Jacob George vs State Of Kerala
2024 Latest Caselaw 15205 Ker

Kerala High Court

Jacob George vs State Of Kerala on 5 June, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
    WEDNESDAY, THE 5TH DAY OF JUNE 2024/15TH JYAISHTA, 1946
                    WP(C) NO.17617 OF 2024
PETITIONERS:

    1     JACOB GEORGE, AGED 46 YEARS, S/O.LATE JAMES JACOB,
          RESIDING AT KOLLAMKULAM HOUSE, PARATHODU.P.O.,
          EDAKUNNAM VILLAGE, KOTTAYAM, PIN - 686512.

    2     JOSEPH JAMES, AGED 41 YEARS, S/O.LATE JAMES JACOB,
          RESIDING AT KOLLAMKULAM HOUSE, EDAKUNNAM,
          PARATHODU.P.O., KANJIRAPALLY,
          KOTTAYAM DISTRICT, PIN - 686512.

          BY ADVS.
          M.NARENDRA KUMAR
          HARSHADEV M.


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY ITS PRINCIPAL SECRETARY,
          DEPARTMENT OF MINING AND GEOLOGY, SECRETARIAT,
          THIRUVANTHAPURAM, PIN - 695001.

    2     GEOLOGIST,
          DEPARTMENT OF MINING AND GEOLOGY DISTRICT OFFICE,
          COLLECTORATE, KOTTAYAM, PIN - 686002.

    3     PARATHODU GRAMA PANCHAYATH,
          REP. BY ITS SECRETARY, EDAKUNNAM, PARATHODU P.O.,
          KOTTAYAM DISTRICT, PIN - 686512.

          BY ADV. AJITH VISWANATHAN, GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C) No.17617 of 2024
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                           JUDGMENT

Dated, this the 5th day of June, 2024

Petitioners approached this Court aggrieved by the

non-issuance of mineral transit pass by the 2nd

respondent/Geologist in respect of granite

extracted from the petitioners' premises in

connection with the construction of a residential

building therein.

2. For excavation of granite, the petitioners

preferred an application before the 2nd respondent,

pointing out that the quantum of granite, which is

liable to excavated is 500 MT. However, when an

inspection was conducted pursuant to such

application, it was found that granite to the

extent of 3,465 MT have been excavated from the

south-eastern portion of the property, where the

construction was progressing. Alleging illegal

mining, the petitioner was demanded to pay the

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royalty in respect of the excess granite excavated,

together with compounding fee. Accordingly, the

petitioner paid Rs.2,74,480/- towards royalty and

compounding fee, as evidenced from Ext.P3. The

petitioners now stand in requirement of

transporting the granite outside the premises, for

which, they sought for issuance of necessary

mineral transit pass. The same is refused by the 2nd

respondent/Geologist on the premise that prior

intimation was not given to the concerned authority

before excavation of granite.

3. Having heard the learned counsel for the

petitioners and the learned Government Pleader on

behalf of the respondents, this Court finds that

the relief sought for in this Writ Petition is only

to be allowed. This Court notice that Rule 106 of

the Kerala Minor Mineral Concession Rules, 2015,

stipulates that quarrying permit or release is not

required for extraction of any minor mineral, when

the same is required for construction of common

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facilities or residential building. However, the

proviso to Rule 106 stipulates that the person

concerned shall intimate the competent authority,

his intention to carry out the works to be

performed, along with a detailed proposal for

excavation/use/transportation. The proviso also

mandates furnishing of necessary documents as

required by the competent authority. Once the same

is done, the competent authority will issue

necessary mineral transit passes, after collecting

the royalty.

4. Primarily, this Court notice that, what is

contemplated by the proviso is not a 'permission'

as such from the competent authority, but only an

intimation. Even if an intimation is given in terms

of the proviso, the course open to the respondent

authorities is to collect the royalty and to issue

special mineral transit passes. This Court is of

the opinion that for non-compliance of the proviso,

in the context of not intimating the activity - for

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which, no license or permit is statutorily required

- the consequence in law cannot be non-issuance of

transit passes, especially when royalty has already

been collected from the petitioner, together with

compounding fee.

5. Having regard to the fact that what is

contemplated by the proviso is only an intimation,

this Court is of the view that the rigour of that

particular provision, as also, the consequence of

its non-compliance cannot be so harsh, so as to

deprive the petitioner of the fruits of the mineral

extracted from his property, once and forever. It

cannot be contemplated that the petitioner shall

store more than 3,000 MT of granite in his property

for want of issuance of mineral transit passes.

6. In the circumstances, there will be a direction

to the 2nd respondent to issue necessary mineral

transit passes to the petitioners, within a period

of three weeks from today (05.06.2024), inasmuch as

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royalty together with compounding fee have already

been collected from the petitioners.

This Writ Petition is disposed of as above.

Sd/-

C.JAYACHANDRAN, JUDGE ww

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APPENDIX OF WP(C) 17617/2024

PETITIONERS' EXHIBITS:

EXHIBIT -P1 TRUE COPY OF THE ORDER NO.8/2024- 25/DOY/ML/424/2022-M DATED 05.04.2024 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT-P2 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 27.01.2023.

EXHIBIT-P3 TRUE COPY OF THE "PAY IN SLIP" DATED

07.07.2023.

EXHIBIT-P4 TRUE COPY OF THE LETTER NO.2014/DOY/ML/ 2022 DATED 21.11.2023.

EXHIBIT -P5 TRUE COPY OF THE JUDGMENT DATED 28.02.2024 IN W.P. (C) NO.42132 OF 2023