IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 18287 of 2009(E) ----------------------------------------- PETITIONER(S): ---------------------- V.R.DEVARAJAN, AGED 49 YEARS, S/O.LATE RAGHAVAN, SREERAGAM, KIZHAKKEMANGALAM, ARATTUVAZHI P.O., ALAPPUZHA DISTRICT. BY ADV. MR.JOBI JOSE KONDODY RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM. 2. THE GEOLOGIST, MINING AND GEOLOGY DISTRICT OFFICE, CIVIL STATION, COLLECTORATE P.O., KOTTAYAM - 2. 3. THE TAHSILDAR, VAIKOM TALUK OFFICE, VAIKOM P.O., KOTTAYAM DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER MR. P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/08/2009 ALONG WITH WPC NO. 18491 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.GIRI, J. ---------------------------------------- W.P.(C).No.18287 & 18491 of 2009 ---------------------------------------- Dated this the 14th day of August, 2009. JUDGMENT Almost similar facts are involved in these writ petitions and therefore, they have been heard together and are being disposed of by this common judgment. I will discuss the facts in W.P.(C)No.18287/09 in the first instance. W.P.(C)No.18287/09 2. The petitioner has a dealer's licence, entitling him to stock 4000 MT of ordinary sand issued under Rule 45-C of theThe Kerala Minor Mineral Concession Rules, 1967 (hereinafter referred to as the Rules). The stock yard of the petitioner referred to in Ext.P1 licence is comprised in Survey No.84/21-C of Vadakkemuri Village. The petitioner had taken the said land on a lease from one Bhaskaran as per Ext.P2 agreement. W.P.(C).No.18287/09 & 18491/09 :: 2 :: 3. According to the petitioner, he has been conducting his business in accordance with the licence conditions. 4. On 29.6.2009, the 3rd respondent came to the stock yard of the petitioner and asked the manager of the petitioner to show the authority permitting to stock the sand found in the property. The petitioner produced Exts.P1 and P2. The stock which was taken into custody by the 3rd respondent and then entrusted on a kacheet under Ext.P3. The petitioner has a further case that he has kept statement of accounts as per Form-M. 5. The petitioner challenges the seizure of the stock as per Ext.P3 and has approached this court seeking the following reliefs: “i) Call for the records to Exhibit P3, issue a writ of certiorari and quash the same; ii) Issue a writ of mandamus directing the 3rd respondent not to auction the sand seized from the petitioner's property on 29.06.2009 mentioned in Exhibit P3; W.P.(C).No.18287/09 & 18491/09 :: 3 :: iii) Issue a writ of mandamus directing the 3rd respondent to permit the petitioner to conduct the business in his stockyard in accordance with Exhibit P1 dealers licence; iv) Issue a writ of mandamus directing the 3rd respondent to follow the principles of natural justice and to follow the procedures of seizure while conducting seizure of sand hereafter. v) Issue a writ of mandamus directing the 2nd respondent to ascertain the stock found in the petitioner's yard as to whether it is legally purchased or not and to furnish report regarding the same before the 1st and 3rd respondent. vi) Issue a writ of mandamus directing the 1st respondent not to harass the petitioner through the 3rd respondent while conducting his business legally in accordance with law and in accordance with Exhibit P1 dealers licence; and vii) Issue such other reliefs which this Honourable Court may deem fit and appropriate in the facts and circumstances of this case.” 6. A counter affidavit has been filed by the 3rd respondent. W.P.(C).No.18287/09 & 18491/09 :: 4 :: 7. The stand taken in the counter affidavit is that the petitioner had actually stocked river sand and not ordinary sand and he is not permitted to do so. On the basis of the materials detected on 29.7.2009, the petitioner's permit has been cancelled on a temporary basis as per Ext.P8 (produced along with the reply affidavit). To a show cause notice issued by the Geologist requiring the petitioner to show cause why his permit should not be cancelled, the petitioner has submitted a reply as per Ext.P9. A final decision, pursuant to the reply given by the petitioner has not been taken so far. 8. Similar facts are involved in W.P.(C) No.18491/09 also. 9. I heard Mr.Joby Jose Kondody, Learned counsel for the petitioners and Mr.P.Narayanan, learned Government Pleader. 10. The specific stand taken by the petitioners in both these cases is that the entire seizure effected W.P.(C).No.18287/09 & 18491/09 :: 5 :: on 29.06.2009 is illegal and consequently, the steps taken for cancelling the permits of the petitioners is also illegal. It is contended that Ext.P6 in W.P.(C) No.18287/09 and Ext.P8 in W.P.(C)No.18491/09 are also illegal. 11. The prime question is whether the sand seized from the petitioners on 29.06.2009 is river sand or ordinary sand. If it was ordinary sand, then the petitioner was entitled to stock and sell the same. In such a case, the only allegation that could be levelled against the petitioners would be whether the stock found in the premises at the time of inspection was within permissible limits and if so, whether there was violation of Rule 48L of the Rules. 12. There is a serious dispute as to whether the stock seized on 29.06.2009 is river sand or ordinary sand. This requires a factual verification. In the facts and circumstances of the case, it would be appropriate that the issue is decided by the Director of Geology. W.P.(C).No.18287/09 & 18491/09 :: 6 :: 13. Accordingly, Ext.P6 in W.P.(C)No.18287/09 and Ext.P8 in W.P.(C)No.18491/09 shall be treated as show cause notices and the petitioners' explanation to the same shall be considered and orders shall be passed by the Director of Geology, within one month from the date of receipt of a copy of this judgment. It is open to the Director of Geology to call for the requisite details from any subordinate officer, who may inspect the sand and file a report. If it is found that the sand in question seized on 29.06.2009 in both these cases is ordinary sand, then the cancellation of the permits effected under Ext.P6 in W.P.(C)No.18287/09 and Ext.P8 in W.P.(C)No.18491/09 shall stand revoked, with liberty to the department to proceed further against the petitioners for the alleged infraction of Rule 48L of the Rules. It would be open to the petitioners to defend any action taken by the department for the alleged infraction of Rule 48L of the Rules. W.P.(C).No.18287/09 & 18491/09 :: 7 :: 14. If, on the other hand the sand seized is found to be river sand, the cancellation of the permit shall stand affirmed, giving liberty to the petitioners to challenge the orders to be passed by the Director of Geology in appropriate proceedings. In such an event, the confiscation of the sand shall stand affirmed. 15. The interim orders already passed by this court shall continue to be operative till fresh orders are passed by the Director of Geology. But, it is made clear that the petitioners shall not, in any event, sell the stock in their respective stock yards, till orders are passed by the Director of Geology. Writ petitions are disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge