IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 20755 of 2011(T) ------------------------- PETITIONER(S): ---------------------- EBRAHIM NADEER M.B., PROPRIETOR, SHAAZ AGENCIES, CP-1/562C, BENDICHAL, THEKKIL (PO), KASARAGOD. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): --------------------- 1. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001. 2. THE DISTRICT COLLECTOR, COLLECTORATE, KASARAGOD-671121. 3. CIRCLE INSPECTOR OF POLICE, KASARAGOD-671121. 4. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, IIND CIRCLE, KASARAGOD-671121. BY SR. GOVT. PLEADER SRI. P.N. SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20755 of 2011(T) APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE COMMERCIAL TAX OFFICER, IIND CIRCLE, KASARAGOD. EXT.P2: THE TRUE COPY OF THE LICENSE ISSUED BY THE SECRETARY CHEMMANAD GRAMA PANCHAYAT DATED 6.3.2011. EXT.P3: THE TRUE COPY OF THE ONE INVOICE IN FORM 8B. EXT.P4: THE TRUE COPY OF THE LETTER ISSUED TO ALL DISTRICT COLLECTORS OF THE STATE DATED 11.11.2010 VIDE No.58289/P3/2010 REVENUE. EXT.P5: THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE COURT OF KERALA IN W.P.(C) No.10535/2011. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. P.R. RAMACHANDRA MENON, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C). No. 20755 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2011 J U D G M E N T The petitioner is stated as engaged in the trade of sand, crushed metal, sawn size wood, laterite stone etc. as covered by Ext.P1 certificate of registration dated 9.3.2011 issued by the 4th respondent/Commercial Sales Tax Officer and Ext.P2 license dated 6.3.2011 issued by local authority. The petitioner has approached this Court with a strange prayer to direct the respondents not to insist any pass issued by the Kadavu Committee (immediately before the commencement of transportation) and to accept the passes issued by the Kadavu Committee irrespective of the date, as the genuine record of transportation. It is stated that the petitioner is effecting the sale from the stock of the petitioner and not directly from the Kadavu. 2. The prayer of the petitioner appears to be quite contrary to the mandate, scheme and object of the Kerala Protection of River WPC.No.20755 of 2011 : 2 : Banks and Regulation of Removal of Sand Act 2001. Two questions mainly arise for consideration: i. Whether this writ petition is maintainable (for having approached the Division Bench of this Court moulding the pleadings and prayers slightly in a different manner by filing WP(C) 10535/2011 which was dismissed as devoid of any merit on 17.6.2011.) ii. As to the merits involved. 3. With regard to the first issue, it is necessary to extract the prayers involved in the present writ petition and also those incorporated in the former writ petition. The prayers in the present writ petition i.e., WP(C) 20755/2011 are as follows: i) Issue writ of mandamus or such other writ or direction directing the respondents not to insist pass issued by the kadavu committee which is issued immediately before the commencement of transportation as the sand are transporting from the stock of the petitioner in the facts and circumstances of the case. ii) Issue writ of mandamus or such other writ or direction directing the respondents to accept the pass issued by kadavu committee irrespective of its date as the genuine record for transportation as that the petitioner is affecting sale from the stock of the petitioner not directly from the kadavu. WPC.No.20755 of 2011 : 3 : Prayers in the former writ petition i.e., WP(C) No. 10535/2011 are as follows: i. issue writ of mandamus or such other writ or direction directing the 1st and 2nd respondents not to harass the petitioner for doing his business in sand. ii. Issue writ of mandamus or such other writ or direction directing the 1st and 2nd respondents to follow the guidelines issued by the Government in Ext.P3 while vehicles with sand are transporting by the petitioner. iii. Issue writ of mandamus or such other writ or direction directing the respondents to issue necessary directions to all officer under his control to follow the directions not to seize the sand with valid documents like invoice not to harass the petitioner while doing his business in 'sand' transportation/sale. iv. Issue writ of mandamus or such other writ or direction directing the respondents to implement the direction in Ext.P3 directing the 1st respondent issue necessary directions under him not to seize the vehicles with sand when the same was transporting with tax invoice. v. issue writ of mandamus or such other writ or direction directing the respondents not to insist pass issued by the kadavu while transporting the sand. Though the petitioner has produced Ext.P5, stated as the judgment dated 17.6.2011 in the earlier writ petition, it is stated in para 9 of the writ petition that the earlier writ petition against the alleged police harassment was dismissed, holding that the police authorities WPC.No.20755 of 2011 : 4 : can ask the pass while transporting the sand. 4. The face sheet of Ext.P5 shows that the judgment is dated 17.6.2011, but the 2nd page shows that it was rendered on 8.4.2011, dismissing the writ petition for 'non-prosecution'. In the said circumstances, this Court called for the original records, which revealed that the earlier writ petition, though was dismissed for non- prosecution on 8.42011, was subsequently got restored as per order dated 17.6.2011 in MJC 247/2011 and the writ petition itself was heard and dismissed on merits, on the same date, leading to a detailed judgment. It was held that the learned counsel for the petitioner failed to explain how the police officers were harassing the petitioner and as to non substantiation of any illegality in the demand/insistence on passes when river sand was being transported. It was also observed that no specific act of harassment or vexation was pointed out and as such, the police was free to take necessary action strictly in accordance with the relevant provisions of the Sand Act, if and when necessitated (para 3 and 4). The petitioner herein has chose to produce the 'face sheet' of the said verdict dated WPC.No.20755 of 2011 : 5 : 17.6.2011 showing the cause title and the next page, as that of the previous verdict dated 8.4.2011 whereby the writ petition was dismissed for non-prosecution. Ext.P5 is not the proper text of the Judgment dated 17.6.2011. 5. As mentioned above, the attempt of the petitioner was to get rid of the checking by the police, on transportation of river sand. It was accordingly, that harassing by the police was alleged in the earlier writ petition which contained a specific prayer as 'prayer No. 5' to issue a writ of mandamus directing the respondents not to insist pass issued 'by the Kadavu', while transporting the sand. After having lost the battle in W.P.(C) 10535/2011 before the Division Bench (alleging police harassment), the petitioner has approached this Court again, by filing the present writ petition, excluding the DGP and SP from the party array and including the Commercial Tax Officer as a respondent; in turn moulding the prayers in a different manner. This Court finds that attempt of the petitioner is nothing but an abuse of the process of the Court and is not liable to be entertained. WPC.No.20755 of 2011 : 6 : 6. Coming to the merits as to the requirement of pass for transportation of river sand, the petitioner refers to Ext.P1 certificate of registration issued by the tax authorities, Ext.P2 license issued by the local authority and also Ext.P3 Circular issued by the Government of Kerala - with regard to the course to be pursued. Ext.P1 and P2 do not give any green card to the petitioner to transport the river sand contrary to the provisions of the 'Sand Act'. Ext.P4 Circular issued by the State also specifically insists that, if the river sand is being transported from the State with valid pass issued from the Kadavu the vehicles transporting such sand need not be intercepted. This by itself means, transportation of river sand unsupported with valid pass issued from the Kadavu is liable to be intercepted. 7. With regard to the statutory prescription, it is to be noted that the petitioner may be doing the trade in connection with the materials noted in Ext.P1 registration certificate issued under the KVAT Act/Rules. But when it comes to the question of river sand it can be transported only subject to the relevant provisions of 'Sand WPC.No.20755 of 2011 : 7 : Act'/Rules; more so since it is a special Statute enacted by the State, with intend to protect the river banks and river beds from large scale dredging of river sand and to protect their biophysical environment system and to regulate the removal of river sand and for matters connected there with or incidental there to. Validity of the said Act has been upheld by a Single Bench Judge of this Court as per the decision reported in 2009(1) KLT page 77 Subramanian V. State of Kerala, which was affirmed by a Division Bench (to which I was also a member) as per the decision reported in 2011(2) KHC 49 Ismail V. Deputy Tahsildar. 8. Section 12 of the above Act deals with the general conditions for the sand removal operation in a 'Kadavu'. Sub- section (1) says that the concerned local authority, before carrying out the sand removal operation, shall obtain passes from the Geological Department, which shall issue them on the recommendation of District Expert Committee for a period of one month in advance, on payment of royalty as provided for in the law applicable for the payment of royalty. Sub-section (3) of Section 17 WPC.No.20755 of 2011 : 8 : casts an obligation on the Department of Mining and Geology to ensure that, no pass is issued to the Local Authority without settling the accounts as provided in Sub-section(5); while Sub-section (4) stipulates that every pass issued by the Department of Mining and Geology shall contain the signature of the authorised officer of that Department and the seal, which shall be counter signed by the Secretary of the Local Authority concerned before the sand removal operation. Section 28 stipulates that the provisions of Act and Rules made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 9. Coming to the Rules formulated in exercise of the power conferred under Section 26 of the Act, Rule 16 dealing with the powers and functions of the Secretary of Local Self Government Institutions, clearly stipulates that the Secretary of the Local Self Government Institutions shall be the Convener of the 'Kadavu Committee' and it is for him, to issue pass for each load of sand transported from the Kadavu. Rule 17 deals with the powers and WPC.No.20755 of 2011 : 9 : functions of the Local Self Government Institutions and clause (n) thereunder stipulates for establishing check posts to inspect the transportation of sand from Kadavu. Clause (q) of the same rule provides to supervise the sale and auction of sand from all Kadavu. Clause (t) of Rule 17 deals with issuance of identity cards to the sand removing workers of each Kadavu and caluse (v) of very same Rule provides to set up check post in the Kadavu having jungar service. The above Rules, read with the relevant provisions of the Act, clearly demonstrate the scheme, nature and issuance of pass by the concerned authority for transportation of river sand from the Kadavu and as to the sanctity of the pass issued by the Secretary to the Local Authority in respect of each load of the sand transported from the Kadavu. 10. Some additional provisions on sand mining activities are incorporated under Rule 29 which are stated as the conditions to be satisfied on sand mining in addition to the conditions in the Act. Clause (a) of Sub Rule (1) says that separate passes have to be issued for transportation of river sand from each Kadavu; that such WPC.No.20755 of 2011 : 10 : passes shall contain endorsement regarding the name of the Kadavu, name of the Local Authority in which the Kadavu situated, the number and date of the receipt issued from the Geology Department on payment of royalty, quantity of river sand being transported, registration No. of the vehicle transporting the river sand and the destination to which the sand is being transported; besides the signature and seal of the concerned Tahsildar and that of the Secretary of the Local Authority, with the counter signature of the authorised officer as deputed by the District Collector. It is stated that the original pass is to be given to the party who is transporting river sand and the duplicate is to be maintained by the authorised officer deputed by District Collector and to be made part of the records in the manner as specified. Clauses c, d, e and f of Sub Rule (1) of Rule 29 as well as other Sub rules thereunder are also relevant in this regard. 11. The various provisions in the statute as aforesaid give a clear idea as to the sanctity of the pass and also as to the manner in which the transportation of river sand is to be effected. In view of WPC.No.20755 of 2011 : 11 : the categoric expression of the terms of transportation of river sand, as given under the provisions of Act/Rules, the prayer of the petitioner to direct the respondents not to insist the pass issued by the Kadavu Committee and also to direct the respondents to accept the pass issued by the Kadavu Committee, irrespective of its date, as genuine record for the transportation, is thoroughly wrong and mis conceived. If the version of the petitioner is to be accepted it will simply defeat the purpose of legislation. More so, in view of the dismissal of the case put up by the petitioner referring to the police harassment in the earlier round of litigation leading to the judgment in W.P.(C) 10535/2011 holding that police is at liberty to act strictly in conformity with the provisions of the Statute and can demand/insist valid pass to sustain the transportation of river sand as contemplated under Act/Rules. The writ petition fails and the same is dismissed accordingly. With much reluctance, this Court refrains from imposing cost. (P.R. RAMACHANDRA MENON, JUDGE) kp