B.P. Siddique Haji v. State of Kerala and Others

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942** ## **WP(C).No.15738 OF 2020(N)** ## **PETITIONER:** **B.P. SIDDIQUE HAJI, AGED 64 YEARS, MANAGING PARTNER, CHELUPARA GRANITES, THOTTUMUKKAM P.O., KOZHIKODE-673669.** **BY ADVS.SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE, SRI.ARUN CHANDRAN,SRI.J.VISHNU** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY,**| ||**DEPARTMENT OF GEOLOGY AND MINING,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**THE DIRECTOR OF MINING AND GEOLOGY,**| ||**DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM,**| ||**PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.**| |**3**|**THE DISTRICT GEOLOGIST,**| ||**MINING AND GEOLOGY DEPARTMENT,**| ||**CIVIL STATION, KOZHIKODE-673020.**| ||**SRI.S.KANNAN,GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.R.** ALEXANDER THOMAS, --------------------------------------W.P. © No. 15738 of 2020 --------------------------------------Dated this the 18[th] day of August, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: “ _As per KMMCR, a quarrying lease cannot specify the quantity of mineral. The KMMCR clearly states that mining should be conducted in accordance with the mining plan in accordance and in terms of the 5- year excavation plan as specified in Rule 55 (v). As per the Exhibit-P2 mining plan, approval is issued by the 3[rd] respondent for the proposed production capacity of 2,00,000 (Two Lakh only) metric ton per year. In the Development and production plan in the mining plan, a progressive mining scheme has been approved, whereby, only 1 lakh metric ton is to be mined in the first years, which is to be increased to 1,20,000 (One Lakh Twenty Thousand only) in the second year and 1,50,000 (One Lakh Seventy Five Thousand only) tons for the third year, 1,75,000 (One Lakh Seventy Five Thousand only) tons for the fourth year and to 5 lakh tons when the mine is fully developed in the 5[th] year. A perusal of the Exhibit-P2 E.C. will also show that the it has been issued for a production capacity of 2,00,000 (Two Lakh only) metric ton per year. The PCB consent has also been obtained on the_ W.P. © No. 15738/2020 ..3.. _basis of the approved mining plan. It is clear that it is after careful consideration of the environmental impact of the mine, that the District Geologist, the Pollution Control Board and the SEIAA has approved the mining plan of the petitioner. Therefore, the petitioner is fully authorized to quarry according to the mining plan by gradually increasing the amount of quarrying year by year and is hence eligible to mine two lakh metric ton on the full development of the mine in its fifth year. However, when the Exhibit-P4 quarrying lease was issued, the quantity of quarrying was restricted to 1 lakh metric tons per year, which is arbitrary and illegal. Vide, the Exhibit-P5 order the 2[nd] respondent and vide the Exhibit-P8 communication, the 3[rd] respondent has merely followed the judgment of this Hon'ble Court which is per incuriam. Therefore, the Exhibit-P5 order and the Exhibit-P8 communication doesn't stand the test of law and ought to quashed, and it ought to be declared that the petitioner is entitled to quarry in accordance with and up to the quantity of minerals specified in the Exhibit-P1 mining plan._ ” It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: W.P. © No. 15738/2020 ..4.. “ _i. Issue a writ of certiorari calling for the records leading to Exhibit-P5 and P8 and to quash the same;_ _ii. Issue a writ declaring that as per the provisions of the Kerala Minor Mineral Concession Rules 2015, it is the mining plan alone which can fix the quantity of minerals to be quarried and that an E.C. holder is entitled to quarry as per the mining plan on payment of royalty as payable;_ _iii. Grant such other reliefs as this Court deems fit in the facts and circumstances of the case.”_ 2. Heard Sri.George Poonthottam, learned Senior counsel instructed by Sri.Arun Chandran, learned counsel appearing for the petitioner and Sri.S.Kannan, learned Senior Government Pleader appearing for the respondents. 3. The case of the petitioner is that, in regard to his application for grant of quarrying lease, the respondent authorities concerned, has issued Ext.P-1 approved mining plan dated 3.11.2015 wherein it has been inter alia mentioned in Clause 4A that the targeted annual production of the building stone is about 2,00,000 metric tonne per annum and it is also stipulated in Clause 4.23 thereof that the proposed rate of production of mine is 2,00,000 metric tonne per annum, etc. Further that, as per Clause 8 of Ext.P-4 proceedings dated 8.12.2016 issued by the 2[nd] respondent Director of Mining and Geology, it has been stated therein that the production of building W.P. © No. 15738/2020 ..5.. stone (granite) from the area covered under the grant shall be subject to the quantity mentioned in the mining plan submitted by the lessee, but the quantity is restricted to 1,00,000 metric tonne per year. That on the basis of Clause 8 of Ext.P-4, mining lease agreement has also been entered into the between the petitioner and the State wherein it has also been stated that the quantity of extraction is restricted to 1,00,000 metric tonne per year, even though it is admitted case of the respondents that the proposed rate of mining is 2,00,000 metric tonne per annum. The petitioner would contend that, the abovesaid stipulation in Clause 8 of Ext.P-4 as well as in the relevant clause in the mining lease agreement entered into between the petitioner and the State, the stipulation restricting that the quantity of extraction would be only 1,00,000 metric tonne per year and not the figure of 2,00,000 metric tonne per annum, as sanctioned in Ext.P-1 approved mining plan is illegal and ultra vires, and is against the statutory prescriptions contained in Rule 40(2), Rule 55(v) and Rule 68 of the Kerala Minor Mineral Concession Rules, 2015 ( _for short “KMMC Rules”_ ). 4. Rule 40(2) of the Kerala Minor Mineral Concession W.P. © No. 15738/2020 ..6.. ## Rules, 2015, reads as follows: _“The lessee shall carry out the mining operations only in accordance with the approved mining plan submitted by him for obtaining the quarrying lease. ”_ ## 5. Rule 55(v) of the Kerala Minor Mineral Concession ## Rules, 2015, reads as follows: _“annual programme and plan for excavation of the precise area, from year to year, in the case of quarrying permit, or from year to year for five years, in the case of quarrying lease;”_ ## 6. Rule 68 of the Kerala Minor Mineral Concession ## Rules, 2015, reads as follows: _**“Quarrying operations to be in accordance with mining plan.—** (1) Every lessee shall carry out quarrying operations in accordance with the approved mining plan with such conditions as may be prescribed under these rules or with such modifications, if any, as permitted under these rules or the mining plan or the scheme approved under these rules, as the case may be._ _(2) If the quarrying operations are not carried out in accordance with mining plan as prescribed under these rules, the competent authority may order suspension of all or any of the quarrying operations and permit continuance of only such operations as may be necessary to restore the conditions in the quarry as envisaged under the said mining plan._ ” ## 7. It is on the basis of these rules that the petitioner would contend that the stipulation in Clause 8 of Ext.P-4 and the correspondent clause in the quarrying lease agreement restricting the quantity as only 1,00,000 metric tonne per annum, instead of W.P. © No. 15738/2020 ..7.. the sanctioned quantity up to 2,00,000 metric tonne per annum in Ext.P-1 approved mining lease is illegal and ultra vires, and would be against the statutory scheme provided in the KMMC Rules, 2015, and notwithstanding the fact that the petitioner has entered into lease agreement with the State, since stipulations in the lease agreement is ultra vires to the provisions contained in the KMMC Rules, the petitioner is not in any manner estopped from challenging the same, and that this Court may grant appropriate reliefs in that regard. 8. Further it is urged by the petitioner that the dictum laid down by the learned Single Judge of this Court in Ext.P-9 common judgment dated 29.11.2019 in WP©.No. 17679/2019 etc does not reflect the correct legal position, and that the reliance made by the learned Single Judge in Ext.P-9 judgment as if Ext.P-6 judgment of the Division Bench is a complete answer to the present issue is misplaced inasmuch as, what has been considered by their Lordships of the Division Bench in Ext.P-6 judgment was only quarrying activity being conducted in a government puramboke property wherein there is no stipulation of mining plan, and that therefore the observations and findings made by the Division Bench W.P. © No. 15738/2020 ..8.. in Ext.P-6 judgment that the lesser cannot extract the minor minerals for the quantity over and above what has been agreed upon in the quarrying lease entered into between the parties, is not applicable in the facts and circumstances of the case. Hence, the petitioner would contend that dictum laid down by the learned Single Judge in Ext.P-9 is per incuriam and does not reflect the correct legal position, and requires serious reconsideration at the hands of this Court. 9. Per contra, Sri.S.Kannan, learned Senior Government Pleader appearing for the respondents would submit that, as per the statutory provisions contained in the Kerala Minor Mineral Concession Rules, 2015, framed under the Mines and Minerals (Development and Regulation) Act, 1957, (for short _“MMDR Act”_ ) there is no distinction between quarrying activities proposed in a private property or in a government property including a government puramboke property, as regards the applicability and issuance of approved mining plan and that in both cases the quarrying lease is entered into between the party and the State only after completion of various formalities including the issuance of mining plan. Reference in that regard has been made by the W.P. © No. 15738/2020 ..9.. learned Senior Government Pleader to the provisions contained in Rule 33(1) of the KMMC Rules which inter alia stipulates that, on receipt of application for grant or renewal of quarrying lease, the competent authority shall make site inspection regarding the precise area to be granted for that purpose and intimate the applicant to submit approved mining plan and environment clearance for the precise area, etc. On that basis it is contended by the respondents that there is no distinction regarding the applicability of approved mining plan, be it whether the proposed quarrying activity is in regard to a government property including puramboke property or a private property. Further it is urged by Sri.S.Kannan, learned Senior Government Pleader appearing for the respondents that, abovesaid contention of the petitioner regarding the alleged inapplicability of approved mining plan in the case of quarrying activities being conducted in government puramboke property as in the case in Ext.P-6 has also been specifically adverted to and considered by the learned Single Judge in para 8 of Ext.P-9 judgment. In that regard it is also urged by the respondents that para 11 of Ext.P-9 judgment is a complete answer to the abovesaid contention raised by the W.P. © No. 15738/2020 ..10.. petitioner inasmuch as, it has been conclusively and categorically held by the learned Single Judge therein that, the Division Bench in Ext.P-6 judgment has affirmatively declared that the licensee can be allowed to extract only that amount of minerals as are specifically sanctioned in the mining lease, since it is a document which operates the sole agreement between the government and the operator on the quantity of minerals to be extracted. Hence it is found that it is only for the government to decide how much of it can be extracted, and therefore it is irrelevant whether a person who obtained mining plan showing a larger quantity or otherwise etc. 10. The decision as per Ext.P-6 rendered by the Division Bench of this Court dated 25.3.2019 in W.A.No.338/2019 in the case in _**Binoy Kumar v. State of Kerala**_ has been reported in _**2019 (2) KLT 227.**_ Whereas the judgment of the learned Single Judge as per Ext.P-9 dated 29.11.2019 in WP(C).No.17679/2019 in the case in _**George Antony v. The Director of Mining and Geology & Ors**_ has been reported in _**2020 (1) KLT 1**_ . A reading of judgment of Division Bench of this Court in _**Binoy Kumar’s**_ case supra as well as of the Single Bench in _**George Antony’s**_ case supra, W.P. © No. 15738/2020 ..11.. it can be seen that the abovesaid issue about the maximum quantity that should be extracted has been considered in both these decisions. A reading of Ext.P-6 judgment would make it clear that the case involves quarrying activities in a government puramboke property. The contention raised by the petitioner that the case as per Ext.P-6 does not involve the issuance of approved mining plan has also been raised and considered by the learned Single Judge in para 8 of Ext.P-9 judgment. The learned Single Judge in paras 11 & 12 of Ext.P-9 judgment has held as follows: _“_ 11. When one closely scrutinates the observations and conclusions in **Binoy Kumar** (supra), it becomes **irrefragable** that the learned Bench has affirmatively declared that a licencee can be allowed to extract only that amount of _minerals as are specifically sanctioned by the Mining Lease, since it is this document which operates as the sole agreement between the Government and the licencee as regards the quantity of the Minerals to be extracted. The judgment further declares that it is solely for the Government, as the owner of the minerals, to decide how much of it can be extracted, which is then specified in the Mining Lease. Therefore, it is irrelevant, whether a person thereafter obtains a Mining Plan showing a larger quantity of minerals to be extracted or otherwise, since the unequivocal declaration of law is to the effect that the Mining Lease should be the sole document to guide all action for quarrying the minerals and in determining its amount that can be extracted._ _12. My afore view is inevitable because, going by Rule 9(1) of the Mineral Conservation and Development Rules, 1988, no person can commence mining operations in any area, except in accordance with a Mining Plan approved under the Mines and Minerals (Development and Regulation) Act, 1957; while Section 5(2)(b) of the said Act provides that no Mining Lease can be granted by the Government unless it is satisfied that there is an approved Mining Plan obtained by the applicant. Further, even with respect to a Mining Lease obtained prior to the coming into force of the afore Rules, it provides, through Rule 11 thereof, that the holder of the said Lease shall obtain a Mining Plan within a period of one year from the date of the commencement of_ W.P. © No. 15738/2020 ..12.. _the Rules. Ineluctably, therefore, while the Mining Plan controls and modulates the manner of prospecting the minerals; the quantity of it is exclusively regulated by the Mining Lease and no other. ”_ 11. This Court is now apprised by the learned Senior Government Pleader that Ext.P-9 judgment involved a common judgment in relation to three cases including WP©.No.21196/2018 and that the unsuccessful petitioner in WP©.No.21196/2018 has filed Writ Appeal as W.A. No. 364/2020. Further that, the Division Bench of this Court as per judgment dated 2.3.2020 has dismissed W.A. No.364/2020 thus affirming the correctness of judgment by the learned Single Judge in WP©.No.21196/2018 covered in Ext.P-9. It is profitable to refer to paragraphs 10 & 11 of W.A. No. 364/2020, which reads as follows: _“10.Therefore, on a harmonious construction of the aforesaid rules it is clear that, the appellant was liable to comply with the conditions contained in the quarrying permit. Merely because the appellant secured registration for the metal crusher unit in contemplation of rule 89 of Rules, 2015, to have the advantage of consolidated payment of royalty, nowhere in the Rules, appellant is permitted to carry on the quarrying operations without any restriction for quantity. It is an admitted fact that, as per the quarrying permit, appellant is permitted to carry out quarrying operations to a limited extent alone. Therefore, there is no force in the contention advanced by the appellant with respect to the privilege of the appellant to carry out the quarrying operations irrespective of any limit prescribed in the quarrying permit and the registration granted to the metal crusher unit, since no such privilege is conferred as per rule 89 of Rules, 2015. Which thus also means that the payment enjoyed under CRP system is not a panacea for the appellant to overlook the conditions of the_ W.P. © No. 15738/2020 ..13.. _quarrying permit granted, which are mandatory and imperative in nature and character. This issue was considered by a Division Bench of this Court in_ _**Binoy Kumar v. State of Kerala and Ors.** [2019(2)KHC 531], wherein the question was whether a person who has registration to the metal crusher unit is entitled to carry out quarrying operations without any limit prescribed under the quarrying permit, vis-a-vis the action taken by the authority under Rules, 2015, for realising the royalty charges and other payments in accordance with the provisions of Rules, 2015 as well as the Kerala Land Conservancy Act and Rules and held as follows in paragraph 4._ _“4. 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 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 poramboke 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.”_ _11. Taking into account the facts and circumstances and the law involved, we are of the considered opinion that, the learned Single Judge has declined the reliefs in terms of law and the appellant could not establish any legal infirmities justifying interference in an appeal preferred under section 5 of the Kerala High Court Act. ”_ 12. After anxiously considering the rival pleas this Court is constrained to take the view that this Court is in respectful concurrence with the views rendered by the learned Single Judge W.P. © No. 15738/2020 ..14.. of this Court as per Ext.P-9 judgment, which has also been affirmed by the Division Bench of this Court as per judgment dated 2.3.2018 in W.A. No. 364/2020. True that the approved mining plan as conceived as per the statutory provisions contained in the KMMC Rules, 2015, may estimate the quantity that could be extracted in the case involved which may be higher than what is actually agreed upon in the quarrying lease entered into between the State and the applicant concerned. 13. Climatic changes are being faced all over the world and this State is no an exception, and has indeed faced a tumultous heavy flood in August, 2018, and with a mini flood in August, 2019, and also quite heavy rainfalls in this year in the first week of August, 2020. Regulation of activity of quarrying and mining is also one of the key responsibilities to be administered by the State. It is also by now well established that principles of sustainable development, inter-generational equity would form an inevitable component of our environmental law, which is also part of right to good environment, contained in Article 21 of the Constitution of India. Therefore it is bounden Constitutional duty as well as statutory duty of the State to ensure that the activity of quarrying is regulated and W.P. © No. 15738/2020 ..15.. controlled in the interest of community at large, as well as out of serious consideration for ecological issues. Adjudged from this framework the stand of the State in having reduced the maximum permitted quantity of minor minerals to be quarried as per the quarrying lease in comparison to the quantity stipulated in the approved mining plan cannot be faulted as illegal and unreasonable, etc. Moreover the respondents would assert that, there is no distinction as regards the applicability of approved mining plan both in relation to quarrying activities in relation to private land as well as in government land including government puramboke land. In that regard it is also pertinent to note the KMMC Rules, 2015, under the enabling provisions contained in the MMDR Act. The mandate of the Parliament engrafted as per Section 4(1) of the MMDR Act would also be apposite in this context, and the said provision reads as follows: _“_ _**4. Prospecting or mining operations to be under licence or lease.―** (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder:_ _Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement:_ _Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of_ W.P. © No. 15738/2020 ..16.. _India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited., a Government company within the meaning of clause (45) of section 2 of the Companies Act, 2013 (18 of 2013), and any such entity that may be notified for this purpose by the Central Government:_ _Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease mining concession or by any other name) in force immediately before the commencement of this Act in the Union territory of Goa, Daman and Diu._ _(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. ”_ 14. The Parliament has unequivocally mandated as per Sub Section 1 of Section 4 of the MMDR Act that no person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder. In the light of these aspects it is only to be held that the view taken by the learned Single Judge in _**George Antony’s**_ case supra, which has also been affirmed by the Division Bench of this Court in W.A.No.364/2020 does not require any re-consideration, and the contention raised by the petitioner that the said judgment of the learned Single Judge is _per incuriam_ and does not reflect the correct legal position, etc W.P. © No. 15738/2020 ..17.. are not tenable, and hence the same would stand overruled. That apart, His Lordship while rendering Ext.P-6 judgment has also seen various difficulties faced by the quarrying lease holders and on the basis of submissions on behalf of the State, has ordered the consideration of grant of additional mining lease subject to overall limits in the mining plan, and it is not as if the said legal position concluded in Ext.P-9 is the end of the road for the party concerned. In view of the such reasonable procedure envisaged in Ext.P-9 judgment, the impugned view taken by the learned Single Judge does not require any serious reconsideration by this Court. For these reasons, the present Writ Petition (Civil) fails and the same will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 15738/2020 ..18.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE RELEVANT PORTION OF THE APPROVED MINING PLAN.** **EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED TO THE PETITIONER BY THE SEIAA DATED 30.9.2016.** **EXHIBIT P3 TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 2.12.2016.** **EXHIBIT P4 TRUE COPY OF THE QUARRYING LEASE ISSUED TO THE PETITIONER BEARING NO.575/2016-17/9155/M3/2015 DATED 8.12.2016. EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE DIRECTOR, MINING AND GEOLOGY, DATED 6.4.2019.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.338/2019 DATED 25.3.2019. EXHIBIT P7 TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 23.6.2020. EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE DISTRICT GEOLOGIST, KOZHIKODE DATED 29.6.2020.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.17679/2019 DATED 29.11.2**