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2003 DIGILAW 698 (KER)

Lalithambika v. State of Kerala

2003-11-12

J.M.JAMES

body2003
Judgment :- 1. The first accused, the Secretary, Kumarakom Lime Shell Co-operative Ltd. No.17/82, Kumarakom, Kottayam District, along with accused 2 to 69, who are the members of the first petitioner Society, are facing the allegation for the violation of S.4(1) read with S.21(1) and 23 of the Mines and Minerals (Regulation and Development) Act, 1957, in short'the Central Act', in C.C. No.104/2001 on the file of the Judicial Magistrate of the 1st Class, Ramankari. They have come up before this Court by filing this petition under S.482 Cr. P.C. to quash Annexure-I complaint filed by the second respondent, Geologist, District Office, Department of Mining and Geology, Alappuzha. 2. The facts required for disposal of this petition are that, on 24.10.2000, the Assistant Sub Inspector of Police, Pulinkunnu, Alappuzha District, had seized 66 country boats, with 250 tins (one tin = one cubic foot) of white lime shells. He took the boats and the lime shells into custody, as accused 2 to 69 were doing mining operations and extracting lime shells from the Government land in'Q' Block (Chithira Kayal), which is protected from Vembanad Lake with bunds. The seized boats and white lime shells together with the documents, like seizure mahazar and other details, were transferred to the second respondent. Thereafter, the second respondent, along with the officers of the Department and police officials of Pulinkunnu Police Station, inspected the seized boats and lime shells as well as the occurrence site at puramboke land of Chithira Kayal at Kainakaray North Village of Kuttanadu Taluk. It was satisfied by the second respondent that the areas from where the 56 country boats were taken into custody was not covered under a mining lease as per S.4(1) of the Central Act, or any other mineral concessions, as contemplated under the said Act. Because of this violation, it is punishable under Ss.21(1) and 23 of the Central Act. The second respondent filed Annexure-I complaint before the Magistrate Court. The learned Magistrate took cognizance of the same. The petitioners are hence praying to quash the said proceedings thus initiated against them. 3. Heard both sides. It is contended by the learned counsel for the petitioners that the second respondent is not a competent person to prefer Annexure-I complaint. The second respondent filed Annexure-I complaint before the Magistrate Court. The learned Magistrate took cognizance of the same. The petitioners are hence praying to quash the said proceedings thus initiated against them. 3. Heard both sides. It is contended by the learned counsel for the petitioners that the second respondent is not a competent person to prefer Annexure-I complaint. The White Lime Shell is not an item under Schedule.l(c) of the Central Act, and therefore, no violation of any of the provisions of the Central Act, was committed by the petitioners. The further contention is that the State of Kerala is governed by the Kerala Lime Shells (Control) Act, 1957 (Act 18 of 1958), in short'the Kerala Act', which controls the acquisition, sale, supply and distribution of lime shells in the State of Kerala, and therefore, the proceedings initiated by the second respondent under the Central Act is an abuse of process of law, and hence prayed to quash the same. 4. The learned Public Prosecutor contended that the petitioners had committed mining operations, which is not dealt with by the Kerala Act, and therefore, the initiation of the proceedings under the Central Act was legal, and therefore, an interference under S.482 Cr. P.C. is not contemplated. 5. For clarity, I reproduce below S.4 of the Central Act. "4. 4. The learned Public Prosecutor contended that the petitioners had committed mining operations, which is not dealt with by the Kerala Act, and therefore, the initiation of the proceedings under the Central Act was legal, and therefore, an interference under S.482 Cr. P.C. is not contemplated. 5. For clarity, I reproduce below S.4 of the Central Act. "4. Prospecting or mining operations to be under licence or lease.- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or as the case may be, of a mining lease, granted under this Act and the rules made thereunder : Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of S.617 of the Companies Act, 1956 (1 of 1956): Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu. (1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under S.18, undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease." 6. S.21 deals with penalty for violation of the provisions contained in S.4 of the Central Act. S.23 is in relation to the offences committed by the company under the said Act. 7. Under S.4(3), 5(1), 7(2) and 8(2) of the Central Act, the specified minerals are included under the First Schedule of the Central Act. Part A is dealing with hydro carbons and energy minerals. Part B deals with atomic minerals and Part C deals with metallic and non-metallic minerals. White lime shell or lime shell is not stated under any of the above heads in the First Schedule. But in the 2nd Schedule, incorporated as per S.9 of the Central Act, Entry 28 is lime shell (including calcareous sand and chalk). Entry 29 is lime stone including lime kankar. A scrutiny of S.9 of the Central Act, which is dealing with the payment of royalty in respect of any mineral removed or consumed by the holder of a mining lease from the lease area, as per the mining lease granted to him. Thus, entry Nos.28 and 29 of the Schedule II are only for the purpose of collecting royalties for conducting mining operations as per the mining lease granted to a particular person. 8. S.3(c) defines 'mining lease" granted for the purpose of undertaking mining lease operations including a sub-lease granted for the said purpose. 9. S.3(d) defines "mining operations" to mean any operations undertaken for the purpose of mining and minerals. 10. The above discussion show that white lime shell is not included under the First Schedule, but only in the 2nd Schedule of the Central Act for the purpose of collecting royalty. 9. S.3(d) defines "mining operations" to mean any operations undertaken for the purpose of mining and minerals. 10. The above discussion show that white lime shell is not included under the First Schedule, but only in the 2nd Schedule of the Central Act for the purpose of collecting royalty. It is because of the above facts and law that the learned counsel contended that mining of white lime shell is not included under S.4 of the Act, and therefore, the collection of the same would not fall within the scope of the Central Act. 11. In the preamble of the Kerala Act it is stated that "Whereas it is expedient to provide for the control of the acquisition, sale, supply and distribution of lime shells in the State of Kerala; be it enacted in the Ninth Year of the Republic of India as follows:- ....". Thus, the acquisition of limes shell is fully covered and regulated under the Kerala Act. 12. The word "acquisition" is not defined either under the Central Act or under the Kerala Act. Therefore, we have to refer to the meaning contained in the legal as well as the standard general English dictionaries. 13. The meaning of the word 'acquisition' as given in Corpus Juris Secundum, Vol.1A, p.284 is as follows: "Acquisition. The word implies ownership, and involves title, legal or equitable. Applied to public improvements, it may include both construction and completion of already partly constructed works; and, as sometimes used, it refers to community property. It is often controlled by the context in which it is used; and is sometimes limited or modified by words immediately following. Acquisition" is generally used as meaning the act of acquiring or gaining property, the act of procuring property, purchase, taking with or against consent. It is also said to mean the act of getting or obtaining something, which may be already in existence, or may be brought into existence through the means employed to acquire it." The New Webster's Dictionary of the English Language, Deluxe Encyclopedic Edition, 1981, gives the meaning of the word 'acquisition' as follows: "acquisition, the act of acquiring; the thing acquired or gained: generally applied to material gains; space, the location process of the orbit of a satellite or trajectory of a space probe in order that tracking or telemetry data be found." 14. Thus, in the context of the Kerala Act, the meaning that can be given to the word 'acquisition' is "the act of acquiring or procuring something, with or against consent of the person in possession of it, and that which may be already in existence, or may be brought into existence through the means employed or acquire it." It also means the process to achieve a material gain or to acquire a thing by the act of oneself. Thus, giving an interpretation to the word 'acquisition' used in the Kerala Act, it means the act of a person in acquiring lime shell from the river or wherever lime shell are available, either under the provisions of the Central Act or the State Act, or otherwise. 15. From the above meaning and interpretation of the word 'acquisition' used in the Kerala Act, it could be concluded that the State of Kerala is controlling the acquisition of lime shell in Kerala within the provisions of that Act. 16. Under S.2(c) of the Kerala Act, "Lime shells" is defined to mean "the shells of all varieties of shell-fish by whatever name called". It is thus clear that regarding the acquisition of lime shells in Kerala, the Kerala Act alone is controlling and regulating the activities. 17. The next contention of the learned counsel is that under S.22 of the Central Act, the court shall not take cognizance of any offence under the provisions of the Central Act and the Rules therein, except upon complaint made in writing by 'a person authorised' in this behalf by the Central Government or the State government. It is also further contended that unlike many other enactments, the phraseology used by the Central Act is 'a person authorised' and not by any 'authorised officer' or 'officer authorised' or an 'Inspector appointed'. Hence, counsel urged that the 2nd respondent Geologist is not a'person authorised' by the Central or the State Government under the Central Act. 18. Annexure-I complaint had been filed for the violation of S.4(1) of the Central Act, which is punishable under S.21(1) and S.23 of that Act. Therefore, S.22 of the Central Act is applicable for filing the complaint. 19. 18. Annexure-I complaint had been filed for the violation of S.4(1) of the Central Act, which is punishable under S.21(1) and S.23 of that Act. Therefore, S.22 of the Central Act is applicable for filing the complaint. 19. As submitted by the learned counsel for the petitioners, under S.26 of the Antiquities and Art Treasures Act (Act 59 of 1972), an offence under that Act can be taken cognizance of by instituting a complaint "with the consent of such officer of Government as may be prescribed in this behalf". 20. Under S.18 of the Cable Television Network (Regulation) Act, 1995, cognizance can be taken for violation of the provisions of that Act "only upon a complaint in writing made by any authorised officer". 21. Under S.19 of the Environment (Protection) Act (Act 29 of 1986), the court can take cognizance of any offence under that Act only on a complaint made by "the Central Government or any authority or officer authorised in this behalf by that Government." 22. Under S.18 of the Public Liability Insurance Act (Act 6 of 1991) the taking cognizance and trial of offences under that Act can be on a complaint made by "the Central Government or any authority or officer authorised in this behalf by that Government." 23. Under S.14AC of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, cognizance of offences for violation of the provisions of the said Act can be taken only on a report in writing made with the previous sanction of "the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the official Gazette, in this behalf, by an Inspector appointed under S.13." 24. There is no evidence available to show that the 2nd respondent is 'the person authorised' by the Central Government. Unlike the provisions discussed and cited above, it is not the post of the officer that has been designated for filing complaints against violation of the provisions of S.4(1) of the Central Act, but only'a person authorised.' 25. In Corpus Juris Secundum, meaning of the word 'person' is given in detail. The word 'person' is derived from the Latin word'persona', which originally meant'mask'. It is also further stated therein that the sense in which the word 'person' is used in any particular instance may be ascertained from the context and intent with which it is employed. In Corpus Juris Secundum, meaning of the word 'person' is given in detail. The word 'person' is derived from the Latin word'persona', which originally meant'mask'. It is also further stated therein that the sense in which the word 'person' is used in any particular instance may be ascertained from the context and intent with which it is employed. Further, the word'person' is defined as meaning "any being having life, intelligence, will, and separate individual existence, distinguished from an irrational brute, an inanimate thing." 26. Thus, in the context of the Central Act the word 'person' can be construed to mean as a particular individual intended to do a particular act as per the provisions of the said Act and the Rules thereunder. To enable the court to take cognizance of an offence under the provisions of the Central Act, the Central or the State Government shall authorise a particular individual to make a complaint in writing before the court. As discussed above, there is no evidence available to show that any order has been passed, for the purpose of lodging a complaint, in writing, before the court, by the Central or the State Government, authorising the 2nd respondent'in person', as intended under S.22 of the Central Act. It is further stated in Annexure-I complaint that this Court had banned the illicit collection of lime-shell from Q block 'Chithira Kayal'. But that itself do not enable the 2nd respondent to proceed against the petitioners, who are the accused, otherwise than under S.22 of the Central Act. In Annexure-I complaint the 2nd respondent has stated that 'this complaint is filed in his official capacity". This admission itself show that he has not been authorised 'in person' to file Annexure-I complaint. A notification dated 13.11.1997 is stated in the complaint. The occurrence was on 24.10.2000. The records were received by the 2nd respondent on 25.10.2000. Annexure-I complaint was filed on 20.3.2001. According to me, in view of the discussions above, the 2nd respondent cannot file a complaint in his official capacity, basing on the notification of 1977. 27. A notification dated 13.11.1997 is stated in the complaint. The occurrence was on 24.10.2000. The records were received by the 2nd respondent on 25.10.2000. Annexure-I complaint was filed on 20.3.2001. According to me, in view of the discussions above, the 2nd respondent cannot file a complaint in his official capacity, basing on the notification of 1977. 27. As per entry 23 in List II, of the Seventh Schedule of the Constitution of India, "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of Union" is included in the State list, which is within the control and authority of the concerned State Government. According to me, it is thus the Kerala Act had been enacted by the Government of Kerala. Therefore, the 2nd respondent has got absolutely no legal authority to proceed under the provisions of the Central Act in respect of lime-shells as defined and dealt with under the Kerala Act, and which is not included, as discussed earlier, within the First Schedule of the Central Act. Therefore, Annexure-I complaint filed by the 2nd respondent is against the provisions of the Constitution of India and the Central Act. Therefore, the same is against the law and hence only to be quashed and I do so. In view of the above facts and law, I allow this Crl. M.C. and quash Anneuxre-I complaint now pending as C.C.104/2001 on the files of the Judicial First Class Magistrate Court, Ramankari. The consequences will follow.