Kerala High Court
Jacob George vs Tomy Abraham
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 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938
R.P.No.872 of 2016 IN WP(C).23849/2016 (E)
--------------------------------------------
[AGAINST THE JUDGMENT DATED 17.08.2016 IN W.P.(C) NO.23849 OF 2016-E,
OF HIGH COURT OF KERALA]
------------
REVIEW PETITIONER(S)/THIRD PARTY SEEKING REVIEW:-
--------------------------------------------------
JACOB GEORGE,
MAMMARAPALLIL,
NARANAMMOOZHY P.O.,
PATHANAMTHITTA - 689 711.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN.
RESPONDENT(S):-
--------------
1. TOMY ABRAHAM, AGED 54 YEARS, S/O.ABRAHAM,
MANIMALETH HOUSE, VECHOOCHIRA P.O.,
PATHANAMTHITTA DISTRICT - 686 511.
2. THE DIRECTOR,
DIRECTORATE OF MINING AND GEOLOGY,
PATTAM PALACE P.O., KESHAVADASAPURAM,
THIRUVANANTHAPURAM - 695 004.
3. THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT,
MINI CIVIL STATION, ARANMULA P.O.,
PATHANAMTHITTA DISTRICT - 689 533.
R1 BY ADV. SRI.JOBI JOSE KONDODY
R2 & R3 BY SR.GOVERNMENT PLEADER SRI.SURIN GEORGE IPE.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
18-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:-
RP.872 OF 2016 IN WP(C).23849 OF 2016
APPENDIX
REVIEW PETITIONER'S ANNEXURES:-
-------------------------------
ANNEXURE 1: TRUE COPY OF REPORT DATED 20.5.2013 OF THE GEOLOGICAL
SURVEY OF INDIA.
ANNEXURE 2: TRUE COPY OF JUDGMENT DATED 03.01.2014 IN WP(C).17594/13.
ANNEXURE 3: TRUE COPY OF LICENCSE NO.C3-2812/12 DATED 30.03.2013
ISSUED BY SECRETARY, NARANAMOOZHI GRAMA PANCHAYAT.
ANNEXURE 4: TRUE COPY OF RESOLUTION DATED 13.06.2013 OF NARANAMOOZHY
PANCHAYAT.
ANNEXURE 5: TRUE COPY OF ORDER DATED 9.5.2014 IN APPEAL NO.670/2013
OF TRIBUNAL FOR LSGD.
ANNEXURE 6: TRUE COPY OF JUDGMENT DATED 9.1.2015 IN W.P.(C) NO.17985/14
OF THIS HON'BLE COURT.
ANNEXURE 7: TRUE COPY OF COMMUNICATION DATED 03.04.2014 OF SECRETARY,
NARANAMOOZHY GRAMA PANCHAYAT.
ANNEXURE 8: TRUE COPY OF LICENSE APPLICATION SUBMITTED BY WRIT
PETITIONER FOR 2016-17.
ANNEXURE 9: TRUE COPY OF JUDGMENT DATED 30.10.2015 IN WP(C).21897/2015.
ANNEXURE 10: TRUE COPY OF ORDER DATED 25.08.2016 IN PROCEEDINGS
NO.367/2016-17/1825/DOPTA/M/15 DATED 25.08.2016 OF
3RD RESPONDENT.
ANNEXURE 11: TRUE COPY OF COMMUNICATION NO.C3-3805/14 DATED 23.12.2014
OF SECRETARY, NARANAMOOZHI GRAMA PANCHAYAT TO THE
1ST RESPONDENT.
RESPONDENTS' ANNEXURES:-
------------------------
ANNEXURE R1(a) TRUE COPY OF THE MINUTES OF THE MEETING OF
NARANAMOOZHY GRAMA PANCHAYAT HELD ON 19.02.2013 ISSUED
BY THE SECRETARY, NARANAMOOZHY GRAMA PANCHAYAT UNDER
THE RIGHT TO INFORMATION ACT WITH COVERING LETTER
DATED 23.07.2013.
ANNEXURE R1(b) TRUE COPY OF THE ORDER NO.C3-3899/2014
DATED 17.12.2014 ISSUED BY THE SECRETARY,
NARANAMOOZHY GRAMA PANCHAYAT GRANTING ME
SECTION 233 PERMIT.
RP.872/2016 IN WP(C) 23849/2016
- 2 -
ANNEXURE R1(c) TRUE COPY OF THE APPLICATION DATED 23.11.2010
FOR D&O LICENCE FILED BY THE 1ST RESPONDENT
BEFORE THE NARANAMMOOZHY GRAMA PANCHAYAT.
ANNEXURE R1(d) TRUE COPY OF RECEIPT DATED 28.11.2010 ISSUED BY
THE FRONT OFFICE OF NARANAMMOOZHY GRAMA PANCHAYAT
TO THE 1ST RESPONDENT.
ANNEXURE R1(e) TRUE COPY OF THE ORDER DATED 9.5.2013 ISSUED BY
THE SUB DIVISIONAL MAGISTRATE, THIRUVALLA TO THE
1ST RESPONDENT/WRIT PETITIONER.
ANNEXURE R1(f) TRUE COPY OF THE OR4DER DATED 3.7.2013 ISSUED BY
THE SUB DIVISIONAL MAGISTRATE, THIRUVALLA RECALLING
ANNEXURE R1(e).
ANNEXURE R1(g) TRUE COPY OF THE ORDER/NOTICE DATED 19.4.2013 ISSUED
BY THE GEOLOGIST, PATHANAMTHITTA TO 1ST RESPONDENT.
ANNEXURE R1(h) TRUE COPY OF THE APPLICATION DATED 24.02.2011 FOR
D&O LICENCE FILED BY ME BEFORE THE NARANAMMOOZHY
GRAMA PANCHAYAT.
ANNEXURE R1(i) TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY
THE NARANAMMOOZHY GRAMA PANCHAYAT ON 24.02.2012.
vku/- [ true copy ]
K. Vinod Chandran, J
---------------------------------------------------------------------
R.P.No.872 of 2016 in W.P.(C).No.23849 of 2016-E
---------------------------------------------------------------------
Dated this the 18th day of October, 2016
ORDER
The review petitioner, claiming to be a resident of the locality, seeks review of the directions in the judgment, impugned herein, permitting the writ petitioner to remove the granite aggregate remaining in the unit, to which the writ petitioner has obtained a quarrying licence, which, allegedly, was quarried prior to 2013-14. The specific direction assailed by the review petitioner is:
"Further, the granite aggregate remaining, as is evidenced from Exhibit P15, i.e.,5,034.500 tonnes, shall also be permitted to be transported after the 2nd respondent inspects the premises and identifies the said stock as having been removed in the financial year 2012-13".
2. The writ petition was filed for the purpose of setting off, the royalty paid in the year 2013-14, as against quarrying licence obtained by the writ petitioner; but, however, no quarrying operations have been carried on, for reason of the rejection of the application for D&O Licence by the Panchayat as well as the stop memo issued by the District Geologist.
RP.872 of 2016 in - 2 - WP(C).23849 of 2016-E
3. A reading of the judgment would indicate that the petitioner had quarrying lease for different periods, between 06.09.2011 and 20.09.2021 and between 08.02.2010 and 07.02.2022. During the financial year 2013-14, the District Collector issued a prohibitory order [Exhibit P6 in the writ petition], directing stoppage of the quarries owned by the writ petitioner; based on which the Geologist also issued a stop memo. The Panchayat had also cancelled the D&O Licence issued in the said financial year; pursuant to which the writ petitioner was not able to carry on any quarrying operations in the financial years 2013-14, 2014-15 and 2015-16. By the year 2016-17, the petitioner obtained an Environmental Clearance [for brevity "EC"], though that was not a requirement in view of the quarrying lease of the writ petitioner having been issued prior to the decision of the Hon'ble Supreme Court in Deepak Kumar and Others v. State of Hawryana & Others [(2012) 4 SCC 629] and the Office Memorandum of the year 2012 amending the EIA notification of 2006. The writ petitioner also obtained a D&O Licence for the year 2016-2017.
RP.872 of 2016 in - 3 - WP(C).23849 of 2016-E
4. This Court directed set off, of the consolidated royalty paid by the writ petitioner for the financial year 2013-14 and directed that the quarried metal remaining in the property, which is said to have been quarried in the financial year 2012-13 be permitted to be removed. The direction was issued specifically noticing the total quantity of quarried metal as revealed from the report of the Auditor and the transported metal based on the O(A) Forms, which was also specifically referred to by the Auditor. It was also directed that necessary O(A) Forms shall be issued for transport of the said metal remaining in the unit, which is assailed in the review petition.
5. The review petitioner contends that sub-section (4) of Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 [for brevity "MMDR Act"] mandates confiscation of any mineral and the tools, equipments, vehicles, etc. used for quarrying operations, if the quarry is found to be illegal. The review petitioner also relies on Annexure A9 judgment to contend that the petitioner had no D&O Licence and, hence, the quarrying is illegal. To further buttress the contention, the learned Counsel points out the RP.872 of 2016 in - 4 -
WP(C).23849 of 2016-E distinction, in the words employed in sub-section (1) and (4) of Section 21 to drive home the point that a quarry conducted without a D&O Licence would all the same be an illegal activity, based on which confiscation could be made under sub-section (4), whereas sub-section (1) only speaks of contravention of the specific provisions of the statute. Reliance is further placed on the Circular No.24399/A3/2010/ID dated 09.06.2011 that there should be a provision in the license issued that quarrying operations can be carried on only after getting D&O Licence from the Local Self Government Institution. Reference is also made to Clause 17 of Exhibit P1 lease, which reads as follows:
"17. This lease is subject to all rules and regulations which may from time to time be issued by the State Government regulating the working of the quarries and other matters affecting safety, health and convenience of the lessee's employees or of the public, whether under the Indian Mines Act or otherwise".
RP.872 of 2016 in - 5 - WP(C).23849 of 2016-E
6. The lease obviously does not contain a condition as stipulated in the Circular and Clause 17 cannot be treated as a substitute, requiring a D&O Licence for carrying out the quarrying operations. There can be no reliance placed on Annexure A9 judgment since there is no declaration made as such and this Court had only directed the Director of Mining and Geology to take appropriate decision in the matter after adverting to the impact of Section 21 of the MMDR Act. Hence, the question of interpretation of the provision and its impact was left to the original authority and, therefore, there is no binding precedent available in Annexure A9 judgment.
7. The distinction drawn based on the words employed in sub-section (1) and sub-section (4) of Section 21 is also misplaced. While sub-section (1) specifically refers to the provisions of sub-section (1) and (1A) of Section 4, sub-section (4) refers, inter alia, to raising and transporting of any mineral from any land without lawful authority; which lawful authority has to be found from the MMDR Act and the Rules framed thereunder, by the State or the RP.872 of 2016 in - 6 -
WP(C).23849 of 2016-E Union. The absence of a D&O Licence cannot lead to any confiscation as provided in sub-section (4) of Section 21 of the MMDR Act, but definitely would lead to proceedings being taken by the Panchayat against such person as provided under the Kerala Panchayat Raj Act, 1994 [for brevity "KPR Act"].
8. A penalty provided under a statute takes in only the contraventions of that statute; unless otherwise specifically provided for, to be initiated and proceeded with by the authorities authorised under that statute. Otherwise there would be anarchy insofar as the authority conferred with the power to impose penalty under one statute proceeding against a person for violation of the provisions in another statute. Here, the two statutes are the MMDR Act, the Rules framed thereunder and the KPR Act, along with the Rules thereunder too. The consequence of violation of the provisions of one enactment cannot be proceeded with by the authority under the other enactment. Herein what is alleged is the absence of D&O Licence under the KPR Act, for which sufficient safeguards and penalty are provided under the said Act itself; to be initiated and RP.872 of 2016 in - 7 -
WP(C).23849 of 2016-E imposed by the authority conferred with such power under the said Act. The Geologist, conferred with certain powers to impose penalty under the MMDR Act, cannot, based on the absence of a licence under the KPR Act, proceed to impose penalty under the KPR Act or the MMDR Act. It is also pertinent that the absence of a D&O Licence if proceeded with by the competent authority under the KPR Act is compoundable under the Kerala Panchayat Raj (Compounding of Offences) Rules, 1996. The authority under the KPR Act, when proceeding for violation of that Act, cannot impose the penalty under the MMDR Act.
10. The Circular, aforementioned, or the condition prescribed thereunder, cannot also interfere with the statutory provisions. Even if the quarrying operations are started and continued without D&O Licence from the local self government institution, then it can attract only proceedings under the KPR Act and D&O Rules and it has to be initiated by the authorities constituted under the said enactment.
11. The review petitioner also has a contention that the RP.872 of 2016 in - 8 -
WP(C).23849 of 2016-E quarry was conducted all through without any license from the Panchayat. The specific objection raised in the review petition is with respect to the direction of this Court to permit the writ petitioner to remove the minor mineral quarried during the year 2012-2013, for which year the petitioner did not have a license at all from the Panchayat. On facts the said contention has been refuted by the writ petitioner by producing documents indicating that the writ petitioner had made applications in the respective years which were not responded to by the Panchayat and in such circumstance the quarry operations were carried on validly on the basis of the lease issued by the Mining and Geology Department; resorting to the deeming provision available under the Panchayat Raj Act. Annexure R1(c) &
(h) are the applications made for D&O license before the Panchayat for the years 2010-2011 and 2011-2012. Annexure R1(i) is the receipt produced to evidence an application having been made for D&O license for the year 2012-2013. However the learned Counsel for the review petitioner points out that the averment in the affidavit producing Annexure R1 (i), is that the fees were remitted to consider RP.872 of 2016 in - 9 -
WP(C).23849 of 2016-E the application filed at Annexure R1 (h), which is the application made for the previous year. The said contention has to be accepted and the writ petitioner has not produced any application as such for the year 2012-2013, in which event, there could be no reliance on the deeming provision. But that again would only entail proceedings under the Panchayat Raj Act and the Rules. In such circumstance the review is found to be devoid of merit and the same is rejected leaving the parties to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]