Disposed

Moideen Kunhi v. State of Kerala

Kerala HC20 Jul 2010WP(C)/16392/2010

Case brief

AI extract

What is this about?

This writ petition challenged police harassment and vehicle seizures of sand dealers. The High Court held that while sand import from Karnataka remains illegal due to that state's export ban, the Police cannot harass dealers using valid transport forms for sand legally sourced from other states.

What did the court decide?

Writ petition disposed; Court clarified police cannot harass dealing in legally imported sand but action is justified for illegally imported sand.

Moideen Kunhi Vs State of Kerala — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS

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TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932

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WP(C).No. 16392 of 2010(Y)

PETITIONER(S):

MOIDEEN KUNHI, S/O.ISMAIL, THALKI HOUSE, PATHOOR.P.O, MANJESHWAR, KASARAGOD.

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U.POCKER, JASMINE VILLA, NALLALAM.P.O, KOZHIKODE.

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BY ADV. SRI.K.PRAVEEN KUMAR

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RESPONDENT(S):

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STATE OF KERALA, REP.BY THE SECRETARY, DEPARTMENT OF MINING AND GEOLOGY, SECRETARIAT, THIRUVANANTHAPURAM.

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THE REVENUE DIVISIONAL OFFICER, KASARAGOD.

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THE DISTRICT SUPERINTENDENT OF POLICE, KASARAGOD.

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THE SUB INSPECTOR OF POLICE, MANJESHWAR POLICE STATION, KASARAGOD.

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THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KASARAGOD.

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BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.

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W.P(C). NO. 16392 OF 2010 Y --------------------------------------------------Dated this the 20^th July, 2010

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JUDGMENT

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K.M. Joseph, J.

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Petitioners are dealers of minor minerals. Briefly put, the case of the petitioners is as follows:

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The first petitioner has been licensed to stock and sell 2000 metric tones of ordinary sand to the prospective buyers. Ext.P1 licence is valid till 31.3.2011. This was issued under Rule 48A of the Kerala Minor Mineral Concession Rules, 1967. The second petitioner has got similar licence vide Ext.P2 for stocking and selling 6000 metric tones of ordinary sand. They carry on the business of selling the sand on the strength of Exts.P1 and P2. They are paying sales tax to the Government. Persons who purchase sand from the petitioners have to get Form P cash memorandum issued under Rule 48 (K) of the Rules. Exts.P3 and P4 are produced as the cash memorandum to

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WPC.NO.16392/2010 Y

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transport sand from the yard of the petitioners. It is stated that while so, in April 2010, the fourth respondent seized the vehicle

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carrying sand lifted from the first petitioner alleging that the transportation is illegal. Though the cash memorandum was shown to the fourth respondent, it was ignored. Alleging harassment by the Police Officers, the petitioners have approached this Court seeking the following reliefs:

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“a) Issue a writ of mandamus to respondents 3 and 4 not to harass the petitioners and their customers in transporting the sand with valid document issued under the provisions of the Kerala Minor Mineral Concession Rules.

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b) Declare that the respondents cannot harass the petitioners and their customers in any manner, while transporting the sand with valid documents issued under the provisions of the Rules.”

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A Statement has been filed by the fourth respondent, inter alia, stating as follows:

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As per Exts.P1 and P2 proceedings, the Geologist issued the licence to the petitioners on certain conditions. One among

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WPC.NO.16392/2010 Y

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the conditions is that the licensees can purchase and store sand only from the owners of the quarries who have valid quarrying permit or quarrying lease. They should obtain valid cash memorandum in P Form from the producer for each load and kept it for inspection as and when demanded by the Authorities as per the provisions of the Rules. But, contrary to the conditions, the licensees procured sand through illegal means by using members of sand mafia of Karnataka and Kerala. The sand is being brought into the State through Konaje, Pathur via, Kajapadva evading the check post. Export of sand from Karnataka has been prohibited in Karnataka. If the petitioners are allowed to store and transport sand illegally taken from Karnataka, it will lead to competition among the sand mafia gangs which may cause law and order issues. It is stated that two cases have been registered. The persons who stored sand in Manjeshwar area including the petitioners are depending on these gangs to procure sand in their storing places from Karnataka State. If the petitioners are purchasing sand from the

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WPC.NO.16392/2010 Y 4

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owners of permitted quarries, they have right to store and transport sand. No sand lorries were seized by Manjeshwar Police having valid documents. Owners of all the seized lorries have admitted the offence and compounded the offence as per the provisions of the MMDR Act.

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Petitioners have filed a Reply Statement. Therein, the petitioners have produced Ext.P7 which is the copy of the Government Order dated 14.12.2009. Therein, the Government, inter alia, has permitted the import of sand from other States. Learned counsel for the petitioners would further point out that the petitioners as licensees have been issued with Rule 48(K) Books and when the petitioners transport the sand, they were issued with Rule 48 (K) Forms. It is armed with Rule 48 (K) Forms duly filled in by the petitioners that their customers are transporting the sand and the petitioners' customers are being yet harassed.

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We heard the learned counsel for the petitioners and the learned Government Pleader. Learned counsel for the petitioner

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WPC.NO.16392/2010 Y 5

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would, undoubtedly faced with the fact that export of sand has been banned in Karnataka State, point out that the petitioners are importing sand from Gujarath, Maharashtra and Andhra Pradesh. To this, the learned Government Pleader would immediately point out that sand from Gujarath and Maharashtra come via. shipping route supported by proper documents.

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It is true that by Ext.P7, the Government of Kerala has issued an Order purporting to encourage import of sand from other States, apparently in view of the scarcity in the State of Kerala. But, it is an equally undisputed fact that the State of Karnataka has prohibited export of sand from its soil. Therefore, if as contended by the respondents, the sand is being brought into the State of Kerala from Karnataka, it can only be described as an illegal act. If the licensee including the petitioners as licensees, are using Rule 48(K) Forms for the purpose of sanctifying transport of sand which is illegally brought from the State of Karnataka, this Court will not lend its assistance in any form to the petitioners and certainly, the Police

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WPC.NO.16392/2010 Y 6

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Authorities will be justified in taking action as per law in such

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cases. However, needless to say, particularly in view of Ext.P7,

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if the petitioners are buying sand which is brought through the

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legal means from other States where there is no ban and issue Rule 48(K) Forms to the customers, certainly the Police Authorities cannot harass the petitioners or the customers. We make this position clear. Learned Government Pleader points

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out that the dealers will have to maintain Forms M, N and O under the Kerala Minor Mineral Concession Rules. We take note of the said submission also and dispose of the Writ Petition.

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Sd/= K.M. JOSEPH, JUDGE

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Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy //

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PS to Judge

Moideen Kunhi v. State of Kerala

Case brief

What is this about?

What did the court decide?

Moideen Kunhi v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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