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Judgment
M. A 102 of 2015 has been filed by the original applicants praying to prosecute the second Respondent namely the District Collector, Kannur District, Kerala under section 26 and 28 for failing to comply with the order of the Tribunal dated 13-02-2015.
In the main Application filed for a direction against the Respondents to take appropriate action to ensure that large scale removal of sand in and around Pamburuthi Island be stopped immediately to ensure safety of the Island and inhabitants situate in Kolacherry Panchayat in Kannur District apart from other relief. This Tribunal by an order dated 13-02-2015, relying upon a status report filed by the District Collector dated 07-10-2014 and finding that there is ban on mining without obtaining EC, has passed an order of injunction restraining illegal removal of sand and directed the second respondent to implement the order of injunction and file a report. According to the averments made by the applicants, in spite of such restraint order, the Respondents have not taken any steps to curb the illegal activities of sand mining but instead the 2nd respondent has issued passes facilitating mining of river sand. The applicants have issued a legal notice to the District Collector on 27-02-2015. The Deputy Collector, Kannur has issued pass to one K. C Abdulla on 9-03-2015 for removing 3 tonnes of sand from Kummayakadavu. Therefore, according to the applicants, the 2nd respondent District Collector, Mr. Balakiran IAS has blatantly and wilfully disobeyed the Tribunal's order and hence liable for action under s.26 and prosecution under s.28 of the National Green Tribunal Act, 2010.
By an order dated 1-04-2015 we have directed issuance of notice to the District Collector, Kannur directing him to appear before the Tribunal along with necessary records relating to the issuance of passes for river sand mining upto 27-03-2015. When the matter came up on 20-04-2014, the Dist. Collector, Kannur has appeared in person before the Tribunal and has also filed an affidavit. In the said affidavit, while tendering his unconditional apology, he has stated that he has taken all efforts to implement the order of the tribunal dated 13-02-2015 which was received by his office on 25-02-2015 through the Special Government Pleader. He has also stated that all mining activities in the entire District of Kannur were stopped from 27-03-2015 and he has been acting in good faith. However, he has chosen to state that the M.A is not maintainable, as the power to deal with the criminal prosecution lies with the Metropolitan Magistrate or a Judicial Magistrate of First class as provided under s.30 of NGT Act. Without prejudice to the above said issue on maintainability, the Dist Collector has stated that the river sand mining is done as per the provision of Kerala Protection of River Banks and Regulation of Sand Act 2001 by which the Govt has constituted a District Expert Committee to identify the Kadavu from where the quantity of sand that can be removed and implement the direction given by the Govt from time to time.
It is his further statement that the Committee has entrusted the study on the "integrated management of river basins in Kannur district" to the "Centre for Water Resources Development and Management", Kozhikode, which has submitted a report recommending the level of mining of river sand in various Kadavus in the river basins of Valapattanam, Kuppam and Anjarakandi. He has also stated that as per the Act, online queue system is followed and 85% of total sand available in the District is distributed to individual house holders and 15% is distributed through Panchayat quota in which the kadavu is located. Apart from that, the remaining 1% is issued through the District Nirmithi Kendra to soldiers. The District administration has also implemented "Nirman: e- Sand Project" by which the common public can apply online based on which e- sand passes are issued replacing the old system of issuing P form Passes. This was to avoid illegal extraction and transportation of sand. It is the further case of the District Collector that regarding the issuance of e- sand pass he has no direct role to play and the same is done by the e- sand system administrator as per the sand availability monitored by the Deputy Collector (Disaster Management).
It is his further statement that the order of the tribunal dated 13-02-2015 was received by him through the Govt Pleader only on 25-02-2015 at 6.06 pm. The applicants have also not produced the order before the said date. Immediately on receipt of email on 25-02-2015 he has passed an order on 26-02-2015 banning all mining activities in and around Pamburuthi Island. He has also stated that there are no kadavus in Pamburuthi Island area and the nearest kadavu is Mankadavu which is 269 m away from Pamburuty area. He has also stated that pursuant to the order dated 26-02-2014 the District police has arranged Police Aid Post Patrolling for 24 hrs. In fact the police have seized 8 boards and arrested 14 persons conducting illegal mining in the banned area on 7-03-2015. In respect of a sand pass issued to K. C Abdulla, it is stated that the pass was released from the office of the Collector on 18-02-2015 and issued to him on 25-02-2015, before the date receipt of the order of the Tribunal. The last pass allocation was done on 7-03-2015 by the 43rd allotment which was subsequently cancelled. In respect of the pass issued on 20-03-2015 it is stated that the same was not issued not by District Collector but was issued under 15% Panchayat Quota. Therefore, the case of the Dist Collector is that at the time of 41st and 42nd allotments which were made on 4-02-2015 and 21-02-2015, respectively, the order of the Tribunal was not received by the District Collector and the 43rd allotment done on 07-03-2015 was cancelled after receipt of the NGT order. It is the further case of the District Collector that he does not issue passes but only implement the policy decisions of the Government.
As per the order of the NGT New Delhi dated 5-08-2013 and 14-08-2014 and based on the report, a temporary EC was granted by SEIAA to Kannur District upto 30-06-2014. Even after submitting of sand audit report, as SEIAA has not extended the EC and therefore the District Collector has banned all sand mining activities from 1-07-2014. Even though the SEAC Kerala has recommended the issuance of EC in the meeting of the said committee dated 10-09-2014, as the term of SIEAA has expired no EC was granted. It was thereafter that the Government has issued an order on 15-11-2014 extending the period of EC upto 3 months. Thereafter the District Collector has issued proceedings to restart sand mining as per the above said GO on 22-11-2014. So there was a complete ban on sand mining in the District between 1-07-2014 to 22-11-2014. The Govt has passed the GO on 15-11-2014 extending the period of EC by another 3 months, only after finding the scarcity of sand. It is further stated that the SEIAA has issued EC from 9-04-2015. Therefore according to the District Collector, there is no wilful disobeyance of the order of the Tribunal.
Before going into the rival contentions it is relevant to point out that the learned counsel appearing for the 2nd respondent was stated to have submitted a letter dated 16-04-2015 to the Registry stating that the order alleged to have been violated is by another Bench. However the learned counsel has submitted that she has withdrawn the said letter by a subsequent letter dated 21-04-2015. It was thereafter with the consent of both the respective counsel the arguments were heard.
Mr. Harish Vasudevan the learned Counsel appearing for the applicant would submit that even though the restraint order was passed by the Tribunal on 13-02-2015 in the pending original application and in the presence of learned counsel appearing for the District collector, much thereafter on 9-03-2015 a sand pass was issued which is a deliberate violation. He has also produced the e-mail particulars showing the tokens issued even after 07-03-2015 which only shows that the District Collector has no respect for the orders of the Tribunal. While he does not dispute that as on date the mining operation has been stopped in the Kannur District, the Dist Collector cannot escape from the responsibility of issuing passes on 09-03-2015 by saying that he is not physically issuing and the same is done by somebody else. The person who has issued the pass should have done the same only on behalf of the District Collector.
Per Contra Mrs. Suvitha learned Special Government Pleader, appearing for 2nd respondent would submit that the series of events which are explained by the District Collector would show that except for a few days which are due to administrative delay, there is strict compliance of the order of the Tribunal in true spirit. According to her the administrative delay is not wilful and in fact the conduct of the second respondent that after 7-03-2015 he has cancelled all permissions for mining the sand shows the respect he has shown to the order of the Tribunal.
We have carefully considered the rival submissions and perused the records produced before us. As it is stated by the learned counsel appearing for the applicant it is true that the sand mining pass was issued on 7-03-2015 and in fact one was issued on 26-03-2015 also. But it is the catagoric stand of the District collector as it is seen in the sworn affidavit filed by him that all the passes issued from 07-03-2015 have been cancelled. The pass dated 26-03-2015 appears to have been issued by the Kolacherri Panchayat. It shows that the same should have been issued by the Panchayat based on its percentage of quota. Further the list of tokens issued during the period 12-03- 2015 to 18 -03-2015 are not supported by the passes issued by the District Collector which alone can authorise a right to remove the sand. In the light of the above said stand of District Collector that all the permissions given under 43rd allotments have been cancelled, there is no reason for us to disbelieve the affidavit of the District Collector. However simply because passes are issued by e-mail through some other persons operating the computer it does not mean that the District Collector is exonerated from all responsibilities. It is the District Collector who is the authority to issue such passes and merely by delegating his powers to somebody else like the Deputy Collector he cannot be exonerated from the liabilities. Even though we are of the view that on the facts and circumstances of the case there is no wilfulness on the part of District Collector for disobeyance of the order date 13-02-2015, he has not chosen to explain as to why he has not taken proper steps even after the receipt of order 25-02-2015. There is atleast one evidence to show that on 9-03-2015 certain pass has been issued to one Abdulla. Even though the District Collector sought to explain it as a permission given before the receipt of the copy of the order we are yet to understand as to why the District Collector has not given direction to the Deputy Collector or for that matter the Panchayat not to issue any more passes. In our view, this slackening attitude must be avoided in future. Making it clear that if any future violations are brought to the notice of this Tribunal the same will be taken note of seriously, the Application No 102 of 2015 stands closed.
We record the undertaking given by the District Collector that the subsequent order of SEIAA granting EC on 9-04-2015 will be duly made available to public domain so as to enable any person affected to work out their appropriate remedy available in law.
Accordingly M. A. No. 102 of 2015 stands closed. No cost.
Post the main application No. 440 of 2013 for further orders to 12-05-2015.
Dated: 27-04-2015.