Kerala High Court
Ayikkarathundathil Aggregates vs The State Of Kerala on 2 March, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
WA.No.364 OF 2020
AGAINST THE JUDGMENT IN WP(C) 21196/2019(Y) OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
AYIKKARATHUNDATHIL AGGREGATES,
A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING
PARTNER SIBY JAMES, AGED 56, S/O.A.T.CHACKO,
AYKARATHUNDATHIL HOUSE, ETTUMANOOR P.O.,KOTTAYAM
DISTRICT - 686 631.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF MINING AND GEOLOGY,
DIRECTOR OF MINING AND GEOLOGY, KESAVADASAPURAM,
PATTOM P.O., THIRUVANANTHAPURAM DISTRICT - 695 004.
3 THE DISTRICT GEOLOGIST,
SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT,
CIVIL STATION, KOTTAYAM DISTRICT - 686 001.
4 ADDL.R4- THE STATE ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY (SEIAA),
PALLIMUKKU, KANNAMMOOLA ROAD, VELAKUDI,
THIRUVANANTHAPURAM, KERALA - 695 024.
5 ADDL.R5-M.D.GEORGE,
GENERAL SECRETARY, ALL KERALA LICENSED QUARRY OWNERS
ASSOCIATION, VMS COMPLEX, PERUMBAVOOR P.O.,ERNAKULAM
DISTRICT - 683 542.
R1 TO R3 BY SRI.S.KANNAN,GOVERNMENT PLEADER
ADDL.R4 BY SRI.M.P.SREEKRISHNAN, STANDING COUNSEL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.364 OF 2020 2
JUDGMENT
SHAJI P.CHALY,J This appeal is preferred by the petitioner in W.P.(C) No.21196/2019 against the judgment dated 29.11.2019, whereby the following reliefs sought for by the petitioner were declined:
(i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 2 and 3 to re-fix the software in the case of the petitioner, KOMPAS (Kerala Online Mining Permit Awarding Services) as the upper limit as 80000 tonns a year, for the petitioner to extract granite and use it in the RMCU(Registered Metal Crusher Units), within specified time limits in the interest of justice.
(ii) To declare that the registered metal crusher units have the right under Rule 89 of the Rules, to extract minerals on the strength of the machine capacity, under the consolidated royalty payment system.2.
2. Appellant is holding a valid mining licence and has a registered metal crusher unit. The contention of appellant is that, appellant is not permitted to carry out mining operations on the basis of rule 89 of the Kerala Minor Mineral Concession Rules, 2015, hereinafter called 'Rules, 2015', by which, consequent to the registration of the metal crusher unit under the Rules, appellant is entitled to enjoy the consolidated royalty payment, enabling the appellant to quarry building stones without any limit. Learned Single Judge after taking into account the contentions put forth by the appellant as well as respondents have arrived at the WA.No.364 OF 2020 3 conclusion that, appellant is entitled only to quarry the minerals in terms of the conditions contained under the permit. Anyhow, though, the relief sought for by the appellant was declined, liberty of the appellant was left open to approach the statutory authorities for grant of additional quantity in terms of the mining lease.
3. The paramount contention advanced by learned counsel for appellant is that, appellant is entitled as of right to carry out quarrying operations in the area earmarked in the mining lease without any limit of quantity, since he has a registered metal crusher unit in contemplation of rule 89 of the Rules, 2015.
4. On the other hand, learned Government Pleader submitted that, appellant is bound by the terms and conditions contained in the quarrying permit and the mining lease. It is also pointed out that by virtue of the specific condition contained under Ext.P3 dated 13.3.2019 granting registration to the metal crusher unit, the appellant shall not quarry more quantity of granite (building stone) than the quantity stipulated in the approved plan in an year.
5. We have heard learned counsel for petitioner, Sri.Sreekumar G. (Chelur), learned Government Pleader, Sri.S.Kannan, learned Standing Counsel, Sri.M.P.Sreekrishnan appearing for the State Environment Impact Assessment Authority (SEIAA) and perused the pleadings and documents WA.No.364 OF 2020 4 on record.
6. Respective counsel addressed their arguments in terms of the pleadings put forth in the appeal and the writ petition. Apparently the issue raised by the appellant is governed by Rules, 2015. As pointed out above, the paramount contention advanced by the appellant is that, by virtue of rule 89 of Rules, 2015 since the appellant is having a registered metal crusher unit as per Rules, 2015, is entitled to conduct quarrying operations without any limitation to the quantity on payment of the amounts due under the consolidated royalty payment. Rule 89 of Rules, 2015 read thus:
"89. Registration for a metal crusher unit and payment of consolidated royalty.--(1) A holder of a quarrying lease for extraction of granite (building stones) who possesses metal crusher units for production of granite aggregates may opt for their registration under these rules by paying a fee of one thousand rupees for each unit and opt for payment of consolidated royalty for the mineral crushed by such unit at the rates specified in Schedule III instead of paying royalty at the rates specified in Schedule I. (2) The lessee may opt for remittance of consolidated royalty specified in Schedule III in four quarterly installments before the last day of March, June, September and December.
(3) The lessee who registered his metal crusher unit with the Department of Mining and Geology shall not extract and remove granite (building stone) from his leasehold for purposes other than using the mineral in his registered metal crusher unit."
In order to understand the issues effectively Schedule I, III and IV WA.No.364 OF 2020 5 of Rules, 2015 would be relevant, which read thus:
SCHEDULE I Rates of Royalty (See Rules 3 and 7) Item Name of minor minerals Rate of Royalty (in Rupees) (1) (2) (3)
1. Kankar and other forms of limestone and 75 (Seventy five only) per tonne and four kinds of limeshell namely:
(i) white limeshell
(ii) black limeshell
(iii) drift limeshell or sea shell and
(iv) shell of oyster
2. Ordinary clay used for making bricks and 40 (forty only) per tonne or 80 (eighty only) tiles, ordinary sand used for per cubic metre non-industrial purposes and gravel
3. Ordinary earth 20 (twenty only) per tonne or 40 (forty only) per cubic metre.
4.Dimension stones as specified in 4000 (Four thousand only) per classification in sub-item (1) of cubic metre rule 18
5. All those group of rocks specified in 24 (twenty four only) per tonne in classification in sub-item (ii) of or 60 (sixty only) per cubic metre.
rule 18 and laterite (building stone) SCHEDULE III Consolidated Royalty (See Rule 89) Sl. No. Description and Jaw size in Annual Consolidated in Royalty centimetre of the Metal per machine* (in Rupees) Crusher/Machine (1) (2) (3) 1 up to 40.64 x 22.86 2,00,000 2 Greater than 40.64 x 22.86 to 4,00,000 76.20 x 20.32 3 Greater than 76.20 x 20.32 6,00,000 Cone Crusher (in terms of 'Horse Power') 4 up to 300 16,00,000 5 Greater than 300 26,00,000 Sand Making Units (in terms of 'Horse Power') (for those who use sand making machine only) 6 up to 300 16,00,000 7 Greater than 300 26,00,000 *Exemption from payment of consolidated royalty is applicable to Vertical Shaft Impactor, Horizontal Shaft Impactor, Auto Sand Units attached to cone crusher and jaw crushers. The crusher owners may WA.No.364 OF 2020 6 be permitted to remit the amount in four instalments.
SCHEDULE IV Consolidated Royalty (See Rules 3 and 7) A. Granite (Building Stone) Sl.No. Extent (in Ares) No. of Mineral Annual consolidated Passes to be issued royalty (in Rupees) (1) (2) (3) (4) 1 Upto 10 Ares 750 75,000 2 Above 10 Ares to 20 Ares 1500 1,50,000 3 Above 20 Ares to 30 Ares 3000 3,00,000 4 Above 30 to 40 Ares 5000 5,00,000 5 Above 40 Ares and up to 50 Ares No. of Mineral Transit Passes 7,00,000 required for transportation of granite (building stone) extracted from the specified area during the specified period for which the annual consolidated royalty paid in advance B. Laterite (Building Stone) Sl. No. Extent (in Ares) No. of Mineral Transit Annual consolidated passes to be issued royalty (in Rupees) (1) (2) (3) (4) 1 Upto 10 Ares 750 75,000 2 10 to 20 Ares 1500 1,50,000 3 20 to 30 Ares. 3000 3,00,000 4 30 to 40 Ares 5000 5,00,000 5 Above 40 Ares and No. of Mineral Transit Passes 7,00,000 up to 50 Ares required for transportation of Laterite (building stone) extracted from the specified area during the specified period for which the annual consolidated royalty paid in advance
7. The consolidated royalty payment is defined under section 2(1)(iv), read thus:
"Consolidated Royalty Payment System (CRP System) for granite (building stones) and laterite (building stones) means a mode of WA.No.364 OF 2020 7 advance payment of consolidated royalty as per Schedule IV of these rules that can be opted by a quarrying permit holder for extraction of granite (building stones) and laterite (building stones) specified in item 5 of Schedule I."
8. On a reading of these provisions, it is clear that by virtue of the consolidated royalty payment system, the appellant is entitled to pay royalty in accordance with the prescriptions contained under Schedule III and IV quoted above. On a perusal of Schedule I, it is evident that the rate of royalty is on the basis of tonnage and Rs.24/- is to be paid per ton or Rs.60/- per cubic meter, whereas consolidated royalty is to be done in accordance with the description of the metal crusher/machine, and on the basis of the area earmarked to the lessees in accordance with the lease. That apart the payment of royalty is stipulated as per rule 7, which stipulates that "every applicant for quarrying permit shall pay royalty in advance to Government at the rates specified in Schedules I or IV, as the case may be. In the case of payment of royalty under consolidated royalty payment system (CRP System) for granite (building stones) and laterite (building stones) the competent authority may permit an applicant to opt for making payment under this system". Rule 9 stipulates disposal of application for the grant of quarrying permit, which read thus:
9. Disposal of application for the grant of quarrying permit.--(1) On receipt of the application for grant of quarrying permit for undertaking quarrying operations, the competent authority WA.No.364 OF 2020 8 shall make site inspection and take decision regarding the precise area to be granted for the said purpose and intimate the applicant to submit approved mining plan and Environment Clearance for the precise area.
Provided that approved mining plan and environmental clearance shall not be insisted, for the issuance and renewal of permits in the case of Laterite Building Stone.
(2) On receipt of an approved mining plan and Environmental Clearance for the precise area and on production of all other statutory licenses/clearances/No Objection Certificate etc. from other statutory authorities concerned, the competent authority shall issue a quarrying permit to the applicant within thirty days in Form N for ordinary earth and in Form M for all other minerals." Quarrying permit granted in Form M is as follows:
FORM M [See sub-rule (2) of Rule 9] (For all type of quarrying permits) GOVERNMENT OF KERALA DEPARTMENT OF MINING & GEOLOGY DISTRICT OFFICE ...............................................................................................
QUARRYING PERMIT FOR EXTRACTION OF GRANITE BUILDING STONE/ LATERITE BUILDING STONE/ORDINARY SAND (OTHER THAN SAND USED FOR PRESCRIBED PURPOSES)/ORDINARY CLAY/LIME SHELL/SEASHELL GRANTED UNDER RULES 3(1), 9 AND 10 OF THE KERALA MINOR MINERAL CONCESSION RULES, 2015 No. ................................. Dated............................
Shri/Smt./M/s.. .................................................................................is hereby permitted to extract and remove ..........................................(Name of mineral) from an area of..........................................................Hect./Are in Sy.No. .....................................of ....................................Village of................................Taluk of............................... District, Kerala State under rule 3(1) and 9 of the Kerala Minor Mineral Concession Rules, 2015 subject to the conditions mentioned in rule 10.
Quantity of extraction of mineral permitted : MT/CBM (Not applicable in the case of CRP System) Whether the permit holder opted CRP System :
Number of mineral transit passes to be issued :WA.No.364 OF 2020 9
Name and address of the owner of the land :
under mineral concession/particulars of consent/ NOC received from the occupier of the land (if applicable):
Date of expiry of permit:
DETAILS OF FEE REMITTED:
Item Chalan No. & Date Amount Name of Treasury Application fee Royalty Surface Rent Addl. Royalty remitted, if any Signature and Address of the issuing authority.
(Office Seal) To Shri/Smt./M/s. .................................................(Name and Address of the owner of the land) Copy to:-- The District Collector, (with C/L)
9. On a reading of rule 9, it is evident and clear that, in order to secure the quarrying permit the applicant has to secure mining plan and environment clearance for the precise area except in case of application for laterite building stones. Rule 10 deals with conditions on which quarrying permit shall be granted, which read thus:
"10. Conditions on which quarrying permit shall be granted.
--Every quarrying permit, except for ordinary earth, under rule 9 shall be granted subject to the following conditions, namely:--
(a) the depth of the pit below surface shall not exceed 6 metres except in the case of extraction of granite (building stones) and laterite (building stones):WA.No.364 OF 2020 10
Provided that in the cases of quarries of granite (building stones) and laterite (building stones) where the depth of the pit exceeds 6 metres, the sides of open workings shall be sloped, stepped or benched or secured by the permit holder in such a manner so as to prevent slope failure. When an open working is worked in steps such steps shall be of sufficient breadth in relation to their height to secure safety. In an excavation in any hard and compact ground the sides shall be adequately benched, sloped or secured so as to prevent danger from fall of sides. No trees, loose stone or debris shall be allowed to remain within a distance of three metres from the edge or side of the excavation. No person shall undercut any face or side or cause to permit such undercutting so as to cause any overhanging: Provided further that in the case of granite and laterite building stone quarries, the permit holder shall give a notice in writing in Form D to the Deputy Director General, Directorate General of Mines Safety, Southern Zone, Bengaluru-560 029; The Regional Controller of Mines, Yeshwantpur, Bengaluru-560 022 and the District Magistrate of the district when the depth of open cast excavation measured from its highest to the lowest point reaches 6 metres or when the number of persons employed on any day is more than 50 or when any explosives are used for excavation;
(b) The maximum period for a quarrying permit shall be one year from the date of grant under rule 9;
(c) the permit holder shall not extract and remove excess quantity of the mineral than permitted;
(d) the permit holder shall not extract minerals outside the area permitted for extraction;
(e) the permit holder shall furnish to the competent authority or the officer authorised by him in this regard a return in form 'F' regarding the mineral quarried and removed from the area before 10th day of every calendar month after the month of grant of quarrying permit. The WA.No.364 OF 2020 11 permit holder shall also allow inspection of the area by the competent authority or any officer authorized by him at any time and shall give satisfactory proof as to the quantity of the mineral quarried and removed;
(f) the permit holder, in cases where explosives are not used for quarrying, shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 75 metres from any railway line except with the previous written permission of the Railway Administration concerned and any bridge on National Highway or 50 metres from any reservoir, tanks, canals, rivers, bridges, other public works, residential buildings, the boundary walls of places of worship, burial grounds, burning ghats or forest lands or village roads except with the previous permission of the authorities concerned or the Government or the competent authority:
Provided that the Railway Administration or the State Government or any other authority in this behalf may in granting such permission impose other such conditions as may be found proper and necessary:
Provided further that in cases where explosives are used for quarrying, the permit holder shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 100 metres from any railway line, any bridge, reservoir, tanks, residential buildings, monuments protected by Government, canals, rivers, public roads having vehicular traffic, other public works or the boundary walls of places of worship or 50 metres from any burial grounds or burning ghats or village roads or forest lands;
(g) The area granted under a quarrying permit shall be a contiguous unit;
(h) The permit holder shall not win and dispose of any type of mineral other than the mineral specified in his permit;WA.No.364 OF 2020 12
(i) The permit holder shall erect a notice board in Malayalam at a prominent place with a minimum size of 1 metre × 1.5 metres in a metallic board near to the entrance of the quarry to the effect that it shall contain the name and address of the permit holder, mineral concession number and date, the mineral to be extracted, permit number and date and its date of expiry, quantity of extraction permitted (if applicable), area of extraction permitted, explosives used (if any), etc.; (ii) The permit holder shall erect a warning board with danger sign regarding operation of the quarry, 100 metres away by the side of the road leading to it;
(j) The permit holder shall allow any officer authorised by the Central or the State Government in this behalf to enter upon any building, place of excavation or land comprised in the permit for the purpose of inspection of the same;
(k) The permit holder shall carry on the operations permitted in a fair, orderly, skillful and workman like manner and shall not cause any damage to life and property in nearby areas and also not cause any serious environmental hazard;
(l) The permit holder shall at all times during the term of the permit keep or cause to be kept correct and intelligible records of accounts which shall contain accurate entries showing from time to time the quantity of mineral extracted and if sold, to whom sold, place, number of transit pass etc. and it shall be open for inspection by the competent authority in this regard, during all reasonable time;
(m) The permit holder shall give on demand any information pertaining to the quarrying as required by the competent authority under these rules;
(n) The permit holder shall not be eligible for refund of any amount paid by way of application fee, rent, royalty or tax as the case may be;WA.No.364 OF 2020 13
(o) The permit holder shall comply with all rules and regulations which may from time to time be issued relating to the working of the quarries and other matters affecting the safety, health and convenience of the permit holders, employees or of the public whether under the Mines Act, 1952 (Central Act 35 of 1952) or otherwise;
(p) The permit holder shall without delay send to the District Collector, Deputy Director General, Directorate General of Mines Safety, Bengaluru and the competent authority under these rules a report of any accident causing death or serious bodily injury or serious damage to property which may occur during the course of the quarrying operation;
(q) (i) In the case of granite and laterite (building stone) quarries where a pit has been formed as a result of any mining operation, the permit holder shall provide retention wall/barricade/fencing/compound wall surrounding the quarrying area in order to prevent accidents by falling of human beings, animals or vehicles or any other thing into the quarry;
(ii) The permit holder shall sufficiently fence and secure all pits that may be seen or made in the permitted area, whether abandoned or not;
(iii) The permit holder shall also provide all effective preventive measures for the safety of labourers as well as the public in general.
(iv) The permit holder shall carry out mining operations only in accordance with the approved mining plan submitted by him for obtaining the quarrying permit."
10.Therefore, on a harmonious construction of the aforesaid rules it is clear that, the appellant was liable to comply with the conditions WA.No.364 OF 2020 14 contained in the quarrying permit. Merely because the appellant secured registration for the metal crusher unit in contemplation of rule 89 of Rules, 2015, to have the advantage of consolidated payment of royalty, nowhere in the Rules, appellant is permitted to carry on the quarrying operations without any restriction for quantity. It is an admitted fact that, as per the quarrying permit, appellant is permitted to carry out quarrying operations to a limited extent alone. Therefore, there is no force in the contention advanced by the appellant with respect to the privilege of the appellant to carry out the quarrying operations irrespective of any limit prescribed in the quarrying permit and the registration granted to the metal crusher unit, since no such privilege is conferred as per rule 89 of Rules, 2015. Which thus also means that the payment enjoyed under CRP system is not a panacea for the appellant to overlook the conditions of the quarrying permit granted, which are mandatory and imperative in nature and character. This issue was considered by a Division Bench of this Court in Binoy Kumar v. State of Kerala and Ors. [2019(2)KHC 531], wherein the question was whether a person who has registration to the metal crusher unit is entitled to carry out quarrying operations without any limit prescribed under the quarrying permit, vis-a-vis the action taken by the authority under Rules, 2015, for realising the royalty charges and other payments WA.No.364 OF 2020 15 in accordance with the provisions of Rules, 2015 as well as the Kerala Land Conservancy Act and Rules and held as follows in paragraph 4.
"4. The question to be considered is whether the manner in which the royalty amount was paid by them, in respect of the quantity of mineral extracted from the lands leased out to them, would entitle them to claim any right over the excess quantity extracted by them from the lands in question? It is to be noted that the lands in question in these appeals are all poramboke lands, over which the Government have granted limited rights by way of quarrying lease to the appellants herein. In our view, when the appellant exceeds the permission granted to them under the grants, they effectively resort to an unauthorized extraction since the grant has to be seen as the authority on the basis of which they can extract minerals from Government land up to the specified quantity. This being the case, we are of the view that the mere payment of a consolidated royalty by the appellants will not detract from the fact of unauthorized extraction to the extent it is in excess of the permitted quantity specified in the grant. The appellants, having admittedly resorted to extraction over and above the quantity permitted in the grants issued to them, have necessarily to bear the legal consequences that would result from such unauthorized extraction, both under the Kerala Minor Mineral Concession Rules as also under the Kerala Land Conservancy Act."
11. Taking into account the facts and circumstances and the law involved, we are of the considered opinion that, the learned Single Judge has declined the reliefs in terms of law and the appellant could not establish any legal infirmities justifying interference in an appeal WA.No.364 OF 2020 16 preferred under section 5 of the Kerala High Court Act.
Resultantly writ appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE