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2021 Supreme(Online)(KER) 29940
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, K. Babu, JJ
K.T.VARGHESE – Appellant
Versus
THE STATE OF KERALA – Respondent
WA/644/2021
ADVS.ABDUL JAWAD K.SMT.A.GRANCY JOSE, R6 BY ADV SRI.S.GOPINADHAN, SC R1 TO R5 BY ADV.SURIN GEORGE IPE, SR.GOVT.PLEADER, R7 BY ADV.BABU S.NAIR
Statutory rights of a mining leaseholder cannot be forfeited without adherence to procedural requisites set forth in relevant legal frameworks.
Headnote:
Lease - Quarrying Operations - Mines and Minerals (Development and Regulation) Act, 1957 - Section 4A(4), Kerala Minor Mineral Concession Rules, 1967 - Rules 29(1)(g), 40(1)(g) - The court interpreted the provisions concerning lease lapses due to failure to commence operations, concluding the lease remained valid as operations commenced within the legal timeframe, thereby dismissing the appeal.
Fact of the Case:
The appellants challenged the legality of the quarrying lease granted to the 7th respondent, arguing the lease lapsed due to failure to commence operations, lack of environmental clearance, and absence of permissions from the Kerala Water Authority. The Single Judge dismissed the challenge, leading to this appeal.
Finding of the Court:
The court found that the lease remained valid as mining operations were initiated within the stipulated time. It upheld that the environmental clearance was not mandated for existing leases at the time of issuance, and that the absence of necessary permissions from the Water Authority lacked sufficient legal backing.
Issues: Whether the quarrying lease lapsed due to failure to commence operations, necessity of environmental clearance, and requirement of permission under the Irrigation Act.
Ratio Decidendi: The court established that mining leases are valid unless explicitly declared lapsed by the competent authority, emphasizing the need to adhere to statutory processes in questioning the validity of such leases.
Final Decision: The appeal was dismissed, upholding the validity of the quarrying lease.
JUDGMENT
Dated this the 8th day of June, 2021 Bechu Kurian Thomas , J.
The quarrying operations carried on by the 7th respondent were challenged by the appellants. The learned Single Judge rejected the challenge, against which this appeal is preferred.
2. Challenges raised in the writ petition were under three heads. They were (i) the lease had lapsed on account of the failure of the lessee to operate the quarry within the time prescribed under the Rules, (ii) the conduct of quarrying operations without an environmental clearance certificate was impermissible, and (iii) written permission from the Kerala Water Authority, had not been obtained. As mentioned above, by the impugned judgment, the learned Single Judge rejected all the aforesaid contentions, resulting in this appeal.
3. It was pleaded in the writ petition as well as in this appeal that the 3rd appellant is an association formed to consolidate and strengthen the agitation against illegal mining and that the individual appellants are locals who are affected by the mining activities. It was stated that a lease was issued in favour of one Sri.Joemon Joseph in the year 2011 by ignoring the objections and objectionable structures within the vicinity. After the death of the original lessee, his wife - the 7th respondent obtained transfer of the lease into her name and thereafter obtained other licenses to conduct quarrying operations. It was also alleged that, albeit the presence of many residential houses, an irrigation canal, and a huge water tank of the Kerala Water Authority, located near the land, the quarrying lease was issued to the 7th respondent, illegally.
4. The counter affidavit of the 4th respondent-Geologist, pointed out that a movement permit was issued to the original lessee Sri.Jomon Joseph on 1-08-2013 for removing 20,000 metric tonnes of granite building stones and that the said person had operated the quarry in 2013. It was further stated that since the lease was issued in 2011, environmental clearance was required only at the stage of renewal. It was affirmed that all statutory distance criteria contemplated under the Rules were satisfied and that the water tank was also beyond the stipulated distance from the quarrying area. It was also mentioned that the mining plan submitted by the 7th respondent was approved on 06-03-2019, and that the movement permit was issued to the 7th respondent on 09-09-2020.
5. The 7th respondent in her counter-affidavit stated that originally the lease was issued to her husband on 22-12-2011 which was valid for 12 years and the same having been issued prior to 18-05-2012, environmental clearance certificate was not required. It was pleaded that the said issue was considered earlier by this Court in Ext.R7(a) judgment and it was thereafter that directions were given to consider the application for grant of license without insisting on the environmental clearance, pursuant to which license was issued. It was also pointed out that the mining operations had commenced in
2013 itself and hence the lease had not lapsed.
6. We heard Adv. Abdul Jawad K. for the appellants. We also heard the learned Government Pleader Adv. Surin George Ipe for respondents 1 to 5, Adv. Gopinadhan, the learned Standing Counsel for the 6th respondent and Adv. Babu S. Nair, for the 7th respondent. The contentions raised in the writ petition were repeated by the learned counsel for the appellant with added vigour and we shall deal with each of them, one by one.
(i) Lapse of lease:
7. The primary contention of the learned counsel for the appellants was that the lease had lapsed under section 4A(4) of the Mines and Minerals (Development and Regulation) Act, 1957 , read with Rule 29(1)(g) of the Kerala Minor Mineral Concession Rules, 1967 , due to the failure to commence mining operations within the time prescribed and that it had also lapsed due to discontinuance of mining operations for two years.
8. To appreciate the afore contentions, it is necessary to have a gl
