Kerala High Court
K.P. Chandramohan vs State Of Kerala
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938
WP(C).No. 25006 of 2015 (A)
----------------------------
PETITIONER(S):
-------------
1. K.P. CHANDRAMOHAN,
KAVILUMPARAKKAL HOUSE, POST IYYAD,
KOZHIKODE DISTRICT, PIN 673 574.
2. KUNDOOR RATNAMANI,
KAVILUMPARAKKAL HOUSE, POST IYYAD,
KOZHIKODE DISTRICT, PIN - 673 574.
BY ADVS.SRI.MKS.MENON
SRI.P.A.AUGUSTINE (AREEKATTEL)
RESPONDENT(S):
--------------
1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF ENVIRONMENT AND FOREST, SECRETARIAT,
THIRUVANANTHAPURAM, KERALA STATE - 695 001.
2. THE GEOLOGIST,
KOZHIKODE DISTRICT, DISTRICT OFFICE, CIVIL STATION,
MALAPPURAM P.O., KOZHIKODE DISTRICT, KERALA,
PIN 673 009.
3. DISTRICT COLLECTOR,
KOZHIKODE DISTRICT, CIVIL STATION, MALAPPURAM P.O.,
KOZHIKODE DISTRICT, KERALA, PIN 673 009.
4. MINISTRY OF ENVIRONMENT AND FOREST,
REPRESENTED BY THE DIRECTOR, ENVIRONMENT AND FOREST,
5TH FLOOR, VAYU BLOCK, INDIRA PARYAVARAN BHAVAN,
JORBAGH ROAD, NEW DELHI-110 003.
R1-R3 BY SRI.RANJITH THAMPAN, ADDL. ADV. GENERAL
GOVERNMENT PLEADER SRI.HANIL KUMAR
R4 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
ADV. SRI.JAGATH N., CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-11-2016 THE COURT ON 14-12-2016, DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 25006 of 2015 (A)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT-P1: TRUE COPY OF RELEVANT PAGES OF KERALA MINOR MINERAL
CONCESSION RULES 2015.
EXHIBIT-P2: TRUE COPY OF THE EXPLOSIVE LICENCE NO.ES/KDE/29/
LE-3/2011(D5/37263/2010) DTD.07.02.2011 ISSUED BY THE
ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE.
EXHIBIT-P3: TRUE COPY OF THE PROCEEDINGS DTD.12.09.14 BEARING
NO.2014/13882/11/D5 OF ADDITIONAL DISTRICT
MAGISTRATE, KOZHIKODE RENEWING THE EXPLOSIVE LICENCE
OF THE 2ND PETITIONER.
EXHIBIT-P4: TRUE COPY OF SHORT FIER'S CERTIFICATE DTD.22.05.2012
ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES
IN FAVOUR OF MR.RAJENDRAN C.M. WHO IS THE BLASTER OF
THE PETITIONERS.
EXHIBIT-P5: TRUE COPY OF THE CONSENT LETTER ISSUED BY
MR.RAJENDRAN C.M. IN FAVOUR OF THE 2ND PETITIONER.
EXHIBIT-P6: TRUE COPY OF LETTER DTD.27.05.2015 ISSUED BY THE
GEOLOGIST, KOZHIKODE TO THE 2ND PETITIONER.
EXHIBIT-P7: TRUE COPY OF QUARRYING PERMIT DTD., 10.06.2015 ISSUED
BY THE GEOLOGIST, KOZHIKODE TO THE 2ND PETITIONER.
EXHIBIT-P8: TRUE COPY OF CONSENT VARIATION ORDER DTD.30.05.2015
ISSUED FROM THE KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, KOZHIKODE TO THE 2ND PETITIONER.
EXHIBIT-P9: TRUE COPY OF LICENCE NO.144/15-16 DTD.08.06.2015
ISSUED FROM THE UNNIKULAM GRAMA PANCHAYAT TO THE
2ND PETITIONER.
EXHIBIT-P10: TRUE COPY OF THE OFFICE MEMORANDUM DTD. 18.05.2015
ISSUED BY MINISTRY OF ENVIRONMENT AND FOREST.
EXHIBIT-P11: TRUE COPY OF THE NOTIFICATION DATED 09.09.13 ISSUED
BY THE MINISTRY OF ENVIRONMENT AND FOREST.
EXHIBIT-P12: TRUE COPY OF THE JUDGMENT IN OA 123/2014
DATED 13.01.2015 OF THE NATIONAL GREEN TRIBUNAL.
Msv/
-2-
-2-
WP(C).No. 25006 of 2015 (A)
----------------------------
EXHIBIT-P13: TRUE COPY OF THE STAY ORDER DTD.20.4.2015 PASSED BY
THE HONOURABLE SUPREME COURT IN IA.NO.2/2014 IN
CIVIL APPEAL NO.4543/2000.
EXHIBIT-P14: TRUE COPY OF DEMAND NOTICE DTD.13.6.2014 ISSUED BY
THE 2ND RESPONDENT TO MR.K.P.BALAKRISHNAN NAIR AND
ANOTHER.
EXHIBIT-P15: TRUE COPY OF THE STAY ORDER DTD.7.12.2015 PASSED BY
THIS HONOURABLE COURT IN WPC.NO.36843/2015.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
msv/
K. VINOD CHANDRAN, J.
=====================
W.P.(C) No.25006 of 2015 - A
======================
Dated this the 14th day of December, 2016
J U D G M E N T
The petitioners are the owners of a property situated in Re-Survey No.8/1A2C of Sivapuram Village, Kozhikode. They also own a granite quarry, which is operated in the said land. The petitioners had filed a suit seeking declaration of their title of the minerals existing in the land, the title of which land, without any dispute, is held by them. The prayer made has been ultimately allowed by the decision of the Hon'ble Supreme Court reported in Thresiamma Jacob v. Geologist, [2013(3) KLT 275 (SC)]. The Hon'ble Supreme Court has declared that the persons, who are in the ownership and possession of land, within the Malabar area included in the erstwhile Madras Presidency are the owners of the land as also 2 W.P.(C) No.25006 of 2015 - W the subsoil including the minerals existing in the said lands. The declaration of the Hon'ble Supreme Court was on the finding that there was no enactment vesting the mineral wealth or subsoil rights in the State and the ownership of such subsoil/mineral wealth would normally follow the ownership of the land. The Mines and Minerals (Development and Regulation) Act, 1957 (for brevity 'the MMDR Act') was found to be a regulatory measure, which does not take over the ownership of the minerals existing in a land from its title holders.
2. The petitioners in the above writ petition seek for reading down Rules 2 to 9, 11, 12, 20 and 49 of the Kerala Mineral Mineral Concession Rules, 2015 (for brevity 'the KMMC Rules') to the extent the said rules stipulate payment of royalty which is a condition precedent to issue movement permits; without which the excavated minor mineral cannot be transported and further makes Environmental Clearance (EC) 3 W.P.(C) No.25006 of 2015 - W mandatory for grant of mining permits. There is also a relief sought to set aside Office Memorandum dated 08.05.2012, issued by the Ministry of Environment and Forests& Climate Change (MoEF&CC) as well as the consequential notification dated 09.09.2013, stipulating prior environmental clearance for mining activities even in areas less than 5 hectors. Consequentially the petitioners also seek for refund of the royalty collected from the petitioners after the judgment of the Hon'ble Supreme Court fore-cited {Thresiamma Jacob}.
3. The learned Counsel for the petitioners refers to the various provisions of the KMMC Rules to point out the anomalies with respect to the issuance of permits and licenses for exploitation of minor minerals, as brought in by the State under Section 15 of the MMDR Act. It is urged that there is no specific provision by which the owners of lands, within the Malabar area, who have been declared to be owners of the subsoil/mineral rights also; to apply for and obtain a 4 W.P.(C) No.25006 of 2015 - W permit/license/lease to carry out quarrying activities in their own lands. In the absence of such enabling provision, despite power having been given to the State to regulate the grant of quarry lease mining lease or other minor mineral concessions under the MMDR Act, the petitioners have an absolute right to conduct such quarrying without reference to any of the authorities under the MMDR Act and the KMMC Rules. It is contended that there could be no insistence for payment of royalty also since royalty is in the nature of recompense of the value of minerals excavated/extracted; which cannot be levied from the petitioners, who are found to be the owners of the subsoil/minerals existing in the land. The State having no such ownership cannot insist on the payment of royalty for removal of such subsoil/mineral or insist on the regulatory regime for transportation of such excavated minerals by transit passes; the issuance of which is only on satisfying the precondition of payment of royalty. The learned Counsel for the petitioner also relies on D.K. Trivedi 5 W.P.(C) No.25006 of 2015 - W and Sons and others v. State of Gujarat and others [AIR 1986 SC 1323] to further buttress the contention that the petitioners being the owners of the land and the subsoil/minerals existing therein, would not be liable for any royalty for excavation of such minerals, which already belongs to them.
4. The learned Additional Advocate General, who argued for the State however, specifically points to the MMDR Act to contend that there could be no quarrying carried on without permit/licence/lease, as per the provisions of the MMDR Act and hence the petitioner cannot take such contention of being relieved of the duties cast under the regulatory regime brought in by the Union Parliament as per the MMDR Act and the State Government, by KMMC Rules. The State also has a further contention that the petitioner has paid the royalty without demur on application for a quarry and the same cannot be refunded as is specifically prohibited under the KMMC Rules, even if there was no excavation of mineral carried on. It is also 6 W.P.(C) No.25006 of 2015 - W contented that the office memorandum issued by the MoEF&CC is superseded by a notification S.O No.504 (E) amending the Environment Impact Assessment (EIA) Notification of 2006; of the MoEF&CC issued under the Environmental Protection Act, 1986. The specification in the said notification for prior EC even for properties coming within the 5 hectors area was in tune with the judgment of the Hon'ble Supreme Court in Deepak Kumer v. State of Haryana [2012 (4) SCC 629]. The petitioners who do not have such an EC cannot wriggle out of such stipulation and maintain the writ petition merely based on the ownership asserted of the subsoil/minerals.
5. The anomalies pointed out by the learned Counsel for the petitioner according to this Court requires attention of the State, which has framed the KMMC Rules. Chapter III of the KMMC Rules speaks of grant of quarrying permits in respect of lands, in which the mineral right vests with private persons. The grant of quarrying permit is on an application made to the owner 7 W.P.(C) No.25006 of 2015 - W of the land, a private person, in whom is vested the mineral rights in the land also. The only restriction for such grant of permit is with respect to the same being possible of issuance only to Indian Nationals and only to the extend of 10000 tones in quantity under one permit. The grant also has to be on the very same conditions as specified in Chapter II, under which the competent authority or the officer authorised in that regard grants a quarrying permit of minerals, in lands which vest in the Government. The further duty cast on the grant of such permit is under Rule 21 of the KMMC Rules of submitting to the competent authority, an attested copy of the permit issued.
6. The purport of Chapter III of the KMMC Rules, is that for grant of a quarrying permit by a private person; who is the owner of the land and also the minerals, the same procedure as the competent authority would undertake under Chapter II has to be adopted. Rule 11 of Chapter II of the KMMC Rules speak of mineral transit passes for transportation of minerals so 8 W.P.(C) No.25006 of 2015 - W excavated, which makes a precondition of payment of royalty under the consolidated royalty payment scheme or as fixed by the competent authority concerned at the rates specified in Schedule 1. The said provision for payment of royalty as a precondition creates a conflict insofar as the ownership in minerals which has been declared to be vested in the land owner. In the present case, the owners themselves are carrying on the quarrying operations and in such circumstance, it cannot be said that they do not have such a right while they could always grant a permit for such quarrying, on an application made by a third party.
7. Chapter VII, details the procedure for obtaining quarry licenses in respect of the land, in which the mineral rights vest in persons other than the State Government. Therein, the restriction in granting a lease by a private person to a third party is only as specified in Rule 79 of the KMMC Rules, which insists on the lease being granted to only an Indian National, who has 9 W.P.(C) No.25006 of 2015 - W to produce an income tax clearance certificate, obtained from the income tax officer. The conditions of quarrying lease as seen from Rule 80 of the KMMC Rules does not adopt the entire provisions of Chapter V, dealing with quarrying lease in respect of lands in which the mineral or the mineral rights vest with the Government. Rule 80 only refers to clause (b) to (o) of sub-rule (1) of Rule 40 of the KMMC Rules, which has to be applied with the modification that, in clause (c) and (d) for the words 'Government', the word 'lessor' has to be substituted and in clause (o), the words "to the competent authority" shall be omitted. When the modification as provided in Rule 80 is applied to Rule 40 of the KMMC Rules, then the royalty payable as per Clause (c) and (d),would be to the lessor and not the Government. The obligations of the lessee as per Clause (o) of sub-rule(1) of Rule 40 of the KMMC Rules would also be to the lessor and not the Government. Interestingly; though the grant of quarrying permit under Chapter III has to comply with the 10 W.P.(C) No.25006 of 2015 - W conditions stipulated in Chapter II, there is no corresponding provision in Chapter VIII to comply with any of the conditions of Chapter V. The absence of such provisions would enable the private person who own lands and the minerals therein, to lease out the same for quarrying, in accordance with Rule 80 of the KMMC Rules by collecting royalty and dead rent from the lessee without reference to the Government and would also be entitled to transport such minerals, without reference to the Transportation Rules as the said mineral/subsoil wealth belongs to the owner of the lands.
8. There are definitely anomalies in the rules as pointed out by the learned Counsel for the petitioner, with reference to the various provisions as has been held herein above. But would that alone clothe the petitioner with the legal right to seek for the relief sought for in the writ petition, is the question to be answered.
11 W.P.(C) No.25006 of 2015 - W
9. It is pertinent that the Hon'ble Supreme Court in Dalmia Cement (Bharat) Ltd. v. State of Tamil Nadu and Another [2014 (2) SCC 279] considered Thresiamma Jacob (supra) and held so in paragraph 36, which is extracted hereunder:-
36. Even if we assume for the sake of argument that the Cement companies are pattadars (or the successor in interest of such pattadars) either under the original ryotwari system or the holders of the 'ryotwari patta' pursuant to the abolition of estates / imams, and also assume for the sake of argument that each of the appellant companies is also the owners of the subsoil rights of their patta lands as, in our opinion, such OWNERSHIP does not make any difference insofar as the authority of the State to collect royalty. It may be remembered that even w.r.t. the original ryotwari patta lands where admittedly the mineral vested in the pattadar, the State had asserted ( in BSO 10 dated 19.03.1888, which was extracted by us in Thresssiamma Jacob and Others v. Geologist, Department of Mining and Geology and Others 2013 (9) SCC 725, and we extract it again), its authority to collect "a share in the produce of the minerals RESOLUTION - dated 19th March 1888, No.277.
(emphasis supplied).
Hence the ownership as declared by the Hon'ble Supreme Court would not make any difference insofar as the authority of the State to collect royalty. The character and nature of the levy, 12 W.P.(C) No.25006 of 2015 - W termed royalty has also been referred for consideration to a larger by an order of reference dated 30.03.2011 in Mineral Area Development Authority V. Steel Authority of India {(2011) 4 SCC 450}
10. Further the learned Additional Advocate General rightly pointed out Section 4 of the MMDR Act, which mandates a permit/license/lease for carrying out of any mining operations. In the present case, the petitioner also had on such understanding, applied without demur, for a quarrying permit, which is produced at Ext.P7, paying the royalty as levied under the KMMC Rules. At that point, the legal proceedings initiated with respect to a declaration of ownership of the minerals, which the petitioners themselves had initiated had already been decided in their favour. The claim of refund is sought for on the basis of such decision of the Hon'ble Supreme Court in Thresiamma Jacob (supra). The KMMC Rules under which the royalty was paid, however, specifically by sub-clause (n) of Rule 13 W.P.(C) No.25006 of 2015 - W 10, make the permit holders ineligible for refund of any amount paid by way of application fee,rent,royalty or tax. For the reason of the petitioners having voluntarily applied for a permit and having paid royalty and also carried out excavation and removed the minor mineral on the strength of the transit passes issued; they are dis-entitled under Rule 10 of the KMMC Rules, to seek for any refund.
11. The further prayer made by the petitioners is to permit the petitioners to carry out the quarrying operations by themselves, being the owner of lands, for reason of the absence of specific provisions in the rules framed by the State; despite power being conferred on the State to regulate grant of mining lease,permissions or other minor mineral concessions under Section 15 of the MMDR Act. Despite that it has to be emphasised that the petitioner cannot wriggle out of the necessity for obtaining EC under Environmental Impact Assessment Notification No. 2006 (SO 1533EE) dated 14 W.P.(C) No.25006 of 2015 - W 14.09.20016 issued by the MoEF & CC as amended by the notification by S.O No.141 (E) dtd. 15.01.2016. This is also a mandate brought in by the Ministry under the Environment Protection Act, 1986; following the decision of the Hon'ble Supreme Court in Deepak Kumar (supra). The insistence of EC for all types of mining whatever be the extent was also laid down by a Division Bench of this Court in All Kerala River Protection Council V. State of Kerala{2015 (2) KLT 78}. The SLP filed against the said decision as S.L.P. No. 30103 of 2015 has also been rejected by the Hon'ble Supreme Court. Hence, the petitioners necessarily, has to obtain an EC to carry on any quarrying operations, which as of now, the petitioners do not possess. In such circumstance, it cannot but be held that the petitioner has no cause of action to pray for conduct of quarrying operations; without an EC.
For all the above reasons, the writ petition would stand dismissed. But however, it is directed that the State look 15 W.P.(C) No.25006 of 2015 - W into the anomalies as pointed out in the aforesaid paragraphs in the framing of the KMMC Rules and make amendments to protect the interest of the State. No costs.
Sd/-
K. VINOD CHANDRAN, JUDGE SB//07/12/2016 // true copy // P.A to Judge