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2019 Supreme(Online)(KER) 74680
HIGH COURT OF KERALA
SHAJI P.CHALY, J
A.M. ASHRAF – Appellant
Versus
THE DIRECTOR OF MINING AND GEOLOGY, – Respondent
WP(C)/37793/2018
SRI. BECHU KURIAN THOMAS (SR.), SRI. PAUL JACOB (P), SRI. ENOCH DAVID SIMON JOEL, SRI. GEORGE A. CHERIAN, SRI. LEO LUKOSE, SRI. RONY JOSE
A demarcation certificate is essential for mining operations when properties are contiguous, regardless of pre-existing leases, to ensure compliance with operational boundaries.
Headnote:
Demarcation - Mining Operations - Kerala Minor Mineral Concession Rules - 2015 - The court upheld the necessity of a demarcation certificate for continuing mining operations, interpreting the relevant rules to require clear identification of leasehold boundaries as essential for permit issuance.
Fact of the Case:
The petitioner seeks a movement permit for mining based on an existing lease after the death of the original lessee. The authorities required a demarcation certificate, which the petitioner contested, asserting it was unnecessary as the lease was pre-existing and non-operational leases were being confused with operational ones.
Finding of the Court:
The court found that a demarcation certificate is a requisite for identifying leasehold areas, especially when properties are contiguous and may complicate boundaries. The petitioner was not granted movement permits due to insufficient documentation regarding demarcation.
Issues: Whether the insistence on a demarcation certificate by the authorities for permit issuance is justified in light of the pre-existing lease and the status of rental properties.
Ratio Decidendi: The court held that while permits were indeed issued under the pre-existing lease, the necessity for a demarcation certificate remains essential for the clear identification of boundaries pertaining to active mining operations.
Final Decision: The petition is disposed with directions to demarcate leasehold boundaries and issue movement permits thereafter.
JUDGMENT
This writ petition is filed by the petitioner seeking direction to the 2nd respondent to issue movement permit to the petitioner on the basis of Ext.P1 lease, without insisting for a demarcation certificate, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows:
2. Petitioner is engaged in the business of mining of China clay on the basis of Ext.P1 lease deed executed in the year 2005 in favour of the petitioner's mother S. Naffisa Beevi, valid till 23.08.2025. Petitioner's mother died on 28.08.2014. Thereupon, petitioner has submitted application seeking to incorporate the name of the petitioner in the lease. However, in the month of May, 2018, without passing any orders on the application for change of name of the lessee, 2nd respondent refused to issue movement permits on the ground that petitioner, being the legal-heir, was not entitled to carry on the quarrying activity. Thereupon, petitioner has filed W.P.(C) No.20827 of 2018 and this Court has passed Ext.P2 judgment, directing the 1st respondent to consider the application submitted by the petitioner. On the basis of Ext.P2 judgment, petitioner was being issued with movement permit, however, 1st respondent has not so far considered the application submitted by the petitioner for change of name of the lessee, as directed in Ext.P2 judgment.
3. While so, petitioner submitted an application dated 17.10.2018 for issuance of movement permit, however, 2nd respondent issued a letter dated 22.10.2018, informing the petitioner that the application can be considered only on production of a demarcation certificate from the Revenue Department showing the field demarcation of the lease area, evident from Ext.P3. Case of the petitioner is that, production of a demarcation certificate for issuance of movement permit is not contemplated either under the Kerala Minor Mineral Concession Rules , 2015 or under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, and further that a demarcation certificate is required only for issuance of a fresh or renewal of a quarrying lease or a quarrying permit.
4. However, petitioner submitted Ext.P4 application dated 29.10.2018 before the 3rd respondent, which was forwarded to the 4th respondent for his report. On the basis of Ext.P4, 4th respondent submitted a report along with a sketch to the 3rd respondent, certifying that the properties were clearly demarcated on the ground with boundary pillars, evident from Ext.P5, which was countersigned by the 3rd respondent, and petitioner produced the same before the 2nd respondent along with Ext.P6 covering letter dated 02.11.2018. However, 2nd respondent refused to accept the same and insisted that a certificate styled as a “demarcation certificate” must be produced from the Revenue Department. Again, petitioner submitted an application to the 3rd respondent, evident from Ext.P7.
5. On receipt of Ext.P7, 3rd respondent issued a reply dated 12.11.2018, informing the petitioner that the Revenue Department does not issue any certificate styled as a 'demarcation certificate', and therefore, they are unable to issue such a certificate. The case projected by the petitioner is that, there is some tussle by and between the Revenue Department and the Geology Department, and petitioner is made a scapegoat in that process. Having confronted with such a situation, petitioner submitted Ext.P9 before the 2nd respondent for fresh consideration in the light of Ext.P8. However, no action was initiated. Other contentions are also raised with respect to the approval of the mining plan and installation of boundary pillars etc. etc. The sum and substance of the contention advanced by the petitioner is that, the respondents are not empowered to seek production of a demarcation certificate, since the lease is already executed by and between the parties.
6. A detailed counter affidavit is filed by respondents 1 and 2, refuting t
