IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 15032 of 2008(M) --------------------------------------- PETITIONER: ------------------- MANIKANTAN NAIR, MANGARA HOUSE, MEVALLOOR, KOTTAYAM. BY ADV. MR.P.P.JACOB. RESPONDENTS: ------------------------ 1. THE GEOLOGIST, DEPARTMENT OF MINING & GEOLOGY, KOTTAYAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE VELLOOR GRAMA PANCHAYATH,MEVALLOOR, KOTTAYAM, REP.BY ITS SECRETARY. 4. THE SUB INSPECTOR OF POLICE, VELLOOR POLICE STATION, KOTTAYAM DISTRICT. 5. VIJAYALAKSHMI, W/O GOPAKUMAR NAIR, KRISHNA NIVAS, MEVALLOOR, VELLOOR VILLAGE, KOTTAYAM. *ADDL.R6 IMPLEADED: 6. VARKEY VARGHESE, THEYATH HOUSE, MEVALLOOR.P.O., VELLOOR, KOTTAYAM. *ADDL.R6 IMPLEADED AS PER ORDER DTD. 14/07/08 IN I.A. NO. 8533/08 OF W.P.(C).NO.15032/2008. R1,R2 & R4 BY GOVERNMENT PLEADER, R3 BY ADV. MR.DINESH MATHEW J.MURICKEN, R5 BY ADV. MR.ALIAS M.CHERIAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, ALONG WITH W.P.(C). NO. 20990/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15032/2008-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER BEFORE THE RESPONDENTS DTD. 23/03/2008. EXT.P.2: COPY OF THE RESOLUTION NO.3 DTD. 26/03/2008 OF THE R.3. EXT.P.3: COPY OF THE COMPLAINT FILED BY PANCHAYATH MEMBER P.V. CHANDRAN BEFORE THE DIRECTOR, GEOLOGY DTD. 23/05/2005. EXT.P.4: COPY OF THE COMMISSION REPORT IN O.S. 203/05 OF MUNSIFF'S COURT, VAIKOM. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER OF R.1. NO.74/DYO/ML/2005 DTD. 11/01/2005. EXT.R1.B: COPY OF THE NOTICE NO.1103/DOY/ML/08 DTD. 09/04/2008 ISSUED BY THE R.1. EXT.R5.A: COPY OF THE ORDER NO.74/DOY/ML.05 DTD. 11/01/05. EXT.R5.B: COPY OF THE SALE DEED NO. 2411/2007 DTD. 12/07/07. EXT.R5.C: COPY OF THE SALE DEED NO. 1047/1993. EXT.R5.D: COPY OF THE PERMIT NO.73/08-09/OS/QP/1072/DOY/ML.08 DTD. 11/04/2008. EXT.R5.E: COPY OF THE SALE DEED NO. 2945/2005 DTD. 08/10/05. EXT.R5.F: COPY OF THE CONSENT DTD. 29/01/2006. EXT.R5.G: COPY OF THE COMMON SALE DEED NO. 3050/2005 DTD. 29/11/2005. EXT.R5.H: COPY OF THE ORDER NO. 959/DOY/ML/06 DTD. 12/04/2006. EXT.R5.I: COPY OF THE PROCEEDINGS NO. E10-32632/07 DTD. 19/11/07. EXT.R5.J: COPY OF THE SALE DEED NO.364/2006 DTD. 06/02/2006. EXT.R5.K: COPY OF THE SALE DEED NO. 2056/2007. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. ---------------------------------------- W.P.(C).No.15032 & 20990 of 2008, 8467, 9269 & 20942 of 2009 ---------------------------------------- Dated this the 17th day of September, 2009. JUDGMENT W.P.(C).No.20990 involves a challenge to the validity of Sub-Rule (e) of Rule 8(1) of the Kerala Minor Mineral Concessions Rules, 1957 {for short “the Rules”} framed under the Mines and Minerals (Development and Regulation) Act, 1957 {for short “the Act}. The said Rule contemplates a permit being granted to the licensees under the Rules for mining sand using motor pumps. W.P.(C) No.9269/09 involves a challenge against an order passed by the concerned Geologist refusing permission to the petitioner therein, to use a motor pump in the course of mining of sand, sought to be made by the petitioner on the strength of a permit granted to him. W.P.(C)No.8467/09 involves a challenge against condition No.17 in the mining permit issued to the petitioner therein. Since to an extent, W.P.(C).No.15032/08 & con cases. :: 2 :: there is commonality in the issues involved in these writ petitions, they have been heard together and are being disposed of by this common judgment. 2. Since the primary issue, which arises for consideration, is the validity of Rule 8(1)(e) of the Rules, I will deal with W.P.(C).No.20990/08 in the first instance. 3. The petitioner claims to be a resident of Eloor Village and is aggrieved by what is termed as 'the illegal conduct of the 4th respondent and her husband' in extracting ordinary sand from deep pool from the ground water level, in such a manner as to result in depletion of ground water level. Such removal is being done with the aid of a motor pump of a capacity of 35 HP for extracting sand from their property allegedly in violation of the regulations and the rules. 4. Earlier, a condition was being imposed in every permit issued under Rule 8(1) of the Rules, restraining the user of motor pump by permit holders. The said condition W.P.(C).No.15032/08 & con cases. :: 3 :: was challenged in a batch of writ petitions before this court, as being ultra vires the power of the Government under the Rules as also under the Act. 5. After an elaborate consideration of the relevant aspects, a learned Judge of this court in Soman v. Geologist {2004(3) KLT 577} held that the condition to the effect that de-watering using a pump set is impermissible and that mining could be done only manually was upheld as it was found to be in conformity with the principle of sustainable development adumbrated under Article 21 of the Constitution. A Bench of this court, on another occasion, called upon to consider the correctness of Soman v. Geologist {2004(3) KLT 577} had observed that there cannot be a general permission to use a pump for any mining and the question of grant of permit or prohibition will have to be considered by the concerned licensing authority, depending upon the facts and circumstances of each case and that in appropriate cases, it is open to the authorities to W.P.(C).No.15032/08 & con cases. :: 4 :: impose a condition, which was the subject matter of challenge, to safeguard the environment and public interest. The directions in Soman were to be treated as general guidance for the officers concerned. 6. The petitioner contends that therefore, the salutary principles which have been outlined still hold good and are applicable to the subject. While so, Rule 8(1) of the Rules was amended by S.R.O.No.270/08 (Ext.P4) notification. The relevant portion of Sub-rule (e) of Rule 8 (1) of the Rules reads as follows: “(e) Quarrying permit holder shall have the right for the purpose of the quarrying to use any mechanical devices including jackhammer and pump.” 7. It is this sub-rule, which has been challenged in these writ petitions, insofar as it permits the user of a motor pump, by every permit holder, who has been granted permission to extract sand as a Minor Mineral. 8. Learned counsel for the petitioner has made it clear that the challenge in this writ petition insofar it W.P.(C).No.15032/08 & con cases. :: 5 :: relates to the sub-rule is concerned, is confined only to the user of a motor pump and does not relate to the jackhammer and that the petitioner in this writ petition is not concerned with the same in this writ petition. A jackhammer is only used for extraction of laterite stones and motor pumps are used for extraction of sand. 9. It is contended by the petitioner that the impugned provision provides for a blanket permission to the permit holders to use a motor pump to excavate sand, without any restriction whatsoever and without any reference to the possible degradation of the environment and also without any reference to the adverse impact that would be caused to the neighbouring lands as such. User of motor pump for extraction of sand without any restriction on the power factor of the motor pump, which is used or the ancillary equipments that would be used along with the motor pump, could result in a repeated depletion of the ground water level and also would enable the permit holder W.P.(C).No.15032/08 & con cases. :: 6 :: to excavate sand from the subterranean area which lies beneath the area in question. This could, in effect, affect the table of water in the neighbouring areas without there being possible marks of such degradation. In other words, the positive permission as is contemplated in impugned rule to use a motor pump would result in adverse environmental impact in the neighbouring areas and in that view of the matter, the rule will have to be treated as inconsistent with the principle of sustainable development and therefore, violative of Article 21 of the Constitution. 10. It is further contended that the sub-rule couched in positive terms providing for permission to the permit holder to use motor pump in the course of winning river sand is ultra vires the rule making power of the Government under Section 15 of the Act. 11. Counter affidavits have been filed by the Government as also by the contesting respondents. W.P.(C).No.15032/08 & con cases. :: 7 :: 12. They contend that the impugned provision is within the rule making power of the Government. The fact that a pump is permitted to be used in the course of winning sand does not indicate that there cannot be any restriction in the pump that could be used. Any further restriction where the sand could be removed and any other restriction to avoid the environmental impact in the neighbouring areas can also be imposed. They, therefore, pray that the impugned provision cannot be considered as either beyond the rule making powers of the Government or otherwise unconstitutional. 13. I heard Mr.P.P.Jacob, learned counsel for the petitioner in W.P.(C)No.20990/08, learned Government Pleader Mr.Asif, learned counsel for the petitioners Mr.Joby Jose in W.P.(C)No.9269/09 and Mr.Ziraj in W.P.(C) No.8467/08, Mrs.Molly Jacob and Mr.Elvin Peter learned counsel for the contesting respondents in W.P.(C) No.20990/08. W.P.(C).No.15032/08 & con cases. :: 8 :: 14. The principal question is one regarding the constitutional validity of Sub-clause (e) of Sub-Rule 8(1) of the Rules. The rule has already been extracted above. It would be profitable to consider it in the context of Rule 8 as a whole. Rule 8 of the Rules provides for the conditions under which quarrying permit shall be granted. I consider it advantageous to extract Rule 8 in its entirety: “8. Conditions on which quarrying permit shall be granted:- (1) Every quarrying permit granted under rule 4 shall be subject to the following conditions, namely:- (a) that the permit shall be valid only for a maximum period of one year by which time the specified quantity of the mineral shall be quarried and removed; (b) that the permit holder shall not be eligible for refund of any of the amounts paid by way of royalty rents, etc. (c) that the permit holder shall furnish to the competent authority or the officer authorised by him in this regard a monthly return in form 'F' regarding the mineral quarried and removed from the area. He shall also permit inspection of the area by the officers concerned at any time W.P.(C).No.15032/08 & con cases. :: 9 :: and shall give satisfactory proof as to the quantity of mineral quarried and removed. (d) that the quarrying permit holder shall apply for a quarrying lease in case he desires to continue quarrying from the area for a period of more than one year, provided he is able to satisfy all the necessary conditions laid down in the chapter dealing with quarrying leases: Provided further that if the competent authority is satisfied that the renewal of a quarrying permit already granted lapsed is absolutely necessary and inevitable he may renew the same for a further period of one year at a time, subject to the conditions and rules applicable to grant of quarrying permits and in that case the fees for the renewal of the quarrying permit shall be the same as that of fee applicable to quarrying permit. (e) Quarrying permit holder shall have the right for the purpose of the quarrying to use any mechanical devices including jackhammer and pump. (2) Every quarrying permit granted under rule 4 shall be subject to such other conditions as the competent authority or the officer granting the permit, as the case may be, may deem necessary in regard to the following matters, namely:- W.P.(C).No.15032/08 & con cases. :: 10 :: (a) Compensation for damage to the lands covered by the permit. For this purpose the permit shall be granted only after payment of such compensation as may be fixed by the Tahsildar, provided that in the case of lands belonging to private persons such fixation of compensation shall be made by a revenue officer not below the rank of Tahsildar only when there is disagreement between the land-owner and the applicant. (b) falling of trees; (c) restriction of surface operations in any area prohibited by any authority. (d) entering and working in any reserved or protected forest; (e) reporting all accidents; (f) indemnity to Government against claims of third parties; (g) forfeiture of property left after cancellation of the permit. (3) In case of breach of any of the conditions subject to which the permits is granted, the competent authority or the officer authorised by him in this regard, under instructions from the competent authority may cancel the permit and the fact intimated in writing to the permit holder. On cancellation of the permit, the quarried materials lying on the land from which they are W.P.(C).No.15032/08 & con cases. :: 11 :: extracted shall become the absolute property of the Government. In such an event, all the royalties and rents paid in advance or part thereof that may stand to the credit of the permit holder shall also be forfeited to Government.” 15. Chapter II of the Rules provides for the grant of quarrying permits in respect of Lands in which Minerals belong to the Government. Rule 4 deals with the grant of quarrying permit and it also deals with processing of applications for a quarrying permit. Rule 8 deals with the conditions under which a quarrying permit shall be granted. Rule 8(1) provides that the permit shall be valid only for a maximum period of one year by which time the specified quantity of the mineral shall be quarried and removed. Returns are to be filed by the permit holder to the competent authority, as per Rule 8(1)(c) and as per Rule 8(1) (d) permit holders shall apply for a quarrying lease if he desires to continue quarrying from the area for a period of more than one year. The conditions of quarrying lease are W.P.(C).No.15032/08 & con cases. :: 12 :: separately specified in Rule 29. Sub-rule (2) of Rule 8 provides for the additional conditions that could be imposed, while a quarrying permit is granted. This relates to felling of trees; restriction of any surface operations in any area prohibited by any authority; entering into and working in any reserved or protected forest; obligation to report all accidents which may occur during the working of the quarrying and indemnifying the Government against the claims of third parties and forfeiture of property left after the cancellation. 16. A perusal of the different sub-clauses in Rule 8 except sub-rule (2) of Rule 8 show that they provide for covenants which would constitute an obligation to be discharged by the permit holder in the course of operation of the quarry. Conditions are therefore statutorily prescribed regulating the manner in which the quarrying permit should be worked or to be enforced or operated, as the case may be. It varies from the period for which the W.P.(C).No.15032/08 & con cases. :: 13 :: permits are issued on one hand to restrictions regarding entering into and working in any reserved or protected forest; obligation to report all accidents and to indemnify the Government against the claims of third parties which may arise in the course of operation of the quarry. 17. One of the limbs of the challenge to the validity of Rule 8(1)(e) of the Rules is rested on the contention that the impugned provision is ultra vires the rule making powers of the State Government under Section 15 of the Act. It would be advantageous to refer to the relevant parts of Section 15 of the Act. Section 15(1) and (1A), Sub- clauses (a), (d), (e), (f) and (h), being relevant in the context are extracted hereunder. 15. Power of State Governments to make rules in respect of minor minerals:- (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of [quarry leases, mining leases or other mineral concessions] in respect of minor minerals and for purposes connected therewith. W.P.(C).No.15032/08 & con cases. :: 14 :: (1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- a. the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor; e. the procedure for obtaining quarry leases, mining leases or other mineral concessions; f. the facilities to be afforded by holders of quarry leases, mining leases or other mineral concessions to persons deputed by the Government for the purpose of undertaking research or training in matters relating to mining operations; h. the manner in which the rights or third parties may be protected (whether by way of payment or compensation or otherwise) in case where any such party is prejudicially affected by reason of any prospecting or mining operations;” 18. The other parts of Section 15 of the Act may not be strictly relevant, to appreciate the contentions that have been raised in the present case. Broadly stated, the contention is that Section 15 of the Act confers power on the W.P.(C).No.15032/08 & con cases. :: 15 :: State Government to make rules to regulate the grant of a quarrying lease, mining lease or other mineral concessions, as the case may be The power obviously would otherwise comprehend the competence to lay down the terms on which and the conditions, subject to which, a quarrying lease or the mining lease could be exercised. The procedure for obtaining a lease would also be, therefore, squarely within the competence of the authority. The rule making powers of the State Government would also extend to fixing the rent, royalty, fees, dead rent etc., for the mineral, the winning of which is sought to be regulated under the provisions of the Act. It is trite law that the rule making power, which is conferred on an authority, by a plenary statute will have to be construed in a wide manner, especially where the provision in question is intended to regulate an activity, which, going by the legislative intent reflected in the Central enactment contemplates a comprehensive regulatory control. The regulatory measures W.P.(C).No.15032/08 & con cases. :: 16 :: that could be introduced, through the medium of the rule making power conferred on the State Government could be comprehensive enough to regulate the activity in such a manner that is as organised as possible, and at the same time, it does not turn out to be detrimental to public interest. In other words, the rule making power should be construed in such a manner as to enable and empower the controlling authorities conferred with the jurisdiction under the rules to effectively discharge their functions, in regulating the mining activity of any minor mineral. If, therefore, the rule making authority brings about a provisions which subserves the purpose of regulating the mining activity, then a broad interpretation should be adopted in construing the rule making power that is conferred by the plenary statute. Thus, the provisions contained in Rule 8 of the Rules, which enables the competent authority to lay down such conditions as are necessary, in regulating a mining activity would also be W.P.(C).No.15032/08 & con cases. :: 17 :: perfectly within the competence of the rule making authority under Section 15 of the Act. 19. The question is whether Rule 8(1)(e) of the Rules can be construed as comprehended by the competence of the rule making authority under Section 15 of the Act, or whether it would be inconsistent with the rule making authority of the State Government under Section 15 of the Act and consequently, ultra vires the powers of the State Government exercising delegated legislative functions under Section 15 of the Act. 20. A perusal of Rule 8, which has already been extracted above, will show that every other Sub-Rule under Rule 8 of the Rules contemplates a condition that will have to be satisfied by the permit holder in working the lease or a permit, as the case may be. A permit has to be valid for a period of one year under Rule 8(1)(a) and such permit should also specify the quantity of the mineral that shall be quarried and removed. Rule 8(2) of the Rules provides for W.P.(C).No.15032/08 & con cases. :: 18 :: the necessary conditions that will have to be strictly complied with by the permit holder, in all matters mentioned therein, which would include the possible falling of trees that may result by reason of the quarrying permit being enforced, the possibility of a competent authority imposing a restriction of surface operations in any area and entering reserved or protected forests. All these provisions statutorily prescribed are perfectly within the competence of the rule making authority under Section 15 of the Act. 21. Rule 8(1)(e) of the Rules, which is impugned stands out, as an odd man out. The impugned provision provides that a quarrying permit holder shall have the right to use mechanical devices like a pump. It is worthy of being noticed that the rule as such is not couched in a permissive manner. The rule does not provide that a permit holder may be granted permission to use a pump, subject to any conditions that are deemed appropriate. In fact, going by W.P.(C).No.15032/08 & con cases. :: 19 :: the dictum laid down in Soman, it is a moot question whether such permission could be statutorily provided for in the Rules. Be that as it may, the impugned provisions goes several steps further. It is couched in such a mandatory manner as to make obligatory on the part of the competent authority to necessarily permit the permit holder to use a jack hammer or a pump as a matter of right. In fact, the sub-rule does not even contemplate any assessment by the competent authority required to grant a minor mineral concession as to either the necessity or the desirability of the permit holder to use a motor pump or any other mechanical device, while extracting or winning the minor mineral. Even if the licence issued in this regard does not contain any such condition, the rule, as it stands, would possibly enable the permit holder to use a mechanical pump in a purported exercise of the rights statutorily conferred on him under Rule 8(1)(e) of the Rules. W.P.(C).No.15032/08 & con cases. :: 20 :: 22. Is the grant of such positive permission the purport of rule making powers conferred under Section 15 of the Act? Can such positive permission be treated as part of the regulatory conditions that can be imposed while the competent authority grants permission to a person for winning any minor mineral? 23. Rule 8(1)(e) of the Rules cannot be sourced to any one of the specific enabling provisions contained under Section 15 of the Act. Nor can it be construed as a provision that could be brought within the purview of Rule 15(1A)(a) viz., “any other matter which is to be or may be prescribed”. Firstly, the right made available to the quarrying permit holder to use any mechanical device for the purpose of quarrying obviously operates as a right qua the permit holder and does not operate as a condition subject to which the permission or licence could be granted or issued, as the case may be. Secondly, the rule is couched in such a language as to positively confer a right on the permit holder W.P.(C).No.15032/08 & con cases. :: 21 :: to use a mechanical device and the language of the rules does not even admit of the competent authority construing the said right as qualified by the necessity to use a mechanical pump the existence of which otherwise will have to be assessed by the licensing authority. The rule is couched in such a language as to make available to the permit holder an inviolable and undiluted right, irrespective of the consequences to the neighbouring property owners or the maintenance of the environmental stability in the area, to use