Back
2021 Supreme(Ker) 356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.Suresh Kumar, J.
M/S. Harris & Company Represented By Its Proprietor, Mr.N.J.Harris – Petitioner
Versus
The Cochin Port Trust, Represented By Its Secretary And Ors. – Respondents
WP(C).No.260 OF 2021(F)
Decided On : 17-03-2021
Advocate Appeared:
For the Petitioner: Sri.S.Sreekumar (Sr.), Sri.P.Martin Jose, Sri.P.Prijith, Sri.Thomas P.Kuruvilla, Sri.R.Githesh, Sri.Ajay Ben Jose, Sri.Manjunath Menon, Sri.Sachin Jacob Ambat, Shri.Harikrishnan S., Advs.
For the Respondent: Sri.M.Gopikrishnan Nambiar, Sri.K.John Mathai, Sri.Joson Manavalan, Sri.Kuryan Thomas, Sri.Paulose C. Abraham, Sri.Raja Kannan, Sri.Renjith Thampan, Addl.Ag., Sri.S. Kannan, Spl Gp., Smt.Krishna, Cgc, Advs.
The court established that royalty in terms of the KMMC Rules cannot be realized in respect of the dredged sand sold by the first respondent. It is also declared that the Transportation Rules do not apply for the movement of the dredged sand sold by the first respondent.
Headnote:
Royalty - Dredged Sand - Kerala Minor Mineral Concession Rules, 2015, Mines and Minerals (Development and Regulation) Act, 1957 - The court declared that royalty in terms of the KMMC Rules cannot be realized in respect of the dredged sand sold by the first respondent. It is also declared that the Transportation Rules do not apply for the movement of the dredged sand sold by the first respondent. The court directed the fifth respondent to issue passes in the nature of mineral transit passes provided for under the Transportation Rules to the first respondent on their request, to be issued to the purchasers of dredged sand from them for its convenient transportation from the premises of the first respondent.
Fact of the Case:
The petitioner submitted a tender for purchase of sand dredged by the first respondent from the foreshore of the port. The petitioner sought directions to the fifth respondent to receive royalty of the dredged sand and issue mineral transit passes for removal of the sand from the premises of the first respondent. The petitioner also sought a direction to the first respondent to extend the time prescribed for removal of the dredged sand.
Finding of the Court:
The court declared that royalty in terms of the KMMC Rules cannot be realized in respect of the dredged sand sold by the first respondent. It is also declared that the Transportation Rules do not apply for the movement of the dredged sand sold by the first respondent. The court directed the fifth respondent to issue passes in the nature of mineral transit passes provided for under the Transportation Rules to the first respondent on their request, to be issued to the purchasers of dredged sand from them for its convenient transportation from the premises of the first respondent.
Issues: 1. Whether the State Government is justified in demanding payment of royalty for the sand dredged by the first respondent. 2. Whether the State Government is justified in insisting compliance of the Transportation Rules for movement of the dredged sand.
Ratio Decidendi: The court held that royalty in terms of the KMMC Rules cannot be realized in respect of the dredged sand sold by the first respondent. It is also declared that the Transportation Rules do not apply for the movement of the dredged sand sold by the first respondent.
Final Decision: The writ petition is allowed, and the court directed the fifth respondent to issue passes in the nature of mineral transit passes provided for under the Transportation Rules to the first respondent on their request, to be issued to the purchasers of dredged sand from them for its convenient transportation from the premises of the first respondent. The court also directed the first respondent to make an assessment of the quantity of the dredged sand remaining to be removed by the petitioner and grant the petitioner reasonable time for removal of the same.
JUDGMENT :
Pursuant to an invitation made by the first respondent, the Cochin Port Trust, the petitioner submitted tender for purchase of 25000 cubic meters of sand dredged by the first respondent from the foreshore of the port. The tender submitted by the petitioner was accepted by the first respondent and they were issued Ext.P1 work order for removal of the dredged sand sold to them. As per the terms of Ext.P1 work order, the petitioner had to remove the dredged sand from the premises of the Cochin Port Trust on or before 02.01.2021. While the petitioner was removing the dredged sand, the fifth respondent insisted that the first respondent should pay royalty to the State Government for the dredged sand sold by them to the petitioner, in terms of the Kerala Minor Mineral Concession Rules, 2015 (the KMMC Rules) and also issue mineral transit passes for its movement in terms of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 (the Transportation Rules). It is stated by the petitioner that the said issue could not be tackled by the first respondent with the fifth respondent and consequently, the petitioner could not remove the entire quantity of dredged sand within the time stipulated. The writ petition was instituted in the circumstances seeking directions to the fifth respondent to receive royalty of the dredged sand from the petitioner and issue mineral transit passes for removal of the sand from the premises of the first respondent. The petitioner also sought a direction to the first respondent to extend the time prescribed for removal of the dredged sand.
2. After the initial hearing, the petitioner amended the writ petition and sought a declaration that the KMMC Rules and the Transportation Rules framed under the Mines and Minerals (Development and Regulation) Act, 1957 (the MMDR Act) do not apply to the dredged sand sold by the first respondent to the petitioner and the petitioner is not liable to pay royalty for the same to the State Government.
3. Heard the learned Senior Counsel for the petitioner, the learned Additional Advocate General for the State, the learned Central Government Counsel for the Union as also the learned Senior Counsel for the first respondent.
4. The learned Senior Counsel for the petitioner contended that the minerals underlying the seabed belong to the Union in terms of Article 297 of the Constitution and therefore, the KMMC Rules, in terms of which royalty is claimed by the State, and the Transportation Rules, in terms of which the movement of the dredged sand is sought to be regulated by the State, cannot have any application over the sand dredged by the first respondent from the seabed.
5. Per contra, the learned Additional Advocate General submitted that insofar as the State Government is empowered to regulate the transportation and storage of minor minerals in terms of Section 4(1A) of the MMDR Act, the Transportation Rules framed by the State Government under the MMDR Act would certainly govern the transportation and storage of the sand dredged by the first respondent from the seabed.
6. The learned Central Government Counsel pointed out that mining of minerals from the territorial waters, continental shelf, exclusive economic zone and other maritime zones of India is governed by the Offshore Areas Mineral (Development and Regulation) Act, 2002 (the Offshore Act) and the Offshore Areas Mineral Concession Rules, 2006 (the Offshore Rules) framed under the said Act, and the MMDR Act and the Rules made thereunder cannot have any application over the sand dredged by the first respondent from the seabed. It was, however, conceded by the learned Central Government Counsel that the Offshore Act and the Offshore Rules do not contain any provision dealing with the transportation and storage of minerals in the land surface of the country.
7. The learned Senior Counsel for the first respondent supported the stand of the petitioner that the KMMC Rules as also the Tran
