Pramod v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932** **WP(C).No. 21713 of 2010(V)** **---------------------------------------** **PETITIONER:** **-------------------** **PRAMOD, S/O.THANKAPPAN, THEKKINIYEDATH HOUSE, KOLLAMPADY, PALLAMPRAM, PONNANI, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM.** ## **2. THE DISTRICT COLLECTOR,MALAPPURAM.** **3. THE SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, PONNANI, MALAPPURAM DISTRICT.** ## **R1 TO R3 BY GOVT. PLEADER SRI. T.B. HOOD.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2010, ALONG WITH W.P.(C). NO. 21718/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - -** **W.P.(C)Nos. 21713, 21718, 21743, 21797, 21857, 21974, 22015, 22390, 22416, 22434, 22540, 22728 & 22747 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of August, 2010** ## **J U D G M E N T** These writ petitions are filed challenging final orders passed by the District Collector under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 & Rules thereunder, by which the petitioners have been directed to pay value of the vehicles as assessed, towards River Management Fund on a finding that the vehicles have been used for illegal transportation of river sand. The petitioners challenge the orders on the ground that the legislation under which the orders have been passed are unconstitutional in so far as the State legislature has no legislative competence to enact the impugned provisions. 2. These writ petitions were filed on 12.07.2010, 13.07.2010,16.07.2010 & 20.07.2010. The same have been coming up for admission on various dates from the dates of W.P.(C)No. 21713 of 2010 and connected cases 2 filing. They were adjourned to 19.07.2010, 20.07.2010, 22.07.2010, 02.08.2010 and to today. On one of the postings elaborate arguments were advanced by the learned counsel for the petitioners regarding the legislative competence of the State to enact the impugned provisions. Thereafter the petitioners got the writ petitions adjourned for further arguments as well as for seeking amendment of the writ petitions. After two postings it comes up for admission today and the petitioners have today filed applications for amendment of the writ petitions seeking to challenge the provision of the Act as amended by the amendment Ordinance which came into effect on 14.6.2009. All the applications are allowed. 3. The learned counsel for the petitioners submits that since amendment applications have been allowed only today, the writ petitions can be heard only after the petitioners produce amended writ petitions. So he seeks further adjournment. I am not inclined to adjourn the W.P.(C)No. 21713 of 2010 and connected cases 3 matter further. The counsel for the petitioners contend that, this court has in **Narayanan v. State of Kerala (1993 (1) KLT 461)** held that on applications for amendment being allowed, the petitioners shall produce amended writ petitions. Therefore according to the petitioners, the writ petitions shall not be heard before the petitioners can produce the amended writ petitions. Counsel for the petitioners particularly refers to paragraph 2 of the said judgment. The same reads as follows: “2. Before proceeding to state the facts of the case or dealing with the contentions raised by the parties, I must mention a feature that has been noted in many of the original petitions that have come up before me for hearing. Leave is often granted by this court for amending the original petitions incorporating new averments and new prayers besides producing new documents. Very often the amendments are not carried out in the original petition; nor copies of the amended original petition produced with the result the court has to wade through various petitions to get a true picture of the amended original petition. Such a situation exists in this original petition also, the petitioner not having chosen to carry out the amendment allowed by CMP.No.15954 of 1992 in the original petition. Nor has he chosen to produce copies of the amended original petition. Normally this should have entailed refusal to look into the amendment. But I am refraining from doing so to avoid a failure of justice. It is necessary that all amendments to an original petition either in the averments or the prayers in the original petition or by way of production of new documents should be carried out in the original petition besides producing copies of the amended original petition for the use of the court W.P.(C)No. 21713 of 2010 and connected cases 4 and for service on the contesting respondents. However, as stated earlier I am treating the petition as one amended by CMP.No.15954 of 1992 and dealing with it as such despite the default on the part of the petitioner in carrying out the amendment. I must also mention that in between the original petition and C.M.P.No.15954 of 1992 a document had been introduced as Ext.P15 along with CMP.No.14019 of 1992, a petition for direction. Having regard to the numbering of this annexure, it is clear that the petitioner intended that also to be treated as part of the original petition. But it has made its appearance in a petition for direction without being followed by any petition for amendment of the original petition. Production of such documents along with applications for interim relief to be treated as exhibits in the main petition also causes difficulties to the court when such production is not followed up by appropriate amendment. One of the problems that may arise is that the exhibit in question will remain unexplained and unanswered in any counter affidavit that may be filed by the respondents as it does not form part of the original petition itself, though that contingency does not arise so far as this case and Ext.P15 produced along with CMP No.14019 are concerned. With these prefatory remarks I shall proceed to state the fact and deal with the matter on merits.” More than supporting the contentions of the petitioner, I am of opinion that, that judgment states that amended original petitions are necessary in order to enable the court to have a comprehensive understating of the entire facts of the case and also to enable the respondents to file comprehensive counter affidavits to the same. As far as these cases are concerned, they are coming up for admission. Therefore the question of respondents filing counter affidavits does W.P.(C)No. 21713 of 2010 and connected cases 5 not arise at the present stage. As far as the convenience of the court is concerned, it is in the discretion of the court to decide whether the writ petitions are to be adjourned for producing amended writ petitions. The petitioners are not in any way prejudiced even if the same is not adjourned for producing amended writ petitions, since if the writ petitions are admitted, they can file amended writ petitions also. 4. Apart from that, even after amendment the prayers of the petitioners essentially challenging the legislative competence of the State to enact the impugned provisions of the Act. Therefore according to me, before and after amendment, the contentions of the parties, as regards the constitutional validity of the provisions are concerned, remain the same. In fact the counsel for the petitioners had advanced elaborate arguments on that question on one of the previous posting dates. During last posting the very same counsel had submitted before me that the parties contemplate engaging another counsel and W.P.(C)No. 21713 of 2010 and connected cases 6 sought adjournment on that ground also. As such I do not think that it is necessary to adjourn these cases for the purpose of enabling the petitioners to file amended writ petitions in so far as these writ petitions are pending for admission ever since 14.07.2010 and the reasons stated for adjournment are unacceptable. 5. Even apart from that, the validity of the orders passed which have been passed prior to the amendment of the Act which are sought to be challenged in the amended writ petition, has to be considered in the light of the provisions of the Act as it stood as on the date of passing of the impugned orders and not as per the amended provisions of the Act. 6. I have considered the contentions raised by the petitioner on the legislative competence on the last posting date which are applicable to the amended writ petitions as well. The legislative competence of the State legislature for enacting the impugned provisions of the Act have been ## W.P.(C)No. 21713 of 2010 and connected cases 7 elaborately considered by a learned Single Judge of this court in the decision of **Subramanian v. State Of Kerala (2009 (1) KLT 77)** and upheld. I am in respectful agreement with the conclusions reached by the learned Judge in that decision. Therefore following that decision, I uphold the legislative competence of the State to enact the provisions under challenge. The petitioners have not raised any other contentions on the findings of the District Collector in the impugned orders regarding the illegality of the transport of river sand and the violation of the provisions of the Act. As such the findings stand confirmed. In the above circumstances, I do not find any merit in these writ petitions and accordingly they are dismissed. S. SIRI JAGAN JUDGE shg/