High Court of KeralaSingle Judge2015-05-21The writ petition is disposed of as above.

Anatharaj v. District Geologist, Department of Mining and Geology, Thrissur District; The Director, Mining and Geology, Office of the Mining and Geology, Kesavadasapuram, Pattam, Thiruvananthapuram; The State of Kerala

Case / Petition Number:W.P.(C).No.14427 of 2015 (C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-05-21
Court Decision / Holding: The writ petition is disposed of as above.
Final Disposition: The writ petition is disposed of as above.

Parties to the Case

Appellants / Petitioners

Anatharaj

Respondents

The District Geologist, Department of Mining and Geology, Thrissur District
The Director, Mining and Geology, Office of the Mining and Geology, Kesavadasapuram, Pattam, Thiruvananthapuram
The State of Kerala, represented by Secretary to Government, Industries Department, Government of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. M. Ziraj

Counsels for Respondents

• GOVERNMENT PLEADER SMT.C.K.SHERIN

Case Synopsis & Summary

The petitioner, Anatharaj, a private landowner in Kadappuram Village, moves a writ petition challenging the non-consideration of his Exhibit P5 application under the Kerala Minor Mineral Concession Rules, 2015 and the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015. He had obtained a No Objection Certificate (Ext. P1) from Kadappuram Grama Panchayath to facilitate construction of a residential building on Survey No. 4/3B, and had begun construction, during which ordinary sand (a minor mineral) was quarried from the site (Ext. P3). Under the existing regime, a quarrying permit under the Minor Mineral Rules, 1967 would be required (Section 4). He now seeks exemption under Rule 106 of the 2015 Rules, which permits extraction for specific purposes like residential construction, subject to informing the competent authority and payment of royalty. The 2015 Rules came into force on 07.02.2015, but no competent authority had been notified, though the 1st respondent was previously the notified officer under the 1967 Rules. The Government had issued an order allowing transport without a permit, which the National Green Tribunal stayed. The court clarifies that exemption under Rule 106 is available once the competent authority is notified, and royalty is fixed after site inspection; transit passes may be issued on separate application; EIA clearance is not required due to exemption. The petition is disposed of with directions to notify the competent authority and proceed accordingly.

Provisions of Law Cited

Kerala Minor Mineral Concession Rules, 2015Kerala Minor Mineral Rules, 1967Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015Section 4 of the Kerala Minor Mineral Concession Rules, 1967Rule 106 of the Minor Mineral Rules, 2015Mines and Minerals (Development and Regulation) Act, 1957

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that ordinary sand qualifies as a minor mineral and that construction undertaken within a Grade II Panchayath does not require a building permit; he obtained Ext. P1 NOC for the loan purpose and commenced construction along with sand extraction under Ext. P3. He asserts that Minor Mineral Rules, 2015, particularly Rule 106, provide exemption for extraction for construction after necessary intimation to the competent authority and payment of royalty, which the petitioner seeks to satisfy once a competent authority is notified. Since the 2015 Rules came into force on 07.02.2015, the petitioner argues there is no need for a separate clearance under environmental law and that a transit pass may be issued under the Prevention Rules of 2015 after a separate application. The lack of a notified competent authority and the stay on a government order permitting extraction/transport are cited as procedural hurdles, which should be overcome by directing inspection and royalty fixation by the intended authority; exemption conditions should apply to avoid prejudice to the petitioner.

Contentions of Respondents

The respondents contend that mining/transportation of minor minerals requires a permit under the existing regime; while an earlier government order permitted transport without permit, it was stayed by the National Green Tribunal, and thus the exemption cannot be granted without proper notification of the competent authority and fixation of royalty. The 1st respondent, as the officer previously notified under the 1967 Rules, must continue to determine royalty and issue transport passes under the 1967 regime until the 2015 Rules are fully operational with a notified competent authority. The Government Pleader emphasizes that exemption under Rule 106 is contingent upon procedural compliance, including notification of the competent authority and payment of royalty. Overall, the State seeks adherence to statutory requirements and readiness to notify the competent authority to enable the exemptions claimed by the petitioner.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Deepak Kumar and Others v. State of Haryana & Others	[(2012) 4 SCC 629]	Mentioned Only	Cited as background authority on mining guidelines and regulatory directions, cited for contextual backdrop rather than as a controlling ruling in the present matter.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Anatharaj v. District Geologist, Department of Mining and Geology, Thrissur District; The Director, Mining and Geology, Office of the Mining and Geology, Kesavadasapuram, Pattam, Thiruvananthapuram; The State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 21ST DAY OF MAY 2015/31ST VAISAKHA, 1937 ## W.P.(C).No.14427 of 2015 (C) -------------------------------------------------- PETITIONER(S):- ------------------------- ANATHARAJ, AGED 52 YEARS, S/O.KRISHNANKUTTY, THOPPIL HOUSE, ERATTUPUZHA, KADAPPURAM VILLAGE, PALANGAD P O, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.M.ZIRAJ. RESPONDENT(S):- --------------------------- ## 1. THE DISTRICT GEOLOGIST, DEPARTMENT OF MINIGN AND GEOLOGY, THRISSUR DISTRICT - 680001. ## 2. THE DIRECTOR, - MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM 695001. 3. THE STATE OF KERALA, - REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. R1 TO R3 BY GOVERNMENT PLEADER SMT.C.K.SHERIN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-05-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.14427 of 2015 (C) --------------------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS:- --------------------------------------- EXT.P1:TRUE COPY OF THE NO OBJECTION CERTIFICATE 20-11-2013 ISSUED BY THE SECRETARY, KADAPPURAM GRAMA PANCHAYATH. EXT.P2:TRUE COPY OF THE BUILDING PLAN OF THE RESIDENTIAL BUILDING. EXT.P3:TRUE COPY OF THE CERTIFICATE ISSUE BY KADAPPURAM GRAMA PANCHAYATH DTD 23/4/2015. EXT.P4:TRUE PHOTORAPHS OF THE ORDINARY SAND STORED BY THE PETITIONER IN THE PREMISES. EXT.P5:TRUE COPY OF THE APPLICAITON SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DTD. 28/4/2015. RESPONDENT(S)' EXHIBITS:- ----------------------------------------NIL. Vku/[ true copy ] ## K. Vinod Chandran, J -------------------------------------W.P.(C).No.14427 of 2015-C ------------------------------------Dated this the 21[st] day of May, 2015 ## **JUDGMENT** The petitioner in the above writ petition is aggrieved with the non-consideration of Exhibit P5 application filed under the Kerala Minor Mineral Concession Rules, 2015 [for brevity “Minor Mineral Rules of 2015”] and the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation] Rules, 2015 [for brevity “Prevention Rules of 2015”]. 2. The facts leading to Exhibit P5 application are that the petitioner, owner of a property comprised in Survey No.4/3B of Kadappuram Village, coming within the Kadappuram Grama Panchayat, intended to construct a residential building in the said property. The petitioner approached the Local Self Government Institution, being the Kadappuram Grama Panchayat, and obtained a No Objection Certificate dated 20.11.2013, evidenced at Exhibit P1. Though the said certificate was issued for the purpose of obtaining a loan from a Nationalised Bank, the petitioner contends that no building permit is required for WP(C).No.14427 of 2015 - 2 - construction of a residential building within the jurisdiction of a Grade II Panchayath. 3. The petitioner had commenced the construction activity and had also extracted ordinary sand from the land. “Ordinary sand” is a “minor mineral” as indicated in the Schedule to the Minor Mineral Rules of 2015. The petitioner was also issued with Exhibit P3 on 23.04.2014 by the Local Self Government Institution permitting removal of sand from the property for carrying on the construction of the residential building. 4. “Ordinary sand” being a “minor mineral”, quarrying permit had to be obtained under Section 4 of the Kerala Minor Mineral Concession Rules, 1967 [for brevity “Minor Mineral Rules of 1967”]. Obviously the petitioner has not applied for such a mining permit as per the Minor Mineral Rules of 1967. The petitioner, however, has subsequently carried on extraction of sand from the property of the petitioner as per Exhibit P3 and has now claimed for an exemption under the Minor Mineral Rules of 2015 and issuance of a transportation pass under the Prevention Rules of 2015. WP(C).No.14427 of 2015 - 3 - 5. The claim of exemption of the petitioner is under Rule 106 of the Minor Mineral Rules of 2015, which speaks of extraction of minerals for specific purposes, _inter alia_ , construction of residential buildings, wherein, before extraction of minor minerals, the person concerned has to intimate the competent authority of the intention to carry out such work and on his satisfying the royalty as determined under the Rules. 6. The petitioner expresses his inability to have made such a prior intimation, to the competent authority, since no officer has been notified as the competent authority under the Rules of 2015. However, it is the admitted case that the 1[st] respondent, the District Geologist, was the notified officer as per the earlier Rules, who was competent to determine the royalty and issue transport passes as per the Minor Mineral Rules of 1967 under Form P. 7. The learned Government Pleader, on instructions, submits that a permit is insisted by the 1[st] respondent only since the Government had brought out a Government Order by which transport of ordinary earth was permitted for residential buildings even without a permit and the National Green Tribunal had WP(C).No.14427 of 2015 - 4 - stayed that Government Order. 8. To understand the situation, a brief statement of the background facts is necessary. The Hon'ble Supreme Court had considered the issue of mining permits issued and the impact it had on the environment in _**Deepak Kumar and Others v. State of Hayana & Others**_ **[(2012) 4 SCC 629].** Certain guidelines were issued, which were declared to be operative till the respective States framed Rules under the Mines and Minerals (Development and Regulation) Act, 1957. It was in pursuance of such directions that a government order was issued by the Environmental Department of the State, which had been stayed by the National Green Tribunal. It is in view of such stay order that the Department of Geology had been insisting for permits even for quarrying minor minerals for carrying out residential constructions. 9. What is relevant is, the bringing into force of the Minor Mineral Rules of 2015 on 07.02.2015. In the context of the above Rules having come into force, the quarrying of sand for residential purposes, as is the case in the present writ petition, is exempted under Rule 106 of the Minor Mineral Rules of 2015. WP(C).No.14427 of 2015 - 5 - But, however, a person intending to carry on such construction activity has to inform the competent authority under the Rules as to the construction to be carried on in the land and also satisfy the royalty as determined under the Rules. There is an obvious stalemate as of now, since the Competent Authority under the Minor Mineral Rules of 2015 has not been notified by the State. In such circumstance, prejudice would be caused to the individuals who intend to carry on such quarrying operations, since no officer is designated; to whom prior intention of quarrying can be given. Prejudice is also caused to the State, insofar as no machinery is available for determination of the royalty as per the Rules. 10. Considering the entire circumstances as also the fact that the Rules were introduced only on 07.02.2015, this Court would direct the 1[st] respondent, Geologist, who was the notified officer as per the Minor Mineral Rules of 1967, to conduct a site inspection and fix royalty; on satisfaction of which the petitioner shall be granted exemption under the Minor Mineral Rules of 2015. The transit pass in Form O(A) under the Prevention Rules of 2015 shall be issued, if a separate WP(C).No.14427 of 2015 - 6 - application is made to that effect. It is also made clear that since exemption is available to the petitioner herein, there can be no insistence for a clearance certificate from the State Environmental Impact Assessment Authority (Kerala). The writ petition is disposed of as above. In the circumstance of the Government having not notified a “Competent Authority”, the learned Government Pleader is directed to transmit a copy of this judgment to the officer concerned in the Government, so as to expedite the Government to notify the “Competent Authority” under the Minor Mineral Rules of 2015. ## **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]