IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16392 of 2010(Y)
1. MOIDEEN KUNHI, S/O.ISMAIL,
... Petitioner
2. U.POCKER, JASMINE VILLA,
Vs
1. STATE OF KERALA, REP.BY THE SECRETARY,
... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. THE DISTRICT SUPERINTENDENT OF POLICE,
4. THE SUB INSPECTOR OF POLICE,
5. THE GEOLOGIST,
For Petitioner :SRI.K.PRAVEEN KUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :20/07/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P(C). NO. 16392 OF 2010 Y
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Dated this the 20th July, 2010
JUDGMENT
K.M. Joseph, J.
Petitioners are dealers of minor minerals. Briefly put, the
case of the petitioners is as follows:
The first petitioner has been licensed to stock and sell 2000
metric tones of ordinary sand to the prospective buyers. Ext.P1
licence is valid till 31.3.2011. This was issued under Rule 48A
of the Kerala Minor Mineral Concession Rules, 1967. The
second petitioner has got similar licence vide Ext.P2 for
stocking and selling 6000 metric tones of ordinary sand. They
carry on the business of selling the sand on the strength of
Exts.P1 and P2. They are paying sales tax to the Government.
Persons who purchase sand from the petitioners have to get
Form P cash memorandum issued under Rule 48 (K) of the
Rules. Exts.P3 and P4 are produced as the cash memorandum to
WPC.NO.16392/2010 Y 2
transport sand from the yard of the petitioners. It is stated that
while so, in April 2010, the fourth respondent seized the vehicle
carrying sand lifted from the first petitioner alleging that the
transportation is illegal. Though the cash memorandum was
shown to the fourth respondent, it was ignored. Alleging
harassment by the Police Officers, the petitioners have
approached this Court seeking the following reliefs:
“a) Issue a writ of mandamus to respondents
3 and 4 not to harass the petitioners and their
customers in transporting the sand with valid
document issued under the provisions of the Kerala
Minor Mineral Concession Rules.
b) Declare that the respondents cannot harass
the petitioners and their customers in any manner,
while transporting the sand with valid documents
issued under the provisions of the Rules.”
2. A Statement has been filed by the fourth respondent,
inter alia, stating as follows:
As per Exts.P1 and P2 proceedings, the Geologist issued
the licence to the petitioners on certain conditions. One among
WPC.NO.16392/2010 Y 3
the conditions is that the licensees can purchase and store sand
only from the owners of the quarries who have valid quarrying
permit or quarrying lease. They should obtain valid cash
memorandum in P Form from the producer for each load and
kept it for inspection as and when demanded by the Authorities
as per the provisions of the Rules. But, contrary to the
conditions, the licensees procured sand through illegal means by
using members of sand mafia of Karnataka and Kerala. The
sand is being brought into the State through Konaje, Pathur via,
Kajapadva evading the check post. Export of sand from
Karnataka has been prohibited in Karnataka. If the petitioners
are allowed to store and transport sand illegally taken from
Karnataka, it will lead to competition among the sand mafia
gangs which may cause law and order issues. It is stated that
two cases have been registered. The persons who stored sand in
Manjeshwar area including the petitioners are depending on
these gangs to procure sand in their storing places from
Karnataka State. If the petitioners are purchasing sand from the
WPC.NO.16392/2010 Y 4
owners of permitted quarries, they have right to store and
transport sand. No sand lorries were seized by Manjeshwar
Police having valid documents. Owners of all the seized lorries
have admitted the offence and compounded the offence as per
the provisions of the MMDR Act.
3. Petitioners have filed a Reply Statement. Therein, the
petitioners have produced Ext.P7 which is the copy of the
Government Order dated 14.12.2009. Therein, the Government,
inter alia, has permitted the import of sand from other States.
Learned counsel for the petitioners would further point out that
the petitioners as licensees have been issued with Rule 48(K)
Books and when the petitioners transport the sand, they were
issued with Rule 48 (K) Forms. It is armed with Rule 48 (K)
Forms duly filled in by the petitioners that their customers are
transporting the sand and the petitioners’ customers are being yet
harassed.
4. We heard the learned counsel for the petitioners and the
learned Government Pleader. Learned counsel for the petitioner
WPC.NO.16392/2010 Y 5
would, undoubtedly faced with the fact that export of sand has
been banned in Karnataka State, point out that the petitioners are
importing sand from Gujarath, Maharashtra and Andhra
Pradesh. To this, the learned Government Pleader would
immediately point out that sand from Gujarath and Maharashtra
come via. shipping route supported by proper documents.
5. It is true that by Ext.P7, the Government of Kerala has
issued an Order purporting to encourage import of sand from
other States, apparently in view of the scarcity in the State of
Kerala. But, it is an equally undisputed fact that the State of
Karnataka has prohibited export of sand from its soil.
Therefore, if as contended by the respondents, the sand is being
brought into the State of Kerala from Karnataka, it can only be
described as an illegal act. If the licensee including the
petitioners as licensees, are using Rule 48(K) Forms for the
purpose of sanctifying transport of sand which is illegally
brought from the State of Karnataka, this Court will not lend its
assistance in any form to the petitioners and certainly, the Police
WPC.NO.16392/2010 Y 6
Authorities will be justified in taking action as per law in such
cases. However, needless to say, particularly in view of Ext.P7,
if the petitioners are buying sand which is brought through the
legal means from other States where there is no ban and issue
Rule 48(K) Forms to the customers, certainly the Police
Authorities cannot harass the petitioners or the customers. We
make this position clear. Learned Government Pleader points
out that the dealers will have to maintain Forms M, N and O
under the Kerala Minor Mineral Concession Rules. We take
note of the said submission also and dispose of the Writ Petition.
Sd/=
K.M. JOSEPH,
JUDGE
Sd/=
M.L. JOSEPH FRANCIS,
JUDGE
kbk. // True Copy //
PS to Judge