(1.) The petitioner claims to be a Government contractor. According to him, for the purpose of executing contracts for the Government, he needs large quantities of sand. He has large extent of property in Avanavancherry Village in Thiruvananthapuram District by the side of Vamanapuram river which has large deposits of sand, which can be used for construction of buildings, which is his avocation. He wanted to obtain a permit under the Kerala Minor Mineral Concession Rules for the purpose of mining sand from his property. He approached the 1st respondent. The 1st respondent refused to issue him an application for applying for licence. Aggrieved by the same, he approached this Court by filing WP (C) No. 31262/2006, in which this Court directed the 1st respondent to issue an application form to the petitioner on his producing a copy of the judgment. There was also a direction to consider petitioner's application and to pass orders thereon in accordance with law. The petitioner filed an application for permit. By Ext. P10 order, his application was refused to be considered on the ground that there was a ban order issued by the District Collector, by which the District Collector had banned mining of sand in Thiruvananthapuram district. Alleging that Ext. P10 order amounts to violation of the judgment of this Court in WP (C) No. 31262/2006, the petitioner filed Cont. Case (C) No. 125/2007 in which a counter affidavit was filed, producing the ban order of the District Collector. In view of that order, the contempt case was closed without prejudice to the right of the petitioner to challenge Ext. P10 and the order of the District Collector. The petitioner has produced the order of the District Collector as Ext. P11 in the writ petition. The petitioner is now challenging Exts. P10 and P11 orders seeking the following reliefs:
(2.) The contention of the petitioner is that the District Collector is not vested with any powers under the Kerala Minor Mineral Concession Rules to issue a ban order like Ext. P11. The powers of the District Collector to issue such orders are referable only to the Kerala Protection of River Banks and Regulation of Mining of Sand Act. As far as mining of ordinary sand is concerned, the same is regulated by the Kerala Minor Mineral Concession Rules, which do not contain any provisions empowering the District Collector to pass an order like Ext. P11, is the contention of the petitioner. The petitioner also relies on Ext. P7 order of the Principal Secretary to the Government, Industries Department, in which the Principal Secretary informed the District Collector that the power of the District Collector is restricted to cases of removal of river sand under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and that he has neither any power to regulate the removal of sand from private properties, nor to stay operation of permits issued by the Geologist to remove sand from private properties by invoking the provisions of the said Act. The petitioner would also submit that even assuming that the District Collector has such a power, that cannot be for issuing a blanket order banning sand mining without limitation of time. Therefore, according to the petitioner, the 1st respondent is bound to consider the application of the petitioner in accordance with the Kerala Minor Mineral Concession Rules and pass orders thereon as earlier directed by this Court in Ext. P8 judgment.
(3.) Originally, the 1st respondent filed a counter affidavit, in which he has submitted that without producing a no objection certificate from the District Collector, the application of the petitioner cannot be considered in view of the prohibitory order passed by the District Collector. When the matter came up for hearing on 09/06/2009, this Court felt that it is necessary to ascertain the views of the Government also in this regard. Accordingly, this Court suo motu impleaded the Chief Secretary to the Government as additional 3rd respondent in the writ petition and the additional 3rd respondent was directed to file a detailed counter affidavit in the matter. Pursuant thereto, a counter affidavit has been filed by the additional 3rd respondent. From the counter affidavit, I find that the Government has taken up the matter very seriously and considered the entire issue in depth. I deem it appropriate to extract the major portions of the counter affidavit, disregarding the virtue of brevity since the same would throw light on very many technical aspects of environmental degradation caused by indiscriminate sand mining. They have stated thus in their counter affidavit: