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SUBRAMANIAN, S/O. PARANGODANKUTTY vs. THE STATE OF KERALA AND ORS.

País/Territorio
India
Tipo de la corte
Nacional - corte superior
Fecha
Nov 19, 2008
Fuente
UNEP, InforMEA
Nombre del tribunal
High Court of Kerala
Sede de la corte
Ernakulam
Juez
GIRI, V.
Idioma
Inglés
Materia
Cuestiones jurídicas, Recursos minerales
Palabra clave
Minería Derecho constitutional
Resumen
The petitioner is the registered owner of a lorry, seized by the Tahsidlar alleging unauthorised transportation of river sand. The petitioner submits that the transportation of the sand was accompanied by the permit issued in this regard by the Secretary of the Regional Transport Authority. After seizure of the vehicle, there was no adjudication, as such, by the District Collector, either as to the validity of the seizure or on the plea raised by the petitioner for release of the vehicle contending that there is no unauthorised transportation of the sand. The constitutionality of certain provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and the validity of some of the provisions contained in the related Rules have been challenged in the writ petitions disposed by the present order. The competence of the State legislature to enact the Act in question itself has been questioned in some of the writ petitions. It is contended that the entire subject dealing with the removal of sand from River Beds like any other area, is comprehensively covered by the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (MMRD Act) and the Minor Mineral Concession Rules, and therefore, there is no area or legislative territory which is otherwise available to a State Legislature when it seeks to exercise its legislative powers under Entry 23 of List II of 7th Schedule of the Constitution. Insofar as the regulation and development of mines and minerals, the MMRD Act 'is a complete legislation' and occupies the legislative territory in its entirety. There is no scope left for the State Legislature to enact on the same subject. But as it is the pith and substance of a legislation that should be looked (the Court considered that none of the provisions in the Sand Act are intended to regular mines or mineral or intended to deal with the development of minerals. There is no collision between the provisions of the Sand Act and the MMRD Act. The Sand Act falls completely within the legislative competence of the State Legislature, as the prime motive of the legislation is the regulation of removal of sand from the river banks and river beds, not with the aim of regulating or winning of any minor mineral, but with the essential motive of maintaining the river banks and river beds. Certain provisions would have the effect of interdicting the removal of a minor mineral, like sand. But this is intended only as a measure of regulating the upkeep and maintenance of vital water sources like rivers and lakes and it will not even amount to an incidental encroachment into a territory occupied by a Central legislation like the MMRD Act. The Court is of the view that the challenge against the competence of the State Legislature to enact the Sand Act and the challenge to the constitutionality of the provisions of the Sand Act are liable to be repelled. The petitioners also challenge the impugned orders passed by the District Collector under Section 23 of the Sand Act, read with Rule 27 and Rule 28 of the Rules in all these cases. It is contended that the orders have been passed in a mechanical way. The power of confiscation made available to revenue officials under the Sand Act is concurrent with the same power that is made available to a court. In other words, the power exercisable by a District Collector will have to be treated as not only statutory but also quasi judicial in character. Rule 27(3) enables a vehicle to be returned to the person, if the owner of the vehicle or possessor remits an amount equal to the price fixed by the District Collector. Once it is accepted that the power under Section 23 of the Sand Act, read with Rules 27 and 28 of the Rules, is a substantive power and is also, therefore, quasi judicial in character, then it follows as a logical consequence that the District Collector should also have the power to direct a release of any vehicle which is seized and produced before him, by way of interim custody. Therefore the orders passed by the District Collectors impugned in these writ petitions shall stand set aside. (2) The District Collectors shall reconsider the issue regarding confiscation of the respective vehicles under Section 23 of the Act read with Rules 27 and 28 of the Rules.
Texto completo
COU-156217.pdf
Página web
www.indiankanoon.org