The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001

[Translation in English of “2001-ലലെ കകേരള നദദീതദീര സസംരക്ഷണവവസം മണൽ വവാരൽ നനിയന്ത്രണവവസം ആകേ‍് ററ‍്" published under the authority of the Governor.]

ACT 18 OF 2001

THE KERALA PROTECTION OF RIVER BANKS AND REGULATION OF REMOVAL OF SAND ACT, 2001*

AN ACT

to protect river banks and river beds from large scale dredging of river sand and to protect their biophysical environment system and regulate the removal of river sand and for matters connected therewith or incidental thereto.

Preamble.—WHEREAS, it has come to the notice of the Government that indiscriminate and uncontrolled removal of sand from the rivers cause large scale river bank sliding and loss of property;

AND WHEREAS, large scale dredging of river sand also disturb the

biophysical environment system of the river in different degrees;

AND WHEREAS, due to the executive regulatory orders in force, complaints have been received regarding the hardship to the employees engaged in construction works;

*Received the assent of the Governor on the 28th day of December, 2001 and published in the Kerala Gazette Extraordinary No. 285 dated 20th March, 2002.

AND WHEREAS, in the public interest, it is expedient to provide for regulatory measures for the protection of river banks and removal of sand from rivers;

BE it enacted in the Fifty-second year of the Republic of India as

follows:—

(1) This Act may be called the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. (2) It extends to the whole of the State of Kerala. (3) It shall come into force on 1such date as the Government may, by notification in the Gazette, appoint.

In this Act, unless the context otherwise requires,— 2[(a) “authorised officer” means the Commissioner of Land Revenue authorised under section 2B and includes the officer entrusted by the Government under the said section to assist him]; 3[(aa)] “District Collector” means the Collector of the District; (b) “District Expert Committee” means the District Expert Committee constituted under section 3; 1[(ba) “State High Level Committee” means the State High Level Committee constituted under section 2A]; (c) “Fund” means the River Management Fund maintained under section 17; (d) “Government” means the Government of Kerala; (e) “Kadavu” means a river ban, or water body where removal of sand is carried out; (f) “Kadavu Committee” means the Kadavu Committee constituted under section 4; (g) “Local Authority” means a Village Panchayat constituted under the Kerala Panchayat Raj Act, 1994 (13 of 1994) or a Municipality constituted under the Kerala Municipality Act, 1994 (20 of 1994); (h) “Municipality” means a Town Panchayat or a Municipal Council or Municipal Corporation constituted under the Kerala Municipality Act, 1994 (20 of 1994); (i) “Notification” means a notification published in the Gazette under this Act; (j) “Prescribed” means prescribed by the rules made under this Act; (k) “Section” means a section of this Act; 1[(ka) “Special Protection Force” means the Special Protection Force constituted under section 26A]; (l) “Grama Panchayat” means a Village Panchayat constituted under section 4 of the Kerala Panchayat Raj Act, 1994 (13 of 1994); (m) “Block Panchayat” means a Block Panchayat constituted under section 4 of the Kerala Panchayat Raj Act, 1994 (13 of 1994); (n) “District Panchayat” means a District Panchayat constituted under section 4 of the Kerala Panchayat Raj Act, 1994 (13 of 1994).

(1) As soon as may be, after the commencement of this Act, the Government shall, by notification constitute an Expert Committee for each district in the State with effect from such date, as may be specified in the notification. (2) Every District Expert Committee shall consist of the following members, namely:— (a) the District Collector — Ex-officio ; (b) a representative nominated by the Government from among the members of the District Panchayat representing any area abutting any river of the district; (c) the District Labour Officer — Ex-officio ; (d) the Superintendent of Police in charge of Law and Order in the district— Ex-officio ; (e) the Deputy Director of Panchayat — Ex-officio; (f) a Municipal Chairman/Chairperson from among the Chairman/ Chairpersons of the Municipal Councils abutting any river in the district — to be nominated by the Government; (g) two persons from among the Presidents of the Grama Panchayat abutting any river in the district— to be nominated by the Government; (h) one President from among the Presidents of the Block Panchayats abutting any river in the district—to be nominated by the Government; (i) a Hydrologist— to be nominated by the Government; (j) one Executive Engineer of the Irrigation Department working in this district; (k) an Engineer not below the rank of an Executive Engineer of the Kerala Water Authority working in the district— to be nominated by the Government; (l) [three Environmentalists] associated with river protection activities —to be nominated by the Government; (m) an Engineer (Roads and Bridges) of the Public Works Department, not below the rank of an Executive Engineer and working in the district to be nominated by the Government; (n) the Geologist/District Officer, Department of Mining and Geology— Ex-officio; (o) one Divisional Forest Officer—to be nominated by the Government; [(p) Revenue Divisional Officer or Revenue Divisional Officers having jurisdiction in the district; (q) three persons to be nominated by the Government from among the registered organisation of sand removing workers of the district; (r) Tahasildars of all the Taluks in the district and the Additional Tahasildars having jurisdiction in relation to regulation of sand removal in the district]. (3) The District Collector shall be the Chairman and [the Revenue Divisional Officer in-charge of the Headquarters] shall be the Convener of the District Expert Committee. (4) The District Expert Committee shall meet at such times and at such places as the Chairman may decide and exercise such powers and functions as may be conferred under this Act and the rules made thereunder.

(1) For the purpose of regulating the removal of sand in every Kadavu or river bank situated in a district, the District Collector shall constitute for each Kadavu or river bank a Kadavu Committee called by the name of that place where the Kadavu or river bank is situate, consisting of the following members, namely:— (a) the President of the Grama Panchayat or the Chairman/Chairperson of the Municipality of the concerned Kadavu— Ex-officio; (b) the Secretary of the Grama Panchayat or the Secretary of the Municipality of the area— Ex-officio; (c) the Assistant Labour Officer of the area— Ex-officio; (d) the Grama Panchayat Member or the Municipal Councillor of the area—Ex-officio; (e) the Assistant Engineer of Irrigation Department having jurisdiction in the area— Ex-officio; (f) the Assistant Engineer, (Roads and Bridges) of the Public Works Department having jurisdiction in the area— Ex-officio; (g) the Assistant Engineer of the Kerala Water Authority having jurisdiction in the area— Ex-officio; (h) the Village Officer having jurisdiction in the area— Ex-officio; (i) [three Environmentalists] to be nominated by the District Collector; [(j) three persons to be nominated by the District Collector from among the registered organisations of sand removing workers of the said area.] (2) The President of the concerned Grama Panchayat or, as the case may be, the Chairman/Chairperson of the Municipality shall be the Chairman of the Kadavu Committee and the Secretary of the Grama Panchayat or, as the case may be, the Secretary of the Municipality shall be the Convenor of the Kadavu Committee. (3) The Kadavu Committee shall meet at such times, and at such places as the Chairman may decide and exercise such powers and functions as may be conferred under this Act and the rules made thereunder.

(1) Save as otherwise provide in this Act, the term of office of the members of the District Expert Committee and, as the case may be, the Kadavu Committee other than the Ex-officio and official members, shall be three years from the date of nomination and shall be eligible for re-nomination. (2) A member referred to clause (1) of sub-section (2) of section 3 and clause (i) of sub-section (1) of section 4 may resign his office by giving notice in writing thereof to the Government or, as the case may be, to the District Collector concerned and shall cease to be a member on his resignation being accepted by the Government or, as the case may be, the District Collector concerned.

No Act done or proceeding taken by the District Expert Committee or the Kadavu Committee shall be invalidated merely by reason of,— (a) any vacancy in, or any defect in the constitution of the aforesaid Committees; (b) any irregularity in the procedure of the aforesaid Committee not affecting the merits of the case.

(1) Any vacancy caused in the District Expert Committee, as the case may be, the Kadavu Committee shall be filled up as early as possible by nomination by the Government, as the case may be, by the concerned District Collector. (2) Any person so nominated to fill up a casual vacancy shall hold office only so long as the member in whose vacancy he is nominated would have been entitled to hold office, if the vacancy had not occurred.

(1) The District Expert Committee shall meet at least once in three months in a year. (2) One third of the total number of members shall be the quorum for a meeting. (3) The Chairman may nominate one among the members to preside over the meeting, in his absence.

1[(1)] Subject to the other provisions of this Act and the rules made thereunder, the District Expert Committee shall have the following powers and functions,namely:— (a) to identify the Kadavu or river bank in a district in which sand removal may be permitted; (b) to fix the total quantity of sand that can be removed from a Kadavu or river bank giving due regard to the guidelines of expert agencies like the Centre for Earth Science Studies and Centre for Water Resources Development and Management or 2[other agencies in the sector, as may be specified by the Government from time to time;] (c) to control the transportation of sand from a Kadavu or river bank to another area; (d) to close a Kadavu or river bank opened for sand removal; (e) to ensure the protection of river banks and keep them free from encroachment; (f) to consider the opinion of the Kadavu Committee and take suitable measures to achieve the objectives of this Act; (g) to ensure that the Kadavu Committees of the District are performing their powers and functions conferred on them by this Act; (h) to advise the Government on the measures to protect the biophysical environmental system of the river banks; (i) to recommend to the Government the necessity to ban sand removal from any river or Kadavu during any season of the year; (j) to carry out the Directions given by the Government, from time to time; (k) to exercise such other powers and perform such other duties as are conferred on it by this Act and rules made thereunder; (l) to advise on any other matter to carryout the provisions of this Act. 1[(2) Where it is not possible to implement the conditions referred to in section 12 or are not being implemented, the District Expert Committee shall not grant permission to remove sand from any Kadavu or cancel the permission granted as the case may be.]

(1) The Kadavu Committee shall meet at least once in every month. (2) One-third of the total number of members shall be quorum for the meeting. (3) The Chairman may nominate one among the members to preside over the meeting, in his absence or if in any circumstances, nomination is not possible the members present at the meeting may nominate a person to hold the position.

Subject to the other provisions of this Act and the rules made thereunder, the Kadavu Committee shall supervise and monitor all activities of sand removal and recommend to the District Expert Committee on the following matters, namely:\n\n(a) the suitability of the Kadavu or river bank for sand removal;\n(b) the quantity of sand that may be removed from a particular Kadavu;\n(c) the additional measures to be taken for protection of the Kadavu or river bank;\n(d) the necessity to ban sand removal during any season of the year;\n(e) to recommend to the Grama Panchayats and the Municipalities for publication of list of country boats used for and labourers engaged in sand removal operations;\n(f) to carry out the instructions issued by the Government and the District Expert Committees, from time to time; and\n(g) advise on any other matter to carry out the provisions of this Act.

(1) The Grama Panchayat or the Municipality concerned shall, before carrying out the sand removal operation obtain passes from the Geology Department which shall issue them on the recommendation of the District Expert Committee for a period of one month in advance, on payment of royalty as provided for in the law applicable for the payment of royalty.\n(2) No sand removal operation shall be carried out in a Kadavu before 7 a.m. and after 4 p.m.\n(3) The Grama Panchayat or Municipality concerned shall subject to the other provisions of this Act and the rules made thereunder, make necessary arrangements to carry out the sand removal operations.\n(4) Removal of sand shall be permitted only from the riverbed and no sand removal operation shall be done within 15 metres of the river bank.\n(5) No sand removal operation shall be carried out within a distance of 500 metres from any bridge or any irrigation project or pumping station of water supply projects or check dams or from their retaining wall or the venue of any religious or cultural activities conducted on river bank or the sand bank in river or in part of the river.\nExplanation.—For the purpose of this sub-section, the expression “water supply project’’ shall have the same meaning as assigned in Kerala Irrigation and Water Conservation Act, 2003 (31 of 2003).\n(6) The vehicle for loading sand shall be parked at a distance of at least 25 metres from the river bank, and no vehicle shall be brought to the river bank for loading.\n(7) No sand removal shall be done in a Kadavu or river bank in excess of the quantity fixed by the District Expert Committee.\n(8) No 'Kollivala', pole scooping or any mechanized method shall be carried out in the sand removal operation.\n(9) No sand removal shall be done where there is likelihood of saline water mixing with river water.\n(10) No sand removal shall be done in a river or in any river bank where Government have expressly prohibited the same by general or special order.\n(11) The sand removal operations in a kadavu and transportation of such sand shall be carried out, only subject to such conditions and restrictions, as may be prescribed.

(1) Notwithstanding anything contained in this Act, or in any decree or order of any Court, the Government may, for sufficient reasons by general or special order, direct for the closure of a Kadavu opened for sand removal.\n(2) The District Collector may notify the ban on sand removal from any river or river bank during any period particularly during monsoon season in a year based on a report from the District Expert Committee or otherwise that dredging of sand disturbs the bio-physical environment system of the river:\nProvided that the order of ban shall not extend beyond a period of two weeks at a time, which may be extended for a further period not exceeding two weeks.\n(3) Notwithstanding anything contained in any other law, for the time being in force, the provisions of the Land Conservancy Act, 1957 or the provisions of Code of Criminal Procedure, 1973 shall apply for the removal of any encroachment or obstruction in any river bank or Kadavu.\n(4) The Government may notify the rivers and the period for which and removal from such rivers shall not be allowed.

(1) The Kadavu Committee shall, after taking into account the availability and accessibility of sand in any area, fix the price of sand for each Kadavu. (2) The price to be fixed under sub-section (1) shall be by public auction. (3) The price of sand to be fixed by public auction shall include expenses towards loading sand in vehicle and the labour charges as fixed by the Kadavu Committee.

(1) Every Local Authority in the State having Kadavu or river bank for sand removal shall maintain such Kadavu or river bank in a safe condition and protect its bio-physical environment system by taking effective steps to control river bank sliding. (2) Every local authority shall erect concrete pillars at the Kadavu or river bank in such a way that no vehicle shall have direct access to the bank of the river. (3) The local authority shall establish a check post at each Kadavu or riverbank and maintain proper account of the sand removed from the Kadavu. (4) Bamboo and "Attuvanchi" may be planted on the river bank with the help of Forest Department to control river bank sliding. (5) All places, where sand removal and transportation are possible other than the places where the Kadavus are permitted, shall be closed by putting up of chains and pillars so as to ensure that no vehicles are taken to river bank and no illegal sand removal and transportation are carried on: Provided that the closure of such places shall no affect any right accrued to any person under the Indian Easement Act, 1882 (Central Act 5 of 1882). (6) the areas from where sand is permitted to be removed shall be demarcated by visible marks. (7) All country boats used for collection and removal of sand and such other vehicles coming under the Explanation to section 23 shall be given separate identity number and no permission shall be given for collection and removal of sand in the vehicles having no such number.

(1) Subject to the provisions of this Act and the rules made thereunder and any general or special orders of the Government, if any in this behalf, the District Expert Committee may prepare a River Bank Development Plan for establishing, co-ordinating and protecting river banks within the district, in such manner and containing such particulars as may be prescribed, for the upkeep of the bio-physical environment of the river banks: Provided that the River Bank Development Plan shall be consistent with the development plan, if any, undertaken by the Government in the Irrigation Department. (2) The District Collector shall obtain the approval of the Government before implementation of the River Bank Development Plan.

(1) The District Collector shall maintain a Fund called the "River Management Fund" from which all expenses towards management of the Kadavu or river bank shall be met. (2) Every Local Authority having a Kadavu or river bank shall contribute fifty per cent of the amount collected by the sale of sand towards the River Management Fund maintained by the District Collector: Provided that the cost of collection of sand and the Royalty paid shall not be included in the amount of collection. Explanation.— For the purpose of this sub-section, "cost of collection" shall include the maintenance charges and the cost of erection of concrete pillars in the Kadavu. (3) The Department of Mining and Geology shall ensure that no pass is issued to the Local Authority without settling the accounts as provided in sub-section (5). (4) Every pass issued by the Department of Mining and Geology shall contain the signature of the authorized officer of that Department and his seal, which shall be countersigned by [the Secretary of the local authority concerned and an officer of the Revenue Department as may be, officially nominated by the District Collector, for each Panchayath in that District] before starting the sand removal operation. (5) The amount payable towards contribution to fund by a Local Authority shall be paid by means of cheque or demand draft to the District Collector or an officer authorised by him in this behalf, who shall countersign it in token of having received it. The account shall be settled before the 10th day of the succeeding month by remitting the balance amount due for payment. (6) [The amount required for defraying the expenditure towards management of the kadavu or riverbank under sub-section (1), shall be appropriated from the Fund in the manner and for such purposes as may be prescribed.]

(1) The District Collector shall maintain a complete account of the Fund and it shall be audited every year in such manner as may be prescribed. (2) The account shall be open to inspection by Government or by any officer specifically empowered for the purpose.

Any amount collected by the District Collector towards River Management Fund based on any executive order of the Government as on the date of coming into force of this Act, shall stand transferred to and vested in the Fund constituted under this Act and shall form part of the Fund.

Whoever contravenes any of the provisions of this Act or rules made thereunder shall, on conviction be punished with imprisonment for a term of which may extend to two years or with fine which may extend to five lakh rupees or with both and in case of continuing contravention with an additional fine which may extend to fifty thousand rupees for every day during which such contravention continues.

Whoever abets any offence punishable by or under this Act or attempts to commit any such offence shall be punished with the penalty provided by this Act for committing such offence.

Nothing in this Act shall prevent any person from being prosecuted under any other law for the time being in force for any act or omission made punishable under this Act.

Where any person removes sand from any kadavu or transport sand there from without complying with the provisions of this Act or the rules made thereunder, the tools, implements, loading equipments, vehicles and other articles used or intended to be used for such activities, including sand, shall be seized by an officer not below the rank of a Village Officer of the Revenue Department or a police officer not below the rank of a station house officer or a member of the Special Protection Force. Explanation:—For the purposes of this section, the term ‘vehicle’ shall also include country boat, raft and any other vessel.

(1) Where any property is seized under section 23, the officer seizing such property shall seal all such properties for indicating that the same is seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure before the Judicial Magistrate and before the Sub Divisional Magistrate having jurisdiction over the area from where the said properties are seized and the fact of such seizure shall be informed to the Station House Officer of the Police Station, having jurisdiction over the area. Where information regarding such seizure of property is received, the police officer concerned shall take steps under section 102 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). (2) Where a report under sub-section (1) is received before the Judicial Magistrate having jurisdiction, steps thereon, not contrary to the other provisions of this Act, shall be taken as per the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and, if no claim is raised regarding the articles seized or where the Court is satisfied that the application to release them is not satisfactory,they shall be subjected to confiscation under sub-section (4): Provided that the release of the properties seized to any person, for its safe custody, to any person or its disposal, shall be on sufficient security and such release or disposal shall only be till the completion of the confiscation proceedings under this Act: Provided further that the sand seized shall not, for any reason, be released to any person and the same shall be subjected to confiscation under sub-section (4). (3) Where a report under sub-section (1) is received before a Sub-Divisional Magistrate, a notice requiring to furnish in writing within the stipulated time as stated in the notice, the reasons, if any, for not confiscating the property seized under section 23, shall be issued to the owner of, or the person having control of, the vehicle, tool, implements, loading equipment, or other article. (4) Where the owner of the properties seized or the person having control of the same does not furnish explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the properties seized under section 23 are to be confiscated, he shall, by an order, confiscate the same and the fact shall be informed in writing to its owner or the person having its control: Provided that the owner of the properties seized or the person having its control shall be given the liberty to reclaim it, except sand, by remitting an amount equal to the value of the confiscated articles, as fixed by the Collector, in lieu of the properties confiscated: Provided further that the sand confiscated shall not for any reason, be released by realising the value. (5) The amount received under sub-section (4) shall, subject to the provisions of section 23 D, be remitted to the River Management Fund. (6) The value of the sand confiscated under sub-section (4) shall be fixed by the District Collector as directed by the Government from time to time and shall sell to various institutions or individuals through auction, by following the procedures and such amount shall be remitted to the River Management Fund. (7) The confiscation under this section shall be in addition to the punishment provided for the offence under this Act.

Any person aggrieved by an order of confiscation under section 23A may, within fifteen days from the date of such order, prefer a revision to the District Collector and where the District Collector is satisfied on the basis of documents that the said order requires reconsideration, he may revise, amend or cancel such order: Provided that where the District Collector is satisfied that the revision petitioner had sufficient cause for not filing the revision within the time limit, he may condone the delay up to 15 days, but further delay shall not be condoned.

(1) Any person aggrieved by an order of the District Collector under section 23B may, within thirty days from the date of order of the District Collector, file an appeal before the District Court having jurisdiction over the area from where the property is seized. (2) The decision of the District Court on the appeal under sub-section (1) shall be final.

Where the District Collector, in a revision filed under section 23B or the District Court in an appeal filed under section 23C, amend or cancel an order under section 23A or section 23B, as the case may be, the articles confiscated or the amount paid in lieu of confiscation shall be returned to the owner or person having its control and in case of refund of the amount, it shall be paid from the River Management Fund.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences under this Act shall be cognizable.

(1) The court having jurisdiction may, upon a written complaint by an officer referred to in section 23 or of a Geologist of the Mining and Geology Department or upon a police report under sub-section (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), constituting an offence under this Act, take cognizance of such offence. (2) Where an officer referred to under sub-section (1) is satisfied that an offence under this Act has been committed, he shall, as soon as may be, file a complaint relating to that, before the Magistrate Court having jurisdiction.

(1) The Government may, by notification in the Gazette, make rules to carry out all or any of the purposes of this Act. (2) Every rule made under this Act shall be laid as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rules.

(1) The Government shall, for the purpose of preventing any activity violating the provisions of this Act and to ensure the compliance of the provisions of this Act in each Kadavu, constitute a Special Protection Force. (2) The composition, powers and functions of the Special Protection Force shall be such as may be prescribed.

No litigation, prosecution or other legal proceeding shall lie against any person in respect of anything done or intended to be done in good faith for performing the duties and functions under this Act or the rules made thereunder.

Any officer authorised under section 23, section 23A and section 25 shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (Central Act 45 of 1860).

The Government shall have power to call for reports and to examine the files relating to any decisions taken by a District Expert Committee, or a Kadavu Committee, or a local authority, under this Act or the rules made thereunder and to give directions to the Chairman of the District Expert Committee for taking further proceedings thereon.

The provisions of this Act and rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

The Government may, with a view to ensure protection of every river, provide for periodical measurement of the quantity of sand available for removal by such method and in such manner as may be prescribed.

(1) Any person aggrieved by any order or decision taken by the Kadavu Committee or the Local Authority under this Act or the Rules made thereunder may prefer an appeal to the Chairman of the District Expert Committee, within fifteen days from the date of the said decision or order. (2) Any appeal received under sub-section (1) shall be disposed of within thirty days, and the decision on such appeal shall be final.

(1) If any difficulty arises in giving effect to the provisions of this Act, the Government may by order, do anything, not inconsistent with the provisions of this Act, which appears to them to be necessary or expedient for the purpose of removing the difficulty: Provided that no order shall be made under this section after the expiry of two years from the commencement of this Act. (2) Every order made under this section shall be laid, after it is made, in the session of the Legislative Assembly that immediately follows.