Kuriakose I. Mathai v. State of Kerala and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 ``` ## **`WP(C) NO. 17256 OF 2023`** ## **`PETITIONER:`** ``` KURIAKOSE.I.MATHAI AGED 61 YEARS S/O.MATHAI, ITHOONICKAL HOUSE, KINGINIMANGALAM.P.O, KOLENCHENY, ERNAKULAM, PIN – 682 311. BY ADV JOBI JOSE KONDODY ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN – 695 001. 2THE DIRECTOR DIRECTORATE OF MINING AND GEOLOGY, PATTOM PALACE.P.O, KESAVADASAPURAM, THIRUVANANTHAPURAM., PIN – 695 004. 3THE GEOLOGIST MINING AND GEOLOGY DISTRICT OFFICE, CIVIL STATION, KAKKANAD.P.O, ERNAKULAM, PIN – 682 030. ``` ## **`OTHER PRESENT:`** ``` S.KANNAN- SR.G.P ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.17256 of 2023 2 ## **JUDGMENT** **Dated this the 12th day of June, 2023** The petitioner holds Quarrying Lease to mine and extract building stones from 1.2656 Hectares of land comprised in Survey Nos.1097/7A, 1097/7B, 1097/7C2, 1097/6A2, 1097/6B2, 1097/6B3 and 1097/1A-1 of Marady Village in Muvattupuzha Taluk of Ernakulam District. The petitioner has obtained all statutory licences from concerned departments, required for operating the quarry covered by Ext.P1 Quarrying Lease. 2. Ext.P6 Mining Plan approved by the 3rd respondent is valid for the entire period covered by Ext.P1 Quarrying Lease. The Scheme of Mining was approved only for 5 years from 16.11.2015. Therefore, the petitioner was directed to submit fresh Scheme of Mining. The petitioner submitted the same and it was approved by the 3rd respondent on 08.04.2021. Movement Permit based on Ext.P7 Scheme of Mining was issued as per Exts.P9 to P11 for years 2021-2022 and 2022-2023. WP(C) No.17256 of 2023 3 3. After 31.03.2023, when the petitioner made application for issuance of fresh Movement Permit for the year 2023-2024, the 3rd respondent visited the site and directed the petitioner to remit royalty for the year 2023-2024 based on which Movement Permit will be issued. The petitioner remitted royalty for the permitted quantity. However, till date the 3rd respondent had not issued the Movement Permit, contends the petitioner. 4. Government Pleader entered appearance and resisted the writ petition. The Government Pleader controverted all the material allegations made by the petitioner in the writ petition. It is pointed out that under the Mining Plan obtained by the petitioner, 30000 Metric Tonnes of minor minerals can be excavated. While the Mining Plan put a limit of 30000 Metric Tonnes, the petitioner submitted a Scheme of Mining which contemplated excavation and removal of more than 50000 Metric Tonnes per year. According to the Government Pleader, by an error, the Geologist gave his approval for the Scheme of Mining exceeding 50000 Metric Tonnes per year. WP(C) No.17256 of 2023 4 ## 5. The report submitted by the Geologist reads as follows : “ It is humbly submitted that the Director of Mining and Geology had granted a quarrying lease to the petitioner to extract granite building stone from an area of 1.2656 Hectares of land in Marady Village, Muvattupuzha Taluk for 12 years from 10.10.2017 to 09.10.2029. The lease order granted to the petitioner by the Director of Mining and Geology is produced herewith as Annexure 1. As per the lease order the petitioner can extract only 30000 Metric Tonnes of granite per year. Rule 67(2) of the Kerala Minor Mineral Concession Rules (KMMCR), 2015, envisages that the lessee should submit a "Scheme of Mining" for the next five years of the lease to the competent authority for approval at least one hundred and twenty days before the expiry of the first five year period of the approved mining plan. The petitioner submitted a "Scheme of Mining" prepared by a recognized qualified person (RQP), which was approved by the then geologist on 08.04.2021. The relevant page in the said "Scheme of Mining" is produced herewith as Annexure 2. It may be noted that in the said "Scheme of Mining" the yearly production from the quarry is given as around 50000 Metric Tonnes, much higher than the permitted quantity of 30000 MT in the lease order. This cannot be accepted. Also this is against the dictum of this Honourable Court in Binoy Kumar vs. State of Kerala and Ors. [2019(2)KHC 531]. Though the "Scheme of Mining" was wrong, it was approved by the then geologist and the exaggerated quantity was entered into the KOMPAS online portal also. It may be noted that the petitioner was allowed to extract only 30000 Metric Tonnes of granite through movement permits granted during the years 2021-22 and 2022-23. The petitioner then remitted royalty for the year 2023-24 to extract 50000 Metric Tonnes of granite though he was entitled to extract only 30000 Metric Tonnes. It was then that the discrepancy in the approved "Scheme of Mining" was noticed by this respondent and the entries in the KOMPAS online portal was corrected. The petitioner was then asked to submit a modified "Scheme of Mining in accordance with the permitted quantity in the lease WP(C) No.17256 of 2023 5 order of the Director of Mining and Geology. Also the quarry of the petitioner was then measured with the help of Taluk Surveyor, Muvattupuzha. Based on the survey sketch issued by the Taluk Surveyor, balance mineable reserves in the quarry was calculated: Total quantity of granite permitted to be removed from the quarry during the entire 12 years of quarrying lease period = 30000 x 12 = 3,60,000 MT. Total quantity of granite actually extracted from the quarry during the first 6 years of quarrying operations = 3,00,600 MT Quantity of granite permitted to be extracted during 6 years = 30000 x 6 = 1,80,000 MT Quantity of granite illicitly extracted during these 6 years = 96,052 MT Balance mineable reserves in the quarry = 78,360 MT The petitioner has remitted the penalty amount Rs. 74,15,744/for illicitly mining 96,052 MT of granite on 08.05.2023. It is most respectfully submitted that the "Scheme of Mining document submitted by the petitioner is wrong as it is not in accordance with the permitted quantity of production in the lease order. Hence the petitioner ought to submit a modified "Scheme of Mining, and get it approved by the District Geologist, but the petitioner has not produced the document so far. After approval, the modified "Scheme of Mining" document need to be uploaded in the KOMPAS online portal. Only then can the petitioner apply for a movement permit through KOMPAS online portal and continue with the quarrying operations.” 6. I have heard the learned counsel for the petitioner and the Government Pleader representing the respondents. 7. It is evident from the arguments raised at the Bar that the petitioner had submitted a revised Scheme of Mining enhancing the WP(C) No.17256 of 2023 6 limits of quarrying per year to more than 50000 Metric Tonnes. The Geologist has given approval. The petitioner has made additional payments as royalty for the enhanced quantity. Now the problem arises because as per the Scheme of Mining, excavation of quantities above 30000 Metric Tonnes is not permissible. At the same time, it is to be noted that as per Rule 67(2) of the Kerala Minor Mineral Concession Rules, 2015, modification of Mining Plan is permissible. 8. In such circumstances, the petitioner has to move the competent authority for revising the Mining Plan in accordance with law. Till such Mining Plan is revised enhancing the limit, the petitioner will have to go by the Scheme of Mining within the limit already granted. The writ petition is therefore disposed of directing the petitioner to submit a revised Scheme of Mining, limiting the quantity at 30000 Metric Tonnes per year. If the petitioner submits such revised Scheme of Mining within a period of one week, the Geologist shall consider the same and approve the same within a further period of one week, provided the petitioner satisfies all other WP(C) No.17256 of 2023 7 statutory requirements. Movement Permit shall be issued soon thereafter depending on the decision of the 3rd respondent- Geologist. It is made clear that this judgment will not take away the benefit of any of the right granted to the petitioner in the judgment in W.P.(C) No.5970 of 2022. **Sd/N.NAGARESH JUDGE** AMR WP(C) No.17256 of 2023 8 ## **`APPENDIX OF WP(C) 17256/2023`** ## `PETITIONER’S EXHIBITS` ``` Exhibit P1A TRUE COPY OF THE QUARRYING LEASE EXECUTED BETWEEN THE PETITIONER AND THE STATE GOVERNMENT DATED 10.10.2017 VALID UP TO 09.10.2029. Exhibit P2A TRUE COPY OF THE FORM LE3 LICENSE ISSUED BY THE JOINT CHIEF CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI ON 19.11.2007 RENEWED AND VALID UP TO 31.03.2024. Exhibit P3A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATERENEWAL ISSUED BY THE ENVIRONMENTAL ENGINEER OF THE KERALA STATE POLLUTION CONTROL BOARD VALID UP TO 30.06.2023 DATED 16.4.2018. Exhibit P4A TRUE COPY OF THE TRADE LICENSE DATED 29.03.2023 VALID UP TO 30.06.2023 ISSUED BY THE MARADY GRAMA PANCHAYAT TO THE PETITIONER. Exhibit P5A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KERALA DATED 15.03.2013. Exhibit P6A TRUE COPY OF THE RELEVANT PAGES OF THE APPROVED MINING PLAN PREPARED BY THE PETITIONER ON 14.10.2015 APPROVED ED BY THE 3RD RESPONDENT ON 16.11.2015. Exhibit P7A TRUE COPY OF THE RELEVANT PAGES OF THE SCHEME OF MINING APPROVED BY THE 3RD RESPONDENT ON 08.04.2021 FOR EXHIBIT PL QUARRYING LEASE. Exhibit P8A TRUE COPY OF THE PROCEEDINGS DATED 08.04.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. ``` WP(C) No.17256 of 2023 9 ``` Exhibit P9A TRUE COPY OF THE MOVEMENT PERMIT DATED 16.04.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. Exhibit P10A TRUE COPY OF MOVEMENT PERMIT DATED 02.04.2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. Exhibit P11A TRUE COPY OF THE MOVEMENT PERMIT DATED 11.10.2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. Exhibit P12A TRUE COPY OF THE E-PAYMENT TRANSACTION SLIP DATED 03.04.2023 EVIDENCING REMITTANCE OF RS. RS.26,87,998/- (RUPEES TWENTY SIX LAKHS EIGHTY SEVEN THOUSAND NINE HUNDRED AND NINETY EIGHT ONLY). Exhibit P13A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 04.04.2023 ```