## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN**
**WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA,**
## **1945**
## **WP(C) NO. 16252 OF 2014**
## **PETITIONER/S:**
**PRADEEPKUMAR K.V S/O.K.V.KUNHIKANNAN, R/AT. VARIKKULAM HOUSE, KOLATHUR P.O., KASARAGOD DIST.**
## **BY ADV SRI.KODOTH SREEDHARAN**
## **RESPONDENT/S:**
- **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, 695001.**
- **2 DIRECTOR MINING AND GEOLOGY, THIRUVANANTHAPURAM-695001.**
- **3 SENIOR GEOLOGIST**
**MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, KASARAGOD, 671121.**
- **4 TAHSILDAR REVENUE RECOVERY, KASARAGOD, 671121.**
## **BY SMT. VINITHA B.-SR.GOVERNMENT PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## JUDGMENT
The petitioner filed the above writ petition with the
## following prayers;
“(i) a writ of certiorari or any other appropriate writ order or direction quashing Ext.P5 and all revenue recovery proceedings pursuant to that.
(ii) an order of stay of Ext.P5 and all further revenue recovery proceeding pursuant to Ext.P5, from the petitioner.
(iii) a declaration or any other appropriate writ order or direction that jenmam right holders of east while Madras State are absolute proprietors or their property including the subsoil rights and that Government has no right over the subsoil right therein to claim royalty therefrom in the purported exercise of the delegated power under Section 15 of the Mines and Mineral Regulation And Development Act as held in 2013 (9) SCC 725.”
2. The petitioner obtained Ext.P2 mining permit to extract laterite stone from a private land belonging to his sister, which was transferred by his father, comprised in ReSy.No.38/1C of Kolathur Village, Hosdurg Taluk, Kasaragod district. He approached the respondents for permission for granting mining permit providing for payment of royalty as per a Consolidated Royalty Payment System from an extent of 9.6 ares of land in Sy.No.38/1C. Thereafter, as per Ext.P3 notice, the petitioner was asked to produce a plan of the property, in which the mining activity was done. According to
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the petitioner, he had obtained permit on production of the plan in respect of the property, wherein mining activities were to be done. Thereafter, the fourth respondent issued Ext.P5 notice demanding a sum of Rs.3,25,000/- towards royalty payable to the government. According to the petitioner, the respondents have issued Ext.P5 notice demanding royalty dues invoking the provisions of the Revenue Recovery Act, without any authority. Hence, this writ petition.
3. The second respondent filed a counter affidavit, contending that the permit holder is entitled to conduct the quarrying activity only in the area permitted for mineral extraction. It is further contended that the third respondent cancelled Ext.P2 permit on the basis of the report of the Village Officer concerned that the petitioner had extended the activity beyond the permitted area, which was not in accordance with the survey map issued from the office of the third respondent; and thus, as per Ext.R2(a) notice, the petitioner was asked to produce a sketch to prove that his activity is confined within the permitted area. According to the second respondent, since the petitioner has not responded to Ext.R2(a) notice, Ext.P3 order was issued cancelling Ext.P2 quarrying permit. It is further contended that even after
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cancellation of Ext.P2 quarrying permit, the petitioner continued quarrying operation in an adjoining area near the earlier permit hold, without permission. The Village Officer reported that the petitioner had unauthorizedly extracted laterite building stone from an area of 80m x 20m x 5m, causing huge financial loss to the government exchequer, pursuant to which, the demand notice was issued. Pointing out to Rule 58(2) of the Kerala Minor Mineral Concession Rules, 1967, wherein it is stipulated that those who opted for Consolidated Royalty payment System, shall pay the next higher slab of royalty in addition to the amount already paid in case of excavation, over and above the permitted extent of land, the second respondent contended that the amount demanded in Ext.P5 is legally due. It is further pointed out that the penalty clause is applicable only for those permit holders, who have extended their quarrying activity beyond the boundary limit during the tenure of the permit. The second respondent produced Ext.R2(b) report of the Village Officer, wherein it is reported that there were two quarries and the unauthorized quarry has no continuity with the earlier permit hold area. Hence, according to the second respondent, the petitioner is bound to pay royalty as well as fine since
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quarrying was conducted after cancellation of the earlier permit and without permission from the authorities concerned.
4. I have heard the learned counsel for the petitioner as well as the learned Government Pleader.
5. The issue involved in this case is whether the petitioner is liable to pay the amount demanded as per Ext.P5 for the alleged illegal excavation of laterite stone from the adjoining area without obtaining any permit.
6. Learned counsel for the petitioner submits that though notice was issued to the petitioner, it did not contain details of mahazar prepared after inspection of the property, the exact quantity of the stone removed, nature of the action etc. It is further submitted that the previous employer of the petitioner, who had some enmity with the petitioner and was very influential, lodged false complaints against the petitioner and by utilizing his influence, the mining permit was stayed. According to the petitioner, he did not conduct quarrying after 08.07.2013 and has not done any illegal mining activity. It is further submitted that the quantification of laterite stone, alleged to have been removed by the petitioner, has been made by the respondents without any basis and the petitioner
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was never given any opportunity either to make representations as to the quantum of price at any stage or to produce evidence.
7. Learned Senior Government Pleader, on the other hand, submits that Ext.P5 was issued because the petitioner did not respond to the notice issued by the department. According to him, the action was taken on the basis of the report filed by the Village Officer and the demand is towards the amount legally due.
8. On a perusal of the materials on record, it is seen that the proceedings were initiated on the basis of the report filed by the Village Officer and no mahazar has been prepared during site inspection. An area of 80m x 20m x 5m mentioned in the report appears to be without any basis. No independent witnesses have been examined. Ext.R2(b) produced by the respondents show that the Village Officer has submitted a report to the District Geologist stating that on inspection, it was found that the petitioner had conducted quarrying operations over and above the permitted area. However, the report does not specify any mahazar prepared by the Village Officer. It was on the basis of the said report, action has been taken against the petitioner. In this context, it is relevant to
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refer to a decision of this Court in Biju K. Varghese v. Geologist, Mining and Geologist Department, District Office, Cherthala [2020 (6) KHC 450], wherein it was held that the notice issued proposing action should refer to the mahazar prepared after inspection of property and should state quantity of earth removed, nature of action proposed, particulars of dues to be recovered and also power invoked for the same. If notice does not contain such particulars, it does not conform to requirements of principles of natural justice.
9. Proceedings initiated by the respondents without proper mahazar or evidence cannot be accepted. To verify the status of the property, wherein the alleged illegal mining activity was conducted in the year 2014, other than what is stated in Ext.P3 and Ext.R2(b), there is nothing to substantiate the demand for the royalty amount. Therefore, I am of the opinion that Ext.P5 demand notice is to be set aside.
Accordingly, the writ petition is allowed and Ext.P5 demand notice is set aside.
Sd/-
## SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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## **APPENDIX OF WP(C) 16252/2014**
## **PETITIONER EXHIBITS**
**EXHIBIT-P1: TRUE COPY OF THE SALE DEED DATED 22/1/2014 BY THE PETITIONER'S FATHER TO THE SISTER OF THE PETITIONER.**
**EXHIBIT-P2: TRUE COPY OF THE PERMIT DT.18/02/2013 ISSUED BY THE 3RD RESPONDENT.**
**EXHIBIT-P3: TRUE COPY OF THE NOTICE DT.17/6/2013 ISSUED BY THE 3RD RESPONDENT.**
**EXHIBIT-P4: TRUE COPY OF THE REPRESENTATION DATED 11.06.2014 BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE.**
**EXHIBIT-P5: TRUE COPY OF THE DEMAND NOTICE DATED 20.5.2014 ISSUED BY THE 4TH RESPONDENT.**
