PRAKASH NAYAK Vs. THE DISTRICT COLLECTOR

JUDGEMENT

(1.) A question of law involving control of inter- state trade, intercourse, and commerce, is the matter before us, referred for resolution by a Division Bench of this Court. The matter is concerning the powers of the police and other authorities in Kerala, under the special laws dealing with minerals and minor minerals, to deal with sand or other minerals brought to Kerala from another State where there is prohibition of export of such materials to neighbouring States. The vehicle No.KA-21-A-5364 belonging to the writ petitioner in W.P.(C)No.4484/2012, and the vehicle No.KA- 21-A-2834 belonging to the writ petitioner in W.P.(C) No.4574/2012 were intercepted by the Sub Inspector of Police, Manjeswar on 06.02.2012, and the two vehicles with full load of sand imported from the State of Karnataka were seized by the police. On finding that sand was being unauthorisedly transported on illegal import from the State of Karnataka, the police initiated prosecution and other actions under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, 'the Sand Act'). The writ petitioners seek a writ of mandamus directing the police to release the vehicles unconditionally, and also a declaration, that the police or other authorities in Kerala having powers under the Sand Act, will have no authority or powers to seize the sand imported from other States, and that prosecution or other action is not possible in respect of such materials brought from other States, under the Sand Act, especially when import of sand from other States is permitted in the State of Kerala by a Government order. When the two writ petitions came up for consideration before a learned Single Judge of this Court, the writ petitioners sought orders on the basis of a Division Bench decision of this Court, dated 16.08.2011, in W.A.No.1206/2011. On the other hand the respondents relied on another Division Bench decision dated 20.07.2010, in W.P.(C)No.16392/2010 to contend otherwise that prohibition or control of export of sand in the State of Karnataka is binding on our State, and the authorities in Kerala will have to honour such laws of the neighbouring State restricting or prohibiting export of sand. Finding that the two decisions could not go hand-in-hand, the learned Single Judge thought that the question of law will have to be resolved either by another Division Bench, or by a Full Bench, if so felt necessary by the Division Bench. Accordingly, the two writ petitions came up before a Division Bench for consideration. Finding a clear conflict of view in the two Division Bench decisions of co-equal Judge strength, the Division Bench considering the writ petitions thought that the question of law must be resolved by a Full Bench. Accordingly, on reference by a Division Bench the two writ petitions involving the important question of law stated above are before us for consideration on merits, and also for resolution of the question of law involved.

(2.) The legal aspects of the matter are covered by the provisions of the Constitution of India, and also the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'the MMDR Act'), and the Central and State Rules framed thereunder (MMDR Rules Central/Kerala). Though prosecution and other proceedings may not be possible under the Sand Act in force in Kerala, we will have to explore the possibility of such proceedings, including prosecution and confiscation, under the MMDR Act, and the MMDR Rules (Kerala).

(3.) The questions of law to be resolved by this Full Bench are,