Sheik Adam Sahib and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934** **WP(C).No. 13678 of 2012 (H) ---------------------------** **PETITIONER(S):** **-------------** **1. SHEIK ADAM SAHIB, AGED 52 YEARS S/O.SHEIK ABDUL KAREEM SAHIB, R/AT DILSHAD MANZIL BANDIYODU, P.O.MANGALPADY, KASARAGOD DISTRICT.** **2. MOHAMMED, S/O.MOIDEEN, R/AT POYY HOUSE, ICHILLAMGOD KASARAGOD DISTRICT.** **3. MOOSA,** - **S/O.MOHAMMED, R/AT.BEACH ROAD, BANDIYODU** - **P.O.MANGALPADY, KASARAGOD DISTRICT.** **BY ADV. SRI.KODOTH SREEDHARAN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA** **REPRESENTED BY SECRETARY, REVENUE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **2. DISTRICT EXPERT COMMITTEE,** - **KASASRAGOD CONSTITUTED UNDER THE KERALA PROTECTION OF RIVER BANKS AND REGULATION OF REMOVAL OF SAND ACT 18 OF 2001 REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR KASARAGOD - 671121.** **3. THE DISTRICT COLLECTOR,** - **KASARAGOD - 671121.** - **BY ADV. GOVERNMENT PLEADER** **BY GOVERNMENT PLEADER SRI.MOHAMMED SHAFI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO.13678/2012** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF THE BUILDING PERMITS ISSUED BY MANGALPADY GRAMA PANCHAYATH DATED 11/1/2010.** **EXT.P2 TRUE COPY OF THE BUILDING PERMITS ISSUED BY MANGALPADY GRAMA PANCHAYATH DATED 26/11/2010.** **EXT.P3 TRUE COPY OF THE BUILDING PERMITS ISSUED BY MANGALPADY GRAMA PANCHAYATH DATED 00/02/2009.** **EXT.P4 TRUE COPY OF THE ORDER DATED 00/5/2012 BY THE DISTRICT COLLECTOR. EXT.P5 TRUE COPY OF THE REPORT IN MADHYAMAM DAILY DATED 23/5/2012. EXT.P5(A) TRUE COPY OF THE REPORT IN DESHABHIMANI DAILY DATED 23/5/2012.** **EXT.P5(B) TRUE COPY OF THE REPORT IN MANORAMA DAILY DATED 26/5/2012.** ## **RESPONDENTS' EXHIBITS** ## **NIL** **// TRUE COPY //** **P.A. TO JUDGE** **SD** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 13678 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 1st DAY OF OCTOBER, 2012** ## **JUDGMENT** The petitioners herein who claim to be persons who require river sand for the construction of their buildings, are challenging Ext.P4 proceedings issued by the District Collector to regulate the distribution of sand by online method. 2. The challenge is raised on various grounds. Mainly it is pointed out that the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'the Act') does not empower the District Collector to pass a proceedings like Ext.P4 with regard to transportation of river sand. It is pointed out that the Act mainly is concerned with the protection of river banks and regulation of removal of sand and after the extraction of the river sand no further provision is there to control the transportation. Therefore, the petitioners point out that the whole approach made by in Ext.P4 cannot be supported and the matter has become more cumbersome for the persons like the petitioners in getting sand required for the construction of their buildings. The petitioners are relying upon the building permits Exts.P1 to P3 issued by the respective Panchayats. W.P.(C).No.13678/2012 -2- 3. First I shall consider the system enumerated in Ext.P4. The same is based on the decision taken in a meeting held on 5.1.2012 in the presence of the Revenue Minister and others, for enabling the introduction of a scheme for the public to get river sand at a reasonable price. The salient features of the said system are the following: The application will have to be downloaded from the concerned website or can be obtained from the Panchayats/Akshaya Centres. Along with the application form, the original and copies of plan, estimate, ration card and election identity card will have to be produced and in cases where building plan is not required, a self prepared plan shall also be produced. The Secretary of the Panchayat will have to inspect and verify the documents produced and should recommend the quantity required for each of the applicants and return the application to the parties concerned. A total quantity of 60 tonnes can be recommended for buildings having a measurement of 100 sq.ft. and for the buildings less than the same, recommendation has to be made in terms of the requirement but in accordance with the measurement. If it is for repair work, the total quantity that can be recommended is 8 tonnes in an year. The quantity allowed should be recorded in the ration card and an amount of Rs.5/- can be collected as processing fee. Thereafter the applicants will have to W.P.(C).No.13678/2012 -3- approach the Akshaya Centres along with the recommendation of the Secretary and the concerned officers therein will register the application through on-line and a receipt should be issued to the applicants. Other procedures have also been mentioned in para 5 of the order. A token will be issued with date for issuance of pass and on that day the applicant will have to remit the required amount in the counter. The particular Kadavu and the date can be chosen by the applicant himself. Certain other clauses have been included with regard to the procedures for collection of sand and distribution. 4. Learned counsel for the petitioners Shri Kodoth Sreedharan by relying upon the decision of this Court in **Varghese v. State of Kerala** (2008 (1) KLT 576) and drawing parallel to the process involved, submits that after extraction of sand, the State and other officers do not have any control over the way in which it has to be transported and sold. Therefore, once sand is extracted and kept in the kadavu, no further restrictions can be imposed with regard to the distribution and the quantity that can be collected by persons and related matters. It is submitted that the on-line system will only cause further difficulties to the parties concerned and the same has no sanction of law as none of the provisions enable the District W.P.(C).No.13678/2012 -4- Collector to pass such orders. 5. In the statement filed by the third respondent, it is stated that as per the District Expert Committee meeting held on 16.2.2012 under the auspices of the District Collector, it was decided to introduce on line distribution system in the district in order to make available sand to the common people with affordable rate. Annexure R3(a) is the copy of the minutes. The proposal for such an alternative mechanism for the distribution of river sand was strongly supported in the meeting by all the Secretaries of concerned local bodies which have approved kadavus in their jurisdiction. It is in that context Ext.P4 order has been passed. It is stated that the implementation of the said system is progressing without any complaint. It is also mentioned that the on line system introduced in the district is based on “Nirmal Online System” introduced in Kozhikode district, a successful attempt in that district and supported by the people therein. It is further stated that there were frequent complaints from different kadavus relating to the supply of sand to mafias and reports of law and order situation due to the high handed acts of the said mafias have also been received. After the implementation of the new scheme, illegal transportation of sand also has come to an end. Learned Government W.P.(C).No.13678/2012 -5- Pleader disputes the contention of the learned counsel for the petitioners that the District Collector lacks any power. 6. First I will examine the provisions of the Act. The constitution of District Expert Committee is under Section 9 of the Act. The powers of the District Expert Committee include the following: “To control the transportation of sand from a Kadavu or river bank to another area”. Under Section 11, powers have been conferred on the Kadavu Committee to supervise all activities of sand removal. The general conditions for the sand removal operations in a Kadavu are described under Section 12. Section 14 is important which is under the heading “Control on price of sand etc.” Under Sub-section (1), the Kadavu Committee shall, after taking into account the availability and accessibility of sand in any area, fix the price of sand for each Kadavu.” Sub-section (2) provides that the price to be fixed under sub-section (1) shall be by public auction. Under Rule 9 of the Rules, the powers and functions of District Collector, have been specified. The District Collector shall be the Chairman of the District Expert Committee and has to implement the decisions of the District Expert Committee, apart from other powers and functions. The powers and functions of the Kadavu Committee itself are specified in Rule 15 which W.P.(C).No.13678/2012 -6- include, carrying out the directions of the Government and the District Expert Committee and the District Expert Committee will have to control the transportation of sand from a kadavu or river bank to another area and herein, going by the averments in the statement filed by the third respondent, there was a decision of the District Expert Committee dated 16.2.2012 to introduce on line sand distribution system in the district in order to make available sand to common people with affordable rate. Therefore, the District Collector has only implemented those directions by issuing Ext.P4. 7. The argument of the learned counsel for the petitioners that after excavation no power is conferred on the District Collector to deal with the excavated sand, is not correct. The decision of the Apex Court in **Varghese's case** (2008 (1) KLT 576) was concerning a mining activity under the Kerala Minor Mineral Concession Rules, 1967, viz. business in limeshell. It is in that context in para 24 the Apex Court held that there is no power conferred upon the State Government under the Act to exercise control over minor minerals after they have been excavated. The licence therein was to excavate limeshell. 8. Herein, the Act provides for protection of river banks by W.P.(C).No.13678/2012 -7- preventing unauthorised and illegal extraction of river sand creating environmental problems also. The concern of the Act to have a proper supervision of the transportation of collected sand, is also there in the light of the provisions already noticed. 9. In fact, this Court while considering the challenge against the enactment in question, in **Subramanian v. State of Kerala** (2009 (1) KLT 77), has considered the various provisions therein. The provisions of the Act have been upheld in the said decision and later by a Division Bench in **Ismail v. Deputy Tahsildar** (2011 (2) KLT 322). Therefore, the grounds raised by the petitioners in the writ petition, especially that in the light of the provisions of the Central Act, viz. Mines and Minerals (Regulation and Development) Act, 1957, the Act herein is unconstitutional, cannot be accepted. The very same contentions were repelled by this Court in the above two judgments. 10. Regarding the transportation of river sand also, a Division Bench of this Court in **Iqbal v. State of Kerala** (2011 (4) KLT 646), has issued various directions in para 2 which are extracted below: “We, therefore, direct the Local Authorities and the Kadavu Committees not to sell the entire available sand in public auction W.P.(C).No.13678/2012 -8- to traders but to limit such sales to 25% of the sand available, and the entire balance sand should be sold only to _bona fide_ applicants who construct houses for themselves at reasonable cost which could even be made variable depending on financial capacity of the consumer. In fact, higher tariff can be fixed for sand sold for construction of commercial biddings. There is no difficulty for the Local Authorities to identify _bona fide_ requirement of sand for a person because by producing building permit or any evidence about the commencement of construction work and nature of construction, the Local Authorities should be able to allot sand, sell the same and collect the rate fixed by it. It is for the Local Authorities and Kadavu Committees to fix price for retail sales to various categories of consumers who will be made allotments and follow up sales based on applications received on a priority basis. We make it clear that applicants residing outside the Panchayats also are entitled to apply and obtain sand from the Local Authorities because river with sand is not available in every Panchayat area. This arrangement will continue until the Government or statutory authorities fix any guidelines for sale of river sand to genuine applicants at reasonable rates.” Therein, this Court felt that sand will have to be supplied on an equitable basis to the deserving who are building houses. Reference was made to Section 14 of the Act which provides for sale of river sand at competitive W.P.(C).No.13678/2012 -9- rates in auction. Therefore, the petitioners are not right in submitting that after extraction, there is no power for the authority concerned. The Division Bench was of the view that it is equally the duty of the Local Authorities and Government agencies to ensure that black marketing does not take place in respect of a scarce building material like river sand. 11. In fact, an identical issue raised herein, has already been considered by this Court in the judgment in W.P.(C) No.30390/2009 (2009 (4) KLT SN 87 – _Upputhara Grama Panchayat v. The Director of Panchayats)_ , wherein a similar order passed by the District Collector providing for a regulatory mechanism for distribution of sand, was challenged and the challenge was repelled for various reasons. With regard to the power of the Government as well as the authorities under the Act, the learned Single Judge, in para 9 held that there is also great room for executive exercise in the form of governmental directions and directions by the District Expert Committee. Further, in the same paragraph it has been held as follows: “The Local Self Government Institution is duty bound and empowered to follow and implement the instructions given by the Government, the District Expert Committee and the District W.P.(C).No.13678/2012 -10- Collector, from time to time. The Local Self Government Institution is bound to supervise the sale and auction of sand from all kadavus. It is even empowered to assist the Collector in confiscating implements, boats etc. used for unauthroised sand removal. The power of supervision envisaged by those rules is not merely the power to apply one among the five senses of perception and merely to 'see' what is happening. The decision making process as to whether a particular administrative or executive action shall be taken or not has to be arrived at by the Local Self Government Institution or its Secretary, exercising the authority of supervision, if, it believes that the Act, Rules or directions of the Government, District Collector, District Expert Committee or the Kadavu Committee is/are being violated; or considers the violation so probable that a prudent man ought, under such circumstances, to act under the supposition of the imminent likelihood of the violation of the law and executive directions governing the field.” With regard to the power of the District Expert Committee to monitor the different aspects for removal of sand, it has been held in para 11 as follows: “11. When the CESS or CWRDM gives its expert opinion, the District Expert Committee has to modulate the different aspects of removal of sand during a particular season. This can be guided even by regulatory executive orders by the Government. I do not find the absence of power for the District Collector and the District Expert Committee to modulate its own methodology, including by W.P.(C).No.13678/2012 -11- guidelines, to ensure that there is regulated and transparent method of removing the sand and also to ensure that there is equal distribution of such material in a regulated manner.” Finally, the guidelines issued by the District Collector for the year 2007 was upheld and it was held as follows in para 16: “Going by the provisions, which have noticed above, the power is available with the District Expert Committee. The District Collector is the head of that Committee. The matter is not one that relates to anything, but the management of the environment. **Even if, the District Collector issued orders of executive nature, it will always be open to the District Expert Committee to ratify it.** The procedure of ratification is an inbuilt administrative mechanism for the smooth functioning of any establishment.” 12. Herein, as pointed out by the third respondent in the statement, Ext.P4 has been issued in the light of the decision of the District Expert Committee. Therefore, the District Collector is duly authorised to implement the decision of the District Expert Committee, as already noticed, under Rule 9(a) of the Rules. 13. In the light of the above, the proceedings Ext.P4 does not lack any jurisdiction. The other contentions raised by the petitioners in the writ petition with regard to the validity of the enactment cannot be accepted in W.P.(C).No.13678/2012 **==> picture [21 x 9] intentionally omitted <==** the light of the binding decision of the Division Bench in **Ismail's case** (2011 (2) KLT 322) upholding the enactment itself. Hence, the writ petition is dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**