IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).No. 19054 of 2010(F) -------------------------------------- PETITIONER(S): ----------------------- INDULAL.C.P, S/O.PRABHAKARAN, CHARIVUKALAYIL HOUSE,CHERUKULANJI PO, RANNI, PATHANAMTHITTA. BY ADV. SRI.S.SUBHASH CHAND SRI.T.NIKLAVU RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (P) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA. 3. THE PATHANAMTHITTA DISTRICT EXPERT COMMITTEE(THE KERALA PROTECTION OF RIVER BANKS & REGULATION OF REMOVAL OF SAND ACT 2001) REPRESENTED BY ITS CHAIRMAN. 4. THE TRAVANCORE DEVASWOM BOARD/ CHIEF COMMISSIONER, OFFICE OF THE TRAVANCORE BOARD, DEVASWOM BUILDING, NANDHANCODE, THIRUVANANTHAPURAM. 5. TTHE DEVASWOM COMMISSIONER, OFFICE OF THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BUILDING, NANDHANCODE,THIRUVANANTHAPURAM. 6. TAHSILDAR, TALUK OFFICE, RANNI. 7. SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SELF GOVERNMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. R1, R2, R6 & R7 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON 20/08/2010 DELIVERED THE FOLLOWING: kl. C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = WP(C).No.19054 of 2010-F. = = = = = = = = = = = = = = Dated this the 20th day of August, 2010. J U D G M E N T Gopinathan, J. The writ petitioner, the Secretary of Thiruvithamcore Hindu Dharma Parishad, a Society registered under the Travancore Cochin Literary, Scientific & Charitable Societies Registration Act, would contend that for the past more than six decades, at the sandy bank of Pampa River in front of Sasthamkovil Temple, Angadi, Hindu religious convention is being performed for about 8 days in every year and that now indiscriminate sand mining is going on in and around the sandy bank where the convention is being held and as a result the river bank is being eroded. The Center for Earth Science Studies (CESS) and Center for Water Resources Development and Management (CWRDM) WP(C).No.19054/10. -: 2 :- are bound by the Kerala Protection of River Banks & Regulation of Removal of Sand Act to conduct sand survey and the mining can be permitted only to the extent to which the sand is available for mining. But, at present the sand mining is going on without any discrimination and that the authorities had failed to frame guidelines for the mining of the sand. According to the petitioner, in the event, sand mining is permitted without any restriction, that would even lead to the death of Pampa River and that the sand banks on either side of the river would be eroded resulting adverse environmental impact and for future generation, there would be no river bank for conducting conventions or other religious activities. With these pleadings, the petitioner sought the following reliefs: (i) to issue a writ in the nature of mandamus or any other appropriate writ or order directing respondents 4 and 5 to take such effective and adequate measures for the purpose of preventing erosion of sandy river bank of Pampa River in front of Sasthamkovil Temple, Angadi belonging to respondent No.4 Board so as to preserve the same for continued performance of religious activities including conduct of religious conventions, within such time as this Hon'ble Court may deem fit and proper in the interest of justice; WP(C).No.19054/10. -: 3 :- (ii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 3 to refrain from permitting sand mining activities in Pampa River forthwith and permit the same only after getting report of scientific studies in Pampa River by expert bodies such as CESS and CWRDM; (iii) to issue a declaration that sand mining in Pampa River can be permitted only in accordance with the guidelines to be framed by expert agencies like CESS, CWRDM etc, after conducting scientific studies for the purpose of identifying various kadavus on the banks of Pampa River and also for determining the quantity of river sand that could be extracted and sand mining activities in Pampa River without there being the support of such scientific studies conducted during the current year is absolutely unsustainable in law and violative of Articles 14 and 21 of the Constitution of India. (iv) to issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 3 and 4 to 5 to consider and initiate appropriate action in accordance with law on Exts.P8 & P9 within such time as this Hon'ble Court may deem fit and proper in the interest of justice; and (v) to mould and grant such other reliefs, as this Hon'ble Court may deem just and proper in the interest of justice, including costs. 2. Along with the writ petition, the petitioner had WP(C).No.19054/10. -: 4 :- produced photographs of the conventions, copies of the brochures and the newspaper cuttings regarding the unrestricted and indiscriminate sand mining and the resulting environmental impact due to such mining. 3. The second respondent filed counter-affidavit sworn by the Superintendent, Suit Cell affirming that periodical survey, assessment and monitoring of the sand mining are done and on the advice of the District Level Expert Committee, CESS and CWRDM, strict restrictions are imposed and sand mining is permitted and conducted in appropriate kadavus which are at a distance of minimum 1.5 km. from Sasthamkovil temple, Ramapuram Sree Krishna temple and Bhagavathikunnu temple and that sand mining regulations are imposed as directed by this Court in WA.No.1793/2009 dated 12.10.2009. According to the learned Govt.Pleader, such prohibition is sufficient enough at present to preserve the river bank in front of the temple. 4. On the other hand, Sri.S.Subhash Chand, the learned counsel appearing for the petitioner would submit WP(C).No.19054/10. -: 5 :- that despite the so called restriction imposed, indiscriminate sand mining is going on without any restriction or guidelines even within the distance stated in the counter-affidavit and that the restrictions, if any imposed, are only on records and not enforced and that because of the flow of the water especially during rainy season, the river bank in dispute is being eroded and that the sand mining is to be restricted to the extent to which the sand is available and that the availability of the sand can be determined only by a survey. So, according to the leaned counsel, no further sand mining shall be permitted before a survey. 5. Having heard either side, we find that it may not be possible to ban the sand mining for ever because sand is an essential material for construction work and at present alternative source is very limited and that we have to yet find out substitute for the sand. On the same time, we have to preserve the environment, river and lakes as well as our rich heritage. To preserve river with the sandy bank, in our opinion, construction of retention walls and check dams are absolutely necessary. That may require policy decision and financial expenditure. Construction of check dams, no doubt, WP(C).No.19054/10. -: 6 :- would enable to maintain the water level in the river as well as in surrounding areas. It would also enable to retain water for drinking and irrigation purposes. We hope that respondents 1 and 7 would necessarily consider the same without much delay. We also find that respondents 1 and 7 would make necessary arrangements for conducting a sand survey and guided by survey report, reasonable restrictions would be imposed and enforced in sand mining. 6. In the above circumstance, we record the submission made by the learned Government Pleader that sand mining is totally banned within 1.5 kilometers to either side of the temples above mentioned and the writ petition is disposed with direction to respondents 1 and 7 to conduct a periodical sand survey and also to impose and enforce restrictions regarding sand mining. It is further directed to consider the feasibility of construction of check dams and retention walls for the protection of river banks and water level. In the event respondents 1 and 7 fail to comply with the submission made before this Court, the petitioner is at liberty to appropriate remedy. Respondents 2 and 6 are further WP(C).No.19054/10. -: 7 :- to see that no sand mining shall be done within a distance of one kilometer to either side of the Sasthamkovil Temple, Ramapuram Sree Krishna Swamy Temple or Bhagavathikunnu Devi Temple. No order as to costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-