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2018 Supreme(Ker) 928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
Bashir - Appellant
Versus
Director of Mining and Geology - Respondent
W.P.(C) No.23755 of 2018
Decided on : 24-10-2018
Advocate Appeared:
For the Appellant : George Poonthottam
For the Respondent: S.Kannan, Government Pleader
Important points:
• Bauxite is grouped in the Fourth Schedule of Mines and Minerals (Development & Regulation) Act, 1957 , and it can only be leased out through public auction as insisted upon in S.10B of the MMDR Act.
• on receipt of approved mining plan and EC and on production of all other statutory clearances from other authorities, the competent authority i.e., the 1st respondent is duty bound to grant quarrying lease within 30 days.
Headnote:The Kerala Minor Mineral Concession Rules, 2015 Rule 33(2) – Mines and Minerals (Development & Regulation) Act, 1957 – Section-10B - Notifications issued by the Ministry of Mines and the prohibition created under the MMDR Act, 1957, disables the 1st respondent to take a decision on the application submitted by the petitioner in the present fact scenario- The Ministry of Mines or any of the appropriate authorities are made parties-There is no arbitrariness or illegality on the part of the 1st respondent, justifying interference of this Court, exercising the discretionary power conferred under Article 226 of the Constitution of India.
Statement of facts:
Petitioner applied for quarrying lease to mine laterite for industrial purpose by submitting Ext.P4 application- Laterite has been notified as minor mineral by the Central Government as per Ext.P1 notification- Petitioner was then issued with Ext.P7 letter of intent by the 1st respondent Director, assuring that lease would be granted subject to the petitioner producing Environmental Clearance (EC) and approved mining plan--In terms of Rule 33(2) of the Kerala Minor Mineral Concession Rules, 2015 , on receipt of approved mining plan and EC and on production of all other statutory clearances from other authorities, the competent authority i.e., the 1st respondent is duty bound to grant quarrying lease within 30 days-No action has been taken till date by the 1st respondent. It is thus seeking the reliefs specified above, this Writ Petition is filed.
Finding of the court:
In the area in which petitioner proposes to conduct quarrying operations, the threshold value of bauxite is exceeding 30%, and therefore, unless and until the Central Government issues appropriate clarifications, there is a clear prohibition created under S.10B of the MMDR Act, 1957- Even though laterite is included in the First Schedule of Rules, 2015, enabling the 1st respondent to issue appropriate clearances, in view of the notifications issued by the Ministry of Mines and the prohibition created under the MMDR Act, 1957, disables the 1st respondent to take a decision on the application submitted by the petitioner in the present fact scenario-No arbitrariness or illegality on the part of the 1st respondent, justifying interference of this Court, exercising the discretionary power conferred under Article 226 of the Constitution of India.
Result : Writ Petition is dismissed.
SHAJI P. CHALY, J.
1. This Writ Petition is filed by the petitioner seeking a declaration that petitioner is entitled for issuance of quarrying lease in respect of areas indicated in Ext.P7 Letter of Intent, and further to direct the 1st respondent to issue quarrying lease enabling him to mine Laterite in respect of 4.8564 hectares of land in Re-survey No.1/1 of Panappuzha Village, Kannur Taluk, Kannur District. Material facts for the disposal of the Writ Petition are as follows:
2. Petitioner applied for quarrying lease to mine laterite for industrial purpose by submitting Ext.P4 application. Laterite has been notified as minor mineral by the Central Government as per Ext.P1 notification. Petitioner was then issued with Ext.P7 letter of intent by the 1st respondent Director, assuring that lease would be granted subject to the petitioner producing Environmental Clearance (EC) and approved mining plan. Accordingly, petitioner obtained EC from the District Impact Assessment Authority, Kannur, evident from Ext.P8, and the approved mining plan from the 2nd respondent Geologist vide Ext.P9. Exts.P8 and P9 along with other relevant records were submitted to the office of the 1st respondent during March, 2018. It is the case of the petitioner that, in terms of Rule 33(2) of the Kerala Minor Mineral Concession Rules, 2015 [hereinafter called, ‘the Rules, 2015’], on receipt of approved mining plan and EC and on production of all other statutory clearances from other authorities, the competent authority i.e., the 1st respondent is duty bound to grant quarrying lease within 30 days. However, no action has been taken till date by the 1st respondent. It is thus seeking the reliefs specified above, this Writ Petition is filed.
3. A detailed counter affidavit is filed by the 1st respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the delay if any occurred, is due to want of clarification from the Indian Bureau of Mines under the Ministry of Mines, Government of India, regarding the course of action to be followed in respect of application submitted by the petitioner. The Ministry of Mines is the authority to categorise minerals into major and minor. Major minerals and minor minerals have separate and distinct procedures to be followed while leasing out. The 1st respondent has sent repeated communications to the Ministry of Mines to sort out the issue by differentiating major mineral bauxite from minor mineral laterite. Nevertheless, no specific information was communicated from the end of the Ministry to the office of the 1st respondent till date. Circumstances being so, the 1st respondent has addressed the Government enumerating the subject issue and a decision in this respect is awaited, evident from Ext.R1(a).
4. “Laterite” is a minor mineral enlisted in Schedule I of the Rules, 2015. Since the 1st respondent found that the application and connected documents are in order, Ext.P7 letter of intent was issued to the petitioner, enabling him to obtain all other statutory licences. However, Ext.P7 letter of intent was granted to the petitioner subject to an undertaking dated 17.10.2017, submitted by the petitioner that, he has no objection in withdrawing the intent, if the results of samples collected from the proposed lease area and analysed in the Department Lab is unfavourable for granting a quarrying lease, evident from Ext.R1(b). Therefore, the sum and substance of the contention advanced by the 1st respondent is that, the letter of intent granted to the petitioner is conditional in nature, and he has expressed no objection, insofar as withdrawing Ext.P7, in case the results of the Lab Report are adverse.
5. Accordingly, when the samples collected from the proposed lease area was analysed in the Department, the content of Al2O3, Fe2O3 and SiO2, the primary oxides that determine whether laterite can be grouped as aluminous laterite or bauxite, manifested re
