Ismayil vs Deputy Tahsildar - 2011 Supreme(Ker) 262

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Ker) 262

High Court of Kerala
THE HONOURABLE CHIEF JUSTICE MR. J. CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R. RAMACHANDRA MENON
Ismayil
Versus
Deputy Tahsildar & Others
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
Decided on : 14-03-2011

Advocates Appeared:For the Petitioner:Babu S. Nair, Advocate. For the Respondents:Renjith Thampan, Addl. Advocate General, Hanal Kumar, Government Pleader.

Headnote:
Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 - Section 26 - Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 - Seizure of the vehicles in which the river sand was being transported - 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' lest it should lead to further proceedings - Held, 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 - Dismissed.

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

Legislative Competence and Constitutionality: The validity of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, and its Rules, including Ordinance No. 38/10, has been upheld. The enactment is within the constitutional powers of the State, primarily based on Entries 5, 17, and 64 of List II of the 7th Schedule, and is not in conflict with the Union's power under Entry 54 of List I (!) (!) (!) .
Scope and Purpose of the Act: The primary objective of the Act is environmental protection—specifically, safeguarding river banks, river beds, and the biophysical environment—rather than promoting commercial activities. The regulation of sand removal is incidental to this environmental purpose (!) (!) (!) .
Separation from Union Legislation: The State legislation operates in a different domain from the Union’s Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act). The State’s enactment is not in conflict with the Central Act because it addresses environmental concerns and local resource management, which are distinct from the Union’s regulation of mineral development (!) (!) (!) .
Legislative Doctrine and Pith and Substance: The doctrine of pith and substance confirms that the true nature and purpose of the legislation justify its validity. The Sand Act’s core aim is environmental protection, and its provisions are within the legislative competence of the State (!) .
Environmental and Public Trust Principles: The legislation aligns with principles emphasizing environmental preservation, sustainable development, and the public trust doctrine. It recognizes the State’s duty as a trustee of natural resources, with a focus on ecological balance, ecological protection, and intergenerational equity (!) (!) .
Legality of Confiscation and Penalties: The provisions for confiscation and penalties under the Sand Act, including fines and vehicle confiscation, are within the legal framework. The procedures under the Act and Ordinance have been clarified to ensure they are not ultravires, with mechanisms for appeal and revision provided (!) (!) .
Procedural and Interpretative Clarifications: The interpretation of key terms such as 'confiscation' versus 'seizure' has been clarified, emphasizing that the original language and context are crucial for understanding legislative intent. The procedures for confiscation are designed to be in accordance with constitutional principles and are not arbitrary (!) .
Environmental Jurisprudence and Constitutional Mandate: The legislation is consistent with constitutional mandates to protect the environment, and the legislative measures are justified as necessary for ecological preservation, especially in light of the constitutional duties and the doctrine of sustainable development (!) (!) .
Legal Principles for Validity and Interpretation: The courts have applied doctrines such as pith and substance, harmony of entries, and the presumption of constitutionality to uphold the legislation. The legislation’s object, scope, and effect confirm its validity and constitutional compatibility (!) (!) .
Case-specific Dispositions: In the various cases, the courts have consistently upheld the validity of the Act and Rules, dismissed challenges based on procedural delays, factual inaccuracies, or alleged procedural violations, and clarified that the powers of revenue authorities regarding fines and confiscation are within the statutory framework, with avenues for appeal and review (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .

In summary, the legislation is constitutionally valid, primarily aimed at environmental protection and resource management, with clear procedural provisions for enforcement, penalties, and appeals, operating within the constitutional and legislative framework assigned to the State.

Judgment :-

P.R. Ramachandra Menon, J.

1. 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

Click Here to Read the rest of this document