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2019 DIGILAW 1014 (KER)

George Antony v. Director of Mining and Geology

2019-11-29

DEVAN RAMACHANDRAN

body2019
JUDGMENT : The cause in these writ petitions has its genesis in a Bench judgment of this Court in Binoy Kumar Vs. State of Kerala ( 2019 (2) KLT 227 ), which has inexorably postulated that the person holding a valid Mining Lease from the Government can only extract that amount of mineral which is specifically permitted under it and no more. 2. The petitioners in these cases, who claim to be holding valid Mining Leases, contend that, notwithstanding the specification of the quantity of the minerals that can be prospected under the said leases, they are legally entitled to extract such quantity of it as is permitted under the Mining Plans approved by the competent Authority under Section 5(2)(b) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the Act' for short). They assert that this contention had not been impelled and consequently, not considered in Binoy Kumar (supra). 3. It is this singular issue which this Court is now called upon to answer in these writ petitions. 4. The petitioners in these cases, which are being heard together on account of the comparable factual matrix presented therein and the similarity in the reliefs sought, are stated to be persons and entities involved in the activity of granite quarrying, based on valid Mining Leases; and all of them, except the petitioner in W.P.(C) No.21196 of 2019, assert that they are doing so on the strength of valid Environmental Clearances. 5. The petitioners impugn the orders and instructions issued by the Director of Mining and Geology notifying them that they cannot be allowed to extract more quantity of granite than what is sanctioned in their Mining Leases and that they will have to confine their production solely to the quantity as per the said Leases. The petitioners say that these orders and directions issued by the Director of Mining and Geology are illegal and untenable, since they have already obtained duly sanctioned Mining Plans, as per which, much larger quantities have been allowed to be extracted and commensurate royalty paid and accepted by the competent Authorities for such purpose. They, therefore, pray that the impugned orders and directions of the Director of Mining and Geology be interdicted and vacated. 6. They, therefore, pray that the impugned orders and directions of the Director of Mining and Geology be interdicted and vacated. 6. In response, the learned Advocate General, Sri.C.P.Sudakara Prasad, instructed by Sri.S.Kannan -learned Government Pleader; submitted that the impugned instructions and orders of the Director of Mining and Geology have been issued strictly in compliance with and in deference to the directions of the learned Division Bench of this Court in Binoy Kumar (supra). The learned Advocate General points out that it has been unequivocally declared therein that by the learned Bench that licencees can be allowed to quarry only that quantity of mineral, as is specifically mentioned in the Mining Leases; and, therefore, that the Director had no other option but to issue the impugned directions and orders. 7. The learned Advocate General, thereafter, submitted that if this court is so inclined, the Government is willing to consider grant of supplemental/additional leases to the petitioners herein, so that the extraction of mineral by them will be in tune with the Mining Plans now obtained by them, which sanctions extraction of a larger quantity of minerals than what has been permitted in the original Mining Leases. He concludes by saying that the Government is willing to adhere to any directions that may issued by this Court in this regard. 8. In response, the various learned counsel appearing for the petitioners in these writ petitions submitted that the directions in Binoy Kumar (supra) would not apply to the facts presented in these writ petitions, because, as is evident from the factual circumstances noticed by the learned Bench in the said case, the petitioner therein had not obtained any approved Mining Plan; and consequently, that the leaned Bench did not have the occasion to consider the impact of such a plan on the existing Mining Lease. They then contend that, as far as these cases are concerned, all the petitioners are in possession of valid Mining Plans wherein the quantity of minerals to be extracted has been specifically mentioned, for which royalty has already been paid by them and accepted by the competent Authority. They, therefore, pray that these writ petitions be allowed; or in the alternative, that this Court may allow the Government to grant them additional Mining Leases as has now been suggested by the learned Advocate General. 9. They, therefore, pray that these writ petitions be allowed; or in the alternative, that this Court may allow the Government to grant them additional Mining Leases as has now been suggested by the learned Advocate General. 9. Sri.Gracious Kuriakose, learned Senior Counsel, instructed by George Mathew learned counsel appearing for the party respondents in W.P.(C) No.21196 of 2019, submits that his clients are supporting the petitioners in these writ petitions but have an additional argument that, going by clause 17 of the Mining Lease, a supplemental Lease for extraction of additional quantity is not necessary to be executed, provided the licencee has a requisite Environmental Clearance. He prays that his clients may also be, therefore, heard by the Director as and when any further process is ordered to be done by this court. 10. I have considered the afore submissions with great amount of care and have also analysed and evaluated the materials available. 11. When one closely scrutinates the observations and conclusions in Binoy Kumar (supra), it becomes irrefragable that the learned Bench has affirmatively declared that a licencee can be allowed to extract only that amount of minerals as are specifically sanctioned by the Mining Lease, since it is this document which operates as the sole agreement between the Government and the licencee as regards the quantity of the Minerals to be extracted. The judgment further declares that it is solely for the Government, as the owner of the minerals, to decide how much of it can be extracted, which is then specified in the Mining Lease. Therefore, it is irrelevant, whether a person thereafter obtains a Mining Plan showing a larger quantity of minerals to be extracted or otherwise, since the unequivocal declaration of law is to the effect that the Mining Lease should be the sole document to guide all action for quarrying the minerals and in determining its amount that can be extracted. 12. My afore view is inevitable because, going by Rule 9(1) of the Mineral Conservation and Development Rules, 1988, no person can commence mining operations in any area, except in accordance with a Mining Plan approved under the Mines and Minerals (Development and Regulation) Act, 1957; while Section 5(2)(b) of the said Act provides that no Mining Lease can be granted by the Government unless it is satisfied that there is an approved Mining Plan obtained by the applicant. Further, even with respect to a Mining Lease obtained prior to the coming into force of the afore Rules, it provides, through Rule 11 thereof, that the holder of the said Lease shall obtain a Mining Plan within a period of one year from the date of the commencement of the Rules. Ineluctably, therefore, while the Mining Plan controls and modulates the manner of prospecting the minerals; the quantity of it is exclusively regulated by the Mining Lease and no other. 13. I am, consequently, of the firm view that the conclusions and directions in Binoy Kumar (supra) would apply the facts of these cases also. 14. That said, I find favour with in the suggestion now made by the learned Advocate General, that the State is willing to consider grant of additional Mining Leases to the petitioners, provided they have the necessary approved Mining plans and Environmental Clearances for extraction of larger quantity of minerals that what was specified in the original leases. This is because, even going by Binoy Kumar (supra), the forensic enunciation therein is that the Government is the final custodian and owner of the minerals and that it is upto them to decide the amount of it to be extracted, following the applicable Statutes, Rules and Regulations. I am, axiomatically, of the view that this suggestion of the learned Advocate General certainly can be allowed to be considered by the competent Authorities in terms of law, particularly since it would not be in conflict with the Mines and Minerals (Development and Regulation) Act, 1957 or the Mineral Conservation and Development Rules, 1988 as already discussed above. 15. Resultantly, I order these writ petitions and leave liberty to the competent Authority, namely, the Director of Mining and Geology, to consider the grant of additional Mining Leases to the petitioners; however, implicitly following all applicable and due procedure and after ensuring that the petitioners have the necessary Mining Plans and Environmental Clearances for the additional quantity of minerals to be extracted. 16. The afore exercise may be completed by the Director after affording an opportunity of being heard to the petitioners also, who will be at liberty to produce all their documents before him. 17. 16. The afore exercise may be completed by the Director after affording an opportunity of being heard to the petitioners also, who will be at liberty to produce all their documents before him. 17. I, reiteratingly clarify that unless the petitioners have the necessary approved Mining Plans and Environmental Clearances for the additional quantity to be extracted, the Director shall not grant them any supplemental/additional Mining Leases in terms of the afore liberty. 18. Needless to say, once a decision is taken by the Director in terms of the above exercise and the petitioners appropriately intimated, they will be enjoined to remit the additional stamp duty and such other charges and fees, as are required in law, so as to enable the said Authority to execute the Supplemental/additional Mining Leases in their favour. I make it further clear that the directions in this judgment are intended to cover only the petitioners herein and no other person or entity. These writ petitions are thus ordered.