Sand Act; Prakash Nayak Vs. District Collector, Kasaragod [Kerala High Court, 18-08-2016]

Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Kerala) – illicit import of minerals including sand to Kerala, or illicit possession or transport of such mineral in the State of Kerala, not covered by the Act, or any other special law, will have to be dealt with, and appropriate proceedings including arrest, seizure and confiscation are possible, under the Mines and Minerals (Development and Regulation) Act, 1957.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN, P.D.RAJAN & P. UBAID, JJJ.

W.P.(C) Nos.4484 & 4574 of 2012

Dated this the 18 day of August, 2016

PETITIONER(S)

PRAKASH NAYAK

BY ADVS.SRI.BABU S. NAIR, SMT.SMITHA BABU.

RESPONDENT(S)

1. THE DISTRICT COLLECTOR, KASARAGOD-671 121.

2. THE REVENUE DIVISIONAL OFFICER, KANHANGAD, KASARAGOD DISTRICT-671 315.

3. THE SUB INSPECTOR OF POLICE, MANJESWAR POLICE STATION, KASARAGOD DISTRICT-671 323.

BY SR. GOVT. PLEADER SRI.C.R. SYAMKUMAR

J U D G M E N T

P. Ubaid, J

A question of law involving control of interstate trade, intercourse, and commerce, is the matter before us, referred for resolution by a Division Bench of this Court. The matter is concerning the powers of the police and other authorities in Kerala, under the special laws dealing with minerals and minor minerals, to deal with sand or other minerals brought to Kerala from another State where there is prohibition of export of such materials to neighbouring States. The vehicle No.KA-21-A-5364 belonging to the writ petitioner in W.P.(C)No.4484/2012, and the vehicle No.KA- 21-A-2834 belonging to the writ petitioner in W.P.(C) No.4574/2012 were intercepted by the Sub Inspector of Police, Manjeswar on 06.02.2012, and the two vehicles with full load of sand imported from the State of Karnataka were seized by the police. On finding that sand was being unauthorisedly transported on illegal import from the State of Karnataka, the police initiated prosecution and other actions under the

Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001

(for short, ‘the Sand Act’). The writ petitioners seek a writ of mandamus directing the police to release the vehicles unconditionally, and also a declaration, that the police or other authorities in Kerala having powers under the Sand Act, will have no authority or powers to seize the sand imported from other States, and that prosecution or other action is not possible in respect of such materials brought from other States, under the Sand Act, especially when import of sand from other States is permitted in the State of Kerala by a Government order. When the two writ petitions came up for consideration before a learned Single Judge of this Court, the writ petitioners sought orders on the basis of a Division Bench decision of this Court, dated 16.08.2011, in W.A.No.1206/2011. On the other hand the respondents relied on another Division Bench decision dated 20.07.2010, in W.P.(C)No.16392/2010 to contend otherwise that prohibition or control of export of sand in the State of Karnataka is binding on our State, and the authorities in Kerala will have to honour such laws of the neighbouring State restricting or prohibiting export of sand. Finding that the two decisions could not go hand-in-hand, the learned Single Judge thought that the question of law will have to be resolved either by another Division Bench, or by a Full Bench, if so felt necessary by the Division Bench. Accordingly, the two writ petitions came up before a Division Bench for consideration. Finding a clear conflict of view in the two Division Bench decisions of co-equal Judge strength, the Division Bench considering the writ petitions thought that the question of law must be resolved by a Full Bench. Accordingly, on reference by a Division Bench the two writ petitions involving the important question of law stated above are before us for consideration on merits, and also for resolution of the question of law involved.

2. The legal aspects of the matter are covered by the provisions of the Constitution of India, and also the provisions of the

Mines and Minerals (Development and Regulation) Act, 1957

(for short, ‘the MMDR Act’), and the Central and State Rules framed thereunder (MMDR Rules Central/Kerala). Though prosecution and other proceedings may not be possible under the Sand Act in force in Kerala, we will have to explore the possibility of such proceedings, including prosecution and confiscation, under the MMDR Act, and the MMDR Rules (Kerala).

3. The questions of law to be resolved by this Full Bench are,

i) Whether prohibition and control of export of sand in the State of Karnataka, prohibiting such export to the neighbouring States including Kerala, is binding on the State of Kerala, and whether the police authorities in Kerala are bound to honour such prohibition and restriction.

ii) Whether the police authorities or other authorities appointed by the Government in Kerala, will have powers under the Sand Act, or the MMDR Act and the Rules framed thereunder, to seize the sand imported from the State of Karnataka in such circumstance of prohibition or restriction, and to proceed for prosecution and other actions including confiscation.

4. Part XIII of the Constitution of India deals with trade, commerce and intercourse within the territory of India. Article 301 of the Constitution declares the general policy of our democratic polity regarding trade and commerce in India, that, subject to the other provisions of the Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. What is declared and protected under Article 301 is freedom of inter-state, and also intra-state trade, intercourse and commerce, subject to the other provisions of the Constitution restricting and modifying the general provision contained in Article 301 of the Constitution. The said Article declares freedom of inter-state intercourse in trade and commerce, subject to the restrictions and limitations under the Constitution itself, with the object of ensuring that the internal unity, and also the financial stability of India, shall not be affected or broken by internal barriers or restrictions prohibiting or controlling free flow of trade, commerce and intercourse throughout the country. The general policy declared under Article 301 of the Constitution is modified and explained by Article 302, which authorises the Parliament to impose such restrictions on the freedom of trade and commerce between one State and another, or within any part of the territory of India, by law, as may be required in public interest. While permitting such Legislation under Article 302 in public interest, Article 303 of the Constitution prohibits the Parliament and the State Legislatures from making any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule of the Constitution. What is relevant for our consideration in the present context is Article 304 of the Constitution, which reads as follows: