IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30917 of 2004(E)
1. C.K.SUNEESHAN, S/O.KUNJAN,
... Petitioner
Vs
1. GOVERNMENT OF KERALA, REP. BY ITS
... Respondent
2. THE DEPUTY COLLECTION (GENERAL),
3. THE COLLECTOR, PALAKKAD.
4. THE TAHSILDAR, OTTAPPALAM.
5. DEPUTY TAHSHILDAR, THE HEAD QUARTERS,
6. THIRUMITTACODE GRAMA PANCHAYAT,
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :04/07/2008
O R D E R
S. SIRI JAGAN, J.
------------------------------------
W.P.(C)No.30917 OF 2004
----------------------------------------
Dated this the 4th day of July, 2008
JUDGMENT
The petitioner challenges Ext.P4 order of the District
Collector, Palakkad whereby for illegal transportation of river
sand in violation of the Kerala Protection of River Banks and
Regulation of Removal of Sand Act 2001, an amount of
Rs.25,000/- (Rupees twenty five thousand only) was directed to
be recovered from the petitioner. The main contention of the
petitioner is that before passing the impugned order, the
petitioner was not afforded an opportunity of being heard. The
other contention is that the Act does not confer powers on the
District Collector to impose fine, which can be done only by the
competent Criminal Court trying the offence under the Act. The
petitioner relies on a Division Bench decision of this Court in
Sanjayan V. Tahsildar [2007(4)KLT 597], wherein it has
been held that the power of imposition of fine rests only with the
Court, and not on the Collector. Further the petitioner challenges
the validity of the Rules 27 and 28 of the Kerala Protection of
W.P.(c)No.30917/04 2
River Banks and Regulation of Removal of Sand Rules 2002 as
ultra vires the Rule making powers of the State.
2. The learned Government Pleader submits that the
contention of the petitioner that the petitioner has not been
afforded an opportunity of being heard is not correct. In
paragraph 9 of the counter affidavit filed on behalf of the 3rd
respondent, it is specifically stated that notices were issued to
the petitioner but he did not turn up for hearing on 5.8.2004
when it was posted for hearing. Later, on 19.8.2004, one Sri.
Suresh, Advocate for the petitioner appeared and filed
vakalath as also a written statement on behalf of the petitioner
requesting to drop all action against the petitioner. She would
further submit that under Rule 27 of the Kerala Protection of
River Banks and Regulation of removal of Sand Rules 2002,
the District Collector has powers to recover amounts towards
River Management Fund for returning vehicle, which has been
seized for illegal transportation of river sand.
3. I have considered the rival contentions in detail.
Apart from Ext.P2 licence, the petitioner has not produced any
material whatsoever to prove before me that the petitioner is
not guilty of the offence of illegal transport of river sand. The
W.P.(c)No.30917/04 3
only contentions raised before me are the technical
contentions. As regards the contention regarding the lack of
opportunity of being heard, in view of the averments in
paragraph 9 of the counter affidavit, I am not inclined to
accept the same. The petitioner may be right in contending
that the District Collector has no powers to impose fine, based
on the decision of the Division Bench of this Court in
Sanjayan’s Case (Supra). But in Rule 27 of the Rules, it is
provided thus:
“Procedure for confiscation of vehicles.-(1) The
Police or Revenue officials shall seize the vehicle used
for transporting sand in violation of the provisions of
the Act and these Rules.
(2) In the case of seizure of vehicle under sub-
section (1), a mahazar shall be prepared in the presence
of two witnesses regarding the vehicle and one copy of
the same shall be given to the person possessing the
vehicle at the time of seizure and one copy to the
District Collector.
(3) The vehicle may be returned if the owner of
the vehicle or the possessor remits an amount towards
River Management Fund equal to the price fixed by the
District Collector with fine within seven days of
seizure.”
Therefore, under the Rules the District Collector certainly has
powers to require the owner of the vehicle, who has used the
seized vehicle for illegal transportation of river sand, to pay
W.P.(c)No.30917/04 4
amounts towards River Management Fund as a condition for
returning the vehicle. Of course, in ground No.17, there is a
general challenge against the rules. But the Act and Rules are
intended to regulate the removal of the river sand and for
matters connected therewith. I am of opinion that in view of
the increase in ecological problems caused because of
indiscriminate sand minding in the State, stringent action is
necessary to curb such indiscriminate sand mining for which
only the Act and Rules have been framed. A Division Bench of
this Court in Moosakutty V. State of Kerala [2008 (1) KLT
538] held that the District Collector has powers to confiscate
the vehicles. For effective implementation of the objects of the
Act, such powers on the Collector are absolutely essential.
Since the Government have been conferred with the power to
make Rules to carry out all or any of the purposes of the Act, I
am not satisfied that the Rules are ultra vires the provisions of
the Act, which is the contention raised by the petitioner. The
very purpose of the Act is regulation of removal of river sand.
The Act confers on the District Collector powers to confiscate
vehicles used for illegal transportation of river sand. In
addition to prosecuting the offenders under the Act, it is
W.P.(c)No.30917/04 5
necessary to compensate the State for the damage caused to
the ecology by the offender, for which purpose only realisation
of certain amounts towards River Management Fund has been
provided for in Rule 27, which is perfectly in tune with the
objects of the Act. In fact the decision of the Division Bench in
Moosakutty’s case is sufficient to uphold the validity of the
Rules although the decision does not deal with the validity of
the Rules specifically. When the power of the Collector to
confiscate the vehicle is upheld, the inclusion of a provision to
realise amounts towards River Management Fund as a
condition for release of the vehicle, cannot be held to be ultra
vires the provisions of the Act. The fact that the decision in
Moosakkutty’s case (Supra) has been stayed by the Supreme
Court does not alter the legal position as of now.
4. I also note in this case that the petitioner, after
seizure of the vehicle at 7 a.m., obtained passes issued at 8
a.m. and produced the same as proof of the validity of the
transport of the sand. This finding in the impugned order is
not challenged before me. Such a person who would not
hesitate to create documents to support his illegal act is not
entitled to invoke the discretionary jurisdiction of this Court
W.P.(c)No.30917/04 6
under Article 226 of the Constitution of India.
5. In the above circumstances, I do not find any merit
in the challenge against the validity of the Rules. Admittedly,
the vehicle has been released not by the District Collector
himself, but only as per the orders of this Court pending
finalisation of proceedings before the Collector. In so far as the
guilt of the petitioner in transporting river sand illegally cannot
now be disputed, the District Collector does have powers to
require the petitioner to pay amounts towards River
Management Fund as a condition for release of the vehicle
once the Collector finally decides the matter against the
petitioner. The facts that the vehicle has been released to the
petitioner and the Collector has not specifically ordered
confiscation of the vehicle does not affect the powers of the
Collector to require the petitioner to pay certain amounts to
the River Management Fund once the Collector holds that the
petitioner has in fact transported river sands illegally. Of
course, the vehicle has been released pursuant to orders of
this Court. But still the liability does not cease. Since the
District Collector does have powers to realize the amounts
towards River Management Fund as a condition for returning
W.P.(c)No.30917/04 7
the vehicle involved in illegal transportation of sand, I am of
opinion that the realisation of Rs.25,000/- as per Ext.P4 can be
considered as recovery of such amounts towards River
Management Fund. Therefore, I do not find any merit in the
challenge against Ext.P4. Accordingly, the writ petition is
dismissed. If the petitioner pays an amount of Rs.25,000/-
within a period of three weeks from today, the bank guarantee
furnished by him for interim custody of the vehicle shall be
released, failing which the District Collector would be free to
encash the bank guarantee.
6. Before parting with the case I must bring to the
attention of the Government the need for timely amendment of
the Act and Rules. I am distressed by the fact that although
this Court has pointed out the lacunae in the Act and Rules in
several decisions from Sanjayan’s case (supra), which was
decided on 17.6.2002, especially the difference between the
English and Malayalam versions of the Act in the matter of
powers of confiscation, no attempt has been made by the
powers that be to take suitable remedial action to clear the
ambiguity in the legislation. In fact similar provisions are
there in the Kerala Forest Act and the Abkari Act providing for
W.P.(c)No.30917/04 8
confiscation of vehicles, which provisions are being
implemented without the difficulties faced in the case of
implementing the Kerala Protection of River Banks and
Regulation of Removal of Sand Act. This is a piece of
legislation vital to the ecology of the case. It is a pity that the
Government is not bestowing enough attention in the matter of
plugging the loopholes in the legislation to see that the
offenders do not escape on the ground of technicalities arising
from such loopholes. It is time that the powers that be wake
up from their slumber and initiate appropriate amendment
legislation in the matter for effective implementation of the Act
so as to ensure better management of the ecology and natural
resources of the State, lest they may even be likely to be
accused of helping unscrupulous people to loot the natural
resources of the state with impunity.
7. With the solemn hope that this would not fall on
deaf ears as in the case of Retnavalli V. Ambalapadu
Service Co-operative Bank Ltd [2005(3) KLT 320],
wherein I had made a similar observation in the case of
notifying commencement of Section 4A of the Payment of
Gratuity Act, a very beneficial legislation to the employees
W.P.(c)No.30917/04 9
covered by the Payment of Gratuity Act in the State, the
implementation of which would not cast any financial burden
on the State or the employer in any manner and at the same
time would enable the employees to get amounts higher than
the maximum gratuity prescribed under the Act.
S. SIRI JAGAN, JUDGE
Acd
W.P.(c)No.30917/04 10