(2011) 194 KLR 039 IN THE HIGH COURT OF KERALA AT ERNAKULAM
The Hon'ble the Chief Justice MR.J.CHELAMESWAR The Hon'ble MR. Justice P.R.RAMACHANDRA MENON WA.No. 3005 of 2007() 1. ISMAYIL, S/O.ENI, ... Petitioner Vs 1. DEPUTY TAHSILDAR, ... Respondent 2. SUB INSPECTOR OF POLICE, 3. DISTRICT COLLECTOR, 4. STATE OF KERALA, REPRESENTED BY Dated :14/03/2011 J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. ............................................................................................ W.A. Nos. 3005 OF 2007, 201, 300, 1628 of 2008 & 648 & 1128 of 2009 & 998, 999, 1004, 1488, 1493, 1584, 1911 & 1945 of 2010 & W.P. (C) Nos. 4847 OF 2008 ........................................................................ Dated this the 14th March, 2011 Head Note:-
Alphabetical List of Cases Cited:-
For Petitioner :
For Respondent :
J U D G M E N T P.R. Ramachandra Menon,J. Constitutional validity of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 ('Sand Act' in short); the Rules framed under Sec. 26 of the Said Act and the relevant provisions of the Ordinance bearing No.38/10 whereby the provisions regarding the confiscation and the further steps have been detailed and incorporated as per Sections 23 and 23A to 23D, is under challenge in most of these cases, particularly the Appeals and some of the writ petitions; while the other cases have been tagged on with the former group. The main contention is that, it is beyond power and competence of the State, as the entire topic with regard to the legislation for minor minerals has been taken over by the Union as enlisted under Entry No.54 of List I; giving no room for the State to legislate on the same subject with reference to Entry No.23 of List II of the 7th Schedule of the Constitut of India. 2. The challenge raised before this Court takes its origin from the orders passed by the concerned District Collector of various districts, pursuant to seizure of the vehicles, in which the river sand was being transported, contrary to the relevant provisions of the 'Sand Act', arriving at a finding in this regard and making it known under Rule 27(3) that the vehicle could be released on payment of the amount, equal to the value of the vehicle as fixed by the District Collector to the 'River Management Fund' (along with the fine in some cases); lest it should lead to further proceedings. 3. In the concerned Writ Petitions which form the subject matter of the relevant Writ Appeals, the challenge raised by the petitioners, with regard to the power and competence of the District Collector to order confiscation of the vehicles and also as to the power and competence of the State to pass the 'Sand Act' and Rules thereunder, which are allegedly ultra vires to the 'MMDR Act' [The Mines and Minerals (Development and Regulation)Act,1957] and Rules made by the State invoking the power under Section 15 of the said Act (The Kerala Minor Mineral Concession Rules, 1967) was repelled by the learned Single Judge, holding that the validity of the 'Sand Act'/Rules stands already upheld by the decision rendered by this Court as reported in Subramanian vs. State of Kerala (2009(1) KLT 77). The appeals have been preferred stating that the observations made by the learned Single Judge are not correct and that the decision rendered by the learned single Judge in 2009(1) KLT 77 (cited supra) requires re-consideration. 4. The arguments on behalf of the appellants/writ petitioners were led mainly by learned Counsel Mr.Sunny Mathew and Mr. Babu S. Nair, while the case of the respondents/State was asserted by Mr. Renjith Thampan, the learned Addl. Advocate General. Both the sides were heard at length, with reference to the facts, law and the judicial precedents cited in support thereof. 5. As pointed out already, the challenge raised from the part of the appellants/ petitioners is mainly that the 'Sand Act'/Rules is beyond the legislative competence of the State, in view of the 'MMDR Act' enacted to provide development and regulation of mines and minerals under the control of the Union by virtue of Entry 54* of List I of 7th Schedule of Constitution of India. It is also pointed out that the power of a State to legislate on the subject involving mines and minerals as provided in Entry 23** of List II of 7th Schedule, is obviously subject to Entry 54 of List I and since the Parliament has already declared the expediency in public interest to have the legislation and control to be vested with the Centre ( by virtue of the declaration under Section 2 of the MMDR Act), the entire topic has been taken over by the Central Government, which is very much inclusive of 'minor minerals' as well (as defined under Section 3 (e) of the MMDR Act) and as such, nothing is left out to be legislated by the State, resorting to Entry 23 of the State List (List II of 7th Schedule), submits the learned Counsel for the appellants/petitioners. Reliance is sought to be placed mainly on the decisions rendered by the Apex Court in Baijnath Kedia vs. State of Bihar (AIR 1970 SC 1436), India Cement Ltd vs. State of Tamilnadu [(1990) 1 SCC 12] & Orissa Cement Ltd. Vs. State of Orissa (AIR 1991 SC 1676). It is further contended that, though the preamble of the 'Sand Act' refers to protection of river banks/ river beds, from large scale dredging of river sand and to protect their bio-physical environmental system, the Statute essentially governs the removal of river sand and the matters connected therewith and hence it is a colourable exercise of power. Reliance is sought to be placed on the decision rendered by the Apex Court in Saurashtra Cement and Chemical Industries vs. Union of India (AIR 2001 SC 8) as well. ----------------------------------------------------------------------------- 54* Regulation of mines and minerals development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. 23** Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
6. It is argued from the part of the learned Counsel for the appellants/petitioners that, even if the legislative competence is held in the affirmative, referring to some or other source of power to enact the 'Sand Act' and the rules, the relevant provisions, particularly as to the 'confiscation' and to impose fine are beyond the competence, power and jurisdiction of the Revenue authorities. It is stated that confiscation can only be pursuant to an order of the competent Court and no such power can be exercised by the District Collector without an order of conviction based on evidence adduced before the Court, upon a 'complaint in writing' preferred by the 'authorised officer' in this regard. Referring to the mandate under Section 21 of the Central Act and Rule 59 of the Kerala Minor Mineral Concession Rules ( framed by the State invoking the power under Sec.15 of the 'MMDR Act'), it is contended that no Court shall take cognizance of any offence punishable under the said Rules, except upon a complaint in writing made by a person authorised by the State Government in this behalf as published in the Gazette and since such power is exclusively vested upon a competent Court, the Scheme of the 'MMDR Act/Rules' (framed by the State under Section 15 - 'KMMC Rules' in short) cannot be watered down/modified/varied in any manner by the State conferring such power upon the revenue authorities, substituting or dispensing with the role of the Court in this regard. 7. It is contended that the revenue authorities do not have the power to impose any 'fine' or 'imprisonment' as punishment, which power is vested with the Court. With reference to the Central Act (MMDR Act) and 'KMMC Rules' made by the State, the learned Counsel for the appellants/petitioners further submits that the MMDR Act/Rules form a self-contained and exhaustive code, so as to deal with the necessity for obtaining the requisite permits/passes for raising or removal/transportation of the minor minerals and also as to the consequences to follow, in case of any violation. Specific reference is made to Section 21 of the 'MMDR Act' prescribing the penalties and also to Rule 58 of the Kerala Minor Mineral Concession Rules in this regard. It is stated that the penalty prescribed under Section 20 of the 'Sand Act' is rather otiose, in view of the position already taken care of by the 'MMDR Act'/KMMC Rules. Similarly, it is contended that by virtue of Section 21(4A) of the Central Act, Section 23 of the State Act (now re- numbered as Section 23A in Ordinance 38/10) providing for confiscation is 'non est'. Reliance is sought to be placed on the decision reported in AIR 2004 SC 2647 (Constitution Bench) (Association of Natural Gas vs. Union of India.), particularly paragraph 41 and 43 by the learned Counsel Mr. Babu S. Nair, who made the submissions in this regard. 8. In response to various contentions raised from the part of the appellants/petitioners, the learned Addl. Advocate General submits that the idea and understanding of the appellants/petitioners as to the scope of the 'Sand Act/Rules' and the area occupied by the 'MMDR Act' with the rules framed under Section 15 thereunder, are quite wrong and misconceived and that they operate in two entirely different spheres. It is pointed out that the 'Sand Act', as discernible from the preamble itself is an Act to protect the river banks and river beds from large scale dredging of river sand and to protect their biophysical environment system and regulate the removal of river sand and for matters connected therewith or incidental thereto; whereas the 'MMDR Act' ( Act 67 of 1957) is an Act to provide for the development and regulation of mines and minerals under the control of the Union. Referring to the necessity to preserve the virtues of Nature, applying the Public Trust Theory and Precautionary Principle and also the specific observations of the Apex Court in M.C. Mehta vs. Kamal Nath [(1997)1 SCC 388] and in M.C. Mehta vs. Union of India and others [(2004) 12 SCC 118], it is pointed out that the purpose of the enactment made by the State stands entirely on a different pedestal, which is essentially to protect the river, river banks and bio-physical environment, while the reclamation of river sand is incidental, in turn, to be regulated. It is also stated that unlike the mining activities contemplated under the 'MMDR Act' or the Rules framed thereunder, the reclamation of river sand and regulatory measures are in respect of the permissible activities which could be pursued by the local authorities who are the owners; the rivers (which term is inclusive of river beds) being vested with the concerned local authorities by virtue of Section 218 of the Kerala Panchayat Raj Act and Section 208A of the Kerala Municipality Act. The right of the petitioners/appellants arises only on the sale of the river sand by the concerned local authorities, on the strength of valid passes and subject to control and regulatory measures exercised by Kadavu Committee/District Expert Committee etc . 9. The learned Addl. Advocate General, with reference to the legislative history, submits that this Court had time and again alerted the Government as to the necessity to bring about sufficient regulatory measures to protect the rivers/river banks/environment from ecological degradation/diversion/drying out and it was accordingly, that appropriate Government Orders were issued in 1993 followed by other relevant orders in the due course. Later, specific directions were given by a Division Bench of this Court as per the decision reported in 2002(1) KLT 723 (Association for Environment Protection (Regd. ) vs. State of Kerala). It was taking note of all these turn of events that the State badly felt the necessity to bring about an exhaustive enactment to protect the rivers/river banks and the bio-physical environment system, regulating the removal of the river sand in a systematic and scientific manner, on the recommendation of the Expert Committee to be constituted in this regard. The 'Sand Act' was enacted by the State providing for the constitution of Expert Committees like 'District Expert Committee' (to be constituted with various officers/authorities from different fields as mentioned in clauses (a) to (o) of section 3) and 'Kadavu Committee' , (consisting of different members specified under clause (a) to (i) of Section 4), simultaneously prescribing the specific powers of the said Committees as provided under Section 9 and 11 respectively of the Act. Reference is also made to the provisions like S.14 stipulating the control on the sand price;. Sec. 15- obligations of the Local authorities to maintain the Kadavu or river banks in safe condition; Sec. 16 - River Bank Development Plan; Sec.17- River Management Fund and issuance of passes; Section 19- providing to transfer the funds collected by the District Collector to River Management Fund; Sec. 29- Sand auditing, enabling the Government to ensure protection of every river, by providing for periodical measurement of the quantity of sand available for removal by such methods and the manner as may be prescribed. Further reference is made to other relevant provisions as well and it is asserted that the source of power for the said enactments, is mainly referable to Entry 17 of List II of 7th schedule, also read with Entries 5 and 23 of the very same List . Referring to the scope of the 'pith and substance' theory as explained by the Apex court in Union of India vs. Shah Goverdhan L. Kabra Teachers' College (2002 (8) SCC 228) and the Entry 29 of 11th Schedule as to the necessity for maintenance of community assets coupled with powers and responsibilities of the local authority/Panchayat under Article 243G of the Constitution of India, the learned Addl. Advocate General submits that the State enactment is perfectly within the four walls of law and the decision rendered by the learned single judge of this Court in 2009(1) KLT 77 (cited supra), sustaining the validity of the Act/Rules thereunder, does not call for any interference. 10. With regard to the contentions of the appellants/petitioners that there cannot be any 'Confiscation' without an order of conviction by a Court of law and also as to the power and procedure under section 21(4A) of the 'MMDR Act (allegedly making the power and procedure under Section 23 of the 'Sand Act' non est), the learned Addl. Advocate General submits that the above two provisions are not similar and that they do not operate in the same field. While Section 21(4A) is rather of criminal in nature ( to be pursued by a Magistrate on a complaint preferred by the authorised officer in writing), the power and procedure under Section 23 (now substituted by Sec.23A of Ordinance 38 /2010) are quasi civil proceedings, which could be pursued by an Executive Magistrate/Sub Divisional Magistrate without complaint and irrespective of the fact whether prosecution has been initiated or not. It is also pointed out that unlike Section 102 of the Cr.P.C., no report needs to be filed before the Magistrate in the case of the latter and the role of the Magistrate comes into picture only later. Under the 'Sand Act', the matter could be compounded even before filing any complaint by the authorised officer before the competent Court. This is a markable deviation from other statutes like Section 22 (2) of the Drugs and Cosmetics Act, Section 53 (A)(2) of the Kerala Abkari Act, Section 52 (2) of the Forest Act etc. where a report is to be preferred before the Magistrate on seizure of the property/vehicle; to be followed by the consequential proceedings. Even under the MMDR Act, no such report needs to be made before the Magistrate except under sub section 4 of section 22. Reference is made to AIR 2004 SC 2915 (Karnataka Rare Earth vs. Sr. Geologist, Dept of Mines and Geology).(Paragraph 7 ), 2004 (4) SCC 129 (State of W.B. and others vs. Sujit Kumar Rana) (paragraphs 36 and 43); the decision rendered by a Division Bench of this Court in Moosakoya vs. State of Kerala (2008(1) KLT 538) (paragraph No. 3 and 4), and the decision of a learned Judge of this Court reported in 1999 (2) KLT 836 (Sasidharan vs. Forest Range Officer) (paragraph 13) 11. With reference to Sec. 21(4) of the 'MMDR Act', the learned Addl. Advocate General submits that no notification has been issued by the Central Government notifying the officer or authority specifically empowered to seize the material/tools/vehicles on contravention of the statutory prescription and that similar lacuna, inadequacy and inapplicability is very much there in the 'MMDR Act' and also in the Rules framed by the State under Section 15 of the said Act, which in turn do not serve the situation to meet the requirement as taken care of by the 'Sand Act'/Rules. Even if any such notification has been issued by the Central Government under sub section (4) of Section 21, it is argued that the situations contemplated under the two enactments are entirely different and that there is no encroachment by the State to the field of the Union in any manner. It is also pointed out that, though power is conferred on the State Government to make rules for 'preventing' illegal mining, transportation and storage of minerals by way of Sec. 23C (of the MMDR Act), such power does not provide for any 'confiscation' and that the power of 'confiscation' is provided only on committing the offence, when a complaint has to be filed before the concerned Magistrate and 'confiscation' can only be as ordered by the Court. Similarly, reference is also made to sub rules (3) and (4) of Rule 58 dealing with the 'penalties' in the Kerala Minor Mineral Concession Rules, 1967, pointing out that the said rules only refer to 'seizure' and no power of 'confiscation' is provided anywhere therein, in respect of a Minor Mineral. 12. Referring to the observations made by the learned Single Judge in 2009 (1) KLT 77 (cited supra), (paragraph Nos. 42, 43, 46 and 47) and the Scheme of the Constitution, the learned Addl. Advocate General submits that the question of repugnancy is not at all involved for the reason that such question will arise only when the enactment is made by the Union as well as by the State with reference to any entry as contained in the Concurrent list (List III of 7th Schedule of the Constitution of India), which is not the position herein as the Central Legislation is with reference to Entry No.54 of List I, while the State Legislation is based on the 'source of power' as derived from Entry No.17 of List II read with Entry 5, 23 and 64 of the very same List, which hence stand on two different pedestals without transgressing to the realm of the other, in any manner, and hence liable to be sustained by virtue of their separate scope, object and existence. 13. Mr. Sunny Mathew, the learned Counsel appearing for the appellants/petitioners in some cases submits that the 'legislative history' or 'legislative bonafides' is not a relevant factor on the competence of legislature, as held by the Constitution Bench of the Apex Court in K.C.G. Narayan Deo vs. State of Orissa (AIR 1953 SC 375) (paragraph 9). Reference is also made to the decision of another Constitution Bench of the Apex Court in R.M.D.C.(Mysore) Private Ltd. vs. State of Mysore (AIR 1962 SC 594)(paragraph 14). The learned Counsel further submits that it is not a matter of repugnancy, but a matter of total lack of jurisdiction, as the entire topic of Minor Minerals has been taken over by the Union under Entry 54 of List 1 and no residual extent is left over to be dealt with by the State. Reference is made to the decision of the Apex Court in B. Viswanathan & Co. vs. State of Karnataka (1991) 3 SCC 358 (paragraph 4 onwards and more particularly, sub paragraph 14 of paragraph 5). In response to the arguments made by the Addl. Advocate General with reference to Article 243G dealing with the power of the State to legislate on a subject relating to the functions of Local Authority, it is stated that the said power is always subject to the provisions of the Constitution and in turn, the said Article is controlled by Article 246, asserting that there cannot be any encroachment by the State into any entry in List 1. 14. In the course of reply, Mr. Babu S. Nair, learned Counsel appearing for some of the appellants/petitioners in the concerned Writ Appeals/Writ Petitions submits that the challenge raised by the concerned parties is mainly with regard to the power and procedure for 'Confiscation', more particularly, brought in by virtue of the amendment of the provisions as per the Ordinance No.38/2010. The learned Counsel, referring to the meaning of the word 'Confiscation', submits that it is not uniform as given in various texts/Commentaries/Dictionaries like the 'Law Lexicon' (by P. Ramanatha Aiyar), the Black's Law Dictionary, the Chambers' Dictionary (20th Century Edition) etc. The learned Counsel submits that Sec.21 (1) of the 'MMDR Act' deals with the punishment to be imposed upon persons concerned, whereas Sec.21(4A ) deals with the proceedings against the properties (mineral, tool, equipment, vehicle or any other thing ) seized under sub-section (4). It is also pointed out that the Government has already issued a notification under Section 22 of the 'MMDR Act', designating the officer concerned, who is authorised to file complaint before the concerned Court for taking cognizance of the offence (G.O.(Ms) 917/97). The scheme of the Kerala Rules, as distributed among different Chapters II, III, IV etc of the Kerala Minor Mineral Concession Rules framed by the State, ( invoking the power under Section 15 of the 'MMDR Act'), is also sought to be explained, contending that the entire field in respect of the minor minerals was taken over by the 'MMDR Act' and the 'KMMC Rules' framed by the State under the said Act and this being the position, nothing remains further for the State to have enacted the 'Sand Act' and Rules thereunder in respect of 'river sand', as it is a 'minor mineral' as defined under Section 3 (e) of the 'MMDR Act' and by the ordinary meaning of the term 'sand' as given in various dictionaries. Reference and reliance is also placed on the decision rendered by the Constitution Bench of the Apex Court in AIR 2004 SC 2647(Association of Natural Gas vs. Union of India.) (paragraphs 41 and 43) and also the Full Bench decision rendered by the High Court of Andhra Pradesh reported in AIR 1995 (AP) 1 (Government of Andhra Pradesh vs. Y.S. Vivekananda Reddy)(paragraph 29). 15. The submissions made from either side as mentioned above have necessarily to be analysed and appreciated with reference to the scheme of the two different Acts/Rules thereunder, the relevant provisions of the Constitution of India and the entries under the relevant Lists of the 7th Schedule. 16. The State of Kerala, who is the first respondent in W.A. No. 1493 of 2010 has filed a counter affidavit, (stated as filed as a consolidated one, as regards all writ petitions and writ appeals challenging the Kerala Protection of River Bank and Regulation of Removal of Sand Act, 2001/Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 and Ordinance No. 38 of 2010). As pointed out from the part of the State, the 'Sand Act' was enacted by the State for the purpose of protecting the river banks and river beds in the State of Kerala, especially when there has been rampant exploitation of river beds in the State without any check measures resulting in depletion of water level and silent death of several rivers. The alarming situation as to the exploitation of river beds and river banks, on the removal of the sand from the river was noted by this Court in several public interest litigations and it was at the instance of this Court, that the Government had originally issued G.O. (P) No. 132/93/LSGD dated 29.06.1993 and some other Circulars prescribing the method for protecting the river banks and river beds etc., followed by other relevant Orders/Circulars. Then came the judgment passed by a Division Bench of this Court in Association for Environment Protection Vs. State of Kerala (2002 (1) KLT 723), directing the State to formulate appropriate regulations / guidelines in this regard. The 'Sand Act'/Rules were brought into existence to meet the situation in the above circumstances. 17. The river banks and river beds are vested in the Panchayath/local authority in view of Section 218 of the Kerala Panchayath Raj Act (208 A of the Kerala Municipality Act). Originally, the right to remove the sand from the river beds was the sole authority of the Panchayath. But it was found that, the Panchayaths were not conducting the removal of sand from the river beds in a sustainable manner and that there was indiscriminate exploitation of rivers. It was also found necessary that, while using the common assets like rivers and river beds, there should be proper regulation in this regard and it was with the above intent, that the 'Sand Act' was enacted by the State, mainly in view of the power vested on the State under 'entry No. 5* of the State list in the 7th schedule of the Constitution of India, enabling the State to make laws regarding the powers of the Local Self Government Department and further in view of the power and competence of the State to enact such a legislation under the legislative power mentioned in 'entry No. 17** of list II of the 7th schedule. The various provisions in the Statute clearly show that the purpose of the State enactment is principally to ensure protection of river, river banks and river beds and unless there is an effective machinery to over-see the removal of the sand from the river beds/river banks, it would result in uncontrolled exploitation of the same, leading to lowering of the water table and the eventual death of the rivers. ----------------------------------------------------------------------------- *Entry No. 5 of List II of the 7th Schedule reads: "Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self government or village administration. ----------------------------------------------------------------------------- 18. Protection of the river, river beds and river banks etc. is of course the duty of the State, which assumes more role and significance with reference to the concept of 'sustainable development' as part of right to life under Article 21 of the Constitution of India. The State enactment occupies an entirely different field and visualizes a different situation with regard to the necessity to protect the river beds, river banks and rivers while raising the river sand and the procedures prescribed are rather incidental to serve the main objective. The power of confiscation under the 'MMDR Act' [Section 21 (4A)] is in respect of the violation, pursuant to the orders passed by the Court of competent jurisdiction, in a complaint in writing preferred by the authorised officer in this regard; whereas the power of confiscation under the 'Sand Act' is simultaneously vested upon the 'Revenue' as well as on the 'Court'. The power so vested upon the authorities of the 'Revenue' is irrespective of the fact whether any prosecution proceedings have been initiated or not and it is always for the authorized officer to decide whether any prosecution proceeding is to be launched in respect of the contravention of the statutory provisions. There can be various instances of violation of the provisions of the 'Sand Act' (State Act), as can be seen from Sections 9, 12, 13 and 17 of the said Act, which are totally unconnected with the provisions of the 'MMDR Act' [Central Act] . The scope of confiscation under the two different enactments is entirely different. Even if a person is having the necessary permits under the MMDR Act, if such person transports the sand in violation of the 'Sand Act', the vehicle is liable to be confiscated under Section 23 A of the said Act. Similarly, even if a person has all the sanction to transport under the 'Sand Act', if such person does not have any transporting permit under the MMDR Rules, such vehicle is liable to be confiscated under Section 21 (4A) of the MMDR Act. ------------------------------------------------------------------------ **Entry No. 17 of List II of the 7th Schedule reads: Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of list I. ------------------------------------------------------------------------ 19. Now, coming to the scheme of the two different enactments and the rules framed thereunder, the Central Act (MMDR Act), as observed already, is an Act to provide for development and regulations of mines and minerals under the control of the Union. Section 4 coming under the 'General Restrictions' on undertaking Prospecting and Mining Operations stipulates that such operations shall be under a licence or lease. Section 4A deals with termination of prospecting licence or mining leases, wherein sub Section (1) deals with the power of the Central Government to order closure of premature termination of such licence/lease in respect of any mineral "other than a minor mineral", in the manner specified therein; while such power is conferred upon the State in respect of a 'minor mineral' as mentioned under Sub section (2) of Section 4 A, making it clear that, if the State Government is of the opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communication or to ensure safety of building, monuments or other structures or for such other purpose, the power contemplated therein can be exercised by the State. The other provisions related to the general restrictions in the prospecting/mining operations are Sections 5 to 13, which however are not applicable to 'minor minerals', as specifically stated in Section 14 of the Central Act. Section 15 says that the State Government is empowered to make rules in respect of 'minor minerals' and it is in exercise of the said power that the Kerala Minor Mineral Concession Rules 1967 (KMMC Rules) have been formulated by the State in this regard. 20. Ii is relevant to note that the Central Government wanted to retain control in respect of any minerals underlying the ocean within the territorial waters or the continental shelf of India, as provided under Section 13 A of the Central Act (MMDR Act), enabling the Government to make the Rules for the grant of prospecting licence or mining lease in this regard. Obviously, no such power is sought to be exercised with regard to the river beds, which exclusively come within the ownership of the local authorities concerned by virtue of the relevant provisions of the Kerala Panchayath Raj Act/Municipality Act; nor with regard to such right, if any, for the State in respect of such rivers/river beds. 21. With regard to the 'penalties' prescribed under Section 21 of the 'MMDR Act' (Central Act) read with Rule 58 of the Rules framed by the State (invoking the power under Section 15 of the said Act) and the penalties prescribed under Section 20 of the 'Sand Act' (State Act), it is to be noted that they do not relate to or govern the same field as alleged by the appellants/petitioners, so as to render the provisions of the State Act otiose in any manner. Sub section (1) of Section 21 of the MMDR Act refers to the punishment in respect of contravention of Sub Section '1' or Sub Section '1A' of Section 4; while any contravention of the 'Rules' is taken care of by Sub Section (2) of Section 21. The proceedings in respect of the material / tools / equipments / vehicles used for raising the mineral without any lawful authority is dealt with under Sub Sections 4, 4A and 5 (of Section 21). The main attack by the appellants/petitioners against the State Act ('Sand Act') particularly as to the penalty under Section 20 and the power to confiscate as provided under Section 23 (now substituted as 23 A by virtue of the Ordinance) and the Rules framed under the State Act, is with reference to 'Sub Section 4 A' of Section 21 of the MMDR Act, contending that, the power to confiscate is already provided under the Central Act and that such power can only be exercised by the competent Court, pursuant to an order passed in a complaint preferred by the authorised officer in this regard. 22. The proposition mooted by the petitioners/appellants does not appear to be correct for many a reason. First of all, the power of confiscation mentioned in Sub Section 4 A of Section 21 of the MMDR Act (Central Act) is with specific reference to the contents of Sub Section 4. Sub Section 4 and 4A of Section 21 read as follows:
Going by the contents of sub Section 4, it is clear that the seizure of the tools, equipments, vehicles or any other thing used by the person concerned is for raising, transporting or for causing to be raised or transported the concerned mineral without lawful authority from "ANY LAND", which does not specifically visualize a situation involving any such activity from a river or river bed. The confiscation under sub Section 4 of any such material / tool / equipment / vehicle is only in respect of such item used for such activity with specific reference to the land. The power of confiscation under Section 4 A of Section 21 may not be available to meet the requirement in respect of similar activity when it relates to 'river / river bed'. Similarly, the right of recovery of the mineral/its value (if already sold) from the person concerned, as provided under Sub Section 5 of Section 21 of the MMDR Act is also with specific reference to the 'land' and may not be attracted when it comes to a 'river or river bed'. 23. There is a contention for the appellants/petitioners that, by virtue of the compounding provision under Section 23 A of the MMDR (Central Act) stipulating that the offence could be compounded by paying such amount (which shall not exceed the maximum amount of fine, as prescribed for that offence) and once the said amount is paid, no further proceedings can be pursued, as stipulated in sub Section 2 of Section 23 A. In other words, it is contended that, once this compounding fee is paid, there is no justification for realizing the value of the vehicle. 24. The very idea of the petitioners/appellants that the maximum amount that could be levied as the compounding fee under the Central Act for compounding the offence shall not exceed the maximum fine does not appear to be correct or proper. Section 23A of the Central Act (MMDR Act) reads as follows:
The proviso to sub Section (1) of Section 23 A says that, the stipulation that no sum shall exceed the maximum amount of fine which may be imposed for that offence is applicable in the case of an offence punishable only with fine. But, Section 21 of the MMDR Act prescribing the penalties; read with Rule 58 of the 'KMMC' Rules, makes it punishable with imprisonment (for the term as prescribed) or with fine or with both. The position is almost similar with regard to the offences and penalties as prescribed under the State Act (Section 20 of the Sand Act), which clearly suggests that, the compounding fee could very well exceed the maximum fine prescribed, since the offence is not liable to be punished with fine alone. 25. As discussed herein before, the penalties under Section 21 of the Central Act, read with Rule 58 of the Rules framed by the State under the Central Act stand entirely on a different footing, whereas the penalties under Section 20 of the 'Sand Act' of the State are to meet the specific circumstances, as prescribed in the said Act, with the basic object of protecting the river/river bank/river bed and the biophysical environmental system of the river; including the circumstances contemplated under sub Sections 4 and 5 of Section 12 prescribing the general conditions. So also, there is black and white difference between the circumstances envisaged under Section 4(1)/1(A) read with Section 21(4)/(4A) of the Central Act and those contemplated under Section 23 of the State Act. Under the former Act, the removal of the mineral from the "land" is sought to be dealt with, while in the case of the latter, it is in respect of the "kadavu". Under the Central Act, the emphasis is with regard to the 'raising of' the minerals and the commercial sphere; whereas under the State Act, removal of river sand is rather 'incidental' as the emphasis is with regard to the 'protection of' the river / river bank / river bed and the management of the biophysical environment system of the river. 26. The scheme of the State Act (Sand Act), as much relevant, provides for constitution of a 'District Expert Committee' and a separate 'Kadavu Committee' as contemplated under Sections 3 and 4, which are extracted below for ready reference.
The aforesaid committees consisting of different authorities, including the technical experts of various/different fields and the administrative heads/authorities of the different faculties/bodies, are vested with specific powers and duties to be discharged to, give effect to the Act and the Rules framed thereunder. 27. The powers and functions of the 'District Expert Committee' and that of the 'Kadavu committee' are enumerated under Sections 9 and 11 of the State Act as extracted below:
Chapter III of the 'Sand Act' dealing with the protection of the river banks and biophysical environment systems of the river, contains Section 12 which prescribes the general conditions for sand removal operations in the 'kadavu'. Power is vested upon the Government/District Collector to order closure of a 'kadavu' or a river bank as given under Section 13. Specific obligation has been cast upon the local authorities to maintain the 'kadavu' or river banks in safe condition, as provided under Section 15. To upkeep the biophysical environment, the District Expert Committee, subject to general or special orders of the Government, if any in this behalf, is to prepare the 'river bank development plan' for establishing, co-ordinating and protecting the river banks within the district in such a manner and pertaining to such particulars as may be prescribed for the upkeep of the biophysical environment of the river banks, as provided under Section 16. Power is vested with the Government under Section 27 to call for the reports and to examine the proceedings of the District Expert Committee or the Kadavu Committee or the local authority under the Act/Rules and to give directions to the Chairman of the Expert Committee; simultaneously making it clear under Section 28 that provisions of the Act & Rules made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. As borne by Section 29, it is with specific intent to ensure protection of every river that, the power is vested with the Government to provide for periodical measurement of the quantity of the sand available for removal by such method and in such a manner, as may be prescribed. 28. Going by the various provisions of the 'Sand Act' and the Rules framed by the State under the Sand Act, there cannot be any doubt that, the enactment has been made by the State not in promotion of any 'commercial activities' as to the reclamation of river sand/minor mineral, but more as a measure to protect the river/river banks/river beds and the biophysical environment system of the river. The regulation imposed with regard to the removal of the river sand is with the above specific objective and hence incidental. By the way, it is also to be noted that Section 22 of the Sand Act clearly stipulates that, nothing in this Act shall prevent any person from being prosecuted under any other law for the time being in force for any act or omission is punishable under this Act. This being the position, it cannot be said that, the State has resorted to parallel legislation, by encroaching into the field of the Union with regard to the legislative powers referable to 'entry 54' of the list I under the 7th Schedule of the Constitution of India. 29. With regard to the contention of the petitioners/appellants that, there is no power for confiscation of the vehicle under Section 23 of the Sand Act, (as it only refers to 'seizure') and hence that the course provided under Rule 27 (3) is liable to be declared as ultravires, it is to be noted that, the 'Sand Act' was originally passed by the Legislature in 'Malayalam' and it was later translated into 'English'. The appropriate word used in the original text in Malayalam was 'kandukettal'/'കണ്ടുകെട്ടല്' in the 'heading' as well as in the 'body' of Section 23. But, when the provision was translated into English later, though the 'heading' was correctly translated using the word 'confiscation', it happened to be shown in the body as 'seizure' in the place of 'confiscation'. Since the actual word used in the original text in Malayalam was 'kandukettal'/' കണ്ടുകെട്ടല്', it could only be 'Confiscation' and nothing else. It was to give effect to the above statutory prescription that the rules were framed, particularly, by providing the requisite measures under Rule 27 (3) of the Rules. When the words used in English and Malayalam versions are in conflict, one has to use the external aids for interpreting and understanding the intention of the legislature. As such, every effect has to be given to the original 'Malayalam version' which was considered by the legislature, who passed the enactment in Malayalam. This is the sum and substance of the decision rendered by the Division Bench of this Court in Abdul Samad Vs. State of Kerala (2007 (4) KLT 473). 30. The necessity to protect the environment, which includes the 'Flora & Fauna', the Rivers, Streams and the necessity to maintain the ecological balance of the environment has been highlighted on many a time by the Apex Court and by the High Courts in India. The observations made by the Apex Court in M.C. Metha Vs, Kamal Nath (1997 (1) SCC 388) (paragraph 23 onwards and particularly in 34, 35, 36, 37 and the conclusion reached in paragraph 38 are very relevant. The said observations have been made with specific reference to the 'Public Trust Theory'. Similarly, in the subsequent M.C. Metha's case (2004 (12) SCC 118), the Supreme Court added something more, explaining the scope of 'Sustainable Development' and the 'precautionary principle', pointing out in unequivocal terms that , Environment concerns take precedence over economic interests. 31. No doubt, to protect the environment, strict measures have to be adopted, lest it should affect the right to life guaranteed under Article 21 of the Constitution of India, as observed by a Division Bench of this Court in Jomi C Nidheeri Vs. Elanji Gramapanchayath (2007 (2) KHC 174). It has been held by this Court in Soman Vs. Geologist (2004 (3) KLT 577), that any developmental activity without considering the rights of future generations is not a sustainable use of the land. Naturally, the resources cannot be extracted at a rate faster than the nature's capacity to regenerate them and it is absolutely necessary that the basic qualities of the land have to be maintained for the succeeding generations. As mentioned hereinbefore, river is vested in the local authority as per Section 218 of the Kerala Panchayath Raj Act and Section 208 A of the Kerala Municipality Act and there is statutory duty on the local authorities to maintain the rivers; which naturally includes protection of the river beds and proper maintenance of the river banks. The 'Sand Act' has been enacted by the State mainly with this intent, making the local authorities to discharge their functions and duties in this regard and proper regulatory measures have been stipulated under the said Act/Rules. Thus the source of power for the enactment is very much referable to Entries 5 and 17 of list II of the 7t schedule of the Constitution of India , h read with Entry No. 29* of the 11th schedule. As it stands so, it cannot be said that there is a transgression of power by the State to the realm of the Union , in respect of 'regulation of the mines and minerals' under Entry No. 54 of the Ist list. ------------------------------------------------------------------------ Entry No. 29 of the 11th Schedule reads : Maintenance of community assets. ----------------------------------------------------------------------- 32. True, under the Central Act (MMDR Act), confiscation is contemplated, as provided under Sub Section 4 A of Section 21, referring to the circumstances mentioned in sub Section 4 of Section 21, which stands entirely on a different footing (as pointed out already), involving raising or transportation of any mineral, without any lawful authority, from any land, which is not the situation contemplated under Section 23 of the Sand Act (now replaced by Section 23 A of the Ordinance No. 38/2010). The proceeding under Section 21 (4A) is pursuant to the orders passed by a Magistrate on a complaint preferred by the authorised officer in respect of the offence involved and it is rather criminal in nature, whereas the proceedings contemplated under Section 23/23A of the Sand Act/Ordinance is a quasi civil proceedings, which could be pursued by the Revenue Authorities, even without a complaint or notwithstanding any prosecution proceedings. It is also true that in respect of the confiscation proceedings ordered by the Revenue Authorities under the 'Sand Act' there was no provision for any appeal earlier. But, this by itself cannot vitiate the Statute as held by this Court in Alavi P.K. vs. District Collector and others [ILR 2007 (4) Kerala 221 ]. By virtue of the Ordinance No. 38/2010, the powers and procedures as to the confiscation and further steps have been distinctly stated, also providing the remedy by way of 'Revision' and 'Appeal'. Section 23, as it now stands under the Ordinance, refers to the power of 'seizure' by the concerned officers. Section 23 (A) provides for Confiscation of the sand, vehicle etc. by the Sub Divisional Magistrate. Section 23 (B) provides a remedy by way of 'Revision' before the District Collector against the order of confiscation passed by the Sub Divisional Magistrate and Section 23 (C) refers to further remedy by way of 'Appeal' to the District Court. Section 23 (D) deals with the return of the confiscated article or the amount paid in lieu of the confiscation, based on the orders to be passed by the District Collector under Section 23 (B) or that of the District Court under Section 23 (C). These provisions are rather enabling provisions, ( but for Section 23 A which was already there in the form of old Section 23 of the Sand Act), whereby the aggrieved party is provided with a remedy to agitate the matter further in the manner as specified and there is nothing 'ultravires' to the Constitution in this regard. This being the position, the challenge raised by the concerned appellants/petitioners against the above provisions in the Ordinance does not hold any water at all. More so, when power is vested with the State under Article 243 G of the Constitution to endow the Panchayath, by law, of course subject to the provisions of the Constitution, with such powers and authority as may be necessary to enable them to function as Institutions of Self- Government. Similar powers with respect to the Municipalities are provided under Article 243 (W) of the Constitution of India. 33. It is however relevant to note that, the provision to compound the offence is rather optional, for the offender. Rule 27 (3) of the 'Sand Rules' stipulates that the vehicle may be returned if the owner of the vehicle or the possessor remits an amount towards the River Management Fund Equal to the price fixed by the District Collector with fine within 7 days of seizure. Similarly, it has been stated in the 'first proviso' to sub Section 3 of Section 23 A of the Ordinance 38 of 2010 that the owner of the article seized or the person having its control shall be given the freedom to reclaim, in lieu of the confiscated articles except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector. The only difference between the position as it existed earlier and the one as now prevails is that, the party concerned was liable to remit the value of the vehicle, as fixed by the District Collector 'with fine' as stipulated in Rule 27 (3) of the Rules to the River Management Fund to get the vehicle returned, whereas, by virtue of the Ordinance, the necessity to satisfy the element of 'fine' has been taken away and the vehicle has to be returned in lieu of confiscation, on remitting the amount equal to the value of the confiscated vehicle, as fixed by the Collector. 34. With regard to the contention of the appellants/petitioners that there is no power for the Revenue authority to impose 'fine', as exclusively vested with the Court; it appears that, the terminology in Rule 27 (3), as to the satisfaction of the value of the vehicle along with fine (maximum of which is stipulated as Rs.25,000/- in respect of the offences under the 'Act' as given in Section 20 does not suggest any adjudication process in this regard and it is on the 'will and pleasure' of the party concerned to avail the benefit of sub Rule 3 of Rule 27 to have the vehicle returned, satisfying the requirement as mentioned above. In other words, it is more as a measure of 'option' and there is absolutely no compulsion to have availed the benefit, satisfying the maximum fine. 35. However, coming back to the question whether the District Collector could have imposed the fine, being a Revenue authority, the decision rendered by a Division Bench of this Court in Sanjayan Vs. Tahasildar (2007 (4) KLT 597) holds it in the negative. Since, a different view was taken by another Division Bench of this Court in Alavi P.K. Vs. District Collector (ILR 2007 (4) Ker. 221), this issue was 'referred' by another Division Bench of this Court as per order dated 08.02.2008 in W.A. 2806 of 2007, 3005 of 2007 and 284 of 2008. A Full Bench of this Court considered the said issue and as per order dated 23.07.2008, it was observed that the decision rendered by the Division Bench in Alavi P.K. Vs. District Collector was already stayed by the Apex Court and as such, it might not be proper on the part of the Full Bench, to take a decision one way or the other. It was observed in paragraphs 3 & 4 as follows.
When the Full Bench found it not proper to take a decision one way or the other, it is equally applicable and binding on the Division Bench as well. Since it is not brought to our notice that the Apex Court has finalized this issue, we leave it open. 36. The validity of the 'Sand Act' had come up for consideration before this Court earlier in Subramanian vs. State of Kerala (2009(1) KLT 77). Almost all the contentions now raised by the appellants/writ petitioners before us were raised before the learned Single Judge as well. The learned Counsel appearing on behalf of the parties were also mostly the same. After analysing the scope of the enactment, it was held that the reference made by the State to 'Entry No.23' of List II of the 7th Schedule as a source of power for enactment of the 'Sand Act' was not correct or sustainable. Placing reliance on the decision rendered by the Constitution Bench of the Apex Court in Baijnath vs. State of Bihar (AIR 1970 SC 1436), it was held by the learned Judge that, by virtue of the declaration made by the Central Government under section 2 of the Central Act (MMDR Act), the whole of the topic of 'minor mineral' became a 'Union subject'. To that extent, it was held that there was an abstraction of the legislative power of the State Legislature in Entry 23 of List II of 7th Schedule. However, analysing the scheme of the Statute, it was held that, in pith and substance, the 'Sand Act' could be sourced to Entry 17 of List II of the 7th Schedule . Though some of the provisions would have the effect of interdicting the removal of a minor mineral like sand, it was held as intended only as a measure of regulating the upkeep and maintenance of vital water sources like rivers and lakes and that the same will not even amount to an incidental encroachment into a territory occupied by a central legislation like the 'MMDR Act'. The learned Single Judge observed that the question of repugnancy did never arise, as the two different enactments were with reference to the different entries contained in List I and List II respectively and not with regard to a matter contained in List III i.e. Concurrent List. The penal provisions contained in the Sand Act were held as relatable to the source of power of the State Legislature, in view of Entry 64 of the List II; simultaneously holding that the power of confiscation (though under Central Act, exclusively vested upon the Court, pursuant to an order of conviction), was different under the 'Sand Act', where it vested equally on the Court as well as on the Revenue authorities. Validity of the 'Sand Act'/Rules was upheld accordingly. We are in full agreement with the finding and reasoning given by the learned Single Judge in this regard. 37. However, another important aspect to be noted is, as to the scope of penalties prescribed under Section 21 of the Central Act (MMDR Act) read with Rule 48A and Rule 58 framed by the State invoking the rule making power under Section 15 of the said Act on one hand; and the penalties prescribed under Section 20 of the 'Sand Act' (Kerala Act) on the other hand. Some observations have been made by the learned Single Judge, particularly with reference to Rule 48, 48A, 58 and 60A of the KMMC Rules in paragraph 20 and 21 of the decision cited supra. The penalty prescribed under Rule 58(1) of the Said Rules, providing the punishment of simple imprisonment for a period upto one year or with fine up to ര്. 5000/- or both, is in respect of contravention of any provision of the said Rules. The circumstance contemplated under 'Rule 48A' is with regard to the necessity to have a licence for the dealer, making it clear that nobody else without having the requisite permit/licence shall stock, sell or offer for sale of the concerned minor minerals. This Rule does not take care of the raising or transportation of the minor minerals, which in fact is taken care of by sub-section (1) of Section 21 of the Central Act itself, providing for simple imprisonment for a term which may extend to "two years or with fine which may extend to Rs.25,000/- or both". As discussed hereinbefore, the stipulation under sub section (2) to (6) of Section 21 are in respect of the specific circumstances contemplated therein and it does not take care of a situation of removal of river sand from the river or river banks, ultimately leading to a diversion or premature death of river or endangering the bio-physical environmental system by virtue of such activities. 38. With regard to the legislative competence of the State, it is worthwhile to mention that the legislation could be a composite legislation with provisions deriving the source from different legislative entries. It has been categorically held in AIR 1957 SC 297 (A.S. Krishna vs. State of Madras) that legislative entries by themselves do not solely constitute the source of power for legislation, but that they deal with the specific areas of legislation, which are to be given a wider meaning and liberal construction. This is reiterated in 2002 (8) SCC 228 (Union of India Vs. Shah Goverdhan L.Kabra Teachers' College) as well. Reading the Act as a whole, when the legislation, by its pith and substance, is attributable to a source under the legislative entry applicable to the Legislature, then, it cannot be held as incompetent or devoid of any jurisdiction/competence, even if there is some incidental encroachment upon a field occupied by another legislature as made clear by the Apex Court in Kartar Singh v. State of Punjab [ (1994 )3 SCC 569]. 39. Coming back to the object of legislation of the 'Sand Act', as mentioned already, the threat, that has been caused to the rivers and river banks from various corners, also adversely affecting the environmental and ecological aspects, had come up for consideration before this Court as well as before the Apex Court, when the State/Central machinery was alerted on all such occasions to give prime/utmost importance to secure and preserve the same, also for the benefit of the generations to come. The threat caused to the river banks and river beds is a matter of more concern, rather than the development of a minor mineral (river sand). The necessity to take adequate measures to save the Nature and its wealth was being highlighted by the Apex Court as well as by this Court, at a time when the Central Act (MMDR Act ) 1957 was very much in force, having brought into existence, four decades ago. Obviously, the scheme of the Statute passed by the Central Government (MMDR Act 1957) deals with the 'commercial phase' in dealing with the mines and minerals, whereas the scheme of the State Act (Sand Act) is with regard to the onerous duty upon the State to cause protection of river banks, river beds and the bio- physical environment system by providing the 'remedial measures'. The sale of river sand, with authority to fix the sand price, is only an incidental aspect, while the tooth and nail provided under the Act, giving shape to the District Expert Committee, Kadavu Committee, River Management Fund, Sand Audit etc, are obviously with a view to achieve the goal as aforesaid. 40. With regard to the legislative power of the State, under Entry 23 of the List II of the 7th Schedule of the Constitution and the scope and extent of power of the Union with reference to Entry 54 of List I, the position has to be examined with reference to various decisions rendered by the Apex Court right from AIR 1961 SC 459 (Hingir Rampur Coal Co. Ltd. vs. State of Orissa), AIR 1964 SC 1284 (State of Orissa vs. M.A. Tulloch and Co.), 1990 (1) SCC 12 (India Cement Ltd. vs. State of Tamil Nadu), AIR 1991 SC 1676 (Orissa Cement Ltd. vs. State of Orissa) & AIR 2001 SC 8 (Saurashtra Cement and Chemical Industries vs. Union of India), which are mainly cited from the part of the appellants/petitioners. The first two decisions have been referred to and dealt with by the Constitution Bench in AIR 1970 SC 1436 (Baijnath vs. State of Bihar) and the remaining three decisions have very much placed reliance on the decision in AIR 1970 SC 1436 (cited supra). 41. The issue involved in AIR 1970 SC 1436 (cited supra) was mainly with regard to the challenge raised against the validity of the second proviso to Sec.10(2) added by the Bihar Land Reforms (Amendment)Act, 1964 and also as to the operation of the second sub rule of Rule 20, added on the 10th December, 1964 by a notification of the Governor in the Bihar Minor Mineral Concession Rules, 1964. The factual position in the said case was that the appellant had derived his rights and interests in respect of the lease of a quarry from one Jyoti Prakash Pandey who had obtained such lease rights on 23.03.1955 from the original lessees. In fact, the lease was for the period from 01.11.1954 to 31.10.1984, i.e. for 30 years. After obtaining the rights, Mr. Jyoti Prakash Pandey sold his rights, title and interest by a registered sale deed dated 09.09.1963 to the appellant and the rent under the terms of the original lease was deposited upto September, 1965. 42. On passing the Bihar Land Reforms Act, 1950, the 'ex landlords' ceased to have any interest from the date of vesting and in their place, the State of Bihar became the lessor under Section 10 (1) of the Land Reforms Act. The State of Bihar in turn, as the new lessor, recognised the lease for the quarrying of stones for the remaining period and the lease rent in respect of the remaining period was sought to be obtained accordingly. 43. Later, by virtue of the amendment incorporating the second proviso to Section 10(2) of the Land Reforms Act, it was stipulated that the lease rent payable in respect of such existing lease would stand modified as per the terms and conditions available under the relevant provisions of the Bihar Minor Mineral Concession Rules 1964. Sub rule (2) was also added to Rule 20 of the said Rules on 10th December, 1964 in this regard and by virtue of the above amendment, the balance amount was demanded requiring the lessee to continue to pay the lease rent at such enhanced rates, which was challenged in the above proceedings. 44. The scope of amendment to the Bihar Land Reforms Act and the Bihar Minor Mineral Concession Rules with regard to the terms and conditions of the mining lease was sought to be justified from the part of the State of Bihar with reference to Entry 23 of List II of the 7th Schedule. Referring to the law declared by the Supreme Court in AIR 1961 SC 459 and AIR 1964 SC 1284, it was observed by the Apex Court in paragraph 14 of the judgment, that, once the declaration as contemplated under Entry 54 of List I is made by the Parliament as per law and the extent is laid down, the subject of legislation, to the extent laid down, becomes an exclusive subject for legislation by the Parliament. Any legislation by the State after such declaration encroaching into the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. 45 . It was then pointed out (as observed in para 20) that Sec. 4 to 14 (presumably Sec.5 to 13) were categorically declared as not applicable in the case of 'Minor Minerals' by virtue of the mandate under Section 14 of the Central Act/(MMDR Act). It was accordingly contended that the said provisions did not envisage any control over the Union, which was a condition precedent for ousting of the jurisdiction under Entry 23 of List II. The answer given by the Supreme Court in paragraph 20 is as follows:
46. After observing that the second sub rule added to Rule 20 of the Bihar Minor Mineral Concession Rules in December, 1964 was also of no consequence (as the vested rights could not be taken away except under an authority of law and mere rule making power without support of a legislative enactment is not capable of achieving such an end), the Apex Court held that the whole of the topic of minor minerals had become a Union subject and that State Legislature was totally incompetent to have legislated anything in this regard referring to Entry 23 of the II List. This being the position, we find that the reference made to entry 23 of the State List as the source of power for enacting the State Act (Sand Act) is not correct or sustainable. 47. The right of the public at large, as the beneficiary of the public resources like sea shore, running water, air, forest and ecologically fragile lands was declared by the Apex Court in unequivocal terms in the decision rendered in M.C. Mehta vs. Kamal Nath and others (1997) 1 SCC 388. It was a case where the attempt made by the lessee, who had put up a Motel on the banks of the 'River Beas', to divert the river by blocking the natural relief/spill channel of the river, allegedly to save the Motel from future floods, was brought up before the Supreme Court. The 'Doctrine of Public Trust' (theory propounded and developed by ancient Roman Empire, as noted by the Apex Court) was highlighted there, asserting the right of the public at large to enjoy the natural resources like air, sea, water, forest etc. It was held by the Court that the doctrine calls upon the Government to protect the resources for such enjoyment of the public rather than to permit their use for private ownership or commercial purpose. It was observed that the 'Public Trust doctrine' under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing, while the American Courts had expanded the concept so as to protect all ecologically important lands, fresh waters, wet lands etc. It was also observed that our legal system, based on English Common Law, included the 'Public Trust doctrine' as part of its jurisprudence and hence that the State is a trustee of all such natural resources, which are by nature meant for public use and enjoyment. The State was declared as a trustee having a legal duty to protect the natural resources. The Supreme Court also observed that the aesthetic use and pristine glory of the natural resources, the environment and eco system of our country cannot be permitted to be eroded for private, commercial or any other use, unless the Courts find it necessary in good faith, for the public good and in public interest to encroach upon the said resources. The 'polluter pays principle', so as to reverse the damage caused by the acts of the polluter as asserted in Vellore Citizens Welfare Forum vs. Union of India (1996) 5 SCC 647 was reiterated in the aforesaid decision, giving appropriate directions with regard to further steps to replenish the damage to the rivers/river banks /eco system. Forensic probe of the 'Sand Act' made by the State of Kerala has to be done in the above background. 48. In M.C. Mehta vs. Union of India and others, reported in ( 2004) 12 SCC 118, the Apex Court further considered the need to have the environment protection and fundamental duty cast upon the State by virtue of Article 51 A(g) and other relevant provisions of the Constitution of India. Highlighting the 'polluter pays principle', it was held that the natural resources of air, water and soil cannot be utilised if the utilisation results in irreversible damage to the environment and that life, public health and ecology have priority over unemployment and loss of revenue. The principle of 'sustainable development' and the 'precautionary principle' were reiterated and explained, making it clear that development and protection of the environment are not enemies and that a balance has to be struck; however, categorically asserting that in case of doubt, environment concerns take precedence over economic interest. The 'Sand Act' made by the State of Kerala, when analysed in the above background, reveals that such enactment, in pith and substance, is concerned with the bounden duty of the State to protect the natural resources like river, river banks, river beds and bio-physical system of environment, rather than the 'commerce' involved in connection with the removal of the river sand from the 'kadavu', which is rather incidental. 49. As mentioned hereinbefore, it is the fundamental duty of the State, as enunciated under Article 51 A (g) to protect and improve the natural environment including the forest, lakes, rivers and wild life and to have compassion for living creature. With that object in mind, needs the theory of 'Sustainable Development' (which as a concept came to be known for the first time in the 'Stock Holm Declaration' of 1972) to be scrutinized. As observed by the Apex Court, the said concept was given a definite shape in 1987 by the World Commission on Environment and Development, pursuant to the report popularly known as 'Brundtlant Report'. This was followed by, various other deliberations, leading to the 'Rio Summit' in 1992, which finally led to signing of two conventions, one on biological diversity and the other on climate change (signed by 153 nations). During the two decades from Stock Holm to Rio, the concept of sustainable development came to be accepted as a viable concept to eradicate poverty and to improve the quality of human life while living within the carrying capacity of supporting ecosystem. 50. The concept of 'Sustainable Development' as defined by the 'Brundtlant Report' means:
It was after referring to the above vital aspects of the concept, that the Apex Court held in Vellore Citizens Welfare Forrum Vs. Union on India 1996 (5) SCC 647 that "the Precautionary principle" and "polluter pays principle" are essential features of Sustainable Development; making it clear that, the "Precautionary principle", in the context of Municipal Law, means:
When we come to the question of legislative competence, with reference to the various entires in the three different lists under the 7th Schedule to the Constitution, it is to be borne in mind that, the power to legislate is not by virtue of the 'Entry' in the lists, but by virtue of Article 246 of the Constitution of India. The entries in the three lists are the different fields of legislation and wide interpretation has to be given to the entries, subject to the condition that the meaning of the words should not be extended beyond their reasonable connotation and that the construction should not be so wide as to override or render another otiose, as held by the Supreme Court in Union of India Vs Shah Goverdan L Kobra Teachers' College (2002 (8) SCC 228). It has also been pointed out by the Apex Court that, in case of conflict between two entries, the true character of the impugned enactments as a whole including its object, scope and effect should be examined and the principle of 'Pith and Substance' should be applied. 51. With regard to the 'Pith and Substance theory', the position as above has been explained by the Supreme Court on many an occasion. It is held by the Constitution Bench of the Supreme Court in E. V. Chinnalath Vs. State of Andhra Pradesh (AIR 2005 SC 162) ( paragraph 31) as follows :
The purpose of the Kerala enactment ('Sand Act') is obviously to protect the river banks, river beds and the biophysical environmental system and to regulate the removal of the sand, which objects have to be achieved by the working of the Act/Rules in a synchronized manner. 52. The factual scenario as it existed before the enactment is discernible from the sequence of events narrated in the decision rendered by a Division Bench of this Court in Association of Environment Protection Vs. State of Kerala (2002 (1) KLT 723). Referring to the original petitions filed with regard to the Panchayaths and their depredatory activities along the banks of the 'River Periyar", the Bench started with the observation that "this State, popularly called 'Gods own country' has been endowed bountifully by nature; that men shall not cause wasteful depletion thereof, should be the objective of right thinking citizens, and this Court". Taking note of all the relevant aspects including the newspaper reports that the bridges were in dangerous condition due to the excessive sand mining and water pumps (produced as Ext. P6 in the concerned writ petitions); the earlier directions given to constitute an "Expert Committee" to look into the matter, State's taking over the control of 9 rivers from the Panchayaths under Section 82 (1) of the Kerala Panchayath Raj Act 1960 and the reports filed by the concerned authorities in the meanwhile, direction was issued to the Centre for Earth Science Studies (CESS) to make an urgent inspection of the River Periyar and to give a report. The Committee submitted an interim report, stating that, the bridges were in dangerous condition and indiscriminate scooping of the sand from the river channel was not only a threat to the stability of the bridges, river banks and religiously & culturally significant sand bodies, but also aggravated the rate of lowering river beds and also drastic changes in river bed configuration, which in turn led to salt water ingression. This led to an interim order passed by this Court, imposing 11 conditions on the basis of the report of the Expert Committee and the State was directed to impose these conditions on all the rivers, lest the indiscriminate and unregulated removal of the sand from major rivers should cause large scale land sliding, loss of property and disturbance to the biophysical environment system of the river beds. When the writ petitions mostly filed as 'Public Interest Litigations' came up for final hearing before the Bench, the steps being taken by the State to have a compact and comprehensive legislation on the subject was brought to the notice of the Court. Accordingly, it was observed in paragraph 10 as follows.
It was observed by the Bench that, the problem could be resolved only by way of comprehensive legislation (which was cited as the only remedy) and accordingly, the proceedings pending before the Court were disposed of, without prejudice to the right of the State Government to bring forth a comprehensive legislation on the subject; simultaneously giving some directions to be operative during the interregnum, till such legislation came in to force. It was in the said background, that steps were pursued by the State to bring forth an exhaustive legislation on the subject, giving shape to the 'Sand Act', the constitutional validity of which is under challenge now before this Court. 53. Regarding the alleged repugnancy between the State Act and the Central Act, it is contended that the entire field of 'mines and minerals' has been taken over by the Union and nothing remains to be dealt with by the State. The necessity to obtain the requisite permit/licence, the various conditions/parameters and the offences/ penalties having been prescribed under the Central Act, it is stated as no more open to the State to have enacted the State Act, with respect to the raising, transportation, storage and sale of river sand, prescribing penalty in respect of the offences and also as to the power to confiscate the sand and the vehicle. 54. Referring to the mandate under Article 254 of the Constitution, it has been held by a Constitution Bench of the Supreme Court in M. Karunanidhi vs. Union of India (AIR 1979 SC 898) that repugnancy between a law made by a State and by the Parliament may result from the following circumstances (para 8):
55. How the repugnancy is to be determined, has also been stated in the very same verdict in the following terms(para 35):
56. Analysing the scheme of the Constitution under Article 245, 246 and 254 and the legislative competence of the State Legislature, it has been held by the Apex Court in State of A.P and others vs. Mcdowell and Co. (1996) 3 SCC 709) (which has been reiterated in the subsequent decision in [(2001) 4 SCC 642] (State of Rajasthan vs. Vatan Medical & General Stores) as well, that legislative competence of the State Legislature has to be determined applying the test on the basis of 'pith and substance' rule and by applying the said rule, once a legislation exclusively falls under any of the entries in List II of 7th Schedule, no further question arises and the attack upon the ground of legislative competence shall fail. On such situation, the Parliament's competence is excluded and the State's competence cannot be challenged, even on the ground that State's power under Clause (3) of Article 246 is subject to Parliament's power under clauses (1) and (2) thereof. It has also been made clear in unequivocal terms that any incidental trenching will not amount to encroaching upon the field desired for parliament, though the extent of trenching beyond the competence of the legislating body may be an element in determining whether the legislation is colourable. Further, with reference to Entry 54 of List I and Entry 5 of List II, it has been observed by the Apex Court in Western Coalfields Vs. Special Area Development Authority (AIR 1982 SC 697 - Para 25) that, while the State Legislature as to the regulation of mines passes over to Parliament to the extent of the declaration made by Parliament to the extent of the declaration made by Parliament under Entry 54 of List I, the State Legislature would not thereby be demanded of its power over Municipal Administration or to levy taxes for the purpose of its effectively discharging that function; adding that Entry 54 of List I does not contemplate the taking over of municipal functions by the Union. Applying the test as above, to the present case, it cannot but be held that the State enactment is within the four walls of the law . 57. The rules of interpretation of different Lists and analysis of the legislative competence had come up for consideration before the Constitution Bench of the Supreme Court in AIR 1962 SC 1044 (Calcutta Gas Company vs. State of West Bengal) wherein, it has been held that the power to legislate is given to the appropriate legislature by virtue of Article 246 of the Constitution, while the entries in the three different Lists are only the relevant legislative heads or fields of legislation, which demarcate the area over which the appropriate legislatures can operate and that wide interpretation has to be given to the entries. Some of the entries in the different Lists or even in the same list may overlap or appear to be in direct conflict with each other and then, it is the duty of the Court to reconcile the entries and bring about the harmony between them. The underlying principle in such cases, as held, is that a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Constitution and operating in the same field, when by reading the former in a more restricted sense, effect can be given to the latter in its ordinary and natural meaning. The Apex Court has alerted that every attempt should be made to harmonize the apparently conflicting entries, not only of different lists but also of the same lists and to reject that construction which will rob one of the entries of its entire content and make it nugatory. 58. The above principles were highlighted in the subsequent decision of the Supreme court in (2002) 8 SCC 228 (Union of India and others vs. Shah Goverdhan L. Kabra Teachers' College). What should be the approach and attitude of the Court while judging the constitutionality of the statute has been further explained by the Supreme Court in (2008) 5 SCC 33 (Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat and others). It has been held that the Court should exercise judicial restraint in such circumstance; that there is presumption of constitutionality of statute and that only in a case of clear violation of the constitutional provision, that a statute can be declared as unconstitutional. So was held again, by the Apex Court in AIR 2008 (SC) 1640, (the Government of Andhra Pradesh vs. P. Lakshmi Devi), that the Court is supposed to take great restraint while deciding the constitutional validity of a statute. It has been made explicitly clear that every effort is to be given to uphold the validity of the statute and the attempt shall never be to defeat the same. 59. From the above discussions, applying the principle of 'pith and substance theory' and the interpretation of the entries in the relevant lists, it is quite clear that the power of the State to give shape to the objective by enacting the 'Sand Act'/Rules is referable to Entries 5, 17 and 64 of list II of the 7th schedule and hence is very much in conformity with the constitutional mandate, which is in no way transgressive to Entry No. 54 of list I of the same schedule. 60. In the above facts and circumstances, it is hereby declared that, the challenge raised by the appellants/petitioners against the constitutional validity of the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001; the Kerala Protection of River Banks and Regulation of Removal of Sand Rules 2002 and also the relevant provisions of Ordinance No. 38 of 2010 fails. The Act/Rules/Ordinance No. 38 of 2010 are held as not ultravires to the Constitution. The validity is upheld, confirming the verdict passed by the learned Single Judge in Subramanian Vs. State of Kerala (2009 (1) KLT 77). The merits of each case now pending before us have to be examined in the light of the above declaration. I. W.P.(C)No. 4847 of 2008 i.) This Writ Petition was filed by the petitioner challenging the validity of the provisions of the 'Sand Act' and the Rules thereunder, when his vehicle bearing No. KL10 B 7769 was seized by the first respondent under the aforesaid Act/Rules as borne by Ext. P2 mahazar. Some additional grounds as to the validity of the Act/Rules have been sought to be incorporated by filing I.A. No. 16358 of 2010, by way of amendment. The main prayer in the Writ Petition is to declare the Act/Rules as ultravires and to direct the concerned respondent to release the vehicle. ii). When the matter was admitted by this Court on 15.02.2008, the vehicle was ordered to be released (after assessing the value of the vehicle by a competent officer of the Motor Vehicle Department), if the petitioner furnished bank guarantee for the requisite amount. The subsequent events have not been brought to the notice of this Court including as to whether any final order has been passed by the statutory authority, pursuant to Ext. P2. Since, the main prayer as to the challenge against the Act & Rules has already been answered against the petitioner, the Writ Petition fails and interference is declined. However, it is made clear that, if the proceedings are still pending before the statutory authority, the same shall be finalised in accordance with law, within six weeks from the date of receipt of a copy of this judgment. II. W.A.No. 3005 of 2007 i) Though several grounds are raised in the Writ Appeal challenging the constitutional validity of the 'Sand Act'/Rules and such other provisions, no such challenge was raised in the Writ Petition and as such, the challenge raised for the first time in this appeal is not liable to be entertained (which however stands declared against). ii) With regard to the merits involved, a clear finding has been rendered by the learned Single Judge that transportation of the river sand at the relevant time (when it was seized on 18.10.2007) was without a valid pass. 'Ext.P3 pass' produced by the petitioner was dated 08.10.2007, validity of which was already over. The reliance placed on Ext. P4, P5 and P6 bills, referring to the delay occurred on account of the alleged mechanical defect of the truck was also rightly turned down by the learned Single Judge, for the reason that these bills were dated 10.10.2007 and 17.10.2007, thus sustaining Ext.P10 order passed by the third respondent, which does not call for any interference. iii) As per the interim order dated 19.12.2007, in the appeal, the third respondent was directed to release the vehicle on satisfaction of the due amount, subject to the result of the Writ Appeal. However, taking note of the fact that the issue as to the power and competence of the Revenue authorities to impose 'fine' is pending before the Apex Court (as stated in the order dated 23.07.2008 of the Full Bench of this Court passed in this appeal and connected cases), this issue is left open. However, this Court cannot, but arrive at a finding that the amount of Rs.50,000/- sought to be realised as fine is without any statutory backing, in so far as the maximum amount of fine as prescribed under Section 20 of the Sand Act, is only Rs.25,000/-. This being the position, the excess amount of Rs.25,000/- if realised pursuant to Ext. P10 shall be returned to the petitioner/appellant forthwith, at any rate, within three months. It is also made clear that if the question of law stated as pending before the Apex Court as to the competence of the revenue authorities to impose fine is answered in favour of the appellant, it will be open for the appellant to seek return of the above said amount and face prosecution proceedings to be launched in accordance with law. Ext. P10 stands modified to the said extent and the Writ Appeal is disposed of. III. W.A.No. 300 of 2008 i) Non interference with Ext. P6 order passed by the respondent ordering release of the vehicle, found as transporting river sand without any valid pass on the relevant date, only on condition that a sum of Rs.55,000/- was remitted towards the River Management Fund (as equal to the value of the vehicle) along with a further sum of Rs.50,000/- as fine, is the issue in this appeal. There is a clear finding in the impugned judgment that the transportation was without any valid pass and that the reliance placed on Ext.P2 pass in the Writ Petition was only an after thought, more so since there was no such case in the earlier representation dated 19.09.2007 preferred by the petitioner before the respondent. There was no such case for the petitioner in the earlier W.P.(C) No. 26784 of 2007 as well, which was disposed of as per Ext. P3 judgment, leading to Ext. P6 order. Obviously, Ext.P2 pass is dated 31.08.2007 and the validity was only for a period of 'four hours' from 1.20 p.m., whereas the vehicle carrying river sand was seized on the next day. Though there is a case for the petitioner/appellant that the delay was due to damage of gear box and the repair necessitated, no tangible material/document has been produced along with the writ petition or even with the writ appeal, but for the bald averment, which cannot be accepted. As such, interference is declined. ii) In view of observation of the Full Bench of this Court as per the order dated 23.07.2008 in W.A.No.3005 of 2007 and connected cases, the issue, as to the power and competence of the Revenue authorities to impose fine, (which is stated as pending before the Apex Court) is left open. iii) Though Ext. P6 order imposed a fine of Rs.50,000/- in respect of the offence, when the matter was admitted on 11.02.2008, the release of the vehicle was ordered on satisfaction of a sum of Rs.25,000/- as 'fine' along with value of the vehicle as stated in Ext.P6. Since the maximum amount liable to be imposed as 'fine' under Section 20 of the 'Sand Act' is only Rs.25,000/-, the interim order passed by this Court on 11.02.2008 is made absolute as to the extent of fine. It is also made clear that if the question of law stated as pending before the Apex Court as to the competence of the revenue authorities to impose fine is answered in favour of the appellant, it will be open for the appellant to seek return of the above said amount and to face prosecution proceedings to be launched in accordance with law. Ext. P6 order stands modified to the above extent and the Writ Appeal is disposed of. IV. W.A.No. 201 OF 2008 i) The appellant is the unsuccessful writ petitioner, who challenged Ext.P3 order directing to satisfy a sum of Rs.50,000/- (an amount equal to the value of the vehicle) towards River Management Fund and a sum of Rs.50,000/- as fine for having the custody/release of the vehicle, lest further proceedings should follow under the relevant provisions of the 'Sand Act'/Rules. After considering the materials on record, a clear finding has been rendered by the learned Single Judge holding that transportation of the river sand was per se illegal, in so far as there was an order prohibiting collection of river sand in the District on the day when the vehicle was seized, as revealed from the impugned order itself and that the said finding in the impugned order (Ext.P3) was not disputed in the writ petition. The averment as to the alleged denial of opportunity of hearing has also been held as not correct, as the impugned order itself disclosed that, on 03.11.2007, the appellant/petitioner had appeared before the first respondent and further that the learned Counsel had no contention that he was not heard on that day. In the above circumstances, no interference is warranted. ii) Though as per the impugned order (Ext. P3) a sum of Rs., 50,000/- was imposed as fine in respect of the offence, when the appeal was admitted on 12.02.2008, release of the vehicle was ordered on satisfaction of a sum of Rs, 25,000/- as fine, along with value of the vehicle as stated in Ext.P3. Since the maximum amount liable to be imposed as fine under Section 20 of the 'Sand Act' is only Rs.25,000/-, the interim order passed by this Court on 12.02.2008 is made absolute as to the extent of fine payable. iii) In view of observation of the Full Bench of this Court as per the order dated 23.07.2008 in W.A.No.3005 of 2007 and connected cases, the issue, as to the power and competence of the Revenue authorities to impose fine, (which is stated as pending before the Apex Court) is left open. It is also made clear that if the question of law stated as pending before the Apex Court as to the competence of the revenue authorities to impose fine is answered in favour of the appellant, it will be open for the appellant to seek return of the above said amount and to face prosecution proceedings to be launched in accordance with law. Ext. P3 stands modified to the above extent and the Writ Appeal is disposed of. V. W.A.No. 1628 OF 2008: i) Besides challenging Ext.P4 order passed by the 2nd respondent, the prayer in the Writ Petition was to declare Rules 27 and 28 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules as 'ultra vires' to the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. (The validity of the 'Act'/'Rules' has already been upheld and there is no challenge against the Act as well). The 'Act' very much confers power to order confiscation and the Rules have been framed to subserve the 'Act', invoking the rule making power under Section 26. As such, the challenge raised against the rules, contending that they are not in conformity with the provisions of the 'Act', fails. ii) With regard to the challenge against Ext. P4 imposing a fine of Rs.25,000/- by the third respondent , in view of observation of the Full Bench of this Court as per the order dated 23.07.2008 in W.A.No.3005 of 2007 and connected cases, the issue, as to the power and competence of the Revenue authorities to impose fine, (which is stated as pending before the Apex Court) is left open. It is also made clear that if the question of law stated a pending before the Apex Court as to the competence of the revenue authorities to impose fine is answered in favour of the appellant , it will be open for the appellant to seek return of the above said amount and to face prosecution proceedings to be launched in accordance with law. iii) However, the fact remains that the vehicle has been released pursuant to the orders passed by this Court . There is a clear finding in the impugned order that the seizure of the vehicle was at 7.00 a.m., while the 'pass' sought to be relied on was issued only at 8.00 a.m. The learned Single Judge has arrived at a finding in para 4 of the impugned judgment that the above finding in Ext. P4 order was not challenged from the part of the writ petitioner. Still, the learned Single Judge proceeded further to hold that the amount of fine ordered in Ext. P4 for releasing the vehicle could be treated as the amount payable to the 'River Management Fund'. The Act and Rules contemplate release of the vehicle only on satisfaction of the amount equal to the value of the vehicle, towards the River Management Fund . The vehicle involved was a lorry and the value of the vehicle could not be less than Rs.25,000/-, as on the relevant date and the offender is actually liable to face prosecution proceedings in respect of the offence (which is liable to be punished either by imprisonment for a period of two years or with fine which may extend to Rs.25,000/- or with both as provided under Section 20 of the 'Sand Act'). Since the petitioner /appellant has now been enabled to have release of the vehicle on payment of a sum of Rs.25,000/- by virtue of Ext.P4 order, the said amount having been ordered to be converted as amount payable to the 'River Management Fund' as per the judgment passed by the learned Single Judge and since the State has not preferred any appeal, we do not find it necessary to disturb the said finding or to make the petitioner/appellant to suffer any larger/wider consequence . It is suffice to say that no interference is warranted and the appeal is dismissed accordingly. VI. W.A.No.1128 OF 2009 i) The vehicle belonging to the petitioner/appellant was seized on 05.01.2009 for illegal transportation of river sand without any valid pass . As per Ext. P2 order, it was ordered that the vehicle could be released on payment of a sum of Rs.75,000/- as the amount equal to the value of the vehicle and also a sum of Rs.25,000/- as fine, lest it should lead to further proceedings under the relevant provisions of the 'Sand Act'/Rules. The said order was challenged, contending that, it was without any proper application of mind and that the District Collector had no power to impose fine. After considering the merits involved, the learned Single Judge observed in paragraph 2 of the judgment, that the petitioner was heard by the District Collector and that Ext.P1 'pass' sought to be relied on was never produced before the District Collector as evident from Ext. P2 order. Accordingly, the challenge raised against Ext.P2 in this regard was rejected; however observing that the District Collector did not have the power to impose fine. Interference was made to the above limited extent and the imposition of fine of Rs.25,000/- was set aside. ii) When the appeal came up for consideration before this Court, the custody of the vehicle was ordered to be released on 17.11.2009, on depositing a sum of Rs.50,000/- and on executing a bond with two sureties, undertaking to produce the vehicle or to remit the balance amount as and when directed . We do not find any reason to interfere with the judgment passed by the learned Single Judge. Appeal is dismissed. VII. W.A.No. 648 OF 2009: i) The vehicle belonging to the petitioner was found involved in illegal transportation of the river sand and was seized on 17.12.2008 leading to Ext.P1 order dated 08.01.2009 passed by the second respondent . The said order was challenged in the Writ Petition, disputing the constitutional validity of the 'Sand Act'/Rules and contending that the revenue authorities did not have any power to impose fine. Validity of the Act/Rules stands upheld. ii) As obvious from Ext. P1, the District Collector has not imposed any fine in respect of the offence, but for ordering payment of a sum of Rs.75,000/- as equal to the value of the vehicle to the River Management Fund. As such, the reference and reliance sought to be placed on Sanjayan vs. Tahsildar, Mallappilly Taluk (2007(4) KLT 597) is not at all relevant. Further, the issue is stated as pending consideration before the Apex Court as observed by a Full Bench of this Court in the order dated 23.07.2008 in W.A. 3005 of 2007 and connected cases. iii) Coming to the merits of the case involved, it is borne out from Ext. P1 itself that the river sand was sought to be transported quite in an illegal manner to the destination in 'Kallai' without any valid pass. Though the vehicle was sought to be stopped by the 'Squad' for inspection, it was never stopped and was driven away fast. Later, the 'Squad' chased the vehicle and got it stopped, followed by the scrutiny of the relevant documents, which brought the actual position to light. There is no proper explanation from the part of the petitioner/appellant as to the incriminating facts, but for some bald averments, without any supporting materials. The challenge raised against the provisions of law having already been answered against the petitioner/appellant, this Court does not find any reason to interfere with the judgment passed by the learned Single Judge. Valuation of the vehicle was never a point mooted by way of specific pleading in the Writ Petition. The appeal fails and it is dismissed accordingly. VIII. W.A.Nos. 1488,1493, 1911 & 1945 OF 2010: i) All these appeals arise from the concerned Writ Petitions which were dismissed as per a common judgment. The writ petitions were sought to be amended by filing necessary I.As incorporating the challenge against the relevant provisions of the 'Ordinance No.38/2010', which in fact were allowed by the learned Single Judge, however declining interference in the writ petitions. ii) Almost similar grounds have been raised in the writ petitions as well as in the writ appeals. The factual challenge is contained in Ground 'A' of the writ petitions, stating that Ext.P1 order was passed by the concerned District Collector (i) in a mechanical manner (ii) merely based on the mahazar and (iii) without granting sufficient opportunity . The legal grounds are that:
iii) Coming to the challenge raised on factual grounds, in W.A.No. 1945 of 2010, it is seen from Ext. P1 that, pursuant to the notice of hearing issued, the petitioner/appellant had appeared in person on 04.05.2010 and during the course of the proceedings, it was admitted by him that the seizure of the vehicle was in the course of illegally transporting the river sand; that no valid 'pass' was there at the relevant time and further that the vehicle might be released, imposing a small amount as fine. It was accordingly, that the matter was considered based on the available materials on record, passing Ext. P1 order directing the petitioner/appellant to deposit a sum of 2.5 lakhs as equal to the value of the vehicle, to the River Management Fund; lest further proceedings as contemplated under the Act/Rules should follow. There is no specific pleading in the writ petition that the aforesaid observations made by the District Collector in Ext.P1 are wrong. So also, the petitioner/appellant has not chosen to produce copy of any valid pass or such other materials either before the learned Single Judge or even in the appeal. In the said circumstance, no interference is warranted with the finding rendered by the learned Single Judge. iv) Coming to W.A.No. 1911 of 2010, it has been observed by the District Collector in Ext. P1 order that, pursuant to the judgment dated 11.12.2009 in W.P.(C) No. 35883 OF 2009, the matter was taken up and interim custody of the vehicle was ordered, despite which, the petitioner / appellant had not chosen to avail the benefit, satisfying the condition. In connection with the passing of the final orders, the petitioner/appellant was also heard as stated in Ext. P1 and he admitted the offence and made a submission that the vehicle was having huge financial liabilities. It was taking note of the undisputed facts as to the illegal transportation of the river sand without any valid 'pass', that Ext. P1 order was passed directing the party to deposit a sum of Rs.2 lakhs towards River Management Fund, lest further proceedings should follow as provided under the Act/Rules. There is no case for the petitioner/appellant anywhere in the writ petition, that the factual observation made by the District Collector as aforesaid is wrong or perverse in any manner. So also, the petitioner has not chosen to produce copy of any valid pass either in the writ petition or in the appeal. As such, no interference is warranted. v) With regard to W.A.No. 1493 of 2010, Ext. P1 order passed by the District Collector shows that transportation of the river sand was not supported by any valid document. Though interim custody of the vehicle was ordered on condition, as per proceedings dated 01.12.2009 ( pursuant to the judgment in W.P.(C) 31508/.09), the petitioner / appellant did not comply with the condition. However, at the time of final hearing held on 03.03.2010, the petitioner/appellant appeared in person and admitted that the vehicle was seized while unloading the sand from a big vehicle to a small vehicle and requested to impose a nominal fine and to release the vehicle as stated in Ext.P1. It was also observed by the District Collector in Ext. P1 that the same vehicle was seized earlier by the Tahsildar, Kozhikode on 23.03.2009 for the same offence and it was released after payment of fine. It was considering the above materials on record, that Ext. P1 order was passed directing the petitioner/appellant to deposit a sum of Rs.1 lakh as equal to the value of the vehicle towards River Management Fund; lest further proceedings should follow under the Act/Rules. There is no case for the petitioner/appellant that the above finding on facts is wrong or perverse in any manner. So also, the petitioner has not chosen to produce copy of any valid pass either in the writ petition or in the appeal. Challenge fails on the factual grounds as well. vi) In W.A. No.1488 of 2010, the vehicle was intercepted in the course of illegal transportation of river sand by the 'Squad' of Tahsildar, Tirur on 19.01.2010 as stated in Ext.P1. It is clear from Ext.P1 that the petitioner/appellant, at the time of hearing held on 15.02.2010, conceded that, though the sand was transported on the strength of a pass, it was omitted to stick 'cello tape' at the relevant place stipulating the time of commencement of journey, as prescribed. The petitioner/appellant requested to release the vehicle cursing his ignorance. On analysing the facts and figures, the District Collector observed that, apart from non-pasting of the 'cello tape' on the pass, as prescribed, there was no entry in the relevant records, particularly in the 'Kadavu Register' as to the vehicle bearing No. KL-08/AG 5115. Similarly, 'white colour pass' (to be kept in authorised Kadavu and to be entrusted to the Panchayath office) was also traced out from the vehicle during the course of inspection; which revealed that the vehicle was not taken to the 'Kadavu' for taking sand and that it was transporting sand several times using a single pass (which was not in the requisite form-Form P). It was accordingly, that the proceedings were finalised, passing Ext. P1 order, directing the petitioner /appellant to deposit a sum of Rs.3 lakhs, as equal to the value of the vehicle to the River Management Fund. The finding and reasoning given by the District Collector in Ext. P1 is proper and beyond challenge. So is the finding of the learned Single Judge as well. vii) Since the District Collector has not chosen to impose any 'fine' for the offence committed by the petitioner /appellant, the question whether the revenue authorities are justified in imposing fine, does not come up for consideration in these four appeals. All these four appeals fail and they are dismissed accordingly. IX. W.A.Nos. 998, 999 and 1004 OF 2010 i) In these cases, the issue involved stands confined to granting 'interim custody' of the vehicles which were seized alleging illegal transportation of river sand. In relation to W.A.No.998 of 2010, the grievance was that, Ext. P2 application for interim custody was sought to be considered and finalised, while the subject matter of W.A.No. 999 of 2010 was the challenge against the final order (Ext. P3), which in turn was set aside and the matter was directed to be re-considered as per the impugned judgment, also directing to pass appropriate orders regarding interim custody. In W.A.No. 1004 OF 2010, the grievance involved was in relation to Ext. P10 order passed by the District Collector pursuant to the verdict of this Court in W.P.(C) 14491 of 2010, imposing certain conditions (which were stated as onerous). The Writ Petition filed was disposed of directing to release the vehicle subject to conditions stipulated by the Division Bench in District Collector, Malappuram vs. Abdul Kasim [2010 (1) KLT SN.31 (Case No.38)]. The said decision has been ordered to be followed while considering the question of 'interim custody' in the former two cases as well. All the appellants are stated as aggrieved of the direction to satisfy 50% of the liability and to meet the requirements as specified. ii) When the matters came up for consideration before another Division Bench, a common interim order was passed on 18.06.2010 observing that, because of the conflicting orders passed by co-ordinate benches, as to the condition to be satisfied for 'interim custody' and that the matters stood referred to the Full Bench, the District Collectors were ordered to release the vehicles, after unloading the sand, on remitting Rs.25,000/- each, for each vehicle seized, after making endorsement in the RC books of the vehicles that the release is subject to adjudication by the District Collector and that no transfer of the vehicle shall be permitted before disposal of the writ appeals. iii) It is brought to our notice that the Full Bench has already finalised the matter as borne by the decision reported in 2010 (3) KLT 413 (F.B.) (Shan vs. State of Kerala), whereby the earlier decision rendered by the Division Bench in W.A.No. 499 of 2010 ordering 'interim custody' on satisfying Rs.25,000/- was overruled and it was held that before releasing the custody of the vehicle, the full value of the vehicle must be ensured, so as to safeguard the interests of the State. It was also declared that the owner of the vehicle had to deposit 30% of the value of the vehicle as determined by the appropriate authority under the M.V. Act in cash and to furnish security, either in the form of 'bank guarantee' or as immovable property, for the balance amount for having interim custody. iv) In the above circumstance, these three appeals are disposed of, directing the first respondent to pass appropriate orders regarding the interim custody, if still pending, in tune with the directions given by the Full Bench of this Court as aforesaid. In any view of the matter, the adjudication proceedings shall be finalised in accordance with law as expeditiously as possible ( if the same are still to be finalised), at any rate, within 'six weeks' from the date of receipt of a copy of the judgment. X. W.A.No. 1584 OF 2010 i) This appeal was admitted on 21.12.2010 and it was heard in detail on the same day, as suggested by the learned counsel appearing for the petitioner, in view of the very same nature of challenge raised in the connected matters, which were finally heard and taken up for judgment on the previous day. ii) The appellant is challenging the judgment dated 13.07.2010 in W.P. (C) 21618 of 2010, whereby interference was declined and the writ petition was dismissed for the long delay. Obviously, the petitioner/appellant filed W.P.(C), challenging Ext. P2 order dated 11.01.2008 passed by the second respondent under the relevant provisions of the 'Sand Act', in connection with the illegal transportation of river sand contrary to the relevant provisions of the 'Sand Act'/Rules. The challenge was raised, mainly on the constitutional validity of the 'Act' and Rules (which however stands now answered against the petitioner as discussed earlier). With regard to the factual position, it is evident that the vehicle was seized on 06.12.2007 leading to Ext.P2 order dated 11.01.2008. The petitioner chose to challenge the said order by filing writ petition only on 09.07.2010 (after 30 months) and absolutely no legally acceptable reason has been offered for the callous inaction/inordinate delay. No materials, including any valid pass is produced as well. In the said circumstance, the learned Single Judge Judge perfectly justified in declining interference. We do not find any tenable ground to call for interference in the appeal. Appeal fails and the same is dismissed accordingly. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk/kmd |
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W.A. No. 3005 of 2007 - Imayil Vs. Deputy Tahsildar, 2011 (2) KLT 322 : 2011 (2) KLJ 414 : ILR 2011 (2) Ker. 164 : 2011 (2) KHC 49 : 2011 (1) KLD 627posted Apr 29, 2012, 4:45 AM by Law Kerala |
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