SIVADAS Vs. GEOLOGIST MINING AND GEOLOGY DEPARTMENT
LAWS(KER)-2003-4-50
HIGH COURT OF KERALA
Decided on April 10,2003

SIVADAS Appellant
VERSUS
GEOLOGIST, MINING AND GEOLOGY DEPARTMENT Respondents

JUDGEMENT

- (1.) Petitioners are challenging Exts. P9 and P10 orders issued by the Geologist revoking Exts. P6 and P7 licences issued by him earlier to the petitioners for quarrying ordinary sand from two plots of land taken by the petitioners on lease in Malampuzha village. Besides challenge against cancellation of licences, the petitioners are also questioning the onerous conditions attached to the possession certificates issued by the Tahsildar. The two plots of land with sand deposits do not belong to the petitioners, but taken on lease by the petitioners from two ladies by name, Smt. Jaseena Mol and Smt. V. Jisha. Though there is a statement in the counter affidavit that these lands are located near the puzha puramboke, there is no dispute with regard to the title or possession of these two items of land. In fact, prior to making of applications before the Geologist for the grant of mining permit, petitioners had along with their applications to the Geologist produced separate possession certificates, Exts. P2 and P3, issued in favour of the owners by the Tahsildar, the third respondent herein. Though the possession certificate issued to the owners, namely, Exts. P2 and P3, contained various conditions for mining sand in the property, the land owners had not contested the same, except one of the land owners writing a protest letter, Ext. P4, to the third respondent. Petitioners now submit that these conditions were attached to the possession certificate by the third respondent under specific instruction from the District Collector, the second respondent herein, vide Ext. P5 proceedings issued by him. Petitioners along with their contest against cancellation of permits are also challenging these conditions, as the same indirectly restrict the petitioners right to mine sand from the land taken on lease under the licence obtained by the petitioners from the Geologist.
(2.) I heard counsel for the petitioners, Sri. S. Parameswaran, and Government Pleader, Sri. Iype. The impugned orders revoking permits, namely, Exts. P9 and P10, are issued for the simple reason that fifteen days time granted under condition No.4 of the possession certificate was over from the date of issue of quarrying permit by the Geologist. Counsel for the petitioners contended that third respondent while issuing possession certificate cannot fix any time limit for removal of sand under the quarrying permit issued by the Geologist. He further pointed our that Exts.P6 and P7 permits were for mining and removal of 2000 MT of sand to each of the petitioners within a period of two months from the date of issue of permits. Therefore according to the petitioners, the only authority that could impose any conditions for quarrying of sand is the licencing authority that is the Geologist and not the Tahsildar. He further contended that the Tahsildar is not vested with any powers to limit duration of mining for which if at all anybody has the power, it is the licensing authority under the Mineral Concession Rules, that is the Geologist. Government Pleader on the other hand tried to sustain the order of the Tahsildar issued under instruction of the District Collector for the reason that as the Head of the District Administration and in charge of the administration of land laws such as Land Utilisation Order, the Land conservancy Act, etc. the revenue authorities have powers in these matters. Even though revenue authorities are in charge of administration of Land laws, such as Land Utilisation Order, Land Conservancy Act, etc. so far as sand, which is a minor mineral, is concerned there is comprehensive law called the Mineral Concession Rules, 1960, issued under the Mines and Minerals (Regulation and Development) Act, 1957. The Geologist is the person notified under Ext. P11 notification by the Director of Mining and Geology to enforce the Mineral Concession Rules, which provide for issuance of permit for quarrying, collection of royalty, etc. Therefore I do not find any conflict of jurisdiction between the revenue authorities and Geologist in regard to grant of permit for quarrying ordinary sand from land. While the revenue authorities can prevent removal of sand from puramboke land, prevention of violation of Land Utilisation Order, and can even ensure collection of royalty by the Geologist, they have no authority to question or impose restrictions on the licences issued by the Geologist for quarrying sand from land privately owned. The land owners applied for possession certificate for applying for quarrying permit for removal of sand apparently to make the land after removal of sand, again fit for cultivation. This position appears to be accepted by the revenue authorities, namely, respondents 2 and 3, and in this regard they have issued possession certificate and the Geologist issued the quarrying permit. In the first place, the Tahsildar has no jurisdiction or authority to fix duration for quarrying sand from the land in question. Going by their own logic, quarrying and removal of sand should be permitted to make the land fit for cultivation after filling it up with suitable soil. Therefore the fixation of short duration of fifteen days for quarrying in the possession certificate, assuming it is permissible for the revenue authorities, defeats the very purpose for which it was granted. Since respondents 2 and 3 agree that sand has to be removed to make the land fit for cultivation again by filling it up with soil, then the entire avail sand has to be removed and duration for removal of sand to be granted should be in proposition to the time taken for removal. In any case, it is with the possession certificate with the very same conditions that the petitioners applied for licence before the first respondent, namely, Geologist. Geologist in Exts. P6 and P7 granted permits to the permits to the petitioners to mine and remove 2000 MT each of sand from the two plots of land granting two months time for such removal. Therefore Geologist has, by granting two months duration as a condition of licence, superseded the condition attached to the possession certificate issued by the Tahsildar. In other words, condition No.4 of the possession certificate in regard to duration of quarrying of sand does not survive after the issue of Exts.P6 and P7 permits wherein the Geologist has granted two months time to the petitioners. In fact, it is the Geologist who is to assess the reserve of sand that is available in the area, the quantity that could be permitted to be removed consistent with the norms followed by him, and then to grant reasonable time to remove the permitted quantity. No one can be expected to remove 2000 MT of sand within a short duration of 15 days as fixed by the Tahsildar in his possession certificate. Quarrying permit issued by the Geologist appears to be quite reasonable because he has apparently correlated between the quantity permitted to be mined and the duration required for such mining at 2000 MT and the duration for mining at 2 months. Therefore the cancellation of Exts P6 and P7 based on common ground that the time granted for mining under the possession certificate issued by the third respondent is over, is totally unjustified and arbitrary. It is clear from impugned orders, Exts.P9 and P10, that the revocation of the licences by the Geologist is at the request of the District Collector, that too for the reason that the time for mining granted by the Tahsildar in the possession certificate is over. Neither the Tahsildar nor the District Collector has any role in this regard and it is for the Geologist to fix reasonable time for quarrying and removal of sand depending upon the quantity permitted to be mined. Therefore Exts. P9 and P10 are unsustainable and hence are quashed. Consequently, Exts. P6 and P7 licences will revive and the petitioners are free to go ahead with the quarrying of sand in the two items of properties for which permits are issued. Petitioners are entitled to mine for the full two months period granted under Exts.P6 and P7. Geologist will grant extension of time from the date of production of a copy of this judgment by the petitioners, for the days lost on account of obstruction, litigation, etc. when the petitioners could not mine and remove sand.
(3.) So far as the other conditions in the possession certificate are concerned, I feel condition No.2 is not sustained. Neither the Tahsildar nor the Geologist has any authority to restrict or prohibit trade in the commodity. Sand is an item used generally in construction and in the manufacture of bricks and in a limited way used as raw material in various industries. Therefore it has only commercial use and in a State like Kerala, where building - construction is the main activity providing employment all over the State to large number of skilled and unskilled workers, the availability of building material like sand is very important. Lot of restrictions are imposed by the Government in regard to mining of sand from the rivers leading to shortage of the material in the market and for the very same reason, the mining of sand wherever is available in land should not only be permitted but should be encouraged to meet the needs of the society and to prevent illegal sand mining from rivers. The consumer of sand whether he be a builder or factory owner cannot go for mining for their own use. On the other hand, they have to depend upon traders and traders in turn may have to depend upon those engaged in mining and therefore prohibition of trade in sand appears to be totally defeating the whose scheme of generation, distribution and use of the commodity. Therefore I declare that condition No.2 is unauthorised and unsustainable against the petitioners and petitioners are free to trade in the sand quarried and recovered. Geologist himself has issued transport passes and therefore the condition imposed in the possession certificate on requirement of transport passes from the Geologist is consistent with the Mineral Concession Rules and permit issued by the Geologist thereunder. So far as filling and reconditioning of land after removal of sand for cultivation, it is for the revenue authorities to impose conditions under the Land Utilisation Order and they are free to issue any such order under the said Order which will bind the land owners. Therefore condition Nos. 5 and 6 in the possession certificate will bind the land owners to the extent permissible under the Land Utilisation Order. Similarly condition No.7 also in the possession certificate is also valid. Of course this arises when the neighbouring owners complain about loss or damage to them. I do not find mining in private land will affect the flow of water in the river. So far as transport is concerned, the passes issued by the Geologist are to transport sand any where and I do not find they can be any further restriction regarding transport. The only other concern of the District Collector as expressed in the counter is the protest by the public against the quarrying of sand by petitioners. The attitude of the public is only destructive and it is for the Collector and the police to handle them so that no obstruction lis caused to the lawful activities of the petitioners. Instead of encouraging such forces by interfering with anything and everything to satisfy misplaced public sentiments, the Collector should act in accordance with law and enforce it even if it is to the dislike or discomfort of same public. It is not known whether the first respondent has collected royalty for 2000 MT each from the petitioners in advance or whether there is regular collection being made when passes are issued. It is for him to ensure that royalty is collected in accordance with Mineral Concession Rules and at the rate prescribed therein. It is absolutely open to respondents 2 to 3 to ensure that petitioners remit royalty to Government or otherwise recover the same by coercive means. It is open to the District Collector to ensure that petitioners remit sales tax to the sales tax department as the sand collected by them is sold. Respondents 2 and 3 are free to ensure that petitioners do not encroach upon the puramboke land and mine sand therefrom and they are free to take appropriate action if any such encroachment is made by the petitioners. O.P. is allowed to the extent indicated above.;


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