IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 26820 of 2006(P)
1. A.G. SANTHOSH, AGED 25 YEARS,
... Petitioner
2. DILEEP V. RAJAN, AGED 36 YEARS,
Vs
1. STATE OF KERALA,
... Respondent
2. DISTRICT COLLECTOR, PATHANAMTHITTA.
3. TAHSILDAR, KOZHENCHERRY.
4. CHENNEERKARA PANCHAYAT,
5. RAJESH KUMAR,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :SRI.ESM.KABEER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :04/01/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) Nos. 26820 and 28139 OF 2006
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Dated this the 4th day of January, 2007
JUDGMENT
The petitioners in WP(C) No.26820/06 are residents of the
Chenneerkara Panchayat, the 4th respondent in the Writ Petition. The
1st respondent in that case is the State. Respondents 2 and 3 are
District Collector and the Tahsildar and the 5th respondent is one
Sri.Rajesh Kumar to whom the right for collecting river sand from
Mathoor Kadavu, within the limits of the 4th respondent Panchayat was
given on auction by the 3rd respondent-Tahsildar. The petitioners refer
to Section 218 of the Panchayat Raj Act which provides the right over
the rivers flowing through the Panchayat are vests in the Panchayat.
Accordingly any income collected by way of sale of sand from the rivers
or otherwise is the income of the Panchayat and reference in this regard
is made through the Kerala Protection of River Banks & Regulation of
Removal of Sand Act, 2001. Petitioners refer to Rule 29 Sub Rule 3 of
the Protection of River Banks and Regulation of Removal of Sand Rules
and submit that while conducting sand auction, the availability and
requirement of sand in that area shall be taken into account and such
auction shall be conducted in the presence of Secretaries and Members
of the concerned Local Authority and Tahsildar of that area and prices of
WPC Nos.26820 & 28139 of 2006
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sand shall be fixed after taking into consideration the expenses for
loading sand into the vehicle and also the labour charge for sand
removal. It is pointed out that the very basis of such provisions in the
Rule is to fix the sand price by the Municipal authorities and to prevent
the successful bidders from selling sand above the price fixed. The
petitioners refer to Sub Rule 2 of Rule 29 which provides that the District
Expert Committee shall fix the quantity available for extraction and shall
be sold after paying the royalty by collecting the entire quantity of such
sand on river banks. Petitioners also refer to Clause (g) of Sub Rule 1
of Rule 29, which provides that in the case of removal of sand jointly by
Panchayat, the amount is to be equally divided after deducting the
royalty to Mining and Geology Department, wages to workers and share
towards River Management Fund and ancillary expenditure. Petitioner
refers to other provisions also including Rule 15 which provides for the
powers of the Kadavu Committee in the matter of fixation of price of
sand in respect of particular Kadavu. Petitioner also refers to the
preamble of the Kerala Protection of River Banks and Regulation of
Removal of Sand Act, 2001 and submits that in spite of the various
regulatory measures noticed by the said Act and Rules therein the
respondents who are vested with authority to permit sand collection are
not keeping any limits in the matter of fixation of price for the sand.
They contend that even though there is fixation regarding price at
Rs.2,000/- in the auctions held in many places prices are going beyond
WPC Nos.26820 & 28139 of 2006
3
double the above limit. On account of such price fixation there is a
tendency among bidders to exploit the river in a large scale. Though the
quantity permitted is very little, when stringent measures were taken to
prevent such exploitation the bidders are selling the sand at exceedingly
higher rates. Petitioner submits that the 3rd respondent conducted
auction of the right to collect river sand from Mathoor Kadavu in respect
of Chenneerkkara Panchayat was given at a price of Rs.6,500/-. Ext.P1
is the auction notice. Petitioner submits that in this auction, the price of
river sand was fixed at Rs.6,500/- and the right to extract sand was
purchased by the bidder for a total amount of Rs.3,07,613/-. The daily
collection quantity being six loads and the period allowed to the
Contractor being 12 days, the price paid by the Contractor for 72 loads
will comes to Rs.3,07,613/-. Even without taking into account the labour
charges for collection and transportation charges, the burden of a
purchaser for one load of river sand will be around Rs.7,000/- and
Ext.P2 receipt for payment of money is relied on by the petitioner in this
regard. Petitioners claim that they are local residents who are who want
to construct their own building. They are from the down trodden and
weaker section of the community and are deeply aggrieved by the illegal
action of the respondents in conducting auction by fixing the sand price
as high as Rs.7,000/-. When such a sand price is fixed and that too by
the conduct of auction at such a higher price, the Contractor will be
tempted to extract river sand illegally and the same will affect the
WPC Nos.26820 & 28139 of 2006
4
ecology and environment. It is these evil effects which are sought to be
prevented by incorporating statutes and by forming the Rules.
Thereafter the petitioner contend that the auction now confirmed in
favour of the 6th respondent for such a high price has to be set aside.
Pointing out all the relevant aspects, Ext.P3 representation was
submitted by the petitioners before respondents 2 to 4. Those
respondents are sleeping over Ext.P3 and steps are taken for carrying
out river sand collection. Petitioners have also produced receipt issued
by the respondents for a sum of Rs.28,584/-in favour of one Sri.Ajith
Kumar, for 60 loads of river sand as Ext.P4. From Ext.P4, it is seen that
the sand collected from another Kadavu is below Rs.500/-. Thus
between Kadavu, inter se there is such a disparity between prices and
therefore the price of river sand from Mathoor Kadavu is per se
exorbitant. Petitioners then submit that more than 50% of the people of
Chenneerkara Panchayat are below the poverty line and they construct
their houses by utilising grants given by the Panchayats. Normally
these grants will be for amount upto Rs.10,000/- and when one load of
sand is costing Rs.7,000/- it is not possible for any of the poor people to
carry out any construction at all. Making all these averments, petitioners
pray to issue a writ of mandamus commanding the respondents to set
aside the auction of the right to collect river sand from Mathoor Kadavu
of Chenneerkkara Panchayat at a total price of Rs.3,07,613/- be
quashed and to issue a mandamus to the Panchayat and Tahsildar to
WPC Nos.26820 & 28139 of 2006
5
conduct auction by fixing the maximum price upto which the auction
should be conducted by taking the value of sand with all expenses at
less than Rs.2,000/- per load of river sand and also not to conduct
auction if the price exceeds the said limit. The further relief which is
prayed for in this Writ Petition is a writ of mandamus directing
respondents 2, 3 and 4 to consider Ext.P3 representation and take a
decision thereon at the earliest and no to permit river sand collection till
a decision is taken on Ext.P3.
2. WP(C) No.28139 of 2006 is filed by Sri. Rajesh Kumar, the 5th
respondent in WP(C)No. 26820 of 2006. The respondents in this Writ
Petition are the State, the District Collector, the Tahsildar and the
Panchayat. Ext.P1 produced in this case is the very same auction
notice issued by the 3rd respondent Tahsildar, auction for the right to
collect river sand from various kadavus of the Panchayat. The petitioner
belongs to Scheduled Caste and is a person having no independent
employment and therefore he participated in the auction held as per
Ext.P1 notice and since in the said auction notice it was not stated
anywhere that there should be limit regarding the collection quantity.
Accordingly he purchased the right in the auction for collecting river
sand from Mathoor Kadavu for a total amount of Rs.3,07,613/-. But at
the time of execution of agreement he was told that he will be permitted
to collect only 72 lorry loads of river sand during the said period and at
that time he submitted a petition before the 3rd respondent stating that
WPC Nos.26820 & 28139 of 2006
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he was not been informed of the maximum number of lorry loads that
can be collected. He requested to reduce the price to Rs.2,000/- and
permit him to collect river sand for such quantity as applicable to the
total amount actually remitted by him if the price is calculated at the rate
of Rs.2,000/-. Ext.P2 dt.13.10.06 is copy of that petition. Ext.P3 is copy
of the receipt issued by the respondents against the remittance of
Rs.3,07,613/-. Petitioner submits that the local residents are very much
against the auction of the right to collect river sand for such a high price
for such a short period. He submits that the local residents had filed
complaints about the exorbitant price and Ext.P4 produced along with
the writ petition is copy of such petition.(In WP(C) No.26280/06 this is
produced as Ext.P3). Petitioner submits that even a public notice was
issued by the residents of the locality seeking to reduce the prices of
river sand and Ext.P5 is copy of the said public notice dt.13.10.06 in
which it is threatened that unless the price of river sand is reduced, the
public will go in for adjudication. The petitioner has then produced
Ext.P6 copy of the interim order passed in WP(C) No.26820/06.
Petitioner submits that no sand mining activity was conducted by the
petitioner or other purchasers since there was heavy rain. In the case of
the petitioner he was awaiting orders on the petition for reduction of
price. He is a poor Harijan and it was through bank borrowings that he
could remit the amount previously and he is unable to participate in the
subsequent auction since he has no resources. The 3rd respondent is
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now proceeding to conduct auction for the subsequent period.
Therefore the petitioner again filed a petition not to conduct auction and
for fixing the price of Rs.2,000/- and the right to collect river sand be
given to him by fixing the number of lorry loads which can be collected
per day. Ext.P7 is the representation. On these averments the
petitioner has raised various grounds and pray that a writ of mandamus
be issued commanding the Panchayat as well as the 3rd respondent not
to conduct auction of the right to collect river sand from Mathoor Kadavu
of Chenneerkkara Panchayat for subsequent period commencing from
1.11.06 and for a further writ of mandamus commanding the
respondents to fix the value of river sand as provided under Rule 29(3)
(a) and (b) of the Act No.18 of 2001 and to direct the Panchayat and the
3rd respondent to conduct auction of the right if necessary by fixing the
limit of auction at the rate fixed. Petitioner also prays for a writ of
mandamus to collect river sand from Mathoor Kadavu at the rate of
Rs.2,000/- per load and by appropriating and adjusting the amount
already deposited and by permitting him to collect river sand till the
entire amount is adjusted by extending the period of collection. Later
the petitioner has produced copy of my judgment in WP(C) 34799/2005
wherein I had disposed of that Writ Petition directing the District
Collector to expedite and finalise the refund proceedings initiated for
refund of that portion of the bid amount which is refundable to the
petitioner in that case. It was in respect of another Kadavu within the
WPC Nos.26820 & 28139 of 2006
8
limits of another Panchayat. On the basis of that judgment the petitioner
filed IA No.117 of 2007 praying that respondents be directed to refund
the security amount under deposit or else to permit him to collect river
sand at Rs.400/- per load.
3. In WPC No.26820 of 2006 the 3rd respondent Tahsildar has
filed a statement. This statement was filed as directed by me. It is
stated therein that the Government as per Circular NO.1731/P1-
04/Revenue dt.01.02.2005 issued necessary directions and guidelines
to the Tahsildar for conducting public auction of the available quantity of
river sand based on the parameters suggested by the Expert Committee
for Earth Science Studies, Centre for Water Resources Development
and Management etc. A meeting of the District Expert Committee was
held under the District Collector, Pathanamthitta on 03.10.06. The
meeting decided to authorize the Tahsildar, Kozhencherry to conduct
public auction to collect the river sand from the various Kadavus of the
Achankovil river. Annexure R3(1) is copy of that report. On the basis of
the decision taken as reported in Annexure R3(1) public auction was
conducted on 11.10.06 for sale of six loads of river sand per day as
done in the previous year also after giving adequate publicity in the local
dailies, notice Board of the Taluk Office, Village Office and the
respective Kadavu and the Panchayat Secretary also attended the
auction as requested by the 3rd respondent. The averment that it was
the 2nd respondent who fixed the price of sand at Rs.2,000/- per load is
WPC Nos.26820 & 28139 of 2006
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denied as it is totally incorrect. None of the respondents have fixed any
price. The Tahsildar conducted the public auction of the available
quantity of river sand based on the parameters suggested by the Expert
Committee consisting of Centre for earth Science Studies, Centre for
water Resources Development and Management etc. as per the Circular
dt.1.2.2005. A copy of the Circular is produced as Annexure R3(d).
After the auction 50% of the sand value is given to the concerned
Panchayats. It became necessary to conduct public auction only
because no price was fixed by the Kadavu Committee. Petitioner’s
apprehension regarding illegal extraction of sand is unwarranted since
special squads under the supervision of the Revenue – Police Officers
have been constituted for taking appropriate action. As far as Mathoor
Kadavu is concerned the right to collect sand was given at a total price
of Rs.3,07,613/- which constitutes the sand value as Rs.4060/- per load,
Royalty Rs.50 per load and sales tax Rs.4% per load. Being a public
auction, competition is common. The bidders compete among
themselves, as a result of which the bid amount goes up. The
respondents are not responsible for the increase in price. It is then
pointed out that the auction purchaser, Sri.Rajesh refused to sign the
agreement of the Tahsildar.
4. The 5th respondent, Sri.Rajesh, has filed a detailed counter
affidavit reiterating the grounds that he has raised in his Writ Petition
No.28139/06 as ExtR5(a). He has produced a copy of the promissory
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note executed by him in the context of raising of funds for the purpose of
making the remedies. Ext.R5(b) produced by him is the first page of
SSLC certificate. This is produced to show that he belongs to Kurava
Community. Kurava is a Scheduled Caste. Ext.R5(c) produced by him
is a petition dt.13.10.06 submitted before the District Collector. Ext.R5
(d) is copy of the public notice issued by the local public under the
leadership of Janakeeya Samithi against the exorbitant price payable
for the river sand. Ext.R5(e) is copy of agreement executed. He has
incurred expenses by taking country boats on hire. According to him,
the price of river sand in the other Kadavus will come to less than
Rs.2,000/- in respect of 60 lorry loads by which the royalty amount will
come only less than Rs.500/-.
5. The Panchayat which is the 4th respondent in 26280 has filed a
detailed counter affidavit. The Panchayat in its counter affidavit refers to
WP(c) No.6632/1996 filed by four petitioners therein for preventing
removal of the sand from the Achankovil river passing through the
territory of the 4th respondent Panchayat. In that Writ Petition, this Court
passed Ext.R4(a) judgment on 9.9.97. In Ext.R4(a), the Panchayat was
the 3rd respondent. The Panchayat was allowed under Ext.R4(a) to
collect sand from the river subject to the directions of the Government
and the District Collector. The Panchayat was collecting and selling the
river sand from the kadavus within its jurisdiction as permitted in Ext.R4
(a). While so, the Kerala Protection of River Banks and Regulation of
WPC Nos.26820 & 28139 of 2006
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Renewal of Sand Act 2001(Act 18 of 2001) came into force with effect
from 15.4.02. The Rule now in force is in effective from 4.5.03. The 4th
respondent was collecting and selling sand as per the provisions of the
Act under the Rule with the necessary sanction from the concerned
authorities and committees paying the royalty and other dues. The
procedure was in force up to 31.3.95. But on 1.4.95 onwards it is the 3rd
respondent who is directly auctioning the right to collect river sand on
the basis of the Government Circular No.71731/P1/2004/Revenue
dt.1.2.05. The 2nd respondent issued Circular No.C9/6502/05
dt.31.10.05. This Circular is produced by the Panchayat as Ext.R4(b).
Ext.R4(b) has been issued to the 4th respondent-Panchayat. Under
Ext.R4(b), the Panchayat was directed to sign and seal passes issued
by the Tahsildar for transportation of sand. Such direction is being
obeyed by the 4th respondent. The Tahsildar is paying the share of the
sand realised to the Panchayat. In the counter affidavit, the Panchayat
contends that as per the Act and Rules it is the Panchayat which has the
right to arrange collection and sale of river sand on payment of royalty
and share due to River Management Fund. Section 12(3) of the
Act and Rule 17(1) (2) of the rules are referred to in this context. It is
pointed out that there is no provision investing jurisdiction in the
Tahsildar to auction the right to collect the river sand or realise its value.
Such right actually vests with the Grama Panchayats. Ext.R4(b)
Circular issued by the Government is accordingly contended as without
WPC Nos.26820 & 28139 of 2006
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jurisdiction. The 4th respondent submits that the filing of the present
counter affidavit is without prejudice to the right of the Panchayat to
approach this Court for appropriate reliefs.
6. The maintainability of the present Writ Petition is strongly
disputed in the counter affidavit of the Panchayat. It is contended that
the petitioners have no locustandi to file the Writ Petition. They are
espousing a public cause and not any private interest. No fundemental
rights of theirs have been violated. It is then contended that the attempt
of the petitioner is to protect the interest of the 5th respondent-Rajesh
Kumar. This attempt will be evident from the materials placed on record
and the background and the averments and prayers contained in both
the writ petitions.
7. As directed by me the Government Pleader has produced the
auction diary and report of Centre for Earth Science Studies, Water
Resources Development and Management recommending removal of
six loads of sand per day from Mathoor Kadavu.
8. Even though Sri. T.M. Abdul Latheef, learned counsel for the
petitioner in WP(C) 26280/06, Sri.E.S.M Kabeer, counsel for the
petitioner in WPC 28139/06, Sri. N. Sugunapalan, learned counsel for
the Panchayat in both these cases and the learned Government
Pleader, Mr. Mathew G. Vadakkel, have addressed me very elaborately
inviting my attention to all the materials placed on record by the
respective parties and the grounds raised in the Writ Petitions, I am of
WPC Nos.26820 & 28139 of 2006
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the view that it is not necessary for this Court to go into the merits of any
of the grounds raised or the submissions addressed. The period for
which the right to collect river sand from Mathoor Kadavu was granted to
the petitioner in WPC 28139/06 is already over. To that extent the WPC
No.26820/06 has become infructuous. The prayer in Ext.P3 is to stay
the collection of river sand on the strength of the auction conducted in
favour of Sri.Rajesh and set aside the same in his favour. I do not find
any specific prayer made in Ext.P3 in the context of the grievance
voiced in the Writ Petition regarding the fixation of price. That Writ
Petition therefore will stand dismissed. On my scanning of the
materials, it is clear that the petitioners have been espousing the cause
of Sri.Rajesh, petitioner in WPC 28139/06. As for WPC No.28139/06
also I do not find any warrant for granting the reliefs sought for; but there
is only one circumstance in his favour for one reason or other he was
not able to transport even a single lorry load of river sand. But then he
himself is responsible for the same because admittedly he was not
prepared to execute an agreement. His claim for refund will certainly be
considered by the District Collector. He is permitted to make a proper
representation before the District Collector claiming refund of the
amount remitted by him and for payment of any other amounts which he
claims to be due to him, on account of the loss which has been
occasioned to him by way of loss of interest or otherwise due to his
inability to extract river sand. The District Collector will consider the
WPC Nos.26820 & 28139 of 2006
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same and dispose of the same in accordance with law. It is made clear
that I have not expressed any opinion on the merits of his claim for
refund of any amount or for payment of amounts in excess of what he
actually remitted.
WP(C) No.26820 of 2006 is dismissed.
WP(C) No.28139 of 2006 is disposed of. No costs.
PIUS C. KURIAKOSE, JUDGE
btt
WPC Nos.26820 & 28139 of 2006
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