Kerala High Court
George Antony vs The Geologist on 28 February, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938
WP(C).No. 21898 of 2011 (J)
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PETITIONER(S):
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GEORGE ANTONY,MANAGING PARTNER
M/S.G.K. GRANITES, KIZHAKKAMBALAM, ERNAKULAM- 683 562.
BY ADV. SRI.N.JAMES KOSHY
RESPONDENT(S):
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1. THE GEOLOGIST, DISTRICT OFFICE
DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION,
ERNAKULAM, KOCHI -30.
2. THE DIRECTOR OF MINING AND GEOLOGY,
DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM,
PATTAM, TRIVANDURM-4.
3. STATE OF KERALA, REPRESENTED BY ITS
PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT,
SECRETARIAT, TRIVANDRUM - 695 001.
BY SMT.RAJI T.BHASKAR, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC21898/11
APPENDIX
PETITIONER'S EXHIBITS
P1 : COPY OF GO(MS) NO.19/2002 DATED 28.02.2002.
P2 : COPY OF LETTER AND REGISTRATION OF the METAL CRUSHER UNIT FOR
THE YEAR 2005-06 ISSUED TO THE PETITIONER BY R1.
P3 : COPY OF NOTICE DATED 9.9.2009 ISSUED TO R1 TO THE PETITIONER.
P4 : COPY OF LETTER DATED 9.10.2009 SENT BY R1 TO THE PETITIONER AND
COMMUNICATION FROM THE DIRECTOR OF MINING AND GEOLOGY DATED
26.8.2009.
P5 : COPY OF SURPRISE CHECK REPORT OF THE VIGILANCE AND ANTI
CORRUPTION BUREAU DATED 31.12.2005.
P6 : COPY OF APPEAL NO.31954/2009 FILED BY THE PETITIONER DATED
5.11.2009.
P7 : COPY OF THE JUDGMENT DATED 2.3.2010 IN WP(C) NO.27255/2009 OF
THE HONOURABLE HIGH COURT OF KERALA.
P8 : COPY OF WRITTEN SUBMISSIOND DATED 19.5.2010 FILED BY THE
PETITONER BEFORE R3.
P9 : COPY OF CIRCULAR NO.8925/M3/2008 DATED 20.05.2009 ISSUED BY R2.
P10 : COPY OF COMMUNICATION DATED 30.03.2011 ALONG WITH MODIFIED
ORDER GO(RT) NO.932/2010/ID DATED 30.06.2010.
P11 : COPY OF DETAILS OF the REMITTANCE OF THE ROYALTY BY the
PETITIONER FOR the PERIOD FROM 22.07.1987 TO 05.02.1997.
P12 : COPY OF INSPECTION REPORT PREPARED IN RESPECT OF THE PERIOD
FROM 21.08.1999 TO 31.10.2000 BY THE DIRECTOR OF MINING AND GEOLOGY.
P13 : COPY OF DEMAND NOTICE DATED 31.12.2003 AND THE RECEIPTS OF
REMITTANCE ARREARS.
P14 : COPY OF AUDIT REPORT IN RESPECT OF PERIOD FROM 01.11.2000 TO
23.11.2002.
//TRUE COPY//
PA TO JUDGE.
jg-25/3
'C.R.'
DEVAN RAMACHANDRAN, J.
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WP(C) No.21898 of 2011
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Dated this the 20th day of March, 2017.
J U D G M E N T
1.The Kerala Minor Mineral Concession Rules, 1967 (hereinafter referred to as 'the Act', for short) provide for various regimes of licencing for the purpose of removal of various minor minerals.
2.As regards granite stones are concerned, until the year 2002, permits were granted under royalty to be calculated on the actual amount of extraction done. However, post February, 2002, when the Kerala Minor Mineral Concession (Amendment) Rules, 2001 came into force, a consolidated royalty regime is introduced under which the extraction of granite stones could be made unlimited, if royalty at a fixed rate is paid under Schedule-IV. The difference in regimes was that by paying a fixed royalty under Schedule-IV, the obligation to pay the royalty at the rates specified in Schedule-I was exempted.
WPC21898/11 -2-
3.The dispute in this question relates to the extraction of minor mineral when the regime changed.
4.I have heard the learned counsel for the petitioner, Mr.James Koshy, and the learned Government Pleader for the respondents.
5.The petitioner is impugning Ext.P10 order which is issued by Government of Kerala making certain directions to the Director of Mining and Geology to issue a fresh demand to the petitioner by reassessing the amount to be remitted by him towards additional royalty for the alleged excess extraction of granite. At first blush, these directions would not be prejudicial to the petitioner. All that Ext.P10 says is that the Director should assess the volume of the granites extracted by the petitioner and that if it is found to be in excess, raise a fresh demand. However, there are some latent issues, which are moulded by various other events and incidents, which is the genesis of the disputes in this case now. WPC21898/11 -3-
6.It appears that the petitioner was, until the year 2002, paying royalty at the rates specified in Schedule-I of the Rules, that is to say, for the exact amount of granites that was extracted. However, when the amendment came in the year 2002, he opted for consolidated royalty by paying a fixed amount under Schedule-IV instead of the rates shown at Schedule-I. Obviously, this is intended to offer benefit to the petitioner because, he could extract any amount of granite stones by paying a consolidated royalty. It appears that there was some complaint against this regime and consequent to which the Vigilance and Anti Corruption Bureau (VACB) made certain investigations leading to Ext.P5 report. An examination of Ext.P5 would indicate that the objection raised by the VACB is that under the guise of a consolidated royalty, people like the petitioner were extracting large amounts of granite in gross excess and in no way commensurate to the value of the rates paid by them. The VACB has, therefore, recommended that action be taken against the petitioner to recover an amount of `74,49,400/- which was WPC21898/11 -4- determined by them to be the loss sustained by the State on account of the alleged indiscriminate extraction by the petitioner.
7.The petitioner, aggrieved by Ext.P5, appears to have moved the Government and also to have obtained orders from this Court directing the Government to consider his objections. This culminated in Ext.P10 order passed by the Government. This is the order impugned in this writ petition.
8.I have examined Ext.P10 quite in detail. It is obvious from the terms of that order that the Authority has found that under the regime introduced by the amendment of the Rules in 2002, extraction of minerals could be made without reference to the quantity, by making payment under the consolidated royalty payment scheme at the rates shown in Schedule-IV and not that shown in Schedule-I. The Authority, in Ext.P10, has, therefore, found that the petitioner cannot be found fault in extracting larger quantities of granites as has been alleged, because he WPC21898/11 -5- obtains the benefit of the consolidated royalty payment introduced under the amendment. However, as regards the years before 2002, the Authority seems to have indicated that it will be up to the Director to cause necessary investigation and to find out whether the petitioner has extracted more than the amounts that he had paid under the old regime.
9.The petitioner says that these directions were completely unnecessary because, according to him, the disputes and disputations against him are only with respect to the extraction after 2002. He maintains that the complaint, that was raised against him, was that under the consolidated royalty payment scheme, the petitioner has extracted large amounts without reference to the actual royalty paid by him. He asserts that the report of the vigilance enquiry is also confined to that and nothing more.
10.I have, therefore, examined Ext.P5 report of the VACB. It would WPC21898/11 -6- obviously indicate that the entire complaints investigated through the agency of the VACB was in relation to a complaint that under the amendment introduced in 2002, persons like the petitioner have been given an undue advantage by being authorised to extract minerals in whatever quantity without reference to the rates paid by them. This appears to be the only reason why the VACB has caused the enquiry. This is perspicuous because they have even recommended that the amendment be reviewed and, if possible, set aside by the Government.
11.In such view of the matter, I do not see why in Ext.P10, the Secretary of the Government has directed that the petitioner's case be re-opened from the time when he got the first permit for extraction under the old regime of royalty. This looks to have been done without any discernible reason, but perhaps only by way of abundant caution. I say this because there is nothing on record to show that there is any complaint against the petitioner that he has extracted more than what he was authorised to do WPC21898/11 -7- under the old regime or that he has extracted more than what he was permitted in relation to the royalty that he had paid under Schedule-I. In the absence of any such complaint, normally, it would be unnecessary to cause any investigation prior to 2002.
12.However, since, I see that the Secretary of the Government has issued these directions by way of abundant caution, I do not deem it necessary to constrict it at this stage. I am of the view that the investigation directed under Ext.P10 can be allowed to continue by the Director of Mining and Geology in an independent fashion, and that he can be permitted to cause verification as to whether the petitioner has complied with the conditions of royalty prior to 2002, with reference to the amount of minerals that were extracted by him, as available is from the records and not through a roving enquiry. In other words, if the records indicate that the petitioner has extracted minerals strictly in compliance of the permits granted to him prior to 2002, nothing further would be required to be done to raise a fresh demand. This is the only way WPC21898/11 -8- Ext.P10 can be seen to have been intended by the Authority, who issued it.
In such circumstances, I dispose of the writ petition granting liberty to the Director of Mining and Geology to consider issuing proceedings against the petitioner, if it is so required, after verifying whether there is any case to be presumed against the petitioner, taking into account the permits issued prior to 2002 and the amount of minor mineral extracted as per the records; and if there is any inconsistency in these, he would obviously be entitled to raise a fresh demand against the petitioner, but only after issuing a proper notice to him. If this is done, I am sure that the apprehension of the petitioner would be allayed to a substantial extent and he would ineluctably have the liberty to take recourse to such remedies and such procedures as are available to him to challenge any such demand or orders that are issued against him by the Director of Mining and Geology. WPC21898/11 -9-
13.I make it clear that since Ext.P10 confirms the regime post 2002 to be one where the petitioner could have extracted unlimited minor mineral by paying a consolidated royalty, the Director of Mining and Geology cannot enter into any investigation post 2002, provided that the petitioner has obtained proper permits under the consolidated royalty for that period. This writ petition is thus ordered.
In the facts and circumstance of the case, I make no order as to costs and the parties are directed to suffer their respective costs.
(DEVAN RAMACHANDRAN, JUDGE) jg-20/3