Alleged illegal sand mining in Bharathapuzha prompted a challenge to a debris-removal order. The court dismissed the public interest petition as unsupported by material and declined all reliefs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 9TH DAY OF DECEMBER 2021 / 18TH AGRAHAYANA,
1943
WP(C) NO. 11046 OF 2021
PETITIONER/S:
PUDUSSERY KARUVANPADY KOOTUKRISHI SANGHAM
REG. NO.TSR/TC/471/2012, KIZHAKKEKUTTATH HOUSE, PUDUSSERY, CHERUTHURUTHY P.O., THRISSUR 679 531 REP. BY ITS PRESIDENT SRI. K.K. DEVADAS. BY ADVS.
A.JAYASANKAR SRI.ASHWIN SETHUMADHAVAN AYESHA MARIA JOHN
RESPONDENT/S:
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7 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE REPRESENTED BY ITS DIRECTOR, FIRST FLOOR, VIKAS BHAVAN NEAR LEGISLATIVE ASSEMBLY, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PMG THIRUVANANTHAPURAM, PIN – 695033
ADDITIONAL R7 IMPLEADED AS PER ORDER DATED 1.09.21 IN IA 1/21 IN WPC 11046/2021
BY SRI. K. P. HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
S. Manikumar, C.J.
Pudussery Karuvanpady Koottukrishi Sangham has filed the
instant public interest writ petition for the following reliefs:-
“i. issue a writ, order or direction in the nature of Certiorari quashing Exhibit P4 order and any such other similar orders passed by the Respondents permitting mining of sand from the Bharathapuzha River as illegal, null and void;
ii. issue a writ, order or direction in the nature of Mandamus directing the Respondents to ascertain and furnish the details of total sand mined from the Bharathapuzha River under Exhibit P4 and any such other similar orders;
iii. Issue a Writ, Order or Direction in the nature of Mandamus directing the respondents to furnish the details of the revenue received by the sale of sand by the local authorities and the private parties who have carried out the sand mining as per Exhibit P4 and any such other similar orders.”
hereunder:-
According to the petitioner, the District Collector, Thrissur, the
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2nd respondent, has issued Ext. P4 order dated 04.03.2020, purportedly under the Disaster Management Act, 2005, for removal of debris and waste from Bharathapuzha River in Thrissur District.
Petitioner submitted that under the guise of the said order, illegal sand mining is carried out by private parties, which is being left unmonitored or regulated. The respondents are aiding private parties to amass wealth illegally.
It is further submitted that petitioner is a Society which carries out cultivation of paddy and other crops, and is aggrieved by the illegal action/inaction on the part of the authorities for protecting the Bharathapuzha river, along with its flora and fauna.
A. The action/inaction of the respondents herein is violative of Article 21 of the citizen of the State. The Bharathapuzha river is a public resource and any damage caused to it would have a direct impact
on the lives of thousands of people who directly or indirectly depend on the said river for a variety of needs.
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B. Ext. P4 appears to be one issued by the District Collector, the 2nd respondent, under the Disaster Management Act, 2005. It is pertinent to note that there existed no such threats, as envisaged in Ext. P4, in the year 2020 since the amount of rainfall was far below that in previous years. The issuance of Ext. P4 is nothing but an abuse of power and authority to aid private parties, may or may not with monetary intentions.
flouted, when it is evident that no such imminent threats are present currently.
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impact on the environment. However, as can be seen from Exhibit P1, the sand mining has been entrusted with agencies who have very less or zero experience and expertise in the field. The reports submitted by such agencies cannot be accepted as authentic. However, the same has been ignored.
enrich themselves. The involvement of the officials of the respondents herein in the said action/inaction is worthy of investigation.
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bed of Bharathapuzha has in fact, turned some parts of the river saline. The sand is a natural filter which purifies the water from contaminants including salts. The removal of sand has rendered the water useless and in fact, destructive to the flora and fauna itself.
I. The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, and the rules thereunder, provides for the constitution of regulatory bodies, including but not limited to Kadavu Committees, for monitoring and regulating the sand mining from rivers. However, no positive action envisaged by the
said Act has been adhered to by the respondents herein while granting permission for sand mining in the instant case.
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is the poor management of the check dams/regulator bridges constructed in the river. The inability to open the shutters of the said check dams/regulator bridges caused the flooding and not the accumulation of debris or mud. Under the guise of removing the debris/mud, the parties are in fact removing the valuable sand mineral and selling it off in black markets outside the State.
L. Even assuming, without admitting that the sand accumulation is the cause for the inability to open the shutters during the rainy season, the said sand can be collected and deposited in the river itself, so as to level up the uneven terrain, which would ensure smooth flow and purification of water. Instead, the respondents are aiding private parties to mint money, by excavating the valuable sand, probably for monetary benefits.
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“1. The above writ petition is filed alleging the illegal sand mining operations carried out in Bharathapuzha River pursuant to Exhibit P4 order No DCTSR/454/2020/H3 dtd 04/03/2020 of the District Collector, Thrissur. The prayers of the petitioner is to quash the Exhibit P4 order and to furnish details of sand mined from Bharathapuzha River under Exhibit P4 and to furnish details of revenue received by sale of sand carried out as per Exhibit P4. It may kindly note that all the exhibits produced are related to Revenue Department and Irrigation department is no way related to this orders and other proceedings. It is clearly seen in the affidavit and statement of facts filed by the petitioner himself that all his allegations were related to the Exhibit P4 order which is issued by the District Collector, Thrissur. It is most humbly submitted that the Irrigation Department is not at all aware of all these allegations in the writ petition.
2 However, as the petition is related to sand mining in Bharathapuzha River. It is significant to submit some facts related to the desiltation of Dams Reservoirs and Regulators in Kerala carried out by Irrigation Department to remove the excess sand and silt accumulated during the flood in 2018 and
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Environment clearance. The Ministry of Environmental Forest and Climate Change, Govt of India has through Notification number S.O 141(E) dated 15th January 2016 appendix IX para 7(1) B Exemption of certain cases from requirement of environmental clearance specified that:
Sl. 6. “Dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management.”
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Irrigation Department was directed to conduct field study and investigation regarding the desiltation process. KERI which is a Government Institution provides useful services by fulfilling needs in the fields of Investigation, Testing, Hydraulic Model Studies, Quality control and Research and Development in the field of Civil Engineering and Water Resource Engineering in particular. Based on the study report submitted by KERI and also by examining the decisions of Empowered Committee, Govt has accorded, Administrative sanction to Irrigation Department to commence the desiltation process after the bid process. Tender was invited based on the Standard Operating Procedure as per G.O (MS) No.79/2017/WRD Dated 26/09/2017 and the desiltation work was awarded to the contractor.
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agencies as claimed by the petitioner. The above public interest writ petition is filed without any bonafides and not stating any specific source for allegation. It is pertinent to see that there is no public wrong or public injury is established by the petitioner and hence this Writ Petitione is not maintainable. This respondent relies the dictum of the Hon'ble Apex Court in Kansing Kalusing Thakore and Others vs. Rabri Maganbhal Vashrambhal and Others reported in 2006(12)SCC 360.
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to dismiss the writ petition with cost and accordingly safe guard the best interest of the Government, so as to mitigate flood risk to the General public and also to augment of water storage capacity of the reservoirs.”
P4 codified list of information obtained from various Local Self Government Institutions, in connection with removal of silt and debris deposited in flood affected areas, Mr. K. P. Harish, learned Senior Government Pleader, submitted that Bharathapuzha river in Thrissur District, is not at all included in the list of rivers / canals, in which directions have been issued to remove the debris / waste, that have been accumulated.
learned Senior Government Pleader, further submitted that check dams / regulators are installed in Bharathapuzha river, at the following
places / areas:-
| Sl. No. | Regulator / Area | Approximate Quantity |
|---|---|---|
| 1. | Pookottumanna RCB | 55,000 cum |
| 2. | Cheruthuruthi Check Dam | 10,000 cum |
| 3. | Changanamkadu Regulator | 56,000 cum |
| 4. | Manjummal Regulator | 1,000 cum |
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| 5. | Velliangal RCB | 7,500 cum |
|---|---|---|
| 6. | PurappallyKavu Regulator | 8,000 cum |
waste in rivers and canals. He further added that for the abovesaid
purpose, work is not entrusted to any private party / agency.
material, and thus, the prayers sought for are liable to be rejected.
appointing agencies to conduct sand auditing in Bharathapuzha, reads thus:-
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approving sand auditing report of stretch III of the Bharathapuzha
river, is reproduced:-
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approving sand auditing report of stretch I of Bharathapuzha river, reads thus:-
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04.03.2020 of the District Collector, Thrissur, dated 04.03.2020, has ordered formation of District / Municipality / Panchayat Committees for the removal of debris, accumulated in the rivers and canals during the floods, and the same is reproduced:-
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be deduced that instant public interest writ petition has been filed without any supporting material.
In Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & Others [(2003) 7 SCC 546], the Hon'ble Apex Court held as under:
“(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. [See S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India (1982) 2 SCC 494 , Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161 and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)]
(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-
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vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 81).
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani (AIR 1979 SCC 468), it was held:
"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” (See also Dwarka Prasad Agarwal
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(D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138).
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333 ].
(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.
(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P. , 1989 Supp (1) SCC 504 and Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri and others (1986) 1 SCC 100].
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(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India and Others 1989 Supp (1) SCC 251).
(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227).
(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). In Sachidanand Panday and Another v. State of West Bengal and others [(1987) 2 SCC 295], this Court held,-
“61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are
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invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
This Court, in an unreported judgment dated 30.06.2020 in
B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C)
No.12109 of 2020], at paragraph 45, held thus:
“45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in Mythri Residents Association v. Secretary, Tripunithura Municipality and Others, [2019 KHC 832] , it has been summarised by the journal thus:
“(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it
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would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
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(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
(10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears.
(11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes.
(12) This Court has a long list of pending cases where the personal liberty of citizens is involved.
(13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice.
(14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda.
(15) This has spawned an industry of vested interests in
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litigation.
(16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention.
(17) Worse still, such petitions pose a grave danger to the credibility of the judicial process.
(18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law.
(19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services.
(20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.
(21) Courts resolve disputes about legal rights and entitlements.
(22) Courts protect the rule of law.
(23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal
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parameters occupy the judicial space.”
does not satisfy the requirement.
Reliefs sought for cannot be granted.
Accordingly, writ petition is dismissed.
Sd/S. MANIKUMAR CHIEF JUSTICE
Sd/SHAJI P. CHALY JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
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APPENDIX OF WP(C) 11046/2021
| PETITION | ER EXH | IBITS | |
|---|---|---|---|
| EXHIBIT | P1 | A TRUE COPY OF |
G.O.(RT) |
| NO.730/2019/REV. DATED 1.3.2 | 019 ISSUED | ||
| BY THE 1ST RESPONDENT ALONG ENGLISH TRANSLATION. |
WITH ITS | ||
| EXHIBIT | P2 | A TRUE COPY OF G.O.(RT) NO.8 | 74/2020/RD |
| DATED 28.2.2020 ISSUED BY RESPONDENT |
THE 1ST | ||
| EXHIBIT | P3 | A TRUE COPY OF G.O.(RT) NO.19 | 06/2020/RD |
| DATED 25.5.2020 ISSUED BY RESPONDENT |
THE 1ST | ||
| EXHIBIT | P4 | A TRUE COPY OF |
ORDER |
| NO.DCTSR/454/2020/H3 DATED | 4.3.2020 | ||
| ISSUED BY THE 2ND RESPONDENT ITS ENGLISH TRANSLATION. |
ALONG WITH | ||
| EXHIBIT | P5 | A TRUE COPY OF THE RE | GISTRATION |
| CERTIFICATE OF THE PETITIONE | R SOCIETY | ||
| WITH NO.TSR/TC/471/2012 DATED | 2012. |
1 issue framed by the court
Could relief against alleged illegal sand mining in Bharathapuzha be granted in a public interest petition unsupported by material?
Colour shows how this judgement treated each authority
Guruvayur Devaswom Managing Committee & Anr. v. C.K. Rajan & OthersRelied on¶134
[(2003) 7 SCC 546] · Who else cites this
B. Radhakrishna Menon v. State of Kerala and Ors.Relied on¶155
B. Radhakrishna Menon v. State of Kerala and Ors.
PUDUSSERY KARUVANPADY KOOTUKRISHI SANGHAM
THE STATE OF KERALA
THE DISTRICT COLLECTOR THRISSUR
THE DISTRICT COLLECTOR PALAKKAD
THE DISTRICT COLLECTOR MALAPPURAM
THE CHIEF ENGINEER IRRIGATION AND ADMINISTRATION
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
