Petitioner challenged a royalty demand notice following alleged illegal quarrying. Court found proceedings lacked proper site inspection records and natural justice. Set aside demand.
Ext.P5 demand notice set aside.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH 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:
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:
WP(C) NO. 16252 OF 2014
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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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WP(C) NO. 16252 OF 2014
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.
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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.
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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.
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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.
Accordingly, the writ petition is allowed and Ext.P5 demand notice is set aside.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
WP(C) NO. 16252 OF 2014
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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.
1 issue framed by the court
Whether the petitioner is liable to pay the amount demanded for alleged illegal excavation without a permit.
Colour shows how this judgement treated each authority
Biju K. Varghese v. Geologist, Mining and Geologist Department, District Office, CherthalaRelied on¶48
Biju K. Varghese v. Geologist, Mining and Geologist Department, District Office, Cherthala [2020 (6) KHC 450]
Pradeepkumar K.V
The State of Kerala represented by the Chief Secretary
Director Mining and Geology
Senior Geologist Mining and Geology Department
Tahsildar Revenue Recovery
Shoba Annamma Eapen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
