IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 31658 of 2010(F) ---------------------------------------- PETITIONER(S): ------------------------ SUNIL KUMAR, KOMPRAYATTU, PUTHALA P.O VENMONY, CHENGANNUR. BY ADV. SRI.R.SUNIL KUMAR, SMT.A.SALINI LAL. RESPONDENT(S): --------------------------- 1. DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA, PIN-689 645. 2. DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA, PIN - 688 001. 3. SUPERINTENDENT OF POLICE, PATHANAMTHITTA, PIN-689 645. 4. SUPERINTENDENT OF POLICE, ALAPPUZHA, PIN - 688 001. R1 TO R4 BY SRI.P.N. SUKUMARAN, ADDL. D.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.31658 of 2010 ---------------------------------------- Dated this the 2nd day of December 2010 J U D G M E N T K.M.JOSEPH,J The petitioner has approached this Court complaining of harassment by the police authorities while he is transporting ordinary earth which is covered by Ext.P3 order. According to the petitioner, the petitioner is a 'C' class government contractor earning his daily bread by doing contract work for government as well as for private parties. He is also the owner of a vehicle which is mainly used for transporting ordinary earth from one place to another for construction purpose. It is stated that at many occasions, the officials attached to respondents office used to stop the petitioner's vehicle claiming that they are implementing the law under Sand Mining Act. On many occasions, the petitioner had to give custody of the vehicle the whole day and in the evening the vehicle used to be released without even registering a case. The Government of Kerala has issued Ext.P3 order. W.P.C.No.31658 of 2010 2 According to the petitioner, by Ext.P3 order, in respect of ordinary sand, the petitioner is freed from harassment at the hands of the police officers. A statement is filed by the Suit Officer, Collectorate, Alappuzha on behalf of the 2nd respondent wherein it is stated as follows: “It is submitted that though the Government had issued Ext.P3 order, certain conditions also were imposed to be followed by the Revenue, Mining, Geology Department and Pollution Control Board in connection with the extraction of red earth or ordinary earth. As per the direction in the said Government Order, the sanction from the concerned department is required in relation to the ecological impact due to the extraction of huge quantity of earth. Therefore the concerned department should ensure before issuing sanction that no ecological problems would arise due to the removal of earth. So, it is directed that all the existing rules and directions shall be complied with, while extracting and transporting red earth or ordinary earth. So from the above directions, it is clear that Mines and Minerals (Development and Regulation) Act, 1957 and Kerala Minor Mineral Concession Rules, 1967 shall also be applicable in the case of W.P.C.No.31658 of 2010 3 transportation of red earth, since the Miner Mineral was inserted by notification No.GSR.95 (E) dated 3.2.2000 issued by the Government of India Ministry of Mines and Minerals. So, if sanction is accorded for the extraction of huge amount of red earth or ordinary earth without any control by the authorities, that will result in the excavation of entire top soil of several areas which will have a negative impact on the environment. So, the petitioner has no absolute right to indulge in activities resulting in environmental degradation in the land owned by him. It is submitted that as per Rule 57, the petitioner has to obtain special permit from the State Government in case of leveling of ground for construction for residential building, creation of play ground for public purpose, construction of canals, wells, roads or for agricultural and such other purposes where extraction of minor mineral is inevitable. So the petitioner has not obtained any permit and State Government to extract earth as mentioned above. The petitioner filed the above writ petition only anticipating the intervention of the concerned authorities if he excavates or transports ordinary earth without any valid permit or licence issued W.P.C.No.31658 of 2010 4 by the concerned authorities. 2. There is reference to Rule 57. It is stated that there is no harassment. 3. We have heard the learned counsel for the petitioner and the learned Additional Director General of Police. The learned counsel for the petitioner reiterates the Government order and submits that the petitioner is only transporting ordinary sand and no permission is required for that. The learned A.D.G.P relies on the decision of the Division of this Court in Construction Material Movers Association v. State of Kerala [2009(2) I.L.R 360] wherein this Court has held that prohibition under Section 4(1A) of the Mines and Minerals (Development and Regulation) Act, 1957 for transporting or storing mines and minerals otherwise in accordance with the Act and Rules would be applicable to ordinary earth also irrespective of the fact that the ordinary earth is not included in the schedule to Mines and Minerals Rules. The learned A.D.G.P further refers to Rule 48L of the Kerala Minor Mineral Concession Rules which reads as follows: W.P.C.No.31658 of 2010 5 “Checking of unauthorised dealing in minor mineral.- Any person who possesses any minor mineral for consumption or for sale or consumed or sold any minor mineral shall if so required produce sufficient proof to the competent authority or to any other person authorised in this behalf by the competent authority or the Government, to the effect that the minor mineral had been purchased from any duly authorised producer or dealer as the case may be. If he fails to produce sufficient proof to that effect the competent authorities or such authorised person may recover the minor mineral or where such mineral has already been disposed of or consumed, the price thereof and also recover from the person the royalty or tax and fine, if any imposed.” 4. In Rule 48L, there is an embargo against person possessing except with a proper document. According to him, if there is no provision for checking as to the source from which it is being transported, it will lead to the situation which will defeat the provisions of the law. Therefore, he would submit that, as long as there is proper document, as aforesaid, there will be no harassment. W.P.C.No.31658 of 2010 6 5. We record the same and close the writ petition. (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.31658 of 2010 7 W.P.C.No.31658 of 2010 8 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010