Kerala High Court
Binoy Kumar vs State Of Kerala on 25 March, 2019
Equivalent citations: AIRONLINE 2019 KER 788, (2019) 200 ALLINDCAS 692, (2019) 2 KER LJ 700, (2019) 2 KER LT 227
Author: A.K. Jayasankaran Nambiar
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941
W.A.No.338 of 2019
AGAINST THE JUDGMENT IN WP(C)19791/2018 of HIGH COURT DATED 9.11.2018
APPELLANT/PETITIONER:
BINOY KUMAR, AGED 40 YEARS
S/O KUMARAN, KOTTAMALAYIL HOUSE,
ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK,
PIN-686 672.
BY ADVS.
SRI.A.V.JAMES
SRI.O.S.JAFARKHAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA, REP. BY SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
2 THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT,
CIVIL STATION, KAKKANAD, KOCHI-682 030.
3 THE TAHSILDAR, TALUK OFFICE,
MUVATTUPUZHA, ERNAKULAM DT., PIN-686 671.
SRI.M.H.HANIL KUMAR, SPECIAL GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2019 ALONG
WITH W.A.NOS.728, 764 AND 805 OF 2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
W.A.Nos.338, 728, 764 & 805 of 2019
: 2 :
JUDGMENT
A.K. Jayasankaran Nambiar, J.
All these Writ Appeals arise from the common judgment dated 9.11.2018 of the learned Single Judge in Writ Petition Nos.19791, 17017, 25136 and 22963 of 2018. The sole issue raised in these Writ Appeals is the correctness of the finding of the learned Single Judge as regards the liability of the appellants herein to pay penalty under the Kerala Land Conservancy Act, 1957,on the quantity of mineral mined by them in excess, from Government puramboke lands over which they had quarrying leases, and under circumstances where they had already paid a consolidated royalty in terms of the Kerala Minor Mineral Concession Rules for the said quantity of the mineral extracted by them. It is not in dispute in these cases that the appellants herein had extracted minerals from the land, far in excess of the quantity that they were permitted to extract under the grants issued to them in terms of the Kerala Minor Mineral Concession Rules.
2. The learned Single Judge, through the common judgment, found that there was no provision either under the Kerala Land Conservancy Act or under the Kerala Minor Mineral Concession Rules enabling the appellants herein to mine minerals in contravention of the conditions contained under the lease arrangements. The W.A.Nos.338, 728, 764 & 805 of 2019 : 3 :
learned Judge took note of the contention of the appellants/petitioners in the Writ Petitions that since no quantity was prescribed in the lease agreements, they were entitled to do limitless quarrying, and found that the said contention could not be legally sustained for the reason that the total tonnage charges and amounts to be paid by the lease holders were clearly prescribed in the lease agreements that were executed. On the said finding, the learned Judge found that there was no basis for the contention advanced by the appellants that they were not liable to pay any amount as demanded under the Kerala Land Conservancy Act and Rules.
3. Before us, it is the submission of the learned Senior Counsel Sri.S.Sreekumar, duly assisted by Sri.P.M.Ziraj, for the appellants in the Writ Appeals 728 and 764 of 2018, the learned Senior Counsel Sri.Jaju Babu duly assisted by Sri.P.M.Ziraj in Writ Appeal No.805 of 2019 and Sri.A.V.James, the learned counsel appearing for the appellant in Writ Appeal No.338 of 2019, that a perusal of the provisions of the Kerala Minor Mineral Concession Rules, 2015 as also the prior Rules namely, the Kerala Minor Mineral Concession Rules, 1967, it can be seen that the concept of payment of royalty at consolidated rates was introduced for the first time with effect from 19.3.2002 under the 1967 Rules and the same was continued under the 2015 Rules. It is pointed out that while under the 1967 Rules, the payment of consolidated royalty was made mandatory and in lieu of the royalty at the rates W.A.Nos.338, 728, 764 & 805 of 2019 : 4 :
specified in Schedule I of the said Rules, in the later Rules of 2015 the payment of royalty on consolidated basis is available as an option to persons engaged in operating metal crusher units. It is the contention of the learned Senior Counsel that once the royalty is paid on consolidated basis, either by reference to the jaw size of the crushers used in the unit or on the basis of the number of passes issued for transporting the granite building stone, the lease holder obtains the right to extract limitless quantity of minerals from the land covered by the quarrying lease. It is submitted, therefore, that in view of the collection of consolidated royalty from them, there was no justification whatsoever for the State Government to impose any penalty or compensation amounts on the lease holders, in terms of the Kerala Land Conservancy Act and Rules.
4. On a consideration of the rival submissions, we find that it is not in dispute that as per the terms of the grant under the Kerala Minor Mineral Concession Rules, the appellants were permitted to extract only a defined quantity of mineral from the area leased out to them under the quarrying lease. It is also an admitted fact that the appellants herein had extracted quantities far in excess of what was specified in the grant issued to them. 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 W.A.Nos.338, 728, 764 & 805 of 2019 : 5 :
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 puramboke 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.
5. In this connection, we have noticed a communication dated 20.5.2009 of the Director of Mining and Geology which suggests that the Department of Mining and Geology of the State of Kerala has taken a view that those metal crusher units that have opted for payment of royalty on consolidated basis, will be exempted from further steps against them for realizing royalty in respect of the excess quantity of W.A.Nos.338, 728, 764 & 805 of 2019 : 6 :
granite building stones quarried, over what has been permitted in the grant order of quarrying lease. We are of the definite view that the clarification given by the Director of Mining and Geology which suggests that mining can be done in excess of the quantity permitted in the grant, does not accord with the statutory provisions that determine the rights of the metal crusher units, and we make it clear that the said Circular shall not be seen as conferring any rights on the quarrying lease holders who must necessarily confine their extraction to what is expressly permitted in the grants issued to them under the Kerala Mines and Mineral Concession Rules. We hasten to add that the issuance of grants by the State Government, for quarrying activities in various locations in the State, is necessarily to be seen as guided by the data available with the State Government with regard to availability of minerals in any particular area, the lie and nature of the land in question. The specific grants given by the State Government for mining activities must be seen in the backdrop of the data possessed by the State Government with respect to the extent of mineral available in such lands and accordingly, the quantity permitted for extraction in each of the mining lands must be seen as the sole quantity in respect of which the permit for quarrying is granted. The State Government, in its role as a guardian of the ecology and preserver of the natural resources within the State cannot permit extraction of minerals in an unscientific way and regardless of the adverse impact that it may have on the environment and local ecosystem. The State W.A.Nos.338, 728, 764 & 805 of 2019 : 7 :
Government, therefore, must endeavor to ensure that Circulars, such as the one quoted above of the Director of Mining and Geology are not issued unmindful of the consequences that they would entail, and is accordingly advised to exercise more caution while issuing such circulars in future.
6. As for these writ appeals, for the reasons stated above, we see no reason to interfere with the judgment of the learned Single Judge, save to the extent of clarifying that the instalment facility granted by the learned Single Judge for payment of the amounts demanded against the appellants shall now commence from 1st of April, 2019. The rest of the directions and observations of the learned Single Judge are upheld and the Writ Appeals are dismissed.
SD/-
HRISHIKESH ROY CHIEF JUSTICE SD/-
A.K.JAYASANKARAN NAMBIAR JUDGE jes