IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 15896 of 2007(P) -------------------------- PETITIONER(S): --------------- ABDUL KADER, S/O HAMEED HAJI, AGED 38 YEARS, VLIYAPOYIL HOUSE, NIT, CHATAHAMANGALAM, CALICUT. BY ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, MANJERI, MALAPPURAM DISTRICT. 3. THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT. 4. THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT. 5. THE SUB INSPECTOR OF POLICE/ STATION HOUSE OFFICER, AREEKODE POLICE STATION, AREEKODE, MALAPPURAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 15896/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE SAND PASS DTD.16.4.07. P2. COPY OF THE MAHAZAR DTD.16.4.07. P3. COPY OF THE OBJECTION BY THE PETITIONER. P4. COPY OF THE ORDER DTD.18.5.07 OF THE DIST. COLLECTOR. P5. COPY OF THE RELEVANT PAGES OF REGISTRATION CERTIFICATE. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.15896 of 2007 ================== Dated this the 22nd day of May, 2009 J U D G M E N T The petitioner challenges Ext.P4 order of the District Collector, Malappuram, in proceedings under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, whereby, on finding that the petitioner attempted to transport river sand in his lorry bearing Reg. No.KL-57-5872 illegally, the petitioner has been directed to pay an amount of Rs.4 lakhs as penalty and Rs.25,000/- towards River Management Fund. The petitioner contends that the petitioner had never attempted to transport river sand illegally. According to him, as is clear from Ext.P2 Mahazar, the vehicle was seized at 9.30 a.m. on 16.4.2007. For transport of the river sand loaded, the petitioner had obtained Ext.P1 pass at 9.00 a.m. on the same day, which is endorsed by the appropriate authorities. Therefore, the petitioner submits that there was absolutely no ground for the District Collector to come to the conclusion that the vehicle was engaged in illegal transport of river sand. The petitioner, therefore, seeks the following reliefs: “i) to declare that the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, is unconstitutional, and ultra vires Mines and Minerals (Development and Regulation) Act, 1957. ii) Alternatively, to declare that Rules 27, 28 and 29 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules as unconstitutional and ultra vires the provisions of Protection of River Banks and Regulation of Removal of Sand Act. w.p.c.15896/07 2 iii) to call for the records leading to Exhibit P4 order dated 18.5.2007 passed by the third respondent District Collector and quash the same by issuing a Writ of Certiorari or any other appropriate Writ Direction or order. iii)[sic] to direct the respondents 2 to 5 to release the goods and vehicle covered by Exhibit P4 order dated 18.5.2007 passed by the third respondent District Collector [sic] expeditiously as possible by issuing a writ of mandamus or any other appropriate writ direction or order. iv. To stay all proceedings pursuant to Exhibit P4 order pending disposal of the Writ Petition.” 2. No counter affidavit has been filed in this case. I have perused the documents produced by the petitioner. Ext.P1 is a copy of the pass issued to the petitioner under Rule 48 of the Kerala Minor Mineral Concessions Rules, 2002, and Section 29(1) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Ext.P1 shows that the pass was issued at 9 a.m. on 16.4.2007. Ext.P2 seizure mahazar says that the seizure was at 9.30 a.m. on 16.4.2007. Ext.P3 is the objection submitted by the petitioner. In the same, he has specifically stated that he had a valid pass issued by the appropriate authority for transport of river sand in question. From Ext.P3 it is seen that a copy of the pass had also been produced by the petitioner before the District Collector. But in Ext.P4 order of the District Collector, there is absolutely no mention whatsoever about either Ext.P1 pass or any of the contentions of the petitioner. No reasoning also is found in Ext.P4 in that respect. Therefore, Ext.P4 is clearly unsustainable. Accordingly, Ext.P4 is quashed. The matter is w.p.c.15896/07 3 remanded to the District Collector for fresh consideration. The District Collector shall pass fresh orders in the matter within one month from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to the petitioner. While doing so, the District Collector shall specifically advert to Ext.P1 and see whether Ext.P1 pass supports the contentions of the petitioner. The District Collector shall also give sufficient reasons for his conclusion. Till then, the amount already paid by the petitioner need not be refunded. In case the District Collector finds in favour of the petitioner, the said amount shall be refunded to the petitioner within one month. Till orders are thus passed, interim order passed in this writ petition shall continue to be in force. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge