IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 6184 of 2008(J) --------------------------------------- PETITIONER(S): -------------------------- T.G.MARTIN, BLOCK PANCHAYAT MEMBER, VAZHAKKULAM BLOCK, ERUMATHALA P.O., CHUNAGAMVELI. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. DEPUTY COLLECTOR, ERNAKULAM. 4. DISTRICT SUPERINTENDENT OF POLICE, ALUVA RURAL, ALUVA. 5. TAHSILDAR, ALUVA. 6. KEEZHMADU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KEEZHMADU, ALUVA. *ADDL.R7 TO R22 ARE IMPLEADED: R7. A.A.SALIM, THATTATHIL HOUSE, CHALACKAL, MARAMPPALLY P.O. Kss ..2/- ....2...... WPC.NO.6184/2008S R8. ABOOBACKER, THEKKAYIL HOUSE, KUTTAMMASSERY, THOTTUMUGHOM P.O. R9. JALEEL.C.B., CHERODATH HOUSE, THOTTUMUGHOM P.O. R10. HANEEFA K.E., KUNNASSERY PALLOM, THOTTUMUGHOM P.O. R11. E.V.JAMAL, EDAYAPPURAM HOUSE, THOTTUMUGHOM P.O. R12. SUKUMARAN P.Y., PARAPPAI HOUSE, EDAYAPPURAM , ALUVA. R13. ABDUL WAHAB, THATTATHIL HOUSE, MARAMPPALLY P.O. R14. K.A.SYAD, KEEZHTHOTTATIL, CHALACKAL, MARAMPPALLY P.O. R15. MEETHIAN KUNJU, NALUKANDATHIL CHALACKAL , MARAMPPALLY P.O. R16. ANAZ T.K., THAZHATHU HOUSE, CHALACKAL, MARAMPPALLY P.O. R17. T.H.ABDUL RAHIM, THATTATHUMPADI HOUSE, CHALACKAL, MARAMPPALLY P.O. R18. M.K.ALIKUNJU, MOOLOLY VEEDU, ULIYANNOOR P.O., ALUVA. R19. K.M.HAMZA, KADVAIL KOYATTIKUDY CHALACKAL, MARAMPPALLY P.O. R20. AHAMMED ASHRAFF, THATTATAIL KOTTAPPURAM, RABI MANZIL, CHALACKAL, MARAMPPALLY P.O. R21. K.S.BASHEER, KAROTTAPPURAR, KUTTAMASSERY, THOTTUMUGHOM P.O. ...3... W.P.(C) NO.6184/2008 ..3.. R22. MUHAMMED, CHENTHARA HOUSE, THOTTUMUGHOM P.O. ADDL. R7 TO R22 ARE IMPLEADED AS PER ORDER DT. 8.1.2009 IN I.A. NO.3409/2008. GOVERNMENT PLEADER SMT. K.MEERA FOR R1 TO R5 ADV. SRI.DINESH MATHEW J.MURICKEN FOR R6 SRI.P.V.BALAKRISHNAN FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6184/2008S APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF THE CESS REPORT RELATING KEEZHMADU GRAMA PANCHAYAT. EXT.P2: COPY OF THE LETTER NO.826/08/K.DIS. DTD. 4/2/2008 OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE CIRCULAR NO.LR(K)41134/2005 DTD. 6/10/2006 OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. EXT.P4: COPY OF THE JUDGMENT DTD. 14/12/2006 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.31125 OF 2006. EXT.P5: COPY OF THE JUDGMENT DTD. 1/03/06 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.1281 OF 2006. EXT.P6: COPY OF THE REPORT APPEARED IN MALAYALA MANORAMA DAILY DTD. 30/11/2007. EXT.P7: COPY OF THE REPORT APPEARED IN MADHYAMAM DAILY DTD. 6/12/2007. EXT.P8: COPY OF THE PETITION DTD. 4/12/2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P9: COPY OF THE PETITION DTD. 24/11/2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P10: COPY OF THE PETITION DTD. 29/11/2007 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT ALONG WITH LETTER NO.DIS.64912/07/M2 DTD. 28/11/2007 OF THE 3RD RESPONDENT. EXT.P11: COPY OF THE LIST CONTAINING THE NAME OF 32 PERSONS AS LEADERS WITH THEIR PHOTOGRAPHS. RESPONDENT'S EXHIBITS: EXT.R6(a): COPY OF THE REPORT ISSUED BY THE CENTER FOR EARTH SCIENCE STUDIES. EXT.R6(b): COPY OF THE JUDGMENT IN O.P.NO.8894/03 ON THE FILE OF THIS HONOURABLE COURT DTD. 26/03/2003. Kss ..2/- ..2... W.P.(C) NO.6184/2008 EXT.R6(c):- COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DT. 4/6/03. EXT.R6(d):- COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DT 4/12/07. EXT.R6(e):- COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DT. 27/10/2007. EXT.R6(f):- COPY OF THE RESOLUTION NO.1(2) OF THE 6TH RESPONDENT PANCH DT. 23/11/07. EXT.R6(g):- COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC. NO.37672/07 DT. 19/12/2007. EXT.R6(h):- COPY OF THE REPLY SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT DT.17/3/08. /True copy/ P.A. TO JUDGE Kss J.B.KOSHY, Ag.CJ & P.R.RAMACHANDRA MENON, J. =========================== W.P.(C).No.6184 of 2008 =============================== Dated this the 8th day of January, 2009. J U D G M E N T Koshy, Ag.CJ. Petitioner is the elected member from Erumathala Division of Vazhakkulam Block Panchayath. Keezhmadu Grama Panchayath is a part of Vazhakkulam Block Panchayath. Periyar river is flowing within the limits of Keezhmadu Grama Panchayath. Aluva Municipality is also adjacent to the said Panchayath. The contention of the petitioner is that indiscriminate sand mining is going on in the river. River is perishing. People in the locality have no drinking water facility. All the wells are dry. Several circulars were also issued by the Government regarding the protection of the rivers and our legislature also passed the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The above Act was passed to protect river banks and river beds from large scale dredging of river sand and to protect their biophysical environment system and regulate the removal of river sand and W.P.(C).No.6184 of 2008 2 for matters connected therewith or incidental thereto. Section 29 of the Act reads as follows: “29. Sand auditing.-The Government may, with a view to ensure protection of every river, provide for periodical measurement of the quantity of sand available for, removal by such method and in such manner as may, be prescribed.” Section 9 deals with power and functions of the District Expert Committee. Section 9(a) and (B) reads as follows: “9. Power and Functions of the District Expert Committee.- 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.” Rule 29(2) of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 passed in exercise conferred by Section 26 of the Act reads as follows: “29. Additional provisions on Sand Mining Activities.- (1) x x x x x x x x x x x (2) The quantity of sand to be removed from a Kadavu shall be determined by the District Expert Committee after taking into account the guidelines of expert W.P.(C).No.6184 of 2008 3 committees such as Centre for Earth Science Studies Centre for Water Resources Development and Management and shall be sold after paying the royalty, by collecting the entire quantity of such sand on river banks.” Rule 30 provides that sand audit shall be conducted every three years. But the contention of the petitioner is that no sand audit was conducted after 2001. Ext.P1 is the sand audit conducted for the Keezhmadu Grama Panchayath by the Expert Committee with regard to the environmental problems. The above Committee reported as follows: “Riverbed lowering, changes in riverbed configuration, riverbank slumping, etc., are noticed from the area. Several pits of variable dimensions have been formed within the river channel due to wanton exploitation for river sands. Illicit mining activities using pole and net mechanism are also noticed at places of the river channel.” 2. It is also contended that, even though several mechanisms are there to protect river and prevent unauthorised sand mining, indiscriminate sand mining is taking place. If in 2001, this was the condition as shown in Ext.P1, in 2009, because of the illicit sand mining and sand mining as per the permits a lot of environmental problems are created. Earlier Division Bench of this Court in W.P.(C).No.35350/2005, various observations were made by the then Hon'ble Chief Justice Mr. W.P.(C).No.6184 of 2008 4 V.K.Bali and in Ext.P5 and those observations were detailed by one of us, where it was specifically stated that before auctioning the sand mining, report from the Expert Committee as referred by paragraph II(iii) of the earlier judgment should be obtained. Now the Government has filed a counter affidavit. At paragraph 4, it is stated as follows: “ Section 29 of the Act provides conducting sand audit by the Government for periodical measurement of the quantity of sand available for mining. Further, Rule 29(2) provides that guidelines for sand mining from the expert bodies like Centre for Earth Science Studies (CESS), Centre for Water Resource Development and Management (CWRDM) may be taken into account by the DLEC before fixing the quantity of sand to be mined. The CESS, Thiruvananthapuram has submitted their study report relating the sand mining from Ernakulam District has been submitted during April, 2004. The Centre for Earth Science Studies (CESS) has not conducted any further studies in this regard. They have informed that they cannot conduct such studies and the matter has been reported to the Government for conducting sand audit.” It shows that no Expert Committee was conducted after 2004. At paragraph 8 it is stated as follows: “As per the provisions of the Act, the local bodies are obliged to prevent illicit mining of sand. CESS has conducted study for the succeeding three years, the Act also state that sand audit (expert study on sand mining) should be conducted every three years. Since the CESS is not willing to conduct such a study the district administration requested the Government to initiate the study and the request was positively taken up by the Government.” W.P.(C).No.6184 of 2008 5 3. In view of the earlier direction of this Court in W.P.(C). No.35350/2005 in Ext.P5 judgment and in view of the provisions of the Sand Act, no sand mining can be auctioned in Periyar river flowing through Keezhmadu Grama Panchayath without getting Expert Committee report of sand audit. This is a statutory mandate also. The Government as well as the District Collector concerned is directed to implement the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 positively and see that no sand mining is conducted in the Kadavu until Expert Committee makes a report favourably for sand mining in the Keezhmadu Grama Panchayath. The writ petition is allowed as above. J.B.KOSHY, ACTING CHIEF JUSTICE. P.R.RAMACHANDRA MENON, JUDGE. bkn/-