Kerala High Court
Joby.P.D vs The District Collector on 4 April, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938
WP(C).No. 20960 of 2016 (T)
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PETITIONER(S):
-----------------------
JOBY.P.D,
AGED 45 YEARS, S/O DEVASSYKUTTY,
PALIAKKARA HOUSE, PULAKKATTUKARA,
CHITTYSSERY P.O., THRISSUR DISTRICT-680 301.
BY ADVS.SRI.K.A.JALEEL,
SRI.C.Y.VINOD KUMAR.
RESPONDENT(S):
-------------------------
1. THE DISTRICT COLLECTOR,
PALAKKAD DISTRICT-678 001.
2. THE ADDITIONAL TAHSILDAR,
CHITTUR TALUK, PALAKKAD DISTRICT-678 001.
3. THE VILLAGE OFFICER,
KOLLANGODE-II VILLAGE OFFICE,
PALAKKAD DISTRICT-678 001.
BY SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL.
GOVT. PLEADER SRI.HANIL KUMAR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-11-2016, ALONG WITH WP(C).NO.20818 OF 2016 AND
CONNECTED CASES, THE COURT ON 29/11/2016 DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 20960 of 2016 (T)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1: TRUE COPY OF THE LICENSE NO.2810/15 DATED 04.04.2015
ISSUED BY KOLLAMKODE GRAMA PANCHAYATH FOR THE
YEAR 2015-16 TO THE PETITIONER FOR MANUFACTURING BRICKS.
EXHIBIT P2: TRUE COPY OF THE SALE DEED NO.432/I/2013 DATED 25.10.2012
RELATING TO THE PROPERTY OF THE PETITIONER.
EXHIBIT P3: TRUE COPY OF THE MAHAZAR DATED 10.06.2016 PREPARED BY
THE 3RD RESPONDENT FOR SEIZURE OF BRICKS FROM THE
PETITIONER.
EXHIBIT P4: TRUE COPY OF THE RECEIPT DATED 09.05.2016 ISSUED BY THE
MINING & GEOLOGY DEPARTMENT FOR PAYMENT OF FINE BY
THE PETITIONER.
EXHIBIT P5: TRUE COPY OF THE JUDGMENT DATED 04.09.2015 IN
WPC NO.17981/2015 ON THE FILES OF THIS HON'BLE COURT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 22/06/2016 IN
WP(C).NO.20819/2016 OF THIS HON'BLE COURT.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 11/07/2016 ISSUED BY THE
GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT
OFFICE, PALAKKAD.
RESPONDENT'S EXHIBITS:-
ANNEXURE R1A PHOTOGRAPHS SHOWING THE LARGE EXTENT OF CLAY
BEING MINED FROM THE PADDY LAND COVERED BY EXT.P3.
ANNEXURE R1B PHOTOGRAPHS OF THE CULTIVATED PADDY LAND JUST
ADJACENT TO THE PETITIONER'S PROPERTY WHICH IS
NOW BEING ILLEGALLY MINED FOR CLAY.
ANNEXURE R1C PHOTOGRAPHS OF THE CULTIVATED PADDY LAND JUST
ADJACENT TO THE PETITIONER'S PROPERTY WHICH IS NOW
BEING ILLEGALLY MINED FOR CLAY.
ANNEXURE R1D PHOTOGRAPHS SHOWING THE PETITIONER'S PROPERTY,
MINED WITH CLAY FROM THE ADJACENT PROPERTY WHERE
PADDY CULTIVATED.
//TRUE COPY//
P.S.TO JUDGE
rs.
'CR'
K. VINOD CHANDRAN, J.
=====================
W.P.(C) Nos.20960-T, 20818-B, 20977-V,
20980-V, 21247-E, 21368-U and
22118 of 2016 - L
======================
Dated this the 29th day of November, 2016
J U D G M E N T
Identical contentions are urged, by the petitioners, who had been carrying on brick kilns; the bricks manufactured wherein were seized by the District Collector, as per the mahazars produced in the respective writ petitions. The facts in the various writ petitions are slightly different which shall be noticed separately.
2. The petitioner in W.P.(C) No.20960 of 2016 has obtained a D&O license for brick manufacturing for the period 2015-16 from the Grama Panchayath produced as Ext.P1; which has not been renewed for the current year. The title deed of the property is seen at Ext.P2. The description of the 2 W.P(C) No.20960 for 2016-T and connected cases property as per the schedule is also shown as 'nilam' (paddy land). The District Collector along with a team of officers conducted inspection of the property and found 1,80,000 bricks, manufactured and kept in the property, as is evidenced from Ext.P3 seizure mahazar. The petitioner was not able to offer any explanation as to the source of the raw-material (ordinary clay) used for manufacturing the bricks. In W.P. ) 20960, 20818, 20980 & 22118 of 2016 , the petitioners are owners of the properties (paddy fields) in which the brick kilns were operated. In W.P. ) 20977, 21247 and 21368 of 2016 the petitioners claim to be lessees from owners of paddy fields in which the brick kilns were functioned. All claim to have taken D&O licenses; but currently valid licenses are not produced and there was hence no valid license even from the Panchayath at the time of seizure.
3 W.P(C) No.20960 for 2016-T and connected cases
3. On the allegation that the paddy lands were converted into brick kilns, offence under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for brevity 'the Paddy Land Act') was alleged, in the seizure mahazar. The bricks in the property were taken into custody and retained at the site, which has been continued on the interim order of status quo passed by this Court. The petitioners do not produce any permit/license/lease enabling excavation of ordinary clay issued under The Kerala Minor Mineral Concession Rules , 2015 (for brevity KMMC Rules). The petitioners claim that the ordinary clay used in the brick kilns were brought from elsewhere. However the source of the ordinary clay is not disclosed. Ordinary clay being covered under the definition of 'minor minerals' under the Mines and Mineral (Development and Regulation) Act, 1957 (for brevity ' the MMDR Act') and the schedule of the KMMC Rules, 4 W.P(C) No.20960 for 2016-T and connected cases prescribing royalty; the excavation can only be with valid permit/lease/license issued there under and the same can be transported only on the strength of Form O(A) issued under The Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 (for brevity The Transportation Rules).
4. One of the petitioners has a contention that by Ext.P4 (W.P.(C)No.20960/2016) on 09.05.2016, the District Geologist had inspected the property and levied Rs.2,20,000/- as royalty and penalty for the extraction and stocking of bricks illegally under the KMMC Rules. The royalty levied is on the extraction of clay; which has been used for manufacture of the bricks. When the royalty and the penalty for extracted clay; has been paid, though extracted illegally there is no reason for the State to seize the manufactured bricks, is the contention urged. The contention so raised is on the premise that even if a 5 W.P(C) No.20960 for 2016-T and connected cases permission was granted, the State could only levy royalty; which has been levied with penalty too; imposed for the illegality and now the finished product has to be conceded to the petitioners.
5. In W.P.(C) No.21247 of 2016, the District Collector seized the bricks and handed over the same to the Nirmithi Kendra, Thrissur. The petitioner takes similar contentions and additionally prays for refund of the value of the bricks, so handed over to the Nirmithi Kendra. In W.P.(C) No.22118 of 2016, there was no seizure effected. Therein the contention is that the petitioner belongs to a community, who have traditional expertize in making bricks and had manufactured 1,50,000 of bricks, which when attempted to be sold was objected to by the Village Officer, Malampuzha. The petitioner then approached the 1st respondent District Collector for permission to take away the manufactured bricks and has filed 6 W.P(C) No.20960 for 2016-T and connected cases the writ petition, seeking a direction to the 1st respondent to grant such permission and not to obstruct the sale and removal of the bricks. In all the other writ petitions, the seizure mahazar has been produced and the contentions raised are of a similar nature, but however without the source of the ordinary clay disclosed and without any evidence as to any royalty or penalty having been paid or even the transportation having been made validly.
6. The learned Counsel for the petitioners argue that the proceedings are taken under the Paddy Land Act, which does not sanction any seizure or confiscation of goods, in this case the bricks. Specific reference is made to Section 19 of the Paddy Land Act to contend that the District Collector does not have jurisdiction or the power of entry and seizure, since the officers so empowered has to make a report to the District Collector, having jurisdiction over that area. It is also 7 W.P(C) No.20960 for 2016-T and connected cases argued that the seizure as provided for in Section 19 of the Paddy Land Act, can only be of vessel, vehicle, any other conveyance or machinery used or deemed to have been used for any contravention of the provisions of the said Act. Hence a seizure of goods, as in the present case, that too a manufactured product, is not contemplated under the Paddy Land Act, proceeds the argument.
7. The power to recover the minor mineral raised illegally; available to the State Government, does not speak of a finished product and hence the bricks manufactured from the ordinary clay excavated, cannot be confiscated under the MMDR Act or the rules framed there under. To this end, the definition of minor mineral as found in the MMDR Act and Schedule I of the KKMMC Rules is pointed out, to urge that both only speak of the various forms of minor minerals, in the present case: ordinary clay and not manufactured bricks. 8 W.P(C) No.20960 for 2016-T and connected cases Meeting the contention raised by the State as to the violation of the MMDR Act and the KMMC Rules, it is also urged that a confiscation can be made only after the prosecution filed under that Act and Rules ends in a conviction of the offender. It is also argued that no proceedings have been taken under that Act and Rules, as is clear from the seizure mahazar; which refers only to the Paddy Land Act.
8. Challenging the claim of the State that proceedings have been taken under the MMDR Act and the related Rules, it is contented that this Court in Jacob George v. Tomy Abraham [2016(4) KLT 422] has held that the authority under one enactment cannot initiate proceedings for penalty under another enactment. The proceedings initiated, which is challenged in the writ petitions are under the Paddy Land Act and the District Collector cannot initiate proceedings under the MMDR Act or the Rules framed there under, is the 9 W.P(C) No.20960 for 2016-T and connected cases argument. Reference is also made to two judgments rendered by myself in W.P.(C) No.20819 of 2016 dated 22.06.2016 (Komalam v. The District Geologist) and in W.P.(C) No. 26584 of 2016 dated 05.10.2016 (Vazhappillil Ittira Ittoop v. State of Kerala), to buttress the claim to retain ownership of the bricks with payment of royalty and penalty. If at all; the petitioners should be allowed to sell and remove the bricks, on payment of royalty and penalty, as fixed by the District Geologist under the MMDR Act and the Rules framed there under and the petitioners permitted to compound the offence; concludes learned Counsel for the petitioners.
9. The learned Additional Advocate General appears for the State to contend that the District Collector among many other Officers including the Geologist are notified as the competant authority to file complaints cognizable under the MMDR Act and the Rules framed there under. There is also no 10 W.P(C) No.20960 for 2016-T and connected cases question of an authority under one enactment initiating proceedings under another enactment, since proper FIRs have been registered with respect to all the petitioners for offences charged under the MMDR Act and the related Rules read with Section 378 of the Indian Penal Code. Specific reference is made to Crime No.1205 of 2016 of the Kollangode Police Station, and the FIR registered against the petitioner in W.P.(C) No.20960 of 2016. It is urged that when an action or omission is detected, which brings forth the cause for allegation of an offence being made out, with respect to one or more enactments, then necessarily, proceedings could be initiated by the authorities competent under the different enactments for prosecution of the offence or confiscation, together or separately, and in the latter case continued in parallel proceedings.
11 W.P(C) No.20960 for 2016-T and connected cases
10. It is urged that the petitioners have not been able to show any source for the ordinary clay, which was used in the manufacture of bricks from where it was validly extracted. In that circumstance, the clay is deemed to have been illegally extracted; which minor mineral belongs to the State. The petitioners hence have violated the provisions of the Paddy Land Act for putting the paddy land to use for manufacture of bricks and also the provisions of the MMDR Act and related rules. The petitioners admittedly do not possess any permit/lease/license under the KMMC Rules, nor do they have a contention of transport having been made, on the basis of valid Form O(A), issued under the Transportation Rules. It is also categorically stated in the counter affidavit that in the recent past, there have been no Form O(A) passes issued in the District of Palakkad.
12 W.P(C) No.20960 for 2016-T and connected cases
11. Reference is made to sub-section (5) of Section 21 of the MMDR Act to urge the same to be a stand alone provision, which does not require any prosecution proceedings for the purpose of recovering the illegally extracted mineral, which belongs to the Government. Reliance is placed on an unreported decision of a Division Bench of this Court in W.A No.1786 of 2008 dated 18.09.2008 (Shaju E.D v. Sub Inspector of Police), wherein it was found that despite compounding having been effected under Section 23A of the MMDR Act, the illegally extracted minor mineral was found to be not liable to be returned. It was categorically held by the Division Bench that even when a compounding is effected, the offender does not have any entitlement to get the seized mineral released in his favour.
12. The learned Additional Advocate General points out that both the decisions relied on by the petitioners, 13 W.P(C) No.20960 for 2016-T and connected cases rendered by myself are without noticing the relevant provision ie; sub-section(5) of Section 21 of the MMDR Act. The said provision also has been interpreted by the Hon'ble Supreme Court in Karnataka Rare Earth and Another v. The Senior Geologist [2004 (2) SCC 783] as a stand alone provision, enabling recovery of the mineral, which always belonged to the State. The learned Additional Advocate General would submit that the provision under sub-section(5) of Section 21 of the MMDR Act is not one of confiscation and is an enabling provision to recover what was always the State's property. A confiscation is necessitated only with respect to a vehicle, vessel, machinery or even goods, the title of which is with another.
13. In the present case, there can be no dispute that the ordinary earth excavated belonged to the State and it could not have been excavated without a permit/license/lease. 14 W.P(C) No.20960 for 2016-T and connected cases The payment of royalty or penalty also would not confer title on such illegally extracted minor minerals on the persons, who carried out such illegality. The liability to royalty arises from the excavation and penalty is a necessary consequence of the offence alleged and the payment of these cannot by itself confer title on the minor mineral extracted or the finished products manufactured therefrom; sums up the learned Additional Advocate General.
14. As is revealed from the records and the documents, the District Collector had conducted inspection with a team of officers in the paddy fields, within the Grama Panchayath, on complaints received of massive excavation of ordinary clay being carried out without sanction, out of which bricks were manufactured. The inspection was carried out under the Paddy Land Act, which prohibits conversion or reclamation of paddy land and any activity to that end also 15 W.P(C) No.20960 for 2016-T and connected cases confers power on the District Collector to restore any paddy land reclaimed; violating the provisions of the Act.
15. This Court does not find any reason to accept the contention of the petitioners that Section 19 of the Paddy Land Act does not confer power on the District Collector for entry and seizure, merely because the officer making the entry and seizure has to make a report regarding the seizure to the District Collector. The power conferred, is on any officer of the Revenue Department not below the rank of a Village Officer, or any officer authorised by the Government on this behalf or any Police Officer not below the rank of a Sub Inspector. The District Collector definitely is an officer of the Revenue Department and is the District Revenue Head. The District Collector along with officers of the Mining and Geology Department as also police officers are authorised by notification S.R.O No. 824/2010, to file complaints under 16 W.P(C) No.20960 for 2016-T and connected cases Section 22 of the MMDR Act. The mandate for furnishing a report to the District Collector is only since the power to order resumption (under Section 13) and the power to confiscate any vessel, vehicle, etc: (under section 20) have been conferred on the District Collector and not any other officer. If the District Collector conducts such inspection and seizure then there is no need for a report to proceed under Section 13 and 20. The contention raised of the District Collector having no jurisdiction hence has to be rejected.
16. It is true that under Section 19 of the Paddy Land Act, seizure is provided only as against a vessel, vehicle or machinery used in the contravention of the provisions of the Paddy Land Act. This is so since, the provisions of the Paddy Land Act prohibit conversion or reclamation, for which often earth has to be brought from other sources to fill up the paddy lands. However, in the present case, the paddy lands were 17 W.P(C) No.20960 for 2016-T and connected cases converted into bricks kilns, which too stand against the provisions of the Paddy Land Act since it converts paddy lands to other use and renders such lands un-cultivable; which is prohibited. In the process there is also offence detected under the MMDR Act and the Rules framed there under, for reason of the ordinary clay used in the manufacture of bricks having been illegally excavated. The activity carried on by the petitioners hence raise allegations of offences under the Paddy Land Act as also the MMDR Act. Though the MMDR Act and the provisions are not referred to in the seizure mahazar, it is clear that the competent officer has initiated proceedings under the MMDR Act and the related Rules also. For the present suffice to notice sub-section (4) of Section 21 which empowers an officer to seize the mineral extracted illegally. As for the illegality there is not even a contention raised that the extraction of ordinary clay was with legal sanction under the 18 W.P(C) No.20960 for 2016-T and connected cases MMDR Act or the KMMC Rules. Even if the specific enactment is not referred to in the mahazar, the officer who effected the seizure being empowered under that other enactment could always source the power to that enactment.
17. The ownership of the minor mineral would be dealt with shortly; but the learned Additional Advocate General is right in contending that sub-section (5) of Section 21 of the MMDR Act is a stand alone provision, which enables the recovery of property, which already belonged to the Government. None of the petitioners possessed any permit/license/lease under the KMMC Rules, for excavation of ordinary clay from their lands or those leased out to them. The petitioners are also not able to point out any particular source from which the ordinary clay was brought; which extraction was made legally. It is also of considerable import that such transport would have necessitated issuance of Form O(A) 19 W.P(C) No.20960 for 2016-T and connected cases under the KMMC Rules. Not only is any Form O(A) produced, the petitioners also do not refute the specific contention taken by the State in its counter affidavit that in the near future there has been no issuance of Form O(A) in the District of Palakkad.
18. All the petitioners, without any substantiation and disclosure of the source, blandly state that the clay for manufacture of bricks were brought from elsewhere and stocked in the respective paddy lands. The only presumption in such circumstance is that the ordinary clay used for manufacturing bricks by the respective petitioners was extracted illegally, if not from their lands, from any other land. The words used in sub-section (5) of Section 21 of the MMDR Act, is the recovery from a person, the mineral raised without lawful authority from any land. While Section 4A of the MMDR Act speaks of confiscation of a mineral, tool, equipment, vehicle or any other thing seized; by the Court competent to 20 W.P(C) No.20960 for 2016-T and connected cases take cognizance of the offence; it deals with the goods or vehicle, the title of which vests with another.
19. As has been held in Karnataka Rare Earth, Sub-section(5) of Section 21 of the MMDR Act is a stand alone provision, which speaks of recovery of any mineral, which has been raised without lawful authority. The person, who raised the mineral without lawful authority does not have any title over the mineral so raised. On seizure of a vehicle with such mineral or on detection of such excavation and the storage of such mineral, the provision confers power on the Government to recover such mineral, the title of which always remained with the State. The provision for rent, royalty or tax and penalty as provided in sub-section (5) of Section 21 of the MMDR Act would be in addition to such recovery made. This is a necessary consequence of the detection of such offence, the conviction in which, is not necessary, insofar as the recovery 21 W.P(C) No.20960 for 2016-T and connected cases from such person; of the mineral raised without lawful authority and the recovery of rent, royalty or tax as provided in sub-section (5) of Section 21 of the MMDR Act. The Hon'ble Supreme Court drew a subtle distinction, in the above cited judgment to hold that "the marginal note 'penalties' cannot be pressed into service for giving such colour to sub-section (5)"(sic-para 15) and that there is no penalty involved in recovery of the price which is essentially compensatory. Hence, there is absolutely no requirement for an order of confiscation, which; at the risk of repetition, would be necessary, only in case where the title rests with another.
20. The further contention taken by the petitioners is that the mineral so raised is not available and the same has been converted into bricks and there is no power conferred on the State to recover such manufactured product. To accept such a contention would be begging the question as to the 22 W.P(C) No.20960 for 2016-T and connected cases offence being erased and effaced on conversion of the raw-material into a finished product. True, the definition of mineral in the MMDR Act and the KMMC Rules includes only ordinary clay. The Rules provide for lease/permit/license and the Schedule interalia prescribes the royalty for ordinary clay extracted for the purpose of manufacturing bricks. When illegal extraction is made and from the clay so illegally extracted, bricks are manufactured, it cannot be said that there would be no power conferred on the State to seize such goods, for reason only of it having been changed in form. Essentially, what is available is ordinary clay mixed, cut into shapes and baked providing a different consistency for the product. The specious contention that the bricks so manufactured from the minor mineral cannot be seized or recovered, is to be rejected.
23 W.P(C) No.20960 for 2016-T and connected cases
21. Much reliance has been placed on the decisions rendered by myself in Komalam (supra) and Vazhappillil Ittira Ittoop (supra). Komalam was a case, in which the petitioner was aggrieved with the prohibition to sell bricks manufactured from clay extracted without authorisation, when double the royalty and penalty as imposed by the District Geologist were paid by the petitioners. This Court had; on the premise that when royalty is demanded and paid and penalty too having been satisfied, the petitioner has the title to such bricks manufactured, permitted the release of the bricks. Vazhappillil Ittira Ittoop was also on similar circumstances, on a claim that the ordinary clay was brought from outside and stocked in the property, from which the bricks were manufactured. This Court directed the Geologist to examine the said claim and if the same is found to be not established, then to make an assessment of the ordinary clay extracted 24 W.P(C) No.20960 for 2016-T and connected cases illegally and impose double the royalty and penalty as provided in the KMMC Rules and then permit the removal of bricks. This was with reference to the compounding provision as available in the MMDR Act and the related Rules.
22. This Court is convinced that a mistake was committed by this Court in the aforesaid judgments. But a subsequent realisation of a mistake alone would not enable this Court to differ from the binding precedents as referred to above and ordinarily a reference to the Division Bench would have been necessitated. An earlier judgment despite it being rendered by the very same Judge does not loose its value of a binding precedent even if the very same Judge realises the error committed. Otherwise there would be mayhem, when a particular Judge differs from his own opinion rendered earlier, based on which the citizens arranged their affairs; merely for reason of wisdom having dawned late.
25 W.P(C) No.20960 for 2016-T and connected cases
23. But in this case, the said prohibition does not arise, for reason of the decision of the Hon'ble Supreme Court in Karnataka Rare Earth, the Division Bench judgment of this court in Shaju E.D and also the fact that sub-section (5) of Section 21 of the MMDR Act was not noticed by this Court, which enables this Court to differ from the earlier view. The specific provision was not present to the Courts mind nor perceived by it. "Precedents sub-silentio and without argument are of no import" {Municipal Corporation of Delhi Vs. Gurnam Kaur 1989 AIR 38}. The decision of the Hon'ble Supreme Court, under Article 141 of the Constitution of India also takes away the binding-precedent-sheen, of the earlier judgments rendered by myself. The Hon'ble Supreme Court has held the specific provision sub-section (5) of Section 21 of the MMDR to be a stand alone provision, enabling recovery of any mineral extracted illegally without reference to the Court 26 W.P(C) No.20960 for 2016-T and connected cases or without even a confiscation proceeding.
24. Reliance also has been placed on Dijil and Another v. Sub Inspector of Police, Kunnamkulam Police Station [2013 (1) KHC 517], which is by another learned Single Judge, in which the effect of compounding was considered; which is not the issue raised here. Further the learned Single Judge followed Sivapalan v. RTO, Kollam [1996(2) KLT 632], which decision was specifically differed from in the context of recovery of mineral under Section sub- section (5) of Section 21 of the MMDR Act by the Division Bench in Shaju E.D.
25. A doubt arose in the mind of this Court as to, the ownership of the minor mineral ie; ordinary clay, in the subject area falling within the Malabar area, under the erstwhile British Government, comprised in the Madras province; which has been held to be with the owners or jenmis 27 W.P(C) No.20960 for 2016-T and connected cases who have the proprietary rights in the lands, by the Hon'ble Supreme Court in Thresiamma Jacob v. Geologist, [2013(3) KLT 275 (SC)]. Even in the event of an illegal extraction from lands covered by the declaration in Thresiamma Jacob, it has to be noticed that an empowered authority under the MMDR Act could effect seizure of any mineral under sub-section(4) of Section 21 of the MMDR Act, when illegal extraction is detected. The MMDR Act in the aforesaid decision has been held to be a regulatory measure and despite the ownership of the subsoil being conferred on the owner of the property, it does not detract from the requirement for a lease/license/permit to extract such ordinary earth. The extraction even if made from lands owned by private persons , the owner is obliged under Chapter III of the KMMC Rules to grant a quarrying permit on the same conditions in Chapter II (Rule 20) and submit an attested copy of the same to the 28 W.P(C) No.20960 for 2016-T and connected cases competent authority (Rule 21). Otherwise the extraction made from such lands would also be illegal and hence, the seizure cannot be faulted. If then, no recovery could be made, the seizure would have to concede to sub-section 4A of Section 21 of the MMDR Act, which postulate a confiscation order only by the Court, which takes cognizance. Hence, even if there was a dispute on ownership there would be no reason to interfere with the seizure.
26. Be that as it may, in the instant cases, none of the petitioners have a case that they excavated the ordinary clay from their own land. They categorically state in the respective memorandum that they brought clay from outside into their property and the source having been not disclosed, the ownership has to be conceded to the State. On the totality of the circumstances arising in the above case and the law as dilated upon; it has to be categorically held that the seizure 29 W.P(C) No.20960 for 2016-T and connected cases effected in the instant cases are perfectly valid and the manufactured bricks are liable to be recovered by the State under sub-section (5) of Section 21 of MMDR Act; which has been held to be not a penal provision. It speaks only of recovery of what is owned by the Government and due to the Government; which proposition brooks no dispute.
27. For all the above reasons, this Court does not find any reason to interfere with the seizure effected of the bricks manufactured out of the ordinary clay extracted illegally. All the writ petitions are dismissed and in W.P.(C) No.22118 of 2016, there shall be a further direction to the revenue authorities to seize the bricks so manufactured and stocked in the property.
28. The prayer for compounding is declined since the same is at the discretion of the authority competent to initiate penal proceedings and the learned Additional Advocate 30 W.P(C) No.20960 for 2016-T and connected cases General, asserts that the District Collector, in this case, is unrelenting and proceeding with the prosecution. Rightly so, according to this Court, since there has been gross misuse and abuse of the provisions of the MMDR Act and the related Rules and it is time a proper prosecution is carried out and the offenders brought to book. The District Collector is further directed to ensure that the prosecution is launched under the Paddy Land Act also.
In the result, all the writ petitions would stand dismissed, leaving the parties to suffer their respective costs.
Sd/-
K. VINOD CHANDRAN, JUDGE SB/17/11/2016 // true copy // P.A to Judge