A public interest petition sought mineral check-posts, weigh-bridges and electronic monitoring to prevent illegal mineral transport. The court held Section 23C to be enabling, not mandatory, and declined the requested directions in the absence of rules for check-posts and weigh-bridges. The petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942
WP(C).No.3582 OF 2020(S)
PETITIONER:
S.UNNIKRISHNAN, AGED 53 YEARS S/O. SASIDHARAN NAIR, SECRETARY, THANALVEDI, KULATHINKARA VEEDU, PERUMKADAVILA P. O., NEYYATTINKARA, THIRUVANANTHAPURAM - 695 124.
BY ADV. SRI.H.KIRAN
RESPONDENTS:
REPRESENTED BY THE CHIEF SECRETARY - 695 001.
R1-5 BY GOVERNMENT PLEADER SRI.S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.3582 OF 2020(S)
C R
:: 2 ::
JUDGMENT
Dated this the 3rd day of June, 2020
S.MANIKUMAR, CJ
Instant public interest litigation is filed alleging the inaction on the part of State Government in implementing Section 23C of the Mines and Minerals (Development and Regulation) Act, 1957 ('Act, 1957', for short). Section 23C of Act, 1957 empowers the State Government to make rules for preventing illegal mining, transportation and storage of minerals. Section 23C(2)(a), (b), (d) and (e) specifically empowers the State Government to establish 'check-posts' for checking of minerals under transit, to establish 'weigh-bridges' to measure the quantity of mineral being transported, to conduct inspection, checking and search of minerals at the place of excavation or storage or during transit and to maintain registers and forms for the purpose of these rules.
W.P.(C).No.3582 OF 2020(S)
:: 3 ::
in all district and state roads to prevent illegal transport of minerals.
3. Grounds raised in support of the prayers are as follows:
(a) Section 23C(2)(a), (b), (d) and (e) specifically empowers the State Government to establish 'check-posts' for checking minerals under transit, to establish 'weigh-bridges' to measure the quantity of mineral being transported, to conduct inspection, checking and search of minerals at the place of excavation or storage or during transit and to maintain registers and forms for the purpose of these rules. A weighbridge is a set of scale which is used to weigh bulk items. It has an electronic or digital monitor which displays the weight of the vehicle weighed. Weighbridges are mainly used for weighing large vehicles like trucks or rail containers where movement of goods is done through vehicles.
(b) The State Government has framed the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 under the parent Act, 1957. But, the said rules are completely silent on the implementation of Section 23C(2)(a), (b), (d) and (e) of the Mines and Minerals Act, 1957. Due to the inaction on the part of the State Government in implementing Section 23C(2)(a), (b), (d) and (e) of the Mines and Minerals Act, 1957, huge amount of revenue loss is
W.P.(C).No.3582 OF 2020(S)
:: 4 ::
causing to the State Exchequer.
(c) The State Government has introduced a project called KOMPAS (Kerala Online Mining Permit Awarding Services). KOMPAS is an e-Governance initiative of the Department of Mining and Geology for bringing efficiency and transparency to mineral administration in the State. KOMPAS ensures citizen centric, cost effective and quality electronic service delivery pertaining to mines and minerals in the State. In the initial phase of implementation of KOMPAS, stakeholders can avail following services:
(d) It is contended that the KOMPAS is intended to ensure transparency, by providing statistics of mineral concessions in the State,particulars of mineral concessions and documents submitted for availing concessions, locations of working mines, quarries, crushers and dealers, information on mineral availability, to public. KOMPAS also provides information pertaining to genuineness of e- pass, permits/ licences to other regulatory agencies like police, land revenue authorities of the State. A google map-based service provides location-specific information about the mining entities, quarries, and related information to public and other stakeholders.
(e) Unfortunately, the KOMPAS has no facility to check the quantity of minerals transported from quarries.The software system made for
W.P.(C).No.3582 OF 2020(S)
:: 5 ::
the KOMPAS has no facility to check the quantity of minerals while issuing online transit passes. The inability of the KOMPAS to check the quantity of minerals transported from quarries is exploited by the quarry operators by illegally transporting minerals and the same is causing huge loss to the State exchequer.
(f) It is further contended that many other States in India have already made rules under the Act, 1957 to implement Section 23C(2) to prevent illegal transport of minerals. The State of Gujarat has framed the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 where Rule 8 specifically prescribes the establishment of check-posts and weigh bridges: Rule 8 reads thus:
“8. Check Posts.-
(1) The Government may, with a view to check the transport and storage of minerals raised without lawful authority and to check the quality and quantity of minerals transported from leasehold areas and stockyards, set up Check Posts at any place within the Territory of Gujarat State.
(2) Each Check Post shall have CCTV cameras with night vision and information technology enabled equipment, including computerized weigh-bridge or a system which is connected to a central electronic system and which is capable of reading, recording, retrieving and analysing information of the tracking device and the electronic identification device on a Real-Time basis.
(3) Any Authorised Officer may stop and check any Carrier at any place within his respective jurisdiction and the person in charge of the Carrier shall furnish such information as may be required by the Authorised Officers.”
W.P.(C).No.3582 OF 2020(S)
:: 6 ::
“(a) However, the provisions contained in Section 23C of the Act, 1957 are not mandatory in nature, since the word used is 'may'. Be that as it may, Section 23C of the Act, 1957 does not mandatorily require the State Government to enact Rules, as contemplated therein. However, taking cue of Section 23C (1) of Act, 1957, Rules, 2015 have been enacted by the State of Kerala.
(b) Insofar as the question of establishment of check posts and weigh bridges are concerned, it is the prerogative of the State Government to decide as to whether it requires its establishment on the basis of situation existing within the State of Kerala. The State Government may establish check posts and weigh bridges, if the situation in the State so warrants. However, taking note of the prevailing situation existing within the State of Kerala, the State Government in its wisdom has not chosen to establish either check posts or weigh bridges.
(c) As seen from the Rules of 2015, necessary provisions have been incorporated therein for the purpose of inspection, checking and search of minerals, at the place of extraction or storage or during transit. Necessary provisions are also incorporated in the Rules of 2015 to maintain registers and forms for the purpose of implementation of the Rules of 2015.
W.P.(C).No.3582 OF 2020(S)
:: 7 ::
(d) Contrary to the allegations made by the Writ Petitioner, no loss whatsoever has been caused to the State Government or to the public exchequer by not establishing check posts or weigh bridges. Necessary provisions have been incorporated in the Rules of 2015 so as to abate illegal mining, storage and transportation of minerals. The State Government has authorized the officers of the Department of Mining and Geology, Department of Revenue and Police Department for prevention of illegal mining, storage and transportation of minerals. Since necessary safe guards have been taken to abate illegal mining, storage and transportation of minerals, as averred hereinabove, there is no requirement to prevent the same by establishing check posts and weigh bridges. It is respectfully submitted that the Department of Mining and Geology use to assess, frequently, the quantum of minerals excavated from quarries and mining sites and used to take penal proceedings in case of detection of excess extraction.
e) At the time of closing of mines or at the time of renewal of quarrying lease or quarrying permit, as the case may be, the entire dues by way of royalty are realized by assessing the quantity of mineral extracted and transported during the period of lease/permit. Consequent thereto, the Government can realize royalty for the entire quantity of mineral extracted from the quarry, even without establishing check posts and weigh bridges.
f) At this length of time, the Government has to spend substantial amount of public money for establishing check posts and weigh bridges. Installation of CCTV Cameras with night vision and
W.P.(C).No.3582 OF 2020(S)
:: 8 ::
information technology enabled equipments as contended by the petitioner will cause substantial financial burden over the public exchequer. Expending such a huge amount is of no consequence and will not be in the best interest of public exchequer. However, Government is having no additional financial burden for assessing the quantity of excess extraction in the mines, concerned. Royalty for the entire quantity of the excess extracted mineral can be realized from the operator by assessing the quantity.
g) True that the official software, the KOMPAS, has no facility to check the quantity of minerals from quarries as well as to check the quantity of minerals being transported using the mineral transit passes. Nevertheless, though there is no facility in KOMPAS, as averred herein above, the monetary loss that may be caused, consequent to illegal transportation are being compensated by assessing the quantity of illegal extraction and excess extraction made by the quarry operators. By assessing such a quantity, the Department could realise the entire quantity of such extraction and that the department is effectively implementing the same.
h) Using KOMPAS and Google Earth, the Department could locate the quarries from the respective offices, itself and could not find out whether the lease/permit holder has quarried outside the permitted area of extraction and could make physical verification in the field and could assess the quantum of illegal extraction and to take steps against the said operators. Necessary changes can be incorporated in KOMPAS, if situation warrants.
i) It also contended that since the State of Kerala is very small in
W.P.(C).No.3582 OF 2020(S)
:: 9 ::
area and as the same is not a mineral rich State, the entire illegal extraction and transportation can be detected from the area of extraction itself. Therefore, there is no need to establish check posts and weigh-bridges as it is established in mineral rich States like Gujarat. Moreover, necessary squads comprising of Squad Geologists are also engaged, so as to prevent illegal transportation of minerals.
j) Be that as it may, at present the State Government is not intending to establish weigh bridges and check posts in the State of Kerala, as the same is not necessary, for the time being. There is no inaction on the part of respondents as alleged by the petitioner. No amount of revenue loss has been caused to the State, as contended by the petitioner.”
“(i) For the past three years, namely for the years 2017, 2018 and 2019 a total number of 3287 crime cases were registered in the State of Kerala for the offences punishable under the Act, 1957 and the Rules made thereunder and also under Sections 20 and 23 of Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002.
(ii) Necessary instructions have been already issued to all Police officers concerned, across the State of Kerala, for timely intervention, with regard to the detection of cognizable offences,
W.P.(C).No.3582 OF 2020(S)
:: 10 ::
especially on special laws, including those falls under the Act, 1957 and the rules made thereunder.
(iii) It is respectfully submitted that the Police, all along has been effectively registering cases relating to the Act, 1957 and the rules made thereunder and thereby enforced the law, in order to prevent illegal transportation and storage of minerals. Those cases are being investigated by collecting sufficient and relevant evidences, proper seizures, reports etc, and are being charge sheeted in time before the Hon'ble Court, concerned, for initiating prosecution as against the offenders.
(iv) It is respectfully submitted that no check posts are existing in the State of Kerala, directly under the 4th respondent. No weigh bridges are established by the Police, either. Approximately, 975 CCTV Cameras are installed and are accessed by the Police department for monitoring and ensuring public order as well as enforcement of law.
(v) Even though no check posts are established in the State of Kerala by the 4th respondent, there are check posts functioning under the supervision and control of various other departments such as, Sales Tax department and Motor Vehicle Department.”
W.P.(C).No.3582 OF 2020(S)
:: 11 ::
“ 23C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals .—
(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
W.P.(C).No.3582 OF 2020(S)
:: 12 ::
(3) Notwithstanding anything contained in section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorised officers or any authority under the rules made under sub-sections (1) and (2).”
(i) As Cotton L. J. said in, in re Baker, Nichols v. Baker [(1890) 44 Ch. D 262.] "great misconception is caused by saying that in some cases 'may' means 'must'. It never can mean 'must'-so long as
W.P.(C).No.3582 OF 2020(S)
:: 13 ::
the English language retains its meaning; but it gives a power and then it may be a question in what cases, where a Judge has a power given him by the word 'may', it becomes his duty to exercise it.”
(ii) In Dattatraya Moreshwar v. The State of Bombay and Ors. (AIR 1952 SC 181), the Hon'ble Apex Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below:
“7... It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who ha13ve no control over those entrusted with the duty and at the same time would not promote the main object of legislature,it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.”
(iii) A Constitution Bench of the Hon'ble Apex Court in State of U.P. and Ors.v. Babu Ram Upadhya [AIR 1961 SC 751], decided the issue, observing thus:
“29... For ascertaining the real intention of the Legislature,the Court may consider, inter alia, the nature and the design of the statute,and the consequences which would follow from construing it the one way or the other,the impact
W.P.(C).No.3582 OF 2020(S)
:: 14 ::
of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the noncompliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from,and, above all, whether the object of the legislation will be defeated or furthered.”
(iv) In Municipal Corporation of Delhi v. Bhagwan Das reported in (1972) ILR 1 Delhi 285, the High Court of Delhi, while dealing with the question whether the provision is mandatory or directory or whether it is partly mandatory and partly directory, observed thus:-
(v) A three Judge Bench of the Hon'ble Supreme Court in Union of India and Ors. v. A.K. Pandey reported in (2009) 10 SCC 552, held as under:
W.P.(C).No.3582 OF 2020(S)
:: 15 ::
“15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof . If the context does not show nor demands otherwise,the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command.When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such.....”
(vi) In Delhi Airtech Services Pvt. Ltd. and Ors. v. State of U.P. and Ors. reported in (2011)9 SCC 354, the Hon'ble Supreme Court while examining the general principles that could help the Court in determining whether a particular provision of a statute is mandatory or directory, observed thus:
“16. In 'Principles of Statutory Interpretation ', 12th Edition, 2010, Justice G.P. Singh, at page 389 states as follows:
“As approved by the Supreme Court: "The question as to whether a statute is mandatory of directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislation must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other" "For ascertaining the real intention of the Legislature",
W.P.(C).No.3582 OF 2020(S)
:: 16 ::
points out Subbarao, J, "the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of the other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow there from; and above all, whether the object of the legislation will be defeated or furthered". If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored, but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative construction. Thus, the use of the words 'as nearly as may be' in contrast to the words 'at least' will prima facie indicate a directory requirement, negative words a mandatory requirement 'may' a directory requirement and 'shall' a mandatory requirement.
“Passing from the interpretation of the language of statutes, it remains to consider what intentions are to be attributed to the legislature on questions necessarily arising out of its enactments and on which it has remained silent.
W.P.(C).No.3582 OF 2020(S)
:: 17 ::
W.P.(C).No.3582 OF 2020(S)
:: 18 ::
or only directory."
“(a) While determining whether a provision is mandatory or directory, somewhat on similar lines as afore-noticed, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve;
(b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons affected by the application of such provision;
(c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things;
(d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other;
(e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of non-compliance of such provisions;
(f) Physiology of the provisions is not by itself a determinative factor. The use of the words 'shall' or 'may',respectively would ordinarily indicate imperative or directory character, but not always.
(g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not.
(h) The Court has to give due weight age to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise.”
W.P.(C).No.3582 OF 2020(S)
:: 19 ::
Pending interlocutory applications, if any, shall stand closed.
SD/-
S.MANIKUMAR CHIEF JUSTICE
SD/-
SHAJI P. CHALY JUDGE
jes
W.P.(C).No.3582 OF 2020(S)
:: 20 ::
APPENDIX
PETITIONER'S EXHIBITS:
// TRUE COPY //
P.S. TO JUDGE
2 issues framed by the court
Does Section 23C mandatorily require the State Government to frame rules to prevent illegal mining, transportation and storage of minerals?
Can directions to establish mineral check-posts and weigh-bridges be granted in the absence of rules providing for them?
Colour shows how this judgement treated each authority
Baker, Nichols v. BakerRelied on¶106
[(1890) 44 Ch. D 262.]
Dattatraya Moreshwar v. The State of Bombay and Ors.Relied on¶110
(AIR 1952 SC 181) · Who else cites this
State of U.P. and Ors.v. Babu Ram UpadhyaRelied on¶112
[AIR 1961 SC 751] · Who else cites this
Municipal Corporation of Delhi v. Bhagwan DasRelied on¶117
(1972) ILR 1 Delhi 285 · Who else cites this
Union of India and Ors. v. A.K. PandeyRelied on¶119
(2009) 10 SCC 552 · Who else cites this
Delhi Airtech Services Pvt. Ltd. and Ors. v. State of U.P. and Ors.Relied on¶123
(2011)9 SCC 354 · Who else cites this
1 provisions across 1 enactments
S.UNNIKRISHNAN
STATE OF KERALA
DEPARTMENT OF FINANCE KERALA
DEPARTMENT OF MINING AND GEOLOGY, KERALA
DEPARTMENT OF HOME, KERALA
MOTOR VEHICLES DEPARTMENT, KERALA
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
