Dismissed

Vallamattom Stone Aggregates Pvt. Ltd. v. State of Kerala

Kerala HC9 Nov 2018WP(C)/7295/2018

Case brief

AI extract

What is this about?

The Court held that compensation is payable for excess quarrying under Sec.6(3) of the Kerala Land Conservancy Act. Petitioners were not entitled to consolidated royalty benefits. However, in one case, the increased recovery order was quashed due to violation of natural justice, and liberty was given to show cause.

What did the court decide?

Orders Ext.P8 treated as show-cause notice; liberty granted to object within three weeks; other petitions dismissed.

Vallamattom Stone Aggregates Pvt. Ltd. Vs State of Kerala — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940

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WP(C).No. 7295 of 2018

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PETITIONER/S:

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VALLAMATTOM STONE AGGREGATES PVT. LTD., PANDAPILLY P.O., ARAKUZHA VILLAGE, MUVATTUPUZHA, REPRESENTED BY ITS MANAGING DIRECTOR, GEORGE K VALLAMATTOM, ERNAKULAM-686 672.

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BY ADV. SRI.T.RAJESH

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695 001.

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2 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.

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3 THE DIRECTOR OF MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM, THIRUVANANTHAPURAM-695 001.

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4 THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682 030.

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5 TAHSILDAR, TALUK OFFICE, MUVATTUPUZHA-686 675.

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BY ADVS.

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SRI. M.H. HANIL KUMAR, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, ALONG WITH WP(C).25136/2018, WP(C).22963/2018, WP(C).19791/2018, WP(C).17017/2018, WP(C).7838/2018, THE COURT ON 09.11.2018 DELIVERED THE FOLLOWING:

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W.P.(C) No.7295/18 & conn. cases

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JUDGMENT

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The captioned writ petitions are materially

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connected in respect of quarrying operations conducted in excess, within the lease area/outside the lease area and the consequential action initiated by the Revenue Department to recover damages equivalent to compensation under Sec.6(3) of the Kerala Land Conservancy Act, 1957. Therefore, I heard them together and propose to deliver a common judgment.

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W.P.(C) No.25136 of 2018 is filed by the

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petitioner seeking to quash Ext.P12 order dated 17.01.2018, whereby the petitioner is directed to remit an amount of Rs.4,93,401/- towards the cost of rubbles removed in excess viz., 25210 MT., Rs.4,93,401/- towards compensation and Rs.50/- towards fine in contemplation of sub-sections (1) to (3) of Sec.6 of the Kerala Land Conservancy Act. It is stated, petitioner has paid the fees for removal of the rubbles amounting to Rs.4,93,401/- and the remaining liability is to pay an amount of Rs.4,93,401/- towards compensation and Rs.50/towards fine. According to the petitioner, the amounts

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due in accordance with the provisions of the Act is paid by the petitioner, and therefore, the entire liability is

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W.P.(C) No.7295/18 & conn. cases

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cleared off. When the petitioner was confronted with

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Exts.P9 and P10 notices, petitioner has explained the circumstances to the Revenue authority and Ext.P11 statement was also submitted. But, without giving any due regard to the objections raised, Ext.P12 impugned order is passed.

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Ext.P6 order issued by the Tahsildar, directing the petitioner therein to pay compensation for excess quarrying operations conducted by the petitioner, at

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58400 MT, and directed the petitioner to remit the

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amounts therein under sub-sections (1) to (3) of Sec.6.

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The contention raised in the said writ petition is also

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similar that there is no power vested with the authority

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to recover any compensation, since that is not

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contemplated under the provisions of law.

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quash Exts.P2 and P3, whereby it was informed to the petitioner that petitioner has conducted excess quarrying

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at 24200 MT and directed to pay amounts under the aforesaid provisions of the Kerala Land Conservancy Act.

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petitioner seeking to quash Ext.P7 order intimating that

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the petitioner has done quarrying operations in excess of

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W.P.(C) No.7295/18 & conn. cases

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the quantity permitted in accordance with the lease, and

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therefore, liable to pay the amounts in accordance with the provisions of Sec.6 of the Land Conservancy Act.

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Therein, the petitioner has got the writ petition amended, adding a ground that in the lease

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executed, the quantity was not prescribed and therefore, petitioner was entitled to do the quarrying operations without any limit, and only liable to pay the charges payable against the materials quarried by the petitioner,

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and also that, petitioner is governed by the provisions

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of the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as 'the Rules, 2015'] and

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entitled to the benefit of consolidated royalty payment, under Rule 89 of the Rules, 2015.

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In W.P.(C) No.7295 of 2018, petitioner is a

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company incorporated under the Companies Act, seeks to quash Exts.P7, P8 and P9, intimating the petitioner about

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the excess quarrying operations carried out and seeking recovery of the amounts in contemplation of Sec.6 of the Kerala Land Conservancy Act. In this case also, the writ

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petition is amended and incorporated a ground that the quantity is not prescribed under the lease agreement and therefore, entitled to unlimited quarrying and liable to

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pay only the amount under the consolidated royalty

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W.P.(C) No.7295/18 & conn. cases

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payment.

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Detailed counter affidavits are filed by the Tahsildar in all the aforesaid writ petitions, justifying the stand adopted in the notices issued for recovery of the amounts in accordance with the provisions of Sec.6 of

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the Kerala Land Conservancy Act. It is basically contended that, the parties were guided by the lease arrangements executed by and between the parties. The quantity or the amounts that are liable to be paid by the petitioner for each year is specifically mentioned in the lease deed.

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It is true, in W.P.(C) Nos.7295 and 17017 of 2018, the quantity is not prescribed in the lease. However, the amounts that are liable to be paid as per the lease arrangements is specifically mentioned thereunder. So also, the tonnage charges are also prescribed thereunder. Accordingly, when the total

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amount and the tonnage charges are prescribed, according to the Tahsildar, the quantity that can be procured by

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the petitioners is quite clear and evident. Therefore, the contention advanced in the said two writ petitions

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that, since the quantity of the product was not prescribed under the lease arrangement, they are entitled to procure materials irrespective of the quantity and

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W.P.(C) No.7295/18 & conn. cases

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they are only liable for payment of consolidated royalty

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charges, cannot be sustained. Other contentions are also

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raised enumerating the details with respect to the

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circumstances leading to issuance of notice and the calculations made in accordance with the tonnage charges prescribed, the renewal made thereto by enhancing the same and also reducing the same subsequently. It is also

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pointed out that, even though the rate increased was later reduced, the petitioners are liable to pay the

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amounts at the enhanced rate when the notification of enhancement was in prevalence.

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Additional counter affidavits are also filed. Petitioners have also filed additional documents to justify the stand adopted.

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I have heard respective counsels across the Bar

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and perused the pleadings and the documents on record.

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The basic question raised by the petitioners, is on the basis of sub-sections (1) to (3) of Sec.6 of the Kerala Land Conservancy Act, 1957, which read thus:

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“ 6. Earth, metal, laterite, lime-shell etc., not to be removed from land which is property of Government without permit. --(1) It shall not be lawful for any person to destroy, remove or appropriate for himself earth, sand, metal, laterite, lime-shell or such other articles of value as may be notified by the Government from any land which is the property of Government, whether a poramboke or not, except under and in accordance with the terms and conditions of a permit issued by

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W.P.(C) No.7295/18 & conn. cases

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the Government or such officer of the Government as may be empowered in that behalf and on payment of compensation at the rate prescribed under subsection (2).

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(2) The Government may, from time to time, by notification in the Gazette, prescribe the rate at which compensation shall be payable for earth, sand, metal, laterite, lime-shell or other notified articles of value destroyed, removed or appropriated from land which is the property of Government.

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(3) Whoever unauthorisedly destroys, removes or appropriates for himself metal, laterite, limeshell or other notified article of value from any land which is the property of Government, whether a poramboke or not, shall be liable to pay such fine not exceeding fifty rupees as may be imposed by the Collector and shall also be liable to pay by way of damages an amount equivalent to the compensation which would have been payable if sub-section (2) were applicable thereto.”

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Sub-section (1) of Sec.6 stipulates that, no

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person shall remove or appropriate for himself, earth, sand, metal, laterite, lime-shell or such other articles of value as may be notified by the Government from any land which is the property of the Government, whether a puramboke or not, except under and in accordance with the terms and conditions of a permit issued by the Government or such officer of the Government as may be empowered in that behalf and on payment of compensation at the rate prescribed under sub-section (2). Therefore, Section 6(1) and 6(2) deals with removal of the articles by securing licence/permits from the Government or any officer empowered in that behalf, and fees to be paid in

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W.P.(C) No.7295/18 & conn. cases

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accordance with Sec.6(2).

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One of the contention advanced by the petitioners is that, there is no fees fixed by the Government and therefore, in order to recover compensation, in contemplation of Sec.6(3), there is no rate and the action on the basis of the coercive notices issued to the petitioners are illegal. However, along with the counter affidavit filed in W.P.(C) No.7838 of 2018, the schedule of fees fixed by the Government is produced as Ext.R3(f), which is a Government notification published in the Gazette dated 02.02.2015, bearing G.O. (P) No.50/2015/RD. Therefore, the said contention advanced by the petitioners cannot be sustained under law.

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Yet another contention advanced is that, subsection (3) of Sec.6, deals only with the compensation under Sec.6(2) and the damages as is claimed now is not comprehended. However, it is clear from the phraseology used, that the damages is equivalent to the compensation to be paid under Sec.6(2) of the Act. Therefore, in my considered opinion, the contention advanced by learned counsel for the petitioners that there is no statutory authorization for recovery of any amounts other than the compensation prescribed in accordance with Sec.6(1) and

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W.P.(C) No.7295/18 & conn. cases

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6(2) cannot be sustained under law.

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Petitioners have also a contention that they are entitled for the benefits of Rule 89 of the Kerala Minor Mineral Concession Rules, 2015, which read thus:

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“ 89. Registration for a metal crusher unit and payment of consolidated royalty. --(1) A holder of a quarrying lease for extraction of granite (building stones) who possesses metal crusher units for production of granite aggregates may opt for their registration under these rules by paying a fee of one thousand rupees for each unit and opt for payment of consolidated royalty for the mineral crushed by such unit at the rates specified in Schedule III instead of paying royalty at the rates specified in Schedule I.

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(2) The lessee may opt for remittance of consolidated royalty specified in Schedule III in four quarterly installments before the last day of March, June, September and December.

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(3) The lessee who registered his metal crusher unit with the Department of Mining and Geology shall not extract and remove granite (building stone) from his leasehold for purposes other than using the mineral in his registered metal crusher unit.”

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However, learned Government Pleader pointed out that, the benefits of Rule 89 are available only to a quarry operator who possesses a metal crusher unit for production of granite aggregates, who opts for the registration under the Rules by paying a fee of Rs.1,000/- and also opts for payment of consolidated royalty for the mineral crushed by such units are alone entitled to the benefit of Rule 89. I find force in the said contention, because there are no materials produced

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W.P.(C) No.7295/18 & conn. cases

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by the petitioners before this Court in order to claim that they are entitled for such benefits.

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petitioner in W.P.(C) No.17017 of 2018, are in respect of a lease arrangement entered into by and between the petitioner and the State Government. There was no case for the petitioner that the statutory requirements under Rule 89 were complied with by the petitioner. However, at a later point of time, with the permission of this Court, amendments were carried out by the petitioner to that effect. Still, there is no established piece of

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evidence before this Court to arrive at a conclusion that the said petitioner is entitled to get the benefits of

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Rule 89 of the Rules, 2015. Furthermore, I could not locate any provision either under the Kerala Land

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Conservancy Act or under the Kerala Minor Mineral Concession Rules, enabling the petitioners to go beyond the conditions contained under the lease arrangements.

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As I have pointed out earlier, the sole

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contention raised by petitioners in the two writ

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petitions specified above is that, since no quantity is prescribed in the lease arrangements, they are entitled to do limitless quarrying, which cannot be sustained for

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the reason that, the tonnage charges and the total

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W.P.(C) No.7295/18 & conn. cases 11

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amounts to be paid by lease hold right holders are

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clearly prescribed in the lease arrangements executed. So much so, excess quarrying is admitted by all the petitioners, however, contends that the damages claimed cannot be sustained under law. Therefore, there is no basis for the said contention advanced in accordance with Rule 89 of the Rules, 2015. In that view of the matter, I am of the considered opinion that, the petitioners are not entitled to get any relief as is sought for in the writ petitions, except in W.P.(C) No.7838 of 2018. So also, petitioners are liable to pay the amount at the increased rate during the period the enhanced rate was in prevalence, and the petitioners are not entitled to get any benefit merely because the rate was reduced subsequently.

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In W.P.(C) No.7838 of 2018, similar notice is issued to the petitioner i.e., Ext.P2 dated 05.10.2015, directing the petitioner to remit an amount of Rs.10,45,552/- along with a fine of Rs.1,04,555/- within seven days. However, without any further notice, the amounts were varied as per Ext.P8 dated 16.12.2017, directing the petitioner to pay an amount of Rs.27,88,138/-, towards seigniorage and an equal amount towards damages, modifying Ext.P2 order to the

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W.P.(C) No.7295/18 & conn. cases 12

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disadvantage of the petitioner. Therefore, the

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contention advanced by the petitioner is that, correction of the amount was made deviating from the reasons assigned in Ext.P2, and directing the petitioner to pay much more higher amounts than what was prescribed under Ext.P2, without providing an opportunity of hearing to the petitioner, violates the principles of natural justice, and make Ext.P8 order arbitrary and illegal.

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A detailed counter affidavit is filed by the 3^rd

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respondent in the said writ petition, justifying the stand adopted in Ext.P2 as well as Ext.P8. However, it is quite clear and evident from the pleadings put forth by the petitioner as well as the 3^rd respondent that, while varying the amount in Ext.P2 order, no opportunity was provided to the petitioner. In that view of the matter, and since I am of the opinion that there is gross violation of the principles of natural justice, especially when the amounts contained under Ext.P2 was grossly increased by Ext.P8, an opportunity should have

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been provided to the petitioner before revising the amount. Therefore, Ext.P8 is directed to be treated as a

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show cause notice and the liberty is left open to the petitioner to submit any objection to Ext.P8 within three weeks from the date of receipt of a copy of this

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W.P.(C) No.7295/18 & conn. cases

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judgment, which, if received, shall be finalized in accordance with law, within a month thereafter, after providing notice of hearing to the said petitioner.

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Resultantly, all the writ petitions, except W.P.(C) No.7838 of 2018, will stand dismissed. W.P.(C) No.7838 of 2018 will stand allowed to the extent specified above. Petitioners in the rest of the writ petitions specified above are given the liberty to pay the amounts outstanding in accordance with the notices issued, in six equated monthly instalments starting from 15.12.2018 and on the corresponding dates of the succeeding months.

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On failure to pay even a single instalment, the respondents will be at liberty to take appropriate action in accordance with law and to recover the amounts in lump.

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Sd/-

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SHAJI P. CHALY JUDGE

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St/03.11.2018

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W.P.(C) No.7295/18 & conn. cases

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APPENDIX OF WP(C) NO.7295/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1.	THE TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P2.	THE TRUE COPY OF THE QUARRYING LEASE EXECUTED BY THE PETITIONER AND 2ND RESPONDENT ON BEHALF OF STATE GOVERNMENT.
EXHIBIT P3.	THE TRUE COPY OF THE COMMUNICATION OE/3689/E2/15 DATED 20/8/2015.
EXHIBIT P4.	THE TRUE COPY OF THE COMMUNICATION DATED 14/3/2016.
EXHIBIT P5.	THE TRUE COPY OF THE NOTICE C-960/17 ISSUED BY THE 5TH RESPONDENT
EXHIBIT P6.	THE TRUE COPY OF THE JUDGMENT IN WPC NO.12625/2016.
EXHIBIT P7.	THE TRUE COPY OF THE PROCEEDINGS IN LC 5/2017 DATED 19/12/2017.
EXHIBIT P8.	THE TRUE COPY OF THE COMMUNICATION C4- 10735/16 DATED 17/1/2018.
EXHIBIT P9.	THE TRUE COPY OF THE ORDER C4-10735/16 DATED 17/1/2016.
EXHIBIT P10	THE TRUE COPY OF THE ORDER NO 97/2017- 18/RMCU/EKM/3105/M3/2017 DATED 29.3.2017 ISSUED TO THE PETITIONER.
EXHIBIT P11(A)	THE TRUE COPY OF THE ORDER NO 104/2011- 12/RMCU/EKM/2005/M3/2011 DATED 3/3/2011 ISSUED TO THE PETITIONER.
EXHIBIT P11(B)	THE TRUE COPY OF THE ORDER NO 103/2012- 13/RMCU/EKM/2629/M3/2012 DATED 29/3/2012 ISSUED TO THE PETITIONER.
EXHIBIT P11(C)	THE TRUE COPY OF THE ORDER NO 135/2013- 14/RMCU/EKM/2971/M3/2013 DATED 30/3/2013 ISSUED TO THE PETITIONER
EXHIBIT P11(D)	THE TRUE COPY OF THE ORDER NO 1252014- 15/RMCU/EKM/4519/M3/2014 DATED 01.04.2014 ISSUED TO THE PETITIONER.

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W.P.(C) No.7295/18 & conn. cases

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EXHIBIT P11(E) THE TRUE COPY OF THE ORDER NO 108/201516/RMCU/EKM/3104/M3/2015 DATED 31.3.2015 ISSUED TO THE PETITIONER. EXHIBIT P11(F) THE TRUE COPY OF THE ORDER NO 178/201617/RMCU/EKM/7463/M3/2016 DATED 10.8.2016 ISSUED TO THE PETITIONER. EXHIBIT P11(G) THE TRUE COPY OF THE ORDER NO.97/201718/RMCU/EKM/3105/M3/2017 DATED 29.3.2017 ISSUED TO THE PETITIONER. EXHIBIT P12 THE TRUE COPY OF THE CIRCULAR 8925/M3/2008 DATED 20/5/2009 OF THE 3RD RESPONDENT.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R5(A) A TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MINING AND GEOLOGY DATED 27.12.2007.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Vallamattom Stone Aggregates Pvt. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vallamattom Stone Aggregates Pvt. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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