IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19th AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 30276 of 2008(D) -------------------------- PETITIONER(S): --------------- 1. K.J.SUNNY, S/O.JOSEPH AGED 44, KACHAPPILLY HOUSE, MANICKAMANGALAM KALADY, ALUVA TALUK. 2. U.K.DEVSSYKUTTY, S/O.KUNJU VARKEY AGED 65 YEARS, UTHUPPAN HOUSE, KANJOOR PARAPPURAM,ALUVA TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY DEPARTMENT OF REVENUE SECRETARIATE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANADU. 3. TAHASILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR. 4. SUB INSPECTOR OF POLICE PERUMBAVOOR. G.P. SHRI.SALIM.P.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.8.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 30276/08. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE REGISTRATION BOOK. P2. -DO- P3. -DO- P4. -DO- P5. -DO- P6. COPY OF THE MAHAZAR BY R4 DTD.9.10.08. P7. COPY OF THE LETTER DTD.9.10.08 BY R4 TO R3. P8. COPY OF THE REPORT OF THE VILLAGE OFFICER DTD.10.10.08. P9. COPY OF THE THANDAPPER ACCOUNT OF THE PROPERTY OF VATHIMATTOM KUNJU MUHAMMED. P10. C0 REPORT DTD.10.10.08 BY R3 TO R2. P11. COPY OF THE ORDER DTD.22.10.08 BY R2. P12. COPY OF THE ORDER DTD.1.11.08 BY R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.30276 of 2008 ================== Dated this the 19th day of August, 2009 J U D G M E N T The 1st petitioner is the registered owner of three mini lorries, the registration particulars of which are produced as Exts.P1 to P4 and the 2nd petitioner is the registered owner of a lorry, the registration particulars of which are produced as Ext.P5. In the course of their business of transporting material for intending customers in their lorries, the petitioners have been transporting building materials for various parties in and around Kaladi. On 9.10.2008, the said five vehicles were seized by the 4th respondent at Arackappady alleging that the vehicles were trying to transport ordinary earth illegally from the property of one Vathimattathil Kunju Muhammed. That seizure culminated acknowledged in Ext.P11 order of the District Collector, whereby the District Collector directed the petitioners to pay fine at the rate of Rs.25,000/- per vehicle. Ext.P6 mahazar and, Exts.P11 and P12 orders of the District Collector imposing fine are under challenge in this writ petition. 2. According to the petitioners, the vehicles were not used for any illegal purposes as alleged. It is pointed out that even according to Ext.P10 report of the Tahsildar to the District Collector, the allegation is only that an attempt was made to remove ordinary earth using the W.P.C.30276/08 2 vehicles in question. It is further submitted that the District Collector has no powers to impose fine either under the Kerala Minor Mineral Concession Rules or under the Kerala Land Utilization Order. In Exts.P11 and P12 what is referred to is violation of the Kerala Land Utilization Order only. Therefore, according to the petitioners, Exts.P11 and P12 are without jurisdiction. 3. A counter affidavit has been filed by the 2nd respondent, wherein the allegation is that there were repeated attempts by the owners of the property to remove ordinary sand from the property in question and once there was a stop memo issued in that regard. It is violating that stop memo, on a holiday, they have attempted to remove ordinary earth from the property in question, which was prevented by the local people, pursuant to which, the vehicles were seized. The contention is that ordinary earth being mineral as defined under the Mines and Minerals (Development and Regulation) Act, 1957, ordinary earth cannot be removed from the proprieties even if it is a private property, except in accordance with a permit issued by the Geologist. The Government of India has by notification GSR 95(3) dated 3.2.2000 declared ordinary earth used for filling or leveling purposes in construction of embankments, roads, railways, buildings to be a minor mineral in addition to the minerals already declared as minor minerals under the said clause. That being so, the District W.P.C.30276/08 3 Collector has ample power to prevent unauthorised removal of ordinary earth within his jurisdiction. Consequently, he also has powers to impose fine on persons violating the provisions of law in that regard, is the contention raised. 4. I have considered the rival contentions in detail. 5. Of late, indiscriminate exploitation of natural resources is on the increase on an alarming scale, which has gained the attention of the Supreme Court and this Court in several cases. In fact a Division Bench of this Court in Soman v. Geologist reported in 2004 (3) KLT 577, held that even when statutes do not provide for appropriate powers for preventing such indiscriminate exploitation of natural wealth, such powers have to be read into the statute on the strength of Article 21 of the Constitution of India. In fact deriving support from those decisions, I had in W.P.(C). No. 9015/2007 held that the power of the District Collector to prevent such illegal removal of ordinary earth has to be read into the Kerala Minor Mineral Concession Rules. When the District Collector has such powers to prevent such illegal mining of earth, naturally, there should be some sanction for violation of the provisions of the Minor Mineral Concession Rules. That being so, I do not think that the District Collector is completely unjustified in passing the impugned orders. In the above circumstances, the learned counsel for the petitioners submits that even if the District Collector W.P.C.30276/08 4 has powers, the fine imposed is arbitrary and excessive, especially taking into account the fact that at the time of seizure, lorries were not carrying any sand. He would submit that the petitioners have already paid Rs.62,500/- for release of the vehicles as per the interim order of this Court and executed bank guarantee for the balance. He would submit that payment of the said amount of Rs.62,500/- may be accepted as sufficient fine for the alleged violation. 6. Taking into account the facts and circumstances of the case, I also feel that payment of Rs.62,500/- already made by the petitioners would be sufficient penalty for the violation detected. Accordingly, this writ petition is disposed of modifying Exts.P11 and P12 orders to the effect that the fine payable by the petitioners would be only Rs.62,500/-. Accordingly, the bank guarantee furnished by the petitioners for the balance shall be returned to them. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge