The ownership of subsoil/mineral rights does not exempt the petitioner from the regulatory regime under the MMDR Act and the KMMC Rules, and Environmental Clearance is necessary for quarrying operations.

K. Vinod Chandran, J.

1. The petitioners are the owners of a property situated in Re-Survey No. 8/1A2C of Sivapuram Village, Kozhikode. They also own a granite quarry, which is operated in the said land. The petitioners had filed a suit seeking declaration of their title of the minerals existing in the land, the title of which land, without any dispute, is held by them. The prayer made has been ultimately allowed by the decision of the Hon'ble Supreme Court reported in Thresiamma Jacob v. Geologist, [2013 (3) KLT 275 (SC) : 2013 (3) KLJ 450]. The Hon'ble Supreme Court has declared that the persons, who are in the ownership and possession of land, within the Malabar area included in the erstwhile Madras Presidency are the owners of the land as also the subsoil including the minerals existing in the said lands. The declaration of the Hon'ble Supreme Court was on the finding that there was no enactment vesting the mineral wealth or subsoil rights in the State and the ownership of such subsoil/mineral wealth would normally follow the ownership of the land. The Mines and Minerals (Development and Regulation) Act, 1957 (for brevity 'the MMDR Act') was found to be a regulatory measure, which does not take over the ownership of the minerals existing in a land from its title holders.

2. The petitioners in the above writ petition seek for reading down Rules 2 to 9, 11, 12, 20 and 49 of the Kerala Mineral Mineral Concession Rules, 2015 (for brevity 'the KMMC Rules') to the extent the said rules stipulate payment of royalty which is a condition precedent to issue movement permits; without which the excavated minor mineral cannot be transported and further makes Environmental Clearance (EC) mandatory for grant of mining permits. There is also a relief sought to set aside Office Memorandum dated 08.05.2012, issued by the Ministry of Environment and Forests & Climate Change (MoEF & CC) as well as the consequential notification dated 09.09.2013, stipulating prior environmental clearance for mining activities even in areas less than 5 hectors. Consequentially the petitioners also seek for refund of the royalty collected from the petitioners after the judgment of the Hon'ble Supreme Court fore-cited {Thresiamma Jacob}.

3. The learned Counsel for the petitioners refers to the various provisions of the KMMC Rules to point out the anomalies with respect to the issuance of permits and licenses for exploitation of minor minerals, as brought in by the State under Section 15 of the MMDR Act. It is urged that there is no specific provision by which the owners of lands, within the Malabar area, who have been declared to be owners of the subsoil/mineral rights also; to apply for and obtain a permit/license/lease to carry out quarrying activities in their own lands. In the absence of such enabling provision, despite power having been given to the State to regulate the grant of quarry lease mining lease or other minor mineral concessions under the MMDR Act, the petitioners have an absolute right to conduct such quarrying without reference to any of the authorities under the MMDR Act and the KMMC Rules. It is contended that there could be no insistence for payment of royalty also since royalty is in the nature of recompense of the value of minerals excavated/extracted; which cannot be levied from the petitioners, who are found to be the owners of the subsoil/minerals existing in the land. The State having no such ownership cannot insist on the payment of royalty for removal of such subsoil/mineral or insist on the regulatory regime for transportation of such excavated minerals by transit passes; the issuance of which is only on satisfying the precondition of payment of royalty. The learned Counsel for the petitioner also relies on D.K. Trivedi and Sons and others v. State of Gujarat and others AIR 1986 SC 1323 to further buttress the contention that the petitioners being the owners of the land and the subsoil/minerals existing therein, would not be l