Kerala High Court
Majeed P.V vs The Revenue Divisional Officer on 20 February, 2013
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY,THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935
WP(C).No. 4415 of 2013 (B)
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PETITIONER:
------------------
MAJEED P.V, AGED 38 YEARS,
S/O.VEERAKUTTY, PAKKATTUMOLEL HOUSE,
PANIPRA P.O, KOTHAMANGALAM, ERNAKULAM.
BY ADV. SRI.JOBI JOSE KONDODY.
RESPONDENTS:
-----------------------
1. THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA REVENUE DIVISIONAL OFFICE,
MUVATTUPUZHA P.O., ERNAKULAM DISTRICT-686 661.
2. THE VILLAGE OFFICER,
KUTTAMPUZHA VILLAGE OFFICE, KUTTAMPUZHA P.O,
ERNAKULAM DISTRICT-686 691.
3. THE SUB INSPECTOR OF POLICE,
KUTTAMPUZHA POLICE STATION, KUTTAMPUZHA P.O,
ERNAKULAM DISTRICT-686 691.
4. ELIAS,
ADDITIONAL SUB INSPECTOR OF POLICE,
KUTTAMPUZHA POLICE STATION, KUTTAMPUZHA P.O,
ERNAKULAM DISTRICT-686 691.
*ADDITIONAL R5 & R6 IMPLEADED:
5. THE DIRECTOR,
MINING AND GEOLOGY DEPARTMENT,
THIRUVANANTHAPURAM.
Prv.
W.P.(C).NO.4415/2013-B:
6. THE STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
THIRUVANANTHAPURAM.
*ADDITIONAL R5. AND R6. ARE `SUO MOTU' IMPLEADED AS PER
ORDER DATED 20/02/2013.
R1 TO R3, ADDL. R5 & R6 BY SR. GOVT. PLEADER SRI K.C. VINCENT,
R4 BY ADVS. SRI.UNNIKRISHNAN.V.ALAPATT,
SMT.ANITHA M.N. (EKM).
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-11-2013, ALONG WITH W.P.(C). NO. 4442/2013 AND
CONNECTED CASES, THE COURT ON 10-12-2013 DELIVERED
THE FOLLOWING:
Prv.
W.P.(C).NO.4415/2013-B:
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE JUDGMENT DT.25-10-2011 IN W.A 1570/2011 OF
THIS HONOURABLE COURT.
EXHIBIT P2: TRUE COPY OF THE JUDGMENT DT.17-7-2012 IN W.P.(C).NO. 16675 OF
2012 OF THIS HONOURABLE COURT.
EXHIBIT P3: TRUE COPY OF THE REGISTRATION CERTIFICATE DT.16-1-2013
ISSUED BY THE COMMERCIAL TAX OFFICER TO THE PETITIONER.
EXHIBIT P4: TRUE COPY OF THE RENT AGREEMENT EXECUTED BY THE
PETITIONER BETWEEN MOLLY DT.28-12-2012.
EXHIBIT P5: TRUE COPY OF THE AUTHORIZATION CERTIFICATE DT.25-1-2013
ISSUED BY THE MANAGING PARTNER OF M/S.AKSHAYA BUILDERS
TO THE PETITIONER.
EXHIBIT P6: TRUE COPY OF THE INFORMATION ISSUED BY THE ASSISTANT -
EXECUTIVE ENGINEER, P.W.D ROAD SUB DIVISION DT.11-2-2012
STATING THAT AKSHAYA BUILDERS IS AWARDED WITH THE WORK OF
KUTTAMPUZHA POOYAMKUTTY ROAD.
EXHIBIT P7: TRUE COPY OF THE STOP MEMO DT.6-2-2013 ISSUED BY R2 TO THE
PETITIONER.
EXHIBIT P8: TRUE COPY OF THE REPRESENTATION DT.12-2-2013 FILED BY THE
PETITIONER BEFORE THE R3.
EXHIBIT P9: TRUE PHOTOGRAPHS SHOWING THE WIDENING OF ROAD CARRIED
OUT BY M/S.AKSHAYA BUILDERS.
EXHIBIT P10: TRUE COPY OF THE PHOTOGRAPHS SHOWING THE MANUFACTURING
OF WEATHERED ROCK USING PUMP AND MOTOR AND THE
WEATHERED SAND STOCKED IN THE YARD OF THE PETITIONER IN
EXHIBIT P4 PROPERTY.
EXHIBIT P11: TRUE COPY OF THE LICENSE APPLICATION DT.14-1-2013 SUBMITTED
BY THE PETITIONER BEFORE THE KUTTAMPUZHA GRAMA
PANCHAYATH.
EXHIBIT P12: TRUE COPY OF THE RECEIPT DT.14-1-2013 EVIDENCING THE
ACCEPTANCE OF LICENSE FEE BY KUTTAMPUZHA GRAMA
PANCHAYATH.
RESPONDENTS' EXHIBIT:
EXT.R6.(A): THE PHOTOCOPY OF THE GOVERNMENT ORDER DATED 03/02/2000.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
"CR"
P.R. RAMACHANDRA MENON, J.
========================
W.P.(C). Nos. 4415, 4442, 6252, 6284, 6348, 7552, 7609,
11029, 11033, 11711, 13769, 14074, 15902, 17087, 17160,
18134, 18358, 18379, 18380, 18390, 18691, 19179, 19197,
19405, 19415, 19957, 20006, 20420, 20426, 20427, 20497,
21742, 22236, 22237, 22266, 22340, 22341, 22378, 22443,
22497, 22569, 22679, 22795, 22925, 23014, 23282, 23283,
23285, 23288, 23335, 23399, 23400, 23401, 23402, 23403,
23404, 23463, 23682, 23937, 24249, 26116, 26120, 26240,
and 26467 of 2013
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Dated this the 10th day of December, 2013
JUDGMENT
Whether 'Weathered Rock' and 'Weathered Sand' stated as manufactured from weathered rock, do come within the purview of the term "Ordinary earth" notified as 'Minor Mineral' vide Government of India notification dated 3.2.2000 published in the Gazette of India, in exercise of powers under Section 3(e) of the Mines & Minerals (Development & Regulation) Act, 1957 (hereafter referred to as 'MMDR Act') and included in the 1st Schedule to the Kerala Minor Mineral Concession Rules, 1967 (hereafter referred to as 'KMMC Rules') as per G.O.(P) No. 138/12/ID on amendment of the relevant Rules, is the point to be answered in these writ petitions.
W.P.C. No.4415/13 & conn. Cases -2-
2. Various writ petitions came to be filed, mainly contending that 'Weathered Rock/Weathered Sand' is not a 'Minor Mineral' and as such, no permit/pass is required to be issued by the concerned Geologist under the relevant provisions of the MMDR Act/KMMC Rules. According to most of the petitioners, by virtue of the judgment rendered by a Division Bench of this Court in W.A.No. 1570/2011 and W.P.(C).No. 28906/2011, no such pass or permit is necessary, as it is not a 'Minor Mineral' and that, it could be transported on the strength of valid Sale Bills/Invoices, provided that there is valid registration under the KVAT Act/Rules.
3. In some of the cases, the petitioners contend that, they are manufacturers and dealers of 'Weathered Sand' and that they have got all the requisite licences issued by the Local Authority, the Commercial Taxes Authorities and also by the Pollution Control Board. But when they approached the authorities under the Mining and Geology Department, seeking for issuance of valid P-Forms for enabling them to transport the material ('Weathered Rock/Weathered Sand'), the request was turned down by the said Department stating that, 'Weathered Rock/Weathered Sand' was W.P.C. No.4415/13 & conn. Cases -3- not a 'Minor Mineral' and as such, no pass could be issued by the Department. At the same time, the operation being pursued by the said petitioners, including transportation of 'Weathered Rock/Weathered Sand' is being intercepted by the Police/Revenue Authorities, for want of requisite licence/pass from the Mining and Geology Department and hence the challenge, seeking to restrain the Police/Revenue Authorities from interfering with the manufacturing and sale of 'Weathered Rock'/ 'Weathered Sand' or in the alternative, to direct the authorities of the Mining and Geology Department to issue necessary P-Forms under the KMMC Rules.
4. A detailed counter affidavit has been filed on behalf of the additional 6th respondent/State in W.P.(C).No. 4415/2013, mainly contending that, 'Weathered Rock/Weathered Sand' is of course a 'Minor Mineral' and as such, it is necessary that permit/pass be issued by the Mining and Geology Department. The respondents also point out with reference to the notification bearing No.G.S.R 95(E) dated 3.2.2000, that the Ministry of Mines and Minerals, Government of India has declared 'Ordinary earth' (as specified therein) as 'Minor Mineral' and that the W.P.C. No.4415/13 & conn. Cases -4- same will take in 'Weathered Rock/Weathered Sand' as well. Reference is also made to G.O.(P) No. 138/12/ID dated 17.11.2012, whereby the KMMC Rules, 1967 have been amended to the effect that, 'Ordinary earth' has been included in Schedule No.1, so as to enable the Government to realise Royalty in respect of excavations of ordinary earth. A true copy of the notification dated 03.02.2000 issued by the Government of India has been produced as Ext.R6(a) along with the said counter affidavit.
5. As the issue is almost common in all these cases, which is rather a legal question, the learned Government Pleader entered appearance on behalf of the State/respondents in all these cases and stated that, the contentions raised in the counter affidavit filed in W.P.(C). No. 4415/2013 are sought to be relied on in the other cases as well and hence, copy of the said counter affidavit has been served to the petitioners in the concerned cases. As agreed by both the sides, all these matters were taken up and heard in detail on several days, and finally on 11.11.2013.
6. The learned counsel for the petitioners in W.P.(C).No. W.P.C. No.4415/13 & conn. Cases -5- 22679/13 submits that, the said petitioners were issued dealer's licence by the Department of Mining and Geology, to deal with 'Weathered Sand', popularly known as 'Matty Manal' and were issued P-forms for transporting the same. However, on 5.3.2011, the Director of Mining and Geology Department issued Ext.P1 communication to the Senior Geologist, Thrissur, pointing out the stand of the Department that 'Weathered Sand/Matty Manal' will not come within the purview of the term 'Minor Mineral' and that the Department cannot issue any licence to the dealers of 'Matty Manal'. But the Police/Revenue Authorities were continuing to seize the vehicles transporting 'Weathered Sand/Matty Manal' for want of necessary pass from the Geologist, which created a stalemate. Met with the situation, one of the similarly situated persons approached this Court by filing W.P.(C) No. 10796/11, seeking to direct the concerned Geologist to issue necessary P-Forms for transporting 'Matty Manal', which was disposed of, giving necessary directions as above. Being aggrieved of the said verdict, the District Geologist filed W.A.No. 1570/11, wherein Ext.P2 judgment was passed on 25.10.2011 with the observation that, in so far as the stand of the appellants W.P.C. No.4415/13 & conn. Cases -6- (wrongly recorded as respondents) was that 'Weathered Sand' was not a 'Mineral' requiring pass from the Geology Department for transportation, it was not necessary for the respondents to prove the quantity and that the respondents (writ petitioners) were free to transport 'Weathered Sand' manufactured by them on the strength of documents prescribed under the KVAT Act/Rules.
7. Admittedly, since the Police/Revenue Authorities were still interfering with the manufacture/sale of 'Weathered Sand'/'Weathered Rock' and its transportation, another aggrieved party approached this Court by way of W.P.(C).No. 28906/11, mainly against the Police harassment in seizing the vehicles transporting 'Weathered Rock/Weathered Sand' on the basis of the understanding that sanction was necessary under the KMMC Rules. The said writ petition was disposed of, as per Ext.P3 judgment dated 8.12.2011, mainly based on the statement dated 25.11.2011 filed from the part of the Director of Mining and Geology to the effect that, for the purpose of storage, sale and transportation of 'Weathered Rock/Weathered Sand', no sanction was necessary under the KMMC Rules. However, it was made W.P.C. No.4415/13 & conn. Cases -7- clear that, a blanket order restraining interception and seizure of vehicles transporting 'Weathered Rock/Weathered Sand' could not be issued and that, such interception was necessary only to find out the nature of the commodity being transported and if it was found to be 'Weathered Rock/Weathered Sand', the vehicle was to be released forthwith.
8. The petitioner in W.P.(C).No. 22679/2013 contends that, in spite of the verdicts as above and despite the possession of Ext.P5 licence issued by the Grama Panchayath, Ext.P6 acknowledgment (Part I) issued by the Industries Department to run the Crusher Unit, Ext.P7 Consent to Operate issued by the Kerala State Pollution Control Board and Ext.P8 Registration Certificate issued by the Commercial Taxes Department, Ext.P9 'Stop Memo' dated 5.09.2013 was slapped on the petitioner by the 2nd respondent, based on Ext.P10 order issued by the 1st respondent, which made the petitioner to approach this Court for immediate intervention, challenging the authority of the 1st respondent to have issued Ext.P10 and also projecting the denial of opportunity of being heard before passing the said order/proceedings.
W.P.C. No.4415/13 & conn. Cases -8-
9. Almost similar contentions have been raised in other writ petitions as well, with reference to the judgment passed by the Division Bench in W.A. No. 1570/2011 and by another Division Bench in W.P.(C).No. 28906/2011, with some minor variations with regard to the factual aspects, mainly seeking to assert that 'Weathered Rock/Weathered Sand' is not a 'Minor Mineral' and hence that no permit/licence from the Department of Mining and Geology is necessary for manufacture, sale or transport of the said commodity.
10. Heard Senior Advocate Mr. Renjith Thampan, Mr. P.N. Santhosh, Mr. Anil Kumar, Mr. P.M. Ziraj, Mr. Joby Jose Kondody and other learned counsel appearing for the concerned petitioners. The arguments on behalf of the State/Department were led by Mr. K.C. Vincent, learned Senior Government Pleader.
11. The petitioners mainly contend that, Section 3(e) of the MMDR Act, 1957 does not include 'Weathered Rock/Weathered Sand' as a 'Minor Mineral' and if any item other than those specifically mentioned in the said definition clause is to be included therein (by way of notification), such notification has W.P.C. No.4415/13 & conn. Cases -9- necessarily to be issued by the Central Government and not by the State Government. It is also pointed out that the power of the State Government to frame Rules including the power and procedure under Section 15 of the MMDR Act is only for the purpose of regulating the grant of licence, once the declaration is made by the Central Government as above.
12. Section 3(e) of the MMDR Act defines the term 'Minor Mineral' as follows:
"(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;"
The Central Government, as per Ext.R6(a) in W.P.(C).No. 4415/2013 bearing No. G.S.R. 95 (E) dated 3.2.2000 had issued a notification published in the Gazette of India, declaring 'Ordinary earth' (as specified therein) as a 'minor mineral'. The said notification reads as follows:
"In exercise of the powers conferred by clause (e) of Section 3 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957), the Central Government hereby declares the 'ordinary earth' used for filling or leveling purpose in construction of W.P.C. No.4415/13 & conn. Cases -10- embankments, roads, railways, buildings to be a minor mineral in addition to the minerals already declared as minor minerals hereinbefore under the said clause."
Having defined the term 'minor mineral' under Section 3(e) as above and having issued Ext. R6(a) notification dated 3.2.2000 bringing in 'ordinary earth' as well within the purview of the definition of the term 'minor mineral', the question is whether 'Weathered Rock/Weathered Sand' could be claimed to be exempted.
13. It is conceded by the petitioners (particularly by the petitioner, in paragraph '3' of W.P.(C).No. 4415/2013) that, the raw material for manufacturing 'weathered sand' is 'weathered rock' which is being obtained either from various persons/sources who mine and remove it for the purpose of starting a quarry for mining building stones, or from contractors who are engaged in widening of roads. It is stated that 'weathered rocks' are usually found beneath the surface of the earth, almost forming the upper crust of solid rock, which cannot be utilized as building stone, either because it is not matured or because of the weathering suffered. Such weathered rocks are sorted out and crushed into pieces and into minute particles, following which it is washed, to W.P.C. No.4415/13 & conn. Cases -11- drain out the silt and clay, and the solid particles are recovered as weathered sand. According to the petitioners, the weathered sand thus manufactured, is not part of 'ordinary earth' and does not require any licence or permit from the Mining and Geology Department. It is also pointed out that, there is acute scarcity of river sand in the State of Kerala due to various reasons and as such, manufacture and procurement of weathered sand is liable to be promoted in all respects.
14. It is pointed out from the part of the respondents that, 'weathering' is a destructive process involving an element of erosion, whereby materials such as earth and rock, on exposure to the climatic conditions get changed in colour and characteristics, as well as in texture and composition. The change in the parent rock is caused by the physical disintegration and chemical decomposition, producing waste particles and sediments. The parent rock may be composed of quartz, feldspar, mica and other minerals. The parent rock may also differ from one area to another. It is pointed out in paragraph '6' of the counter affidavit that, in the process of weathering of the parent rock, durable minerals like 'quartz' remain unaltered and W.P.C. No.4415/13 & conn. Cases -12- other minerals such as 'feldspar' and 'mica' get altered to clay and chlorite respectively. While durable minerals like 'quartz' get settled in the river bed, other non durable minerals are washed off, to form mud. It is also pointed out that the durability of the sand produced from 'weathered rock' cannot be ensured and it cannot be equated with river sand or sand found in 'Palaeo Channel' (Karamanal), as in the natural process, a major part of weathered rock is transformed into ordinary soil. But, while manufacturing 'weathered sand' from weathered rock, such a course/process is obstructed and hence the process of 'weathering' may continue even after using the same for building purpose and hence it is not suitable for construction activities. Since river sand is produced by the natural process of erosion and sedimentation which starts from the source/rock and passes through streams and river tributaries and finally reaches the river bed (which process takes hundreds or thousands of years to form sand particle). Whereas river sand is very much durable unlike weathered sand, which is cited as a reason by the State/Department for not promoting the manufacture and sale of weathered sand.
W.P.C. No.4415/13 & conn. Cases -13-
15. The respondents contend that 'ordinary sand' is the sand used for non industrial purpose, which includes river sand, beach sand, sand mined from back waters and sand mined from land (palaeo channels, paddy fields and flood plains). But since separate 'Act' and Rules have been framed in respect of river sand, its mining and regulation, are being treated separately, though it belongs to the family of 'ordinary sand'. It is contended that 'weathered rock' or 'weathered sand' is liable to be treated as 'ordinary earth' and the same can be used only for filling purposes in construction of embankments, roads etc. As mentioned hereinbefore, the Department of Mining and Geology of the State has been taking a stand that, weathered rock/weathered sand was not a minor mineral, for the reason that it has not been included in Schedule I of the KMMC Rules and as such, no permit/pass was being issued for manufacture, sale or transport in respect of such commodity. It was on the basis of the said understanding of the Director of Mining and Geology, that Ext.P1 communication dated 05.03.2011 (in W.P. (C). No. 22679/2013) came to be issued by the Director of Geology. It is on the basis of the very same understanding, that W.P.C. No.4415/13 & conn. Cases -14- the Director of Mining and Geology (5th respondent in W.P.(C).No. 28906/2011 (Ext.P3 judgment produced in W.P.(C). No. 22679/2013) filed a statement dated 25.11.2011 as referred to in paragraph '3' and '4' of the said judgment, based on which the relief was granted to the petitioner therein. But for the reference to the said statement, there is no reference to any of the provisions of law or Ext. R6(a) notification issued by the Central Government or any binding judicial precedent, for having passed the said verdict in W.P.(C).No. 28906/2011, preferred against the alleged Police harassment. In spite of Ext.R6(a) notification issued by the Central Government, bringing 'ordinary earth' as well within the purview of the definition of 'minor mineral' under Section 3(e) of the MMDR Act, the proposal to have the same included in the 1st Schedule in the KMMC Rules (for the purpose of realisation of Royalty) was however stated as dropped.
16. But now, by virtue of the amendment of the KMMC Rules as per G.O.(P) No. 138/12/ID, dated 17.11.2012 a drastic change has come about and 'ordinary earth' has also been included in Schedule I of the KMMC Rules, 1967, enabling the State/Department to realise 'Royalty'. The adverse W.P.C. No.4415/13 & conn. Cases -15- consequence which resulted because of the non inclusion of 'ordinary earth' in the Schedule, despite the issuance of Ext.R6(a) notification issued by the Central Government as early as on 3.2.2000, was highlighted by a Division Bench of this Court as per the decision rendered in Construction Materials Movers Association v. State of Kerala reported in (2008 (4) KLT
909).
17. The said case (W.P.(C).No. 24247 of 2008) was in fact filed by the petitioners alleging, inter alia, harassment by the Police/Revenue officials, while transporting 'ordinary earth' for filling land. It was contended that, for excavation and transportation of 'red earth', Government Sanction was not necessary and further that, in spite of the notification dated 3.2.2000 issued by the Central Government notifying ordinary earth as a 'minor mineral', the State Government had decided that, 'ordinary earth' need not be included in Schedule I of the KMMC Rules, as evident from Ext.P10 communication therein (dated 18.3.2006), whereby the Director of Mining and Geology was informed that the proposal to amend the Schedule to the KMMC Rules, for fixing Royalty for 'ordinary earth' in tune with W.P.C. No.4415/13 & conn. Cases -16- the Central Government notification, had been dropped. It was in the said circumstance that, intervention of this Court was sought for, against the alleged harassment by the Police/Revenue Authorities with regard to the transportation of 'ordinary earth'; at the same time making an alternative prayer to direct the authorities of Mining and Geology Department to accept the applications preferred under the KMMC Rules, for permission to transport 'ordinary earth' treating 'ordinary earth' as a minor mineral.
18. After explaining the sanctity of the notification issued by the Central Government, declaring 'ordinary earth' as a 'minor mineral' under Section 3(e) of the 'Act', the Bench declared that 'ordinary earth' was of course a 'minor mineral' and the restrictions contained under S.4(1) of the Act regarding the minor mineral would apply to 'ordinary earth' as well and that Sub Section (1A) of Section 4 prohibits transporting and storing of minor minerals, otherwise than in accordance with the provisions of the MMDR Act/ KMMC Rules. Further, the Bench specifically observed that, "ordinary earth" would not cease to be a minor mineral merely for the reason that it was not included in W.P.C. No.4415/13 & conn. Cases -17- Schedule I of the KMMC Rules. The inclusion of 'ordinary earth' as a 'minor mineral' in Schedule I of the KMMC Rules, is with an intent to levy 'Royalty' for ordinary earth and it was for the Government to decide, whether it should be included for the purpose of Royalty or not. But the non inclusion of ordinary earth in the Schedule has other ramifications as pointed out by the Bench, observing that the definition of the term "dealer" under Rule 3(xiii) of the KMMC Rules meant a person carrying on the business of selling minor minerals mentioned in Schedule I of these Rules, whether wholesale or retail. By virtue of the mandate under Rule 48 A, stipulating licence for a dealer, it was clearly mentioned that, no person other than a quarrying permit/lease holder, shall stock, sell or offer for sale any minor mineral mentioned in Schedule I in any place in the State, except under a "dealer's licence" issued under the seal and signature of the competent authority, if the Government have not issued any notification to that effect, in the case of any minor mineral in the whole State or in any particular area.
19. By virtue of the above Rule position, it was observed by the Bench in the decision cited supra that, if a person does not W.P.C. No.4415/13 & conn. Cases -18- have quarrying permit or quarrying lease for 'ordinary earth', he can stock/sell minor minerals mentioned in Schedule I, only under the "dealer's licence" issued by the competent authority. Since 'ordinary earth' was not included in the Schedule to the Rules, the provisions of Chapter VII A of the Rules are held as not applicable to 'ordinary earth'. At the same time, it was held that the provisions contained in Chapter III of the KMMC Rules dealing with the grant of quarrying permit will definitely apply to quarrying of 'ordinary earth' from private lands and that Rule 12 of the Rules under Chapter III enables the competent authority to prohibit such quarrying operations and Section 4(1A) of the Act prohibits transporting or storing of any minerals including minor minerals, otherwise than in accordance with the provisions of the Act/Rules. It was accordingly held that, the contention of the petitioners that quarrying and transportation of 'ordinary earth' can be done by anyone without any licence in any manner could not be accepted.
20. The Bench observed that the decision of the Government, not to include 'ordinary earth' in the Schedule, (though the intent was not to collect Royalty), has created W.P.C. No.4415/13 & conn. Cases -19- practical hurdles to some extent, in dealing with illegal transportation of 'ordinary earth'. After holding that the instances of violation of Sub Section 1 and 1A of Section 4 of the Act were 'cognizable' offences, by virtue of Section 21 (6) of the Act and referring to the notification issued by the State Government under Section 22 of the Act (SRO No. 827/91 published in Kerala Gazette (Extraordinary) No. 796 dated 26.6.1991) authorising all District Collectors and all Police Officers of and above the rank of Sub Inspector, apart from Geologist, in their respective jurisdiction to act as the 'competent authority' under Section 22, it was observed that such officers could compound the offence, in view of Section 23 A of the Act and the relevant Rules. The Bench observed that, if the action pursued by the Police/Revenue Officials cannot be interfered with, the alternative relief sought for was also not liable to be given, as the same was of anticipatory nature. The above decision already rendered by the Bench or the relevant provisions of law were never brought to the notice of the Division Bench of this Court while rendering Exts. P2 and P3 judgments in W.P.(C).No. 22679/2013.
W.P.C. No.4415/13 & conn. Cases -20-
21. As mentioned already, Exts. P2 and P3 verdicts (produced in W.P.(C). No. 22679/13) were rendered more on the basis of 'concession' extended by the respondents (State/Department) and not with reference to the relevant provisions of law or binding judicial precedents. In Ext.P2 judgment in W.A. 1570/2011, it is stated in paragraph '3' as follows:
".... in view of the stand taken by the respondents that weathered sand is not a mineral requiring pass from the Geology Department for transport, we do not think there is any need for the respondents to prove the quantity produced. The respondents are therefore free to transport weathered sand manufactured by them with documents prescribed under the KVAT Act and Rules....."
Similarly, in Ext.P3 judgment in W.P.(C).No. 28906 of 2011 dealing with the alleged police harassment, the Director of Mining and Geology filed a statement dated 25.11.2011 as referred to in paragraph '3' and '4'. Paragraph '3' and the relevant portion in paragraph '4' read as follows:
"3. After hearing Sri. Ranjith Thampan, the learned counsel for the petitioner and Sri. T.P. Sajid, the learned senior Government Pleader for some time, an issue which became controversial at the Bar W.P.C. No.4415/13 & conn. Cases -21- was whether weathered rock sand requires any license from the Mining and Geology Department or from any other department for its transportation. Accordingly, on 21.11.11 we directed the learned senior Government Pleader to seek specific instructions from the 5th respondent in that context and to file a statement. Pursuant to that order on behalf of the 5th respondent, a statement has been filed on 25.11.11.
4. Shorn of details, the pith and substance of the contentions raised in the above statement is that for storage, sale and transportation of weathered rock sand no sanction under the Kerala Minor Mineral Concession Rules, 1967 is necessary. ......."
The existence of Ext.R6(a) issued by the Central Government notifying 'ordinary earth' as a minor mineral and the detailed discussion made by the Division Bench of this Court as per decision rendered in 2008 (4) KLT 909 were never brought to the notice of the Bench and as such, the said decision rendered merely on the basis of 'understanding' of the Departmental Officials at that point of time, by way of 'concession' cannot have the force and sanctity as a binding precedent.
22. Now the magnitude of the challenge gets confined/restricted to a small spectrum, as to whether 'weathered W.P.C. No.4415/13 & conn. Cases -22- rock/weathered sand' could be treated as "ordinary earth". The decision rendered by the Apex Court in Som Datt Builders Limited v. Union of India and Others (2010) 1 SCC 311) can definitely throw light in this regard. The main issue considered there was, whether 'ordinary earth' used for filling or levelling purpose in the construction of embankments, roads, railways and buildings has validly been declared as "minor mineral" by the Central Government vide notification dated 3.2.2000 issued under Section 3(e) of the MMDR Act, and whether Royalty shall be paid in this regard. Elaborate discussion was made as to the relevant provisions of the Statute, also with reference to the meaning of the terms 'minerals/minor minerals/brick earth/sand stone/flintstone/other minerals' etc. Reference is also made to various judicial precedents rendered by the House of Lords, different Benches of the Supreme Court of India, decision rendered by Supreme Court of United States and the meaning of the relevant terms as given in various Dictionaries. It will be worth while to recapitulate the main points and to know, how the approach has to be made.
23. The Apex Court observed that, a substance has to be a W.P.C. No.4415/13 & conn. Cases -23- 'mineral', before it can be notified as a "minor mineral" pursuant to the power under Section 3(e) of the MMDR Act, 1957, and whether "ordinary earth" is a 'mineral' is the primary question to be answered. A contention was raised before the Apex Court in Bhagwan Dass v. State of U.P (1976 3 SCC 784) that, sand and gravel are deposited on the surface of land and not under the surface of soil and therefore, they cannot be called minerals. Negating the said contention, it was observed by the Hon'ble Mr. Justice Y.V. Chandrachud, (as he then was) in paragraph 13 of the judgment in the following terms:
"13. .... It is in the first place wrong to assume that mines and minerals must always be subsoil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of 'mining operations' and 'minor minerals' in Sections 3(d) and (e) of the Act of 1957 and Rules 2 (5) and (7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of 'winning' any minor mineral. 'Winning' does not imply a hazardous or perilous activity. The word simply means 'extracting a mineral' and is used generally to indicate any activity by which a mineral is secured. 'Extracting', in turn, means, drawing out W.P.C. No.4415/13 & conn. Cases -24- or obtaining. A tooth is 'extracted' as much as if fruit juice and as much as a mineral. Only, that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral."
24. Subsequently, in Banarsi Dass Chadha and Brothers. v. Lt. Governor, Delhi Administration (1978 (4) SCC 11), a three member Judge of the Apex Court considered the question whether "brick earth" was a "minor mineral" as defined under Section 3(e) of the MMDR Act. The observations made by the Hon'ble Mr. Justice Chinnappa Reddy, (as he then was, speaking for the Bench) as it appears in paragraph '4' of the said verdict is in the following terms:
"4. ... The expression 'minor mineral' as defined in Section 3(e) includes 'ordinary clay' and 'ordinary sand'. If the expression 'minor mineral' as defined in Section 3(e) of the Act includes 'ordinary clay' and 'ordinary sand', there is no reason why earth used for the purpose of making bricks should not be comprehended within the meaning of the word 'any other mineral' which may be declared as a 'minor mineral' by the Government. The word 'mineral' is not a term of art. It is a word of common parlance, capable of a multiplicity of meanings depending upon the context. For example the word is occasionally used in a very wide sense to denote any substance that is neither animal nor vegetable. Sometimes it is W.P.C. No.4415/13 & conn. Cases -25- used in a narrow sense to mean no more than precious metals like gold and silver. Again, the word 'minerals' is often used to indicate substances obtained from underneath the surface of the earth by digging or quarrying. But this is not always so as pointed out by Chnadrachud, J. (as he then was) in Bhagwan Dass V. State of U.P."
Observing that the word "mineral" had no definite meaning, but had a variety of meaning depending on the context of its use, it was observed by the Apex Court in paragraph 7 of the judgment in Banarsi Dass Chadha's case in the following lines:
"7. ......In the context of the Mines and Minerals (Regulation and Development) Act, we have no doubt that the word 'mineral' is of sufficient amplitude to include 'brick-earth'. As already observed by us, if the expression 'minor mineral' as defined in the Act includes 'ordinary clay' and 'ordinary sand' there is no earthly reason why 'brick- earth' should not be held to be 'any other mineral' which may be declared as a 'minor mineral'. We do not think it necessary to pursue the matter further except to say that this was the view taken in Laddu Mal v. State of Bihar, Amar Singh Modi Lal v. State of Hariyana and Sharma & Co. v. State of U.P. We do not agree with the view of the Calcutta High Court in State of W.B. v. Jagadamba Prasad Singh, that because nobody speaks of 'ordinary earth' as a mineral it is not a minor mineral as defined in the W.P.C. No.4415/13 & conn. Cases -26- Mines and Minerals (Regulation and Development"
Act.
25. A distinction was sought to be made before the Apex Court in Som Datt Builders' case (cited supra) with reference to the observations made by the Apex Court earlier in V.P. Pithupitchai v. Government of Tamil Nadu (2003 (9) SCC 534, wherein the question considered was whether the 'sea shells' could be termed to be "mineral" within the meaning of the MMDR Act, 1957. After exhaustive analysis of the facts and figures, the Bench made it clear in Som Datt Builders' case (2010) 1 SCC 311 that, the decision rendered by the Apex Court in V.P. Pithupitchai's case was a 'substance specific one', wherein the power conferred upon the Central Government to declare a substance as "minor mineral" in exercise of the power under Section 3(e) of the MMDR Act, 1957 was not considered and further that, it was a case where the Court was called upon to determine the correctness of the High Court's opinion whether a 'sea shell' was a limeshell within the meaning of Item 28 of the Second Schedule to the MMDR Act, 1957. It was accordingly concluded that, the said decision was not of universal application. W.P.C. No.4415/13 & conn. Cases -27-
26. The Bench specifically observed in paragraph '23' of the verdict passed in 2010 (1) SCC 311 (Som Datt Builders' case) that the proposition, that the minerals must always be subsoil and that there can be no minerals on the surface of the earth has also not found favour in judicial interpretation of the word "mineral", which term has been judicially construed many a time in the widest possible amplitude and with a narrow meaning accorded sometimes. It is further observed in paragraph '24' (in agreement with the view expressed in Banarasi Dass Chadha's case) that the word "mineral" is not a word of art; that it is capable of multiplicity of meanings depending upon the context, and that the word "mineral" has no fixed, but a contextual connotation. It was accordingly that a declaration was made in paragraph '25', that in the context of Section 3(e) of the MMDR Act, it must be held that, "ordinary earth" is comprehended within the meaning of the word "any other mineral".
27. Considering the factual position involved herein as to the nature of weathered rock/weathered sand, it is not a matter of dispute that, 'weathered rock' which is stated as the raw material for manufacturing 'weathered sand' does not form part W.P.C. No.4415/13 & conn. Cases -28- of the soil/subsoil of the earth. This of course is an item, which is to be raised/won/excavated. It may be true that weathered rock, because of the weathering process suffered already, may not be fit enough to be made use of for constructions purposes. But it denotes one of the different stages of "metamorphosis" in connection with the 'rock/sand formation'. The Parliament having already defined the term "minor mineral" under Section 3(e) of the MMDR Act, 1957, with liberty to the Central Government to issue notification so as to include any other item, and the Central Government having issued Ext.R6(a) dated 3.2.2000 notifying "ordinary earth" also as a "minor mineral", in view of the manner of interpretation sought to be adopted by the Apex Court in Banarasi Dass Chadha's case (1978 (4) SCC 11) and as explained in the subsequent decision in Som Datt Builders' case (2010 (1) SCC 311), this Court holds that, 'Weathered rock/Weathered Sand' forms part of "ordinary earth" and is of course a "minor mineral" defined under Section 3(e) of the MMDR Act.
28. The net result is that, by virtue of the operation of the Statute, particularly Section 4(1) and 4(1A) of the MMDR Act, W.P.C. No.4415/13 & conn. Cases -29- 1957, transporting or storing of 'minerals' including 'minor minerals', otherwise than in accordance with the provisions of the Act/Rules is prohibited. As it stands so, it is also declared that, apart from all the other necessary licence/clearance to be obtained from different authorities in tune with the relevant provisions of law, for setting up a weathered sand manufacturing unit, or to deal with 'Weathered rock/Weathered sand', it is very much obligatory for the concerned party to obtain a "dealer's licence" as well, from the competent authorities under the Mining and Geology Department to transport 'Weathered rock/Weathered sand'. This being the position, it is for the concerned authorities to take appropriate steps/actions in accordance with the relevant provisions of law, if any violation of statutory requirement is made.
This Court finds that there is absolutely no merit or bonafides in the writ petitions and they are dismissed accordingly. It is made clear that, the dismissal of the writ petitions will not stand in the way of the petitioners in seeking to have the offence compounded by virtue of the enabling provision in the Mines & Minerals (Development & Regulation) Act, W.P.C. No.4415/13 & conn. Cases -30- 1957/Kerala Minor Mineral Concession Rules, 1967. On such event, the amount, deposited pursuant to the interim order/s passed by this Court to release interim custody of the offending vehicles shall be given credit to and the balance compounding fee, if any, shall alone be sought to be satisfied/recovered.
P.R. RAMACHANDRA MENON, JUDGE.
kp/