Dismissed

V.Somanathan v. the Appellate Authgority

Kerala HC6 Nov 2020WA/1448/2020

Case brief

AI extract

What is this about?

This appeal challenged the Single Judge's decision upholding orders imposing royalty for illegal removal of ordinary earth. The Supreme Bench held ordinary earth is a minor mineral, the mahazar was valid as it was prepared in the appellant's presence, and no legal provision required independent witnesses. The appeal was dismissed.

What did the court decide?

The appeal under Section 5 of the Kerala High Court Act, 1958, is dismissed.

V.Somanathan Vs the Appellate Authgority — Environment and Pollution | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942

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WA.No.1448 OF 2020

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APPELLANT/PETITIONR:

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V.SOMANATHAN

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AGED 75 YEARS

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S/O VASUKUTTY, AKKALVEEDU, KUDASSANADMURI, KUDASSANAD PO,

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PALAMEL VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.

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BY ADV. SRI.B.RENJITHKUMAR

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RESPONDENTS/RESPONDENTS:

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1 THE APPELLATE AUTHORITY INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695019.

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2 GEOLOGIST

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DEPARTMENT OF MINING AND GEOLOGIST DISTRICT OFFICE, MINI CIVIL STATION, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688524.

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3 THE SUB INSPECTOR OF POLICE NOORNAD POLICE STATION, NOORNAD PO, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN-690504.

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4 THE VILLAGE OFFICER VILLAGE OFFICE, PALAMEL, NOORNAD PO, MAVELIKKARA, ALAPPUZHA DISTRICT PIN-690504.

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SR.G.P ARAVIND KUMAR BABU

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No.1448 OF 2020

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JUDGMENT

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Dated this the 6th day of November 2020

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SHAJI P.CHALY,J.

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Appellant is the writ petitioner, who having been aggrieved by the judgment of the learned Single Judge in W.P.(C) No.19513 of 2020 dated 01.10.2020, has preferred this appeal. The subject issue relates to action initiated by the Geologist as per the provisions of the Kerala Minor Mineral Concession Rules, 2015 ('Concession Rules, 2015' for short) and the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules 2015 ('Transportation Rules, 2015' for short) to recover the amounts falling due on account of the quarrying of ordinary earth and transportation of the same by the appellant without securing any permit from the geologist. .

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The case of the appellant is that, appellant is the owner in possession of 43.36 ares of dry land in Re.Sy. No.100/9-2 and 12 of Palamel Village. According to the appellant, he has purchased the said property with a residential building during the year 2012 as per sale deed Nos. 1521, 2898 and 1191 of 2012 of the Office of the Sub Registrar, Nooranad.

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The case projected in the writ petition was that the said property was planted with rubber trees. The appellant had sold the old and unyielding rubber trees in the property in question, and while he was engaged in the

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WA.No.1448 OF 2020

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activity of removing the root of the rubber trees using an excavator, the Sub Inspector of Police, Nooranad Police Station, rushed to the property and had prepared Ext.P1 Mahazar on 18.10.2017 alleging that, the appellant has removed ordinary earth from the property in question without securing necessary permit from the Authority as per Rules, 2015. Anyhow, the Geologist, Department of Mining and Geology, Cherthala, Alappuzha District, issued notice to the appellant demanding to produce documents regarding permission to remove the ordinary earth. But, the appellant did not have any documents and thereupon he could not satisfy the conditions in the notice issued by the Geologist. Anyhow, it is admitted that, the Assistant Geologist visited the property and prepared Ext.P4 Mahazar on 07.04.2017 and thereafter, at the request of the appellant, the Geologist inspected the property and prepared Ext. P5 Mahazar on 06.02.2018. It is an admitted fact that on the basis of the action initiated by the Geologist, Ext.P7 order was passed imposing royalty of Rs.75,600/- and directed the appellant to pay the same, failing which further action was threatened. Aggrieved by the order, appellant has preferred appeal before the Appellate Authority as per Rules, 2015. However, it was dismissed as per Ext.P8 dated 18.11.2018 affirming the order of the Geologist. Being aggrieved, appellant preferred a second appeal in accordance with Rules, 2015, before the second Appellate Authority and the said Authority has also dismissed the appeal affirming the order passed by the Geologist as well as the first Appellate Authority. It was

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thus challenging the legality and correctness of the order passed by the Statutory Authorities, the writ petition was filed. The learned Single Judge after assimilating the fact situations has arrived that the following findings at paragraphs 3 and 4:-

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“3. The learned counsel for the petitioner reiterated the contentions raised by the petitioner before the Appellate Authorities, viz, that the petitioner has not removed ordinary earth from the property and that he has only uprooted the stumps of the rubber trees that stood in the property. It was also contended by the learned counsel that no materials, whatsoever, were available before the second respondent to hold that the petitioner has removed ordinary earth from his property. It was argued that no reliance can be placed on the mahazars prepared by the officials since there are no independent witnesses in any of the mahazars.

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It is seen that the second respondent has considered the contention of the petitioner that he has not removed ordinary earth from the property and rejected the same holding that if the said contention is correct, the earth removed would have been available at the time of inspections, and the same was not available at all at the time of inspections. I do not find any infirmity in the said view of the second respondent. Further, it is seen that the statutory dues payable by the petitioner has been determined based on the mahazars of the property. The petitioner does not dispute the measurements of the area from which earth is removed from the

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property as recorded in the mahazars. Instead, the only contention raised by the petitioner as regards the mahazars is that there were no independent witnesses in the mahazars and the same, in the circumstances, ought not to have been relied on by the second respondent for determining the quantum of ordinary earth removed from the property. The petitioner has no case that the proceedings against him under the Rules are vitiated by malice. If that be so, according to me, there is absolutely no reason to suspect the genuineness of the measurements shown in the mahazars. Further, there is no requirement in law that there should always be independent witnesses in the mahazars of the instant nature.”

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We have heard counsel for the appellant Sri.B.Renjith Kumar, and learned Senior Government Pleader Sri.Aravind Kumar Babu and perused the materials and pleadings on record.

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The sole question to be considered is whether, any manner of interference is warranted to the judgment of the learned Single Judge. On going through the judgment, we find that, the learned Single Judge has appreciated the points put forth by the appellant with respect to the illegality in preparation of Mahazar and other factual circumstances, as is discussed above and it was after appreciating the other circumstances alone, learned single Judge has found that, the appellant has not made out any case so as to interfere with the findings rendered by the three fact finding bodies.

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Learned Senior Government Pleader submitted that, the appellant has removed ordinary earth from his property, which was clearly recorded in the Mahazar prepared by the Geologist and therefore, the contention put forth by the appellant that, it was relying upon Ext.P1 Mahazar prepared by the Sub Inspector of Police that the demand was raised, has no factual or legal basis. It was also pointed out that the 2010 Government order relied upon by the appellant in regard to the excavation of ordinary earth has no basis, since ordinary earth is included as a minor mineral in the Kerala Minor Mineral Concession Rules, 2015. That apart, it was submitted that even if assuming that the earth was removed for agricultural and domestic purposes, for transporting the same, permission was required from the competent authorities. On the other hand, learned counsel for the appellant submitted that no steps have been taken to find out as to where the sand has been removed.

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We have evaluated the rival submissions made across the Bar, and gone through the Kerala Minor Mineral Concession Rules, 2015 as well as the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015. Even though the learned counsel for the appellant has a case that, the ordinary earth is not a Minor Mineral evident from Annexure A1 Government Order produced along with the appeal, on verification of the Kerala Minor Mineral Concession Rules, 2015, there is no

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doubt that ordinary earth is a Minor Mineral included in the Rules, 2015, which requires permits/licence for conducting any quarrying operations. That apart, the Transportation Rules, 2015 defines illegal mining to mean any mining operation undertaken by any person, firm, association or company in any area within the State without holding a prospecting licence, mining lease, quarrying lease or quarrying permit under the provisions contained in the Act or the Rules made thereunder. Other prohibitory provisions are contained under the Minor Mineral Concession Rules, 2015 as well as the Transportation Rules, 2015 disabling a person from conducting quarrying operations and transportation of the ordinary earth also from the property without securing permit/licence. The paramount contention advanced by the counsel for the appellant that there are no independent witnesses to the Mahazar prepared by the geologist. We could not locate any such provision in the Rules referred to above, nor the geologist was bound to prepare any mahazar resorting to the provisions of the Code of Criminal Procedure as contented. That is to say, the appellant under law is not expected to insist on an authority to do a thing which such authority is liable to do under law. According to us, in order to appreciate the said arguments advanced, we have to read the provisions of the Rules as above adding so many words, which we are not expected to do. Anyhow, it is evident from the records that the mahazar was prepared in the presence of the appellant. Even the Sub Inspector of Police has prepared the mahazar in the presence of other

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police officers; but anyhow, the mahazar prepared by the police officer is a subject to be considered by this Court in the fact scenario of this case, since there is no such requirement under the Rules in order to proceed to recover the amounts on account of the illegal quarrying conducted by the appellant . Moreover, the arguments with respect to the failure of the geologist to find out the whereabouts of the ordinary earth removed was not a matter to have been looked into by the learned single Judge, since it was purely dependent on factual circumstances , which were considered by the statutory authorities.

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We have gone through the orders passed by the Statutory Authorities and find that the situations considered by the Statutory Authorities were surrounded by various facts and we do not think that the appellant has made out any case or produced any substantial materials enabling this Court to arrive at a different conclusion than the ones arrived at by the fact finding bodies, for them being so perverse in nature and they are all concurrent findings of fact not likely to be interfered by a writ court under normal and ordinary circumstances. That apart, the Geologist as well as the Appellate Authorities have provided sufficient opportunity of hearing and participation to the appellant in the proceedings before them and have complied with the mandatory requirements under law before passing the orders. Therefore, we are of the view that the learned single Judge has not

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committed any error of law in exercising the discretion conferred under Article 226 of the Constitution of India, liable to be interfered with by this Court .

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In that view of the matter, we do not think, the appellant has

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made out any case justifying interference with the judgment of the learned single Judge in an intra court appeal filed under Section 5 of the Kerala High Court Act,1958.

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Needless to say appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY