Biju vs State Of Kerala
2021 Latest Caselaw 18707 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
                    WP(C) NO. 15501 OF 2021
PETITIONERS :-

    1     BIJU, AGED 44 YEARS
          S/O.VELUKUTTY, SCHOOL PARAMBIL, NARAKKODE AMSOM,
          KOZHUKKALLUR AMSOM, KOYILANDY TALUK,
          KOZHIKODE DISTRICT-673 305.

    2     SAJIL, AGED 35 YEARS
          S/O.DAMODARAN, ERAMMENKANDI,
          KEEZHARIYOOR AMSOM DESOM, KOYILANDY TALUK,
          KOZHIKODE DISTRICT-673 305.

    3     ABEESH, AGED 32 YEARS
          S/O.ASHOKAN, KEEZHARIYOOR AMSOM DESOM,
          KOYILANDY TALUK, KOZHIKODE DISTRICT-673 305.

    4     SHAJI, AGED 43 YEARS
          S/O.GOPALAN, KEEZHARIYOOR AMSOM DESOM,
          KOYILANDY TALUK, KOZHIKODE DISTRICT-673 305.

          BY ADVS.
          SANTHARAM.P
          REKHA ARAVIND
          PAUL P. ABRAHAM
          P.G.GOKULNATH


RESPONDENTS :-

    1     STATE OF KERALA,
          REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.

    2     THE DISTRICT COLLECTOR,
          DISTRICT COLLECTORATE OFFICE, WAYANAD ROAD,
          CIVIL STATION, ERANHIPPALAM, KOZHIKODE,
          KERALA-673 020.

    3     THE TAHSILDAR,
          CIVIL STATION, KOYILANDY, KERALA-673 305.
 WP(C) NO. 15501 OF 2021

                              -: 2 :-

     4      THE GEOLOGIST,
            DISTRICT OFFICE,
            DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION,
            KOZHIKODE-673 020.

  ADDL.5    THE DIRECTOR OF MINING AND GEOLOGY,
            DIRECTORATE OF MINING AND GEOLOGY,
            KESAVADASAPURAM, PATTOM PALACE P.O.,
            THIRUVANANTHAPURAM - 695 004.

            ADDITIONAL 5TH RESPONDENT IS SUO MOTU IMPLEADED AS
            PER ORDER DATED 9.9.2021 IN WP(C)No.15501/2021.

            BY SRI.V.VENUGOPAL, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 15501 OF 2021

                                      -: 3 :-


                                  JUDGMENT

Dated this the 9th day of September, 2021

This writ petition is filed seeking the following reliefs :-

"(i) To declare that the condition stipulating to pay fresh royalty for unused extend of Exhibit P1 for extension of permit, as illegal.

(ii) Issue a writ, order or direction, in the nature of mandamus or other appropriate writ or direction to the respondent No.4 to remove interference on renewal of Exhibit P1.

(iii) Issue direction to the respondents concerned to permit the petitioners to resume their quarrying operations."

2. Heard the learned counsel for the petitioners and the

learned Government Pleader appearing for the respondents.

3. It is submitted by the learned counsel for the petitioners

that the petitioners had been granted a quarrying permit for

extraction of laterite building stone by Ext.P1. It is submitted that

the petitioners were unable to carry out the quarrying operations

because of local complaints and obstructions. It is submitted that

only a quantity of about 1,100 Metric Tonnes of laterite stones could

be quarried, though the permit covered about 21,048 Metric Tonnes.

It is submitted that the petitioners are unable to quarry the full

quantity of laterite only because of the local complaints and WP(C) NO. 15501 OF 2021

obstructions. The petitioners were entitled for extension of the

quarrying lease on the strength of Ext.P6 Government Order.

However, when the petitioners sought extension of Ext.P1 on the

strength of Ext.P6, Ext.P10 order was passed stating that the

petitioners had to pay royalty in respect of the balance quantity of

laterite which is to be extracted from the quarry.

4. The learned counsel for the petitioners submits that the

petitioners had already paid the consolidated royalty of Rs.5 Lakhs in

respect of Ext.P1 permit and that the petitioners had admittedly been

unable to extract the permitted quantity of laterite. The petitioners

submit that they are liable to be granted extension of the permit

without payment of fresh royalty in view of the fact that the permitted

quantity of laterite could not be extracted or transported by them.

The learned Counsel for the petitioners places reliance on Ext.P11

judgment of this Court where in similar circumstances, the

adjustment of the consolidated royalty for the year 2013-2014 was

permitted to the year 2016-2017 by this Court after considering that

the petitioners could not remove any granite aggregate during the

years 2013-2014, 2014-2015 and 2015-2016. The learned counsel for

the petitioners submits that the request for extension is to be granted WP(C) NO. 15501 OF 2021

without insisting on the condition in Ext.P10 that royalty has to be

paid for the balance laterite to be quarried.

5. A memo has been placed on record by the respondents

appending a report of the Geologist. It is submitted that pursuant to

Annexure 1 order, the petitioners are eligible for extension of the

validity period of the quarrying permit. However, it is stated that

Annexure 2 communication had been issued by the Director of Mining

& Geology specifically stating that the extension of permit shall be

granted after collecting the royalty or seigniorage and all allied

payments and fees. The learned counsel for the petitioners submits

that in view of the fact that they had paid consolidated royalty and

since Rule 10(n) of the Kerala Minor Mineral Concession Rules only

prohibits the refund of any amount paid by way of application fee,

rent, royalty of tax, etc., the adjustment of the royalty already paid by

the petitioners is permissible in law as is evident from Ext.P11

judgment.

6. The learned Government Pleader submits that in case the

petitioners have a contention that an adjustment is liable to be made

in view of Annexure 2 circular, the matter has to be raised before the

Director of Mining & Geology and the issue will be considered at the WP(C) NO. 15501 OF 2021

earliest taking note of the fact that the petitioners have paid

consolidated royalty and admittedly they were unable to remove the

permitted quantity of laterite.

7. Having considered the contentions advanced on either side

and in view of the fact that Rule 10(n) of the Kerala Minor Mineral

Concession Rules, 2015 prohibits only refund of amounts paid as

royalty, I am of the opinion that the contention raised by the

petitioners that the petitioners have to be granted adjustment of the

amounts paid by them as consolidated royalty is liable to be

considered by the Director, in accordance with Law.

In the above view of the matter, the condition contained in

Ext.P10 that the petitioners' quarrying permit shall be extended on

payment of the royalty for the balance amount of laterite shall be

reconsidered. If the petitioners approach the 5 th respondent with an

appropriate request for adjustment of the loyalty already paid, the 5 th

respondent shall consider the said request in the light of Ext.P11

judgment of this Court and taking specific note of the fact that what

is interdicted by Rule 10(n) of the Kerala Minor Mineral Concession

Rules is only a refund of the amount and not an adjustment. In case

the petitioners approach the additional 5th respondent within two WP(C) NO. 15501 OF 2021

weeks from today, the request made by them for adjustment of

royalty already paid shall be considered within two weeks thereafter.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/16.9.2021 WP(C) NO. 15501 OF 2021

APPENDIX OF WP(C) 15501/2021

PETITIONER EXHIBITS

Exhibit P1 PHOTOCOPY OF QUARRYING PERMIT ISSUED IN THE NAME OF 4TH PETITIONER FROM DEPARTMENT OF MINING AND GEOLOGY DISTRICT OFFICE, KOZHIKODE DATED 28.05.2020.

Exhibit P2 PHOTOCOPY OF ENVIRONMENT CLEARANCE ISSUED TO 4TH PETITIONER BY STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, THIRUVANANTHAPRAM DATED 02.03.2020.

Exhibit P3 PHOTOCOPY OF COMPLAINT FILED BEFORE SUPERINTENDENT OF POLICE VATKARA DTED 04.11.20.

Exhibit P4 PHOTOCOPY OF ORDER ISSUED BY MUNSIFF COURT, KOYILANDY DATED 05.11.20 IN IA NO.2/20 IN OS 195/20.

Exhibit P5 PHOTOCOPY OF STOCK REPORT OF LATERITE STONES EXTRACTED AS PER EXHIBIT P1 PERMIT.

Exhibit P6 PHOTOCOPY OF G9(RT) NO.230/2021/ID DATED 12.02.2021 ISSUED BY GOVERNMENT OF KERALA.

Exhibit P7 PHOTOCOPY OF NOTIFICATION SO NO.221(E) DATED 18.01.2021 FROM THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, GOVERNMENT OF INDIA.

Exhibit P8 PHOTOCOPY OF APPLICATION DATED 10.02.2021 FILED BY 1ST PETITIONER TO 4TH RESPONDENT.

Exhibit P8(a) PHOTOCOPY OF LEGIBLE COPY OF EXHIBIT P8.

Exhibit P9 PHOTOCOPY OF ORDER OF HIGH COURT OF KERALA DATED 29.03.2021.

WP(C) NO. 15501 OF 2021

Exhibit P10 PHOTOCOPY OF ORDER DATED 15.07.2021 ISSUED BY 4TH RESPONDENT.

Exhibit P11 PHOTOCOPY OF JUDGMENT OF HIGH COURT OF KERALA IN WPC NO.23849 OF 2016(E) DATED 17.08.2016.