M/S.J & S Granites Company vs The Director Of Mining And Geology
2021 Latest Caselaw 8158 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

   WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942

                       WP(C).No.18777 OF 2020(V)


PETITIONER:

               M/s.J & S GRANITES COMPANY
               MUPPRAMON, V-KOTTAYAM P.O.,
               PATHANAMTHITTA-689 565,
               REPRESENTED BY ITS MANAGING PARTNER,
               SRI.K.SADANANDAN.

               BY ADVS.
               SRI.PAUL JACOB (P)
               SRI.ENOCH DAVID SIMON JOEL
               SRI.RONY JOSE
               SRI.GEORGE A.CHERIAN

RESPONDENTS:

      1        THE DIRECTOR OF MINING AND GEOLOGY
               DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O.,
               KESAVADASAPURAM,
               THIRUVANANTHAPURAM-695 004.

      2        THE DISTRICT COLLECTOR,
               COLLECTORATE RD, CHITTOOR,
               PATHANAMTHITTA-689 645.

               BY ADVS:
               SHRI.K.J.MANURAJ, GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18777 OF 2020(V)

                                 2



                 W.P.(C) No.18777 of 2020
           -----------------------------------------------


                        JUDGMENT

On an application preferred by the petitioner, the

second respondent has issued Ext.P2 No Objection

Certificate to the petitioner on 07.01.2014 for extracting

granite building stones from a Government land measuring

4.39.80 Hectors in V-Kottayam Village. Ext.P2 No Objection

Certificate was issued for a period of ten years from the

date on which the petitioner obtains quarrying lease for the

said purpose under the Kerala Minor Mineral Concession

Rules, 1967 (the Rules). On the basis of Ext.P2 No Objection

Certificate, the petitioner applied for grant of quarrying

lease. On the said application, the petitioner was issued

Ext.P3 letter of intent, directing them to produce the various

licences and permissions obtained by them for the purpose

of conducting quarrying operations, including a certificate

from the second respondent to the effect that Ext.P2 No WP(C).No.18777 OF 2020(V)

Objection Certificate still holds good. Pursuant to Ext.P3,

the petitioner applied for such a certificate to the second

respondent. The request made by the petitioner in this

regard has been turned down by the second respondent in

terms of Ext.P5 communication. Ext.P5 communication is

under challenge in the writ petition.

2. A counter affidavit has been filed by the

second respondent reiterating the reasons stated in Ext.P5

communication for declining the certificate sought by the

petitioner.

3. Heard the learned counsel for the petitioner as

also the learned Government Pleader.

4. The learned counsel for the petitioner

contended vehemently that in so far as the petitioner has

been issued No Objection Certificate once, it was highly

inappropriate on the part of the second respondent in

declining the certificate sought for by the petitioner, after

the petitioner has acted upon the No Objection Certificate

and obtained the various other licences and permissions WP(C).No.18777 OF 2020(V)

required for the purpose of conducting the quarry proposed

by them, spending sizeable amounts and wasting enormous

time and energy. According to the learned counsel, none of

the reasons stated in Ext.P5 would justify the decision of the

second respondent to decline the certificate sought for by

the petitioner.

5. Per contra, the learned Government Pleader

pointed out that Ext.P2 No Objection Certificate was issued

at a point of time when there was no guidelines for issue of

No Objection Certificate, and guidelines have now been

framed by the Government for the said purpose, in terms of

G.O.(Ms) No.28/2021/RD dated 28.1.2021. According to the

learned Government Pleader, as per the said guidelines, No

Objection Certificate holders have to pay lease rent and

furnish security for obtaining No Objection Certificate. It

was also pointed out by the learned Government Pleader

that in terms of the said guidelines, only those who offer

the maximum amount of lease rent in the e-tendering

process contemplated under the guidelines are entitled to WP(C).No.18777 OF 2020(V)

No Objection Certificate. The learned Government Pleader

has made available a copy of the said guidelines for

perusal of the court. According to the learned Government

Pleader, in the circumstances, the second respondent

cannot be found fault with for having declined the certificate

sought by the petitioner. The learned Government Pleader

has also pointed out that the petitioner is a defaulter of the

seigniorage payable to the Government in respect of

another No Objection Certificate and such a person shall

not be extended the benefit of discretionary jurisdiction

vested in the court under Article 226 of the Constitution for

granting reliefs on equitable grounds.

6. In reply to the submissions made by the

learned Government Pleader, the learned counsel for the

petitioner submitted that new guidelines cannot be applied

in respect of the Government land covered by Ext.P2 No

Objection Certificate since the said land does not have road

access. It was pointed out by the learned counsel that since

the Government land covered by Ext.P2 No Objection WP(C).No.18777 OF 2020(V)

Certificate is surrounded by the private holdings of the

Managing Partner of the petitioner, the petitioner has

obtained No Objection Certificate in respect of the said

Government land. As regards the arrears of seigniorage

mentioned in Ext.P5 order, it was pointed out by the learned

counsel that the arrears of seigniorage referred to in Ext.P5

order is part of a larger claim of Rs.5,71,83,621/- demanded

for a longer period at the rate of Rs.2.50 per metric tonne

upto 2.2.2015, at the rate of Rs.200/- per metric tonne

thereafter upto 17.2.2016 and at the rate of Rs.50/- per

metric tonne for the period thereafter. It was pointed out by

the learned counsel that the unilateral fixation of

seigniorage at the rate of Rs.200/- per metric tonne for the

period from 2.2.2015 to 17.2.2016 was challenged by the

petitioner in W.P.(C) No.4315 of 2020 and the said writ

petition is pending. It was also pointed out by the learned

counsel that the number of the said writ petition is wrongly

mentioned in the counter affidavit as W.P.(C) No.7557 of

2020. According to the learned counsel, in the WP(C).No.18777 OF 2020(V)

circumstances, the Managing Partner of the petitioner paid

the entire claim except the claim raised for the period from

2.2.2015 to 17.2.2016 amounting to Rs.3,52,00,687/- and

the said amount has not been paid since the writ petition

challenging the demand is pending. It was, however,

conceded by the learned counsel that there is no interim

order in the said writ petition. It was submitted by the

learned counsel that if the arrears aforesaid is the

impediment for grant of the certificate sought for by the

petitioner, the Managing Partner of the petitioner is

prepared to pay the said amount subject to the outcome of

the writ petition referred to above.

7. Various reasons, relevant and irrelevant, have

been mentioned in Ext.P5 communication. It is seen that

essentially the certificate sought by the petitioner has been

declined mainly on the grounds (i)that Ext.P2 No Objection

Certificate has been issued while the Kerala Minor Mineral

Concession Rules, 1967 was in force and the said rules has

been replaced by Kerala Minor Mineral Concession Rules, WP(C).No.18777 OF 2020(V)

2015, (ii) that environmental clearance is now being

granted only for a period of five years and No Objection

Certificate cannot, therefore, be issued for a longer period

and (iii) that the Managing Partner of the petitioner has

defaulted payment of seigniorage to the tune of

Rs.3,52,00,687/- .

8. On a specific query from the court, the

learned Government Pleader submitted that the

Government land covered by Ext.P2 No Objection Certificate

does not have road access. If that be so, the e-tendering

process contemplated in terms of the new guidelines cannot

be made applicable for the said Government land. True, in

so far as the petitioner has been granted No Objection

Certificate, it is inappropriate to deny the benefit of the

same to them after the petitioner has acted upon the same

and obtained all other requisite permissions and licences for

the purpose of running the quarry spending sizeable

amounts and wasting enormous time and energy. At the

same time, in so far as the petitioner does not have any WP(C).No.18777 OF 2020(V)

right to claim No Objection Certificate to extract minerals

from Government land, and in so far as No Objection

Certificate is issued so as to enable the State to make use

of its resources for other purposes in public interest, there

cannot be any impediment in law for the State in claiming

from the petitioner the dues fixed for granting such

privileges from time to time.

9. Now, I shall deal with the reasons stated in

Ext.P5 communication for declining the certificate sought

for by the petitioner. There is no provision in the Kerala

Minor Mineral Concession Rules, 2015 precluding the

authorities under the said rules from acting upon the No

Objection Certificate issued by the District Collector prior to

the said rules for the purpose of considering the request of

persons concerned for grant of quarrying permits/quarrying

leases. In other words, the reason in Ext.P5 communication

that Ext.P2 is one issued under the Kerala Minor Mineral

Concessions Rules, 1967 and therefore, the same will not

hold good for the purpose of obtaining a quarrying lease in WP(C).No.18777 OF 2020(V)

terms of the Kerala Minor Mineral Concession Rules, 2015 is

unsustainable. Similarly, the reason stated in Ext.P5 that

since environmental clearance is granted only for a period

of five years, No Objection Certificate cannot be granted for

a period exceeding five years, is equally unsustainable since

the No Objection Certificate cannot be made use of for the

purpose intended, if the holder does not have

environmental clearance. The reason stated in Ext.P5

communication as regards the arrears of seigniorage is not

relevant now since the petitioner undertakes to pay the

same.

10. In the aforesaid facts and circumstances,

Ext.P5 is quashed and the second respondent is directed to

issue the certificate sought for by the petitioner on the

petitioner remitting Rs.3,52,00,687/-, subject to the

condition that the petitioner shall comply with all the

conditions stipulated in G.O.(Ms)No.28/2021/RD dated

28.01.2021 as regards payments to be made and securities

to be furnished. This shall be done within two weeks. It is WP(C).No.18777 OF 2020(V)

made clear that the payment of Rs.3,52,00,687/- in terms

of this judgment will be subject to the outcome of W.P.(C)

No.4315 of 2020. It is also made clear that in case W.P.(C)

No.4315 of 2020 is dismissed, the second respondent will be

free to call upon the petitioner to pay interest for the said

liability as well and in that event, the petitioner should pay

interest for the amount, and the second respondent would

be free to recall the certificate issued, if the petitioner fails

to pay interest.

Sd/-

P.B.SURESH KUMAR, JUDGE.

PV WP(C).No.18777 OF 2020(V)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 15.06.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P2        TRUE COPY OF THE NOC DATED
                  07.01.2014 ISSUED BY THE 2ND
                  RESPONDENT.

EXHIBIT P3        TRUE COPY OF THE LETTER OF INTENT
                  DATED 24.06.2019 ISSUED BY THE 1ST
                  RESPONDENT.

EXHIBIT P4        TRUE COPY OF THE JUDGMENT DATED
                  29.06.2020 IN WPC NO.12704/2020 ON
                  THE FILES OF THIS HON'BLE COURT.

EXHIBIT P5        TRUE COPY OF THE LETTER DATED
                  29.08.2020 ISSUED BY THE 2ND
                  RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P6        TRUE COPY OF THE CERTIFICATE DATED
                  14.02.2020 ISSUED BY THE TAHSILDHAR,
                  KONNI.

EXHIBIT P6 (A)    TRUE COPY OF THE CERTIFICATE DATED
                  22.06.2020 ISSUED BY THE DISTRICT
                  GEOLOGIST, PATHANAMTHITTA.

EXHIBIT P7        TRUE COPY OF THE LETTER DTD.
                  05.06.2020 ALONG WITH THE AFFIDAVIT
                  DTD. 05.06.2020 SUBMITTED BY THE
                  PETITIONER BEFORE THE 2ND
                  RESPONDENT.