Mahesh Ram v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 37940 of 2010(S) -------------------------- PETITIONER: -------------MAHESH RAM, AGED 38 YEARS, S/O.RAMRAJ, THUMARAPARAMBIL, KUMBAZHA NORTH P.O., PATHANAMTHITTA VILLAGE & DISTRICT. BY ADV. SRI.V.SETHUNATH SRI.PRAKASH KESAVAN RESPONDENTS: ----------------- 1. THE STATE OF KERALA REPRESENTED BY THE REVENUE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DISTRICT COLLECTOR, PATHANAMTHITTSA DISTRICT, PIN-689 645. 3. THE DIRECTOR, CENTRE FOR EARTH SCIENCE STUDIES (CESS), POST BOX NO.7250, AKKULAM, THIRUVANANTHAPURAM-695 031. ADDL. 4. MALAYALAPPUZHA MOHAN, CHAITHRAM, THAZHAM P.O., PATHANAMTHITTA. (SECRETARY, HEAD LOAD AND GENERAL WORKERS UNION (CITU) PATHANAMTHITTA DISTRICT COMMITTEE.) [IMPLEADED AS ADDITIONAL RESPONDENT NO.4 VIDE ORDER DATED 18.02.2011 IN I.A. NO.2598/11] - ADDL. 5. RAJAN B., S/O.BHASKARAN, AGED 50 YEARS, CHARUVUKALAYIL, KALLELI P.O., KONNI, PATHANAMTHITTA. ADDL. 6. SHERIFF, S/O.KASIM AGED 38 YEARS, MALIYAKKAL PUTHENVEEDU, KUMMANNOOR, ATTUVASHAM, KONNI, PATHANAMTHITTA DISTRICT. WP(C).No. 37940 of 2010(S) ADDL. 7. VIJAYACHANDRAN NAIR P.A., AGED 49 YEARS, S/O.AYYAPPAN NAIR, 'CHANDRA VILASAM', KUMMANNOOR, ATTUVASHAM, KONNI, PATHANAMTHITTA DISTRICT. ADDL. 8. K.N. RAJENDRAN, S/O.KOCHUKUTTY, AGED 44 YEARS, NIRAVEL PUTHEN VEEDU, ARUVAPPULAM P.O., KONNI, PATHANAMTHITTA. ADDL. 9. SHIBU, S/O. UNNIKRISHNAN, AGED 33 YARS, 'ANJALI' BHAVANAM, IRAVAN, KONNI, PATHANAMTHITTA. [IMPLEADED AS ADDITIONAL RESPONDENT NOS.5 TO 9 VIDE ORDER DATED 18.02.2011 IN I.A. NO.2494/11]. ADDL. 10. RANNI ANGADI PANCHAYAT, RANNI-ANGADI P.O., PATHANAMTHITTA - 689 674. REPRESENTED BY ITS SECRETARY, SRI.A. NAZARUDIN. [IMPLEADED AS ADDITIONAL RESPONDENT NO.10 VIDE ORDER DATED 18.02.2011 IN I.A. NO.1683/11] R1 & R2 BY SENIOR GOVERNMENT PLEADER,SRI.BENNY GERVASIS R3 BY ADV. SRI.V.KRISHNA MENON ADDL.R4 BY ADV. SRI.T.P.PRADEEP ADDL. R5 TO R9 BY ADV. SRI.C.B.SREEKUMAR ADDL.R10 BY ADV. SRI.P.B.SAHASRANAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37940 of 2010(S) ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER NO.C7-38403/09 DATED 23.11.2010 PASSED BY THE 2ND RESPONDENT WITH ENGLISH TRANSLATION. - EXT.P2 : TRUE COPY OF THE JUDGMENT OF THIS COURT REPORTED IN 2009(2) KHC 319. RESPONDENT'S EXHIBITS: EXT.R2(A) : TRUE COPY OF THE LETTER OF THE DIRECTOR, CESS DATED 27.09.2006. /TRUE COPY/ PA TO JUDGE ## **J.Chelameswar, C.J. & Antony Dominic, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37940 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of February, 2011 ## **JUDGMENT** ## **J.Chelameswar, C.J.** The Writ Petition is filed with the prayers as follows: “1. Issue a writ of certiorari to quash Ext.P1 order passed by the 2[nd] respondent and declare that the sand mining ordered by the 2[nd] respondent without the decision of the District Expert Committee and without complying Rule 30 of the rules appended to the Act 18 of 2001 is illegal. 2. Issue a writ of mandamus or any appropriate writ, order or direction to the third respondent to conduct a study under rule 30 of the rules appended to the Act 18 of 2001, in the rivers in the Pathanamthitta District and report to respondents 1 & 2. 3. grant such other relief as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the ” case. 2. There are various restrictions under the Kerala Protection of river Banks and Regulation of Removal of Sand Act, 2001 on the activity of removing sand from the river beds/river banks. One of the restrictions is that an Expert Committee contemplated under Section 7 of the Act shall identify the”Kadavu” or river bank in a district in which the ## W.P.(C) No. 37940 OF 2010 ## -:2:- sand removal may be permitted. Further the said Committee is also required to “ _fix the total quantity of sand that can be removed from a kadavu or river bank giving due regard to the guidelines of expert agencies like the Centre for Earth Science Studies and Centre for Water Resources Development and Management._ ” The fixation of the quantity of the sand that can be removed from a kadavu or river bank is required to be done in due regard to the guidelines of an expert agency. Section 29 of the Act also obligates the Government to make periodic measurement of the quantity of sand available for removal. Section 29 of the Act reads as follows: “ **29. Sand auditing** .- The Government may, with a view to ensure protection of every river, provide for periodical measurement of the quantity of sand available for removal by such method and in such manner as may be prescribed.” 3. The State of Kerala in exercise of the power under Section 26 of the Act made rules known as the Kerala Protection of river Banks and Regulation of Removal of Sand Rules, 2002. 4. Under rule 30 of the said Rules, it is stipulated as follows: ## W.P.(C) No. 37940 OF 2010 ## -:3:- **“30.Sand Audit** .- The Government shall conduct, every three years Sand Audit through Expert Committee such as Centre for Earth Science Studies. Centre for Water Resources Development and Management so as to ensure protection of rivers in each district and to assess the quantity of available sand. (2) The expense required for Sand Audit shall be met from the River Management Fund. (3) The Government shall, as soon as may be after the receipt of the report of sand audit under sub-rule(1) lay the same on the table of Legislative Assembly with an action taken statement thereof.” 5. The grievance in the instant writ petition is that notwithstanding the declaration by a Division Bench of this Court earlier in a judgment which is now reported in _**Paristhithi Samrakshana Sangham v. State of Kerala and others**_ [2009 (2) KHC 319], that the compliance with the procedure prescribed under Rule 30 is mandatory, the State of Kerala is permitting the removal of sand in violation of the abovementioned provisions of the Act in Pathanamthitta District. 6. All the respondents are served and represented by various counsel. On behalf of the 2[nd] respondent a counter W.P.(C) No. 37940 OF 2010 -:4:- affidavit is filed stating that the sand audit contemplated under Rule 30 of the Rules referred to above in so far as the Pathanamthitta District is concerned, was entrusted to the 3[rd] respondent herein. Though there were periodical audit reports submitted by the 3[rd] respondent earlier, the latest report of the 3[rd] respondent with regard to the ' **Manimala river** ' was submitted on 22.07.2010. In so far as the other sand bearing areas of the Pathanamthitta District are concerned, the 3[rd] respondent is yet to submit a report. 7. In the circumstances, we deem it appropriate to dispose of the writ petition directing the respondents not to permit the sand mining except in accordance with the decision taken by the District Expert Committee constituted under the abovementioned Act which decision must itself be in the light of the sand audit report submitted by the 3[rd] respondent. In view of the specific statement made by the learned Government Pleader that in so far as the Manimala river banks are concerned, audit report is already submitted, we direct the State to cause an assessment by the concerned District Audit W.P.(C) No. 37940 OF 2010 ## -:5:- Committee regarding the quantity and places from where such sand could be removed and permit the removal of the sand in accordance with such a decision to be taken by the Expert Committee. In so far as the other sand bearing areas in the Pathanamthitta District are concerned, which are not yet audited by the 3[rd] respondent, no removal of sand would be permitted by the respondents until the procedure contemplated under the abovementioned Act and Rules is complete. The Writ Petition is accordingly disposed of. **J.Chelameswar, Chief Justice.** **Antony Dominic, Judge.** ttb W.P.(C) No. 37940 OF 2010 -:6:-