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Ismayil vs Deputy Tahsildar on 14 March, 2011

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Kerala High Court
Association For Environment ... vs State Of Kerala on 11 October, 2001
Author: B Srikrishna
Bench: B Srikrishna, M Ramachandran

JUDGMENT B.N. Srikrishna, C.J.

1. O.P. No. 16272 of 2000 was brought as a public interest litigation by the petitioner which is an association interested in protection of the environmental ecology of the country, and of the State of Kerala, in particular. The basic grievance made in the petition pertains to indiscriminate depredation of natural resources in that the sand from Periyar river bed and the river banks were being indiscriminately mined, causing tremendous ecological disturbances and depletion of natural resources. It is the case of the petitioners that there is no system of control over the excavation of sand from the river banks and the river beds. It is also the case of the petitioners that, despite repeated appeals made to the District Collector and the State Government, no action was being taken, resulting in a serious situation as the authorities of the State Government were not properly implementing their own directives and orders issued by Circulars previously issued.

2. These petitions were with regard to Panchayats and their depredatory activities along the banks of the river Periyar. The story with regard to other Panchayats situated on the banks of other rivers is not much different. This State, popularly called "God's own country", has been endowed bountifully by nature; that men shall not cause wasteful depletion thereof, should be the objective of every right thinking citizen, and this Court.

3. Certain chronology of events is necessary to be noticed in order to appreciate the final order we propose to pass for disposal of these petitions.

29.6.1998 - State Government took control of nine rivers from the Panchayats under Sub-section 82(1) of the Kerala Panchayat Act, 1960.

5.1.1998 - Circular No. 66221/P1/97/Revenue, making restrictions on the basis of the export committee report on sand mining in Bharatha Puzha (18 conditions were imposed, which was subsequently made applicable to all other rivers) 4.4.1998 - District Collector has constituted an expert committee including 21 Panchayat Presidents, instead of experts (P4) 8.11.1998 - Reports in newspapers stating that Bridges are in dangerous condition due to excessive sand mining and water pups. (Exhibits. P8 & 9) 4.12.1998 - Writ Petition challenging the said constitution was disposed of with a direction including experts. (Ext. P5) 21.4.1999 - As directed in CCC. 117 of 2001 against that District Collector, Ernakulam has taken a decision to ban poll scoop and to take strict action against violators.

25.10.2000 - Ordered that if it is found that sand mining has been done unauthorisedly, the sand thus mined will be taken back to the place from where it is unauthorisedly mined and put back into the river.

20.12.2000 - Direction issued to District Collector, Ernakulam to file a report stating the quantity of the sand mined during the previous year. Till such time sand mining from Periyar River is banned.

9.1.2001 - Report by District Collector, Ernakulam stating that Rs. 5,52,05,309/- is due by the Panchayats on the banks of Periyar River towards River Management Fund.

29.1.2001 - Report by District Collector, Ernakulam stating that Rs. 2,04,54,164/- is due towards River Management Fund and Rs. 6,78,78,462/- towards Royalty.

24.1.2001 - Direction to Kavalangad, Eloor and Varapuzha Grama Panchayat Secretaries to be present in person on contempt.

24.1.2001 - Direction issued to District Collector not to use or divert River Management Fund.

16.2.2001 - Direction issued to the Centre for Earth Science Studies (CESS) to make an urgent inspection of the Periyar River and to give a report.

March - 2001 - Interim report submitted by the CESS stated that bridges are in dangerous condition, and indiscriminate scooping of sands from river channel is not only a threat to the stability of bridges, river banks and religiously/culturally significant sand bodies, but also aggravates the rate of lowering of river beds and also drastic changes in river bed configuration which in turn lead to salt water ingression farther inland.

15.3.2001 - Interim order by the High Court directing the District Collector to file a statement showing the Kadavus that would come within the banned area of Periyar River namely 1 km (one) upstream and down stream of bridges, list of Kadavus that would not come within the prohibited distance, the quantity of sand permitted.

23.3.2001 - Statement by District Collector, Ernakulam stating the Kadavus showing the kadavus which comes within the above distance of 1 km.

23.3.2001 - Order by the High Court prohibiting ban on kadavus which falls within the prohibited distance from the bridges.

26.3.2001 - Interim order by the High Court, imposing 11 conditions on the basis of the report of the expert committee. The court further directed the State to impose these conditions on all rivers. The Court also directed the Government to file an affidavit stating the quantity of sand taken outside the State.

20.5.2001 - Govt. issues Circular No. 40368/C2/2HOM/LSGD, dated 25.5.2001 incorporating the above conditions imposed by the Court. But there is statement that this will be additional conditions.

15.6.2001 - Report filed by the District Collector stating that Karamasamithis' have convened in all Taluks and they will be made active.

21.6.2001 - Direction to the District Collector that before the sand mining ban is removed after 31st September, no sand mining shall be allowed unless and until the District Collector and the Karmasamithis are constituted and functional in each Panchayat.

23.7.2001 - Affidavit as directed by the Court filed, stating that the quantity of sand transported outside Kerala is 11,84,456.66 M. Tonne of sand per annum from three districts, Ernakulam, Malappuram and Palakkad Districts.

26.9.2001 - Last date for the filing of report by CESS.

1.10.2001 - Sand mining holiday is to be lifted, if conditions are to be satisfied.

4. From the history of events narrated, it is apparent that, as early as in the year 1993, the State Government was aware and alive to the fact that removal of sand from the rivers in the State and the licensing thereof, which were handled by the Panchayats through which the rivers were handled by the Panchayats through which the rivers concerned flow, had deteriorated. There was indiscriminate and unregulated removal of sand from the major rivers causing large scale land sliding and loss of property. There was also disturbance to the biophysical environment system of the river beds in different degrees. Several directions made by this Court in this regard on public interest litigation by the public spirited citizens were not taken into account by the State Government. Repeated directions of this Court resulted in the Government in exercise of its powers under Section 82(1) of the Kerala Panchayats Act, 1960 to exclude the nine rivers, namely Bharathapuzha, Periyar, Chaliyar, Pamba, Kallada, Vamanpuram, Chandragiri, Karamana and Meenachil from vesting in the Panchayats and taking them over.

5. It is unfortunate that despite, passing such an order in 1993, no further steps were promptly taken to deal with the issue which was a burning one even then. It is only on 5.1.1998 that the Government gave directions in its Circular prohibiting sand mining to the following effect:

1) Pass is to be issued to the sand which is to be transported to other States. It should not be allowed to transport sand to other States without pass. Sales Tax is to be levied on inter state trade.

2) The District Collectors have to appoint an expert committee so as to fix the quantity of the sand could be mind and the quantity of sand that could be mined from the "Kadavus", in each year, in advance. Only after the decision of the Collector on the said recommendations that the Municipalities and Grama Panchayat would be allowed to remove sand.

3) The above expert committee to evaluate the quantity of sand twice a year and to report on long term measures on this matter.

4) Check posts have to be set up in each "Kadavus" and a watchman is to be appointed at the expense of the Panchayat. For this no additional post would be allowed. The Tahsildars should give identity cards.

5) To the existing workers indulging in sand mining in co-operation with the local administrations, identity cards shall be issued by the Tahsildars. The entry of new workers in this field should not be allowed.

6) The practice of auctioning of sand should be completely stopped and the Panchayat/Municipality should take steps to collect and sell sand evaluating load, vehicle and quality of the sand.

7) The Collectors of Palakkad, Thrissur and Malappuram Districts should meet and decide the rate of price of the sand. This is to be done prior to the beginning of the season. The convenor of this meeting would be Collector of Palakkad District. The remaining 50% amount after giving the wages of the employees from the price of sand is to be credited to the Fund of the Local Administration. The other 50% of the amount is to be deposited in the "River Management Fund" under the control of the Collector. The Fund is to be utilised for the protection of Bharathapuzha and other allied activities. Special and detailed orders have to be issued in this regard.

8) The Tahsildars should set up Task Force consisting of local voluntary associations for the purpose of making sure that sand is collected only in accordance with the conditions and guidelines issued by the authorities. The Collectors should make sure that the Task force have been set up much before the opening of the season. The Grama Sabhas as should take part in these activities.

9) Sand mining prohibited from 1st July to 30th September every year.

10) CESS and CWRDMM should conduct a study on the quantity of sand in the region between Chamravattom and Thirunavaya in Bharathapuzha and the quantity of sand that could be removed and the places where salt water is instructed, etc. and report to the Government within 4 months.

11) Sand could be removed only at a distance of 500 meters from the bridges and irrigation projects. The sand mining should be done in accordance with the guidelines and conditions issued by the Government. The Panchayat/Revenue Authorities must ensure that no unauthorised mining is done.

12) Land filling should not be allowed using sand from the river. The Panchayats/Grama Sabhas should conduct awareness programmes.

13) The wastes from the septic tanks shall not be allowed to be flown into the river. The Local Administrations should take measures to see that no wastes are dumped into the streams leading to the river.

14) All authorised possessions should be prohibited and all such persons in possession should be evicted.

15) The Collectors should appoint Survey Staff to demarcate the boundaries of the river within a specified time.

16) The existing River Management Committee should work effectively. The District Collectors should specially attend this matter.

17) As the availability of waste in the river is very important, the Forest Department should attend to the afforestation programme at the originating place of the river.

18) The irrigation department should as part of Panchayat development make programme projects for making small dams that would prevent the wastage of excessive flow of water into the sea.

6. These directives came about, not because of any serious application of mind on the part of the State Government, but because of the interim orders made by this Court in O.P. No. 15971/1997 on 12.9.1997 and 24.10.1997.

7. When it was found that the above directions, though salutary, were not being strictly implemented the petitioner approached this Court by O.P. No. 16272 of 2000, complaining that the administration and the Panchayats had failed in enforcing the restrictions imposed by the Circular dated 5.1.1998. At this stage, after hearing several defaulters who were affected, and after appointing and getting reports of expert committees known as Centre for Earth's Science Studies (CESS) and Centre for Water Resources Development and Management (CWRDM), this Court made a detailed order on 26.3.2001, some of which pertained to the maximum quantity of sand permitted to be excavated from different kadavus situated in different Panchayats. Paragraph 2 gave a detailed plan of action to be followed and also noticed that there were a number of Panchayats which were defaulters in making contributions to the River Management Fund constituted for regeneration of natural resources along riparian beds. In paragraph 7 of this order, this Court directed the State Government to impose conditions mentioned in this order in respect of sand mining in all the rivers in Kerala in addition to the specific directions given by the Court in the specific orders.

8. On 25.5.2001 the Government of Kerala issued a circular containing the following directions:

"1) The Panchayats shall directly carry on the sand mining. It shall not auction that right in favour of contractors.

2) No people scooping or any mechanised method is permitted at any of the Kadavus.

3) The sand mining operation shall be done only during day time that too between 8 A.M. to 4 P.M.

4) No vehicle shall be brought to the river bed for the purpose of loading sand.

5) Vehicles shall be parked at a minimum distance of 25 meters from the river bank. In order to ensure that no vehicle is brought to the Kadavus/river bank the Panchayats shall erect concrete pillars at the Kadavus on the banks of the river so that no vehicle can be taken to the bank of the river except two wheelers.

6) No sand mining shall be done within 10 meters from the river bank.

7) The passes shall be issued by the Geology Department through an authorised officer.

These printed passes could be obtained by the Panchayats on payment of royalty in advance for a period of one month. The passes shall contain signature of the authorised officer of the Geology Department and also its seal and shall be countersigned by the Secretary of the Panchayat concerned.

8) The Panchayat shall also pay in advance 20% of the value of the sand covered by the pass issued for one month towards River Management Fund, in advance, to the District Collector. On receipt of the cheque for the above amount, the District Collector or an officer authorised by him shall countersign the passes. Before the 10th of every succeeding month, the accounts shall be settled by the Panchayats with the District Collector and the balance amount towards River Management Fund shall be paid. No passes without undergoing the formalities referred above shall be permitted to be used for mining or transporting sand.

9) The Secretary of the Panchayats shall see that all the columns in the passes are filled up properly.

10) The Panchayats shall post an employee at each Kadavus who will make an endorsement as to the time at which the vehicle leaves the Kadavus with a load of sand and the time required for the vehicle to reach its destination. To have a watch over this arrangement and to see that the representative of the Panchayats is meticulously following the above direction, after the journey is over, the used form shall be immediately returned to the Panchayats. In any case, the same vehicle shall not be given a fresh pass without surrendering the pass used by it for the prior trip. All the other conditions imposed by the Government from time to time shall be binding on the Panchayat in the matter of mining and transporting of sand."

9. There is, however, a sting in the tail. Instead of complying with the directions of this Court as contained in the order dated 26.3.2001, this circular ends by saying, "these conditions should also be imposed in the case of rivers under the control of Municipalities/Corporations of State". What was directed by this Court was that the conditions imposed in its order shall be imposed in respect of sand mining in all the rivers in Kerala. What has been done is something divergent. When the learned Additional Advocate General's attention was specifically drawn to this lapse, he stated that, though not happily worded, the circular really means that and it imposes the conditions suggested in the interim order of this Court to sand mining in all the rivers in Kerala.

10. At this stage, when these Original Petitions came up for final hearing, we learned from the learned Additional Advocate General that the State of Kerala is considering bringing forward a comprehensive legislation to give ample powers to the State Government to make detailed rules and regulations which would carry forward the object projected in the original petitions and the desire expressed by this court through its interim orders from time to time. We are also of the view that in a matter like this a comprehensive legislation is the only remedy as the court cannot make interim orders continuously and supervise the situation, though for the lapse on the part of the executive, the court has to step in from time to time to see that the situation did not go out of control. We are happy that the State Government is forward thinking and desires to bring forward a comprehensive legislation on the subject.

11. In view of the fact that there is an impending legislation on the subject, we are of the view that an order on the lines of the existing interim orders would be sufficient to take care of the situation in the interregnum from today and the date on which the legislation becomes effective. With this in view, we heard several of the counsel who appeared for the intervenor Panchayats, contractors, employees employed on sand mining and construction works. In our judgment, every restriction of development is a reasonable restriction on somebody's right to life, right to trade or business or occupation. As long as the restriction is not disproportionate and more than necessary, and within reasonable limits, such restriction is a price one has to pay for being a part of the civilised society. We must hasten to add that neither has the Court directed a total prohibition of sand mining in the State river beds and river banks, nor is that what we intend to do. Sand mining is necessary; but it has to be done within strictly regulated limits defined for the purpose of sustaining development which is the ultimate objective.

12. With the aforesaid objective in mind, after hearing all objectors, we dispose of the aforesaid Original Petitions and Contempt of Court Cases with the following directions, which shall be without prejudice to the right of the State Government to bring forward a comprehensive legislation on the subject and which shall operate during the interregnum till such legislation comes into force:

i) All the directions issued by the government dated 5.1.1998, 20.5.2001 and the interim orders of this Court, including the one dated 21.6.2001 regarding sand mining shall be strictly followed by all the authorities in respect of all the rivers in Kerala. No sand mining shall be allowed, unless the conditions incorporated therein are followed, including the obtaining of report from the experts.

ii) The collection of sand within 1 km of bridges and irrigation projects is prohibited. Illegally mined sand shall be directed to be put back in the river.

iii) Export Committee as referred to in the G.O. dated 5.1.1998 shall be the Centre for Earth Science Studies (CESS) or Centre for Water Resources Development and Management (CWRDM). District Collector shall obtain the report of CESS or CWRDM and if there is no report received, no sand mining shall be allowed unless and until such report is obtained and all steps indicated therein are taken. While fixing the Kadavus, the District Collector shall not allow any Kadavus, where the conditions laid down cannot be complied with.

iv) Constructions made within rivers (as pointed out by the experts), reported to be causing adverse effect on river ecology, shall be demolished immediately by the local authority, and the expenses incurred on this account shall be recovered from the concerned persons.

v) Karmasamithis shall be constituted in all Panchayats and made functional before allowing and mining they shall point out any violations of conditions. All reports submitted by Karmasamithi members and the public shall be considered immediately by the District Collector, or police officials and other authorities and immediate action taken to prevent such violation the Secretary, Local Self Government, for the family for paying the arrears in instalments. The Secretary, Local Self Government, shall after considering each case make appropriate directions with regard to the instalment in which the arrears have to be paid off. As long as there is no default in payment of such instalments, the Secretary may permit such Panchayats to extract sand as otherwise allowed under this order.

vii) The River Management Fund shall be utilised for protecting the river and the river banks.

viii) River sand shall be allowed to be taken outside the State only if there is excess quantity available, as decided by the State Government.

ix) Steps shall be taken to demarcate the river boundaries and to protect them.

x) The State Government shall consider the constitution of a River Protection Force and a State River Management Authority for protecting all the rivers in the State from excessive sand mining.

xi) On behalf of some of the Panchayats it is contended that they had no opportunity for dealing with the expert committee report and some of them are aggrieved by that. If any Panchayat has any objection to the report of CESS, which is already on record, such panchayat may forward its objections to the State Government through the concerned District Collector. On receipt of such objections, the State Government shall refer the objections to the Science, Technology and Environment Department for examination by an appropriately constituted expert body and implement the remedial measures as may be suggested by such expert body.

xii) The State Government shall also consider the feasibility of alternatives to river sand in developmental activities. The petitioner in C.M.P. No. 48244 of 2001 in O.P. No. 16272 of 2000, a private company, has proposed dredging of offshore waters to collect sand from the sea and suitably refining it for use in constructional activities. The feasibility of its proposal shall be studied by the State Government by referring it to an appropriate expert body. The petitioner in CMP No. 48244 of 2001 has expressed its willingness to defray the expenditure likely to be incurred in connection with such feasibility study. The State Government may call upon the petitioner in C.M.P. No. 48244 of 2001 to deposit such amounts as are necessary for defraying the expenditure for carrying out the feasibility study and, if the feasibility study shows that the proposal is feasible, take necessary steps to encourage alternative excavation of sand as may be suggested.

It shall be the duty of the State Government through its administrative and police officers at sufficiently high levels to ensure that these directions are strictly complied with and there is no cause for grievance that sand mining is clandestinely and illegally carried out despite these directions.