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2024 Supreme(Online)(KER) 36614
HIGH COURT OF KERALA
Kauser Edappagath, J
ALLEY – Appellant
Versus
THE DISTRICT GEOLOGIST – Respondent
WP(C) 28047/2022
PHILIP J.VETTICKATTU, SAJITHA GEORGE, NEENU BERNATH
Excavation of ordinary earth does not amount to mining unless used for specified construction purposes under relevant statutes.
Headnote:(A) Mines and Minerals (Development & Regulation) Act, 1957 - Kerala Minor Mineral Concession Rules, 2015 - Penalty imposed for excess extraction of ordinary earth - Petitioners challenged the order on grounds of improper classification and justification of penalty. (Paras 1-10)
(B) Legal definition of mining operations - Mere excavation of ordinary earth does not constitute mining unless used for specified purposes. (Paras 3-7)
(C) Jurisdiction for imposing penalties - Penalty at five times the royalty only applies to unauthorized extraction outside permitted areas. (Paras 8-9)
Facts of the case:
Petitioners operated a clay factory and were penalized for alleged excess extraction of ordinary earth beyond permitted limits. They contended that excavation alone does not constitute mining under the applicable laws.
Findings of Court:
The court found the imposition of penalty unjustified and directed reconsideration of the matter in light of statutory provisions.
Issues: The main issues were whether the excavation constituted mining and the justification for the imposed penalty.
Ratio Decidendi: The court ruled that excavation for purposes not enumerated in the rules does not amount to mining, and penalties must be justified based on statutory provisions.
Result: The impugned order was set aside and the matter was to be reconsidered.
J U D G M E N T
The petitioners were conducting a clay factory in the property belonging to them. They obtained a building permit as well as a development permit to construct a building in the said property. They also availed permits from the respondent for removing the unused ordinary earth which was extracted for the construction of the building. Respondent No.1 issued Ext.P10 order imposing penalty on the allegation that petitioners had extracted and removed in excess of the permitted quantity of ordinary earth. The writ petition has been filed challenging Ext.P10 order.
2. I have heard Sri.Philip J Vettickattu, the learned counsel appearing for the petitioners and Smt.Deepa.V., the learned Government Pleader.
3. The learned counsel for the petitioners submits that mere excavation or transportation of ordinary earth will not amount to bidding of mineral and thereby amount to mining operation as contemplated under the Mines and Minerals (Development & Regulation) Act, 1957 (for short, 'the MMDR Act') or the Kerala Minor Mineral Concession Rules, 2015 (for short, 'the Rules, 2015') and attract penal consequences. Reliance was placed on the decision of the Supreme Court inPromoters and Builders Association of Pune v. State of Maharashtra [2015 (1) KLT S.N. 22 (C.No.31)]. The learned counsel further submitted that, at any rate, the imposition of penalty five times for the alleged excess quarrying within the permitted area cannot be justified.
4. On the other hand, the learned Government Pleader submitted that the petitioners had extracted and removed in excess of permitted quantity of ordinary earth from permitted area and they also extracted and removed ordinary earth from the property outside the permitted area. The learned Government Pleader further submitted that before passing Ext.P10 order, the petitioners were given show cause notice and they were heard also. According to the learned Government Pleader, the order is strictly in tune with the statutory provisions under the MMDR Act.
5. I have perused the records.
6. The respondent issued Ext.P10 on two grounds:-(1) the petitioners had extracted ordinary earth in excess of the permitted quantity from the permitted area (2) the petitioners had extracted ordinary earth from outside the area of the permit. Ext.P8 is the notice issued prior to Ext.P10 order. In Ext.P8, it was alleged that the petitioners had extracted a quantity of 13889 cubic meter of ordinary earth unauthorizedly in excess quantity and also from beyond the permitted area and therefore an amount of Rs.27,77,800/- is proposed to be imposed as penalty in terms of Rule 14(3) of the Rules, 2015. However, in Ext.P10 order, the respondent reduced 10% of the total levy proposed in the notice. In compliance of the interim order granted by this Court, the petitioners deposited Rs.8,00,000/-.
7. The ordinary earth was declared as minor mineral by the Central Government in the year 2000 vide notification No.G.S.R.95(E). Rules, 2015 deals with quarrying permit for ordinary earth. It states that quarrying permit under these Rules shall be obtained for extraction and transportation of ordinary earth used for filling or levelling purposes in construction of embankments, roads, railways or buildings in Form N. A reading of the said Rule would show that ordinary earth would qualify as a minor mineral for the purpose of MMDR Act and the Rules, 2015 framed thereunder, only when the ordinary earth is used for filling or levelling purposes in construction of embankments, roads, railways or buildings. The Supreme Court in Promoters and Builders Association of Pune (supra) considering the notification of the Central Government dated 03.02.2000 has held that the ordinary earth will qualify as a minor mineral only when it is used for the purposes enumerated in the notification.
It was observed in paragraphs 15 and 16 as follows:-
15. Though Section 2(j) of the Mines Act, 1952 which defines 'Mine' and the expression "mining operations" appea
