Portion” “Malayalam Portion” “Malayalam Portion” 5. The availability of river sand is not unlimited. There is restriction in the collection of river sand. Only quantities limited as per decision of the expert committee, can be allowed to be sold and transported. As stated by the Panchayat, for the year 2007-08 all WPC :37653/08 -:6:- lorries who sought registration have been granted registration. They have not discriminated anybody in that regard. Admittedly, petitioner did not seek registration during that year. For the present year, the Panchayat decided not to register any further vehicle insofar as no additional kadavu has been sanctioned and no additional quantity of river sand also was permitted to be collected and sold. As such, I do not find that the decision, not to register any more lorries for the year 2008-09, is in any way arbitrary or unreasonable. That action would not give rise to a contention by the petitioner that, that would affect his fundamental right. Such restriction can only be considered as a reasonable restriction especially in view of the restriction imposed by the Act. Therefore, I do not find any merit in the contentions of the petitioner and accordingly the writ petition is dismissed. 6. But, I direct that the Panchayat shall scrupulously follow the decisions in Ext.R1(a), particularly, the decision regarding fixation of hire charges of lorries and display of rates in the kadavus. The respondents shall see that the lorries do not charge hire charges in excess of what has been so fixed by the authorities. If any complaint in this regard is received from any consumer, the same shall be WPC :37653/08 -:7:- promptly dealt with and if found correct, the registration of such lorries shall be immediately cancelled. The fact that any person aggrieved by the rate demanded by a lorry can file a complaint shall also be displayed in the Kadavu. In case of such cancellation, it would be open to the Panchayat to register sufficient further lorries to make up the number as in the previous year. S. SIRI JAGAN, JUDGE ttb