K.J.Thomaskutty vs State Of Kerala
2021 Latest Caselaw 15253 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                     THE HONOURABLE MR. JUSTICE SATHISH NINAN
         THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                             WP(C) NO. 13891 OF 2021
PETITIONER:

              K.J.THOMASKUTTY
              AGED 69 YEARS
              KANNAMTHANATHIL HOUSE, VADASSERIKARA , RANNI,
              PATHANAMTHITTA.

              BY ADVS.
              ENOCH DAVID SIMON JOEL
              S.SREEDEV
              RONY JOSE
              SUZANNE KURIAN
              CIMIL CHERIAN KOTTALIL



RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES,
              GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

     2        DIRECTOR OF MINING AND GEOLOGY,
              DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O,
              THIRUVANANTHAPURAM 695 001

     3        DISTRICT GEOLOGIST
              DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, ADOOR
              P.O, PATHANAMTHITTA 691 523


OTHER PRESENT:

              GOVT. PLEADER SRI. S.KANNAN




     THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                   SATHISH NINAN, J.
          ==================
              W. P. (C) No.13891 of 2021
          ==================
          Dated this the 22nd day of July, 2021

                         JUDGMENT

The petitioner challenges Ext.P6 demand raised

against him for royalty and penalty, for illegal mining.

2. On 23.11.2002 and 18.05.2009, Exts.P1 and P2

orders were passed against the petitioner for

recovery of amounts, alleging illegal mining. The

petitioner challenged the same before this Court in

O.P. 1546/2003 and WP(C) No.17142/2009. As per

Ext.P3 judgment, this Court set aside Exts.P1 and

P2 on the ground that they were issued not by the

competent authority-the Department of Mining and

Geology.

3. Thereafter, on 24.01.2020, the petitioner

was issued with Ext.P4 notice by the third

respondent Geologist alleging illegal quarrying of

1467185 MT granite. Thereafter the petitioner was

served with Ext.P6 demand notice for royalty and

fine amount alleging illegal extraction of 1550710 W. P. (C) No.13891 of 2021

MT of granite. Ext.P6 seems to include the quantity

mentioned in Ext.P4.

4. The grievance of the petitioner is that,

though the alleged illegal quarrying related to the

year 2002 and 2009, royalty and fine had been

calculated in terms of the Kerala Minor Mineral

Concession (Amendment) Rules, 2015. The calculation

ought to have been on the basis of the Rules of

1997, which was in force at the relevant time, is

the contention.

5. It needs to be ascertained as to whether the

quantity mentioned in Ext.P6 is the quantity

referred to in Exts.P1 and P2 only, or whether it

includes any subsequent illegal quarrying

conducted. If Ext.P6 relates to the quantity

involved in Exts.P1 and P2 of the year 2002 and

2009, the petitioner would be required to pay

royalty and fine in terms of the 1997 Rules;

whereas, if any quantity has been illegally

extracted after the 2015 Rules came into force,

then the petitioner will be liable to pay fine and

royalty at the rates as fixed in the 2015 Rules. W. P. (C) No.13891 of 2021

The factual aspects need to be ascertained by the

Geologist.

6. Accordingly the writ petition is disposed of

with the following directions:-

(1) Treating Ext.P6 as a notice, the petitioner

shall submit his objections to the same

within a period of one month from today.

(2) Calculating royalty and fine in terms of the

1997' Rules on the quantity mentioned in

Ext.P6 demand, the petitioner shall pay one

half of the said amount along with the

submission of objections mentioned in clause

(1) above.

(3) The remaining one half after deducting the

one half paid in terms of clause (2) above

shall be paid in two equal monthly

installments payable on or before 30 th day of

the succeeding months.

(4) On effecting payments as directed above, the

third respondent-Geologist shall fix a date

for hearing the petitioner and pass

appropriate orders in the light of the W. P. (C) No.13891 of 2021

contentions of the petitioner referred to

earlier in this judgment.

(5) If the petitioner fails to comply with any

of the directions in clauses (1) to (3)

above, the petitioner will lose the benefit

of this judgment and further proceedings

pursuant to Ext.P6 can continue.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge W. P. (C) No.13891 of 2021

Reference to the "1997 Rules" (Paragraph Nos.4,5 and 6(2) ) in the judgment dated 22/07/2021 in WP(C) 13891/2021 is corrected as the "1967 Rules or the Kerala Minor Mineral Concessions Rules, 1967" as per order dated 28/07/2021 in I.A.1/2021 in WP(C) 13891/2021.

Sd/-

Joint Registrar WP(C) NO. 13891 OF 2021 APPENDIX PETITIONER'S EXTS:-

EXT.P1 TRUE COPY OF THE ORDER DATED 23.11.2002 BEARING NO.B4-2667/2000 ISSUED BY THE TAHSILDAR, RANNI.

EXT.P2 TRUE COPY OF ORDER DATED 18.5.09 BEARING NO.C3-

7074/2006 ISSUED BY THE ADDL. TAHSILDAR, RANNI.

EXT.P3 TRUE COPY OF THE COMMON JUDGMENT DATED 24.11.15 IN OP 1546/03 AND WPC 17142/09.

EXT.P4 TRUE COPY OF THE NOTICE DATED 24.01.2020 BEARING NO.98/DOPTA/M/02 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXT.P5 TRUE COPY OF THE OBJECTION DATED 13.3.20 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXT.P6 TRUE COPY OF THE DEMAND NOTICE DATED 22.06.21 BEARING NO.98/DOPTA/M/2002 ISSUED BY THE 3RD RESPONDENT.

EXT.P7 TRUE COPY OF SRO NO.264/97 DATED 10.4.97 ISSUED BY THE 1ST RESPONDENT.

EXT.P7(a) TRUE COPY OF SRO NO.18/2015 DATED 5.1.15 ISSUED BY THE 1ST RESPONDENT.

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