IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 WP(C).No. 27051 of 2011(F) ---------------------------------- PETITIONER(S): ------------------- BABYRAJAN M, S/O.BALAKRISHNAN MANAPATTU HOUSE, KALATHINGAL PARAMBU ARAKINAR, BEYPORE, KOZHIKODE DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): -------------------- 1. THE REVENUE DIVISIONAL OFFICER TIRUR PIN 676 101. 2. THE SUB INSPECTOR OF POLICE THENHIPALAM POLICE STATION MALAPPURAM DISTRICT PIN 673 636. BY GOVT. PLEADER SRI.MOHAMMED SHAH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2011, ALONG WITH WPC NO. 27058 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 27051/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPORT ISSUED BY THE 2ND RESPONDENT TO THE FIRST RESPONDENT DATED 02/10/2011. P2: COPY OF THE G.O.(MS)NO.85/2010 DATED 05/04/2010 OF THE DEPARTMENT OF INDUSTRY, GOVERNMENT OF KERALA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) Nos. 27051 & 27058 OF 2011 ----------------------------------------------------- Dated this the 20th day of October, 2011 J U D G M E N T According to the petitioners, vehicles bearing Reg.Nos.KL-11AH/6532 and KL-10AG/9620 were seized by the 2nd respondent, the Sub Inspector of Police, Thenhipalam Police Station, on the allegation that the vehicles were transporting ordinary earth, in violation of the provisions of Kerala Minor Mineral Concession Rules. Thereupon, Exts.P1 reports were made by the Sub Inspector of Police to the Revenue Divisional Officer, Tirur. Learned counsel for the petitioners contended that ordinary earth is not a minor mineral and that at any rate, the 2nd respondent is not an officer authorized to seize the vehicles or initiate any proceedings under the K.M.M.C Rules. 2. In so far as the contention that the ordinary W.P.(C) Nos. 27051 & 27058 2011 :2 : earth is not a minor mineral, though the counsel relied on the G.O(MS)85/2010 dated 5.4.2010, in my view, the definition of minor mineral given in the Mines and Mineral (Development and Regulation) Act and the notification issued by the Central Government would show that there is no substance in the contention of the counsel. The definition of minor mineral contained under S.3(e) of the Mines and Mineral (Development and Regulation) Act 1957 reads as under: “Minor minerals” means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government my, by notification in the Official Gazette, declare to be a minor mineral;” 3. In exercise of its power under S.3(e) of the Central Government issued GSR 95(E) on February 3, 2000 W.P.(C) Nos. 27051 & 27058 2011 :3 : which reads thus: “G.S.R.95(E).-- In exercise of the powers conferred by clause (e) of S.3 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957), the Central Government hereby declares the 'ordinary earth' used for filling or levelling purposes in construction of embankments, roads, railways, buildings to be a minor mineral in addition to the minerals already declared as minor minerals hereinbefore under the said clause.” 4. Referring to Section 3(e) of the Act and the Notification the Apex Court in the judgment reported in Som Datt Builders Ltd. v. Union of India (2009 (4) KLT 638) where in paragraph 23 has been held thus: “23. Having held that 'ordinary earth' is comprehended within the meaning of the word 'any other mineral' W.P.(C) Nos. 27051 & 27058 2011 :4 : in S. 3(e) of the Act, 1957, the question that now arises is whether the exercise of power by the Central Government under S. 3(e) of the Act, 1957 in declaring the use of 'ordinary earth' for filling or levelling purposes in construction of embankments, roads, railways, building as 'minor mineral' is justified. It was contended on behalf of the appellants that the Central Government cannot include any matter based on mere use nor can it make purpose-based distinction. Once the 'ordinary earth' is found to be comprehended within the meaning of the word 'any other mineral' for the purposes of S.3(e) of the Act, 1957, in our view, there is no impediment for the Central Government to include or exclude the same based on a particular use or purpose. User can be a valid reason for exclusion as well as inclusion W.P.(C) Nos. 27051 & 27058 2011 :5 : in declaring mineral, 'minor mineral' in exercise of the powers conferred upon the Central Government under S.3(e) of the Act and exercise of any such power based on use or purpose cannot be said to be arbitrary. We, accordingly, find no merit in the contention of the Learned Senior Counsel for the appellants that the declaration of the 'ordinary earth' for the uses and purposes mentioned in the notification dated February 3, 2000 is ultra vires the power conferred upon the Central Government. 5. Subsequently, rejecting the contention that since ordinary earth is not included in the schedule to KMMC Rules, quarrying and transportation can be done without any restriction, this court in the judgment in Construction Materials Movers Association v. State of Kerala (2008 (4) KLT 909), held thus: But, the provisions contained in W.P.(C) Nos. 27051 & 27058 2011 :6 : Chap.III of the Kerala Minor Mineral Concession Rules, dealing with the grant of quarrying permit, will apply to quarrying of ordinary earth from private lands. R.12 of the Rules under Chap.III enables the competent authority to prohibit quarrying operations. S.4(1A) prohibits transporting and storing of minerals, including minor minerals otherwise than in accordance with the provisions of the Act and Rules made thereunder. So, the contention of the petitioners that quarrying and transporting of ordinary earth can be done by anyone, without any licence, in any manner, cannot be accepted. The decision of the Government not to include ordinary earth in the Schedule, though the intention was not to collect any royalty, has created practical hurdles to some extent, in dealing with the illegal transportation of ordinary earth. But, we W.P.(C) Nos. 27051 & 27058 2011 :7 : are not inclined to hold that the authorities are absolutely powerless in the matter of controlling quarrying and transporting of ordinary earth. S.21 of the Act provides a punishment of imprisonment for two years or fine, which may extend to twenty five thousand rupees or both for violation of sub-ss.(1) and (1A) of S.4. For unauthorised transport of minerals including minor mineral, the vehicles involved can be seized, which may be confiscated by the competent criminal court. The violations of sub-ss.(1) and (1A) of S.4 of the Act are cognizable offences, by virtue of S.21(6) of the Act. S.22 says that the criminal court shall take cognizance of any offence punishable under the Act or Rules only on a complaint made in writing by a person authorised in this behalf by the Central or State Government. The State W.P.(C) Nos. 27051 & 27058 2011 :8 : Government have issued a notification under S.22 of the Act, as per S.R.O.No.827/91 published in Kerala Gazette(Extraordinary)No.796 dated 26.6.1991, authorising all District Collectors and all Police Officers of and above the rank of Sub Inspector, apart from Geologists, in their respective jurisdiction, to act as the competent authority under S.22. S.23A of the Act enables such authorised Officers to compound any offence punishable under the Act on payment of a sum that the said authority may specify. In the above statutory setting, which would show that the actions of the authorities cannot be described as totally without jurisdiction, the reliefs sought by the petitioners have to be examined. 6. In the light of the statutory provisions and the principles laid down in the judgments referred to above, W.P.(C) Nos. 27051 & 27058 2011 :9 : the contention of the learned Counsel for the petitioner is only to be rejected. For the aforesaid reasons, I am also not persuaded to place any reliance on GO(MS)85/2010 dated 5.4.2010, which is opposed not only to the statutory provisions, but also to the the principles laid down in the judgments noticed above and it is a matter for the Government to modify the Government Order. 7. In so far as the competence of the 2nd respondent to seize the vehicle is concerned, in exercise of its powers u/s 22 of the Mines and Minerals (Development and Regulation) Act 1957, Government of Kerala issued GO. (MS)917/97 authorizing the officers specified in column 1 of the schedule of the said notification to make complaints in respect of the offences punishable under the said Act or the rules made thereunder in their respective areas of jurisdiction. Among others, police officers of and above the rank of Sub Inspector of Police, has been included in the W.P.(C) Nos. 27051 & 27058 2011 :10 : schedule as serial No.3 of the notification. The Kerala Minor Mineral Concession Rules have been framed under the provisions of the Mines and Minerals (Development and Regulation) Act and therefore by virtue of the notification referred to above the Sub Inspector of Police is an officer competent to exercise the powers under the Act and the Rules. If that be so, seizure of the vehicle effected by the Sub Inspector of Police cannot be said to be illegal. Therefore that contention also deserves to be rejected. 8. For the aforesaid reasons, the contentions are refuted and the writ petitions are disposed of directing that on the production of a copy of this judgment the Sub Inspector of Police will take further action against the vehicles in question in accordance with the provisions of the M.M.D.R. Act or the K.M.M.C Rules, as the case may be and produce vehicles before the jurisdictional Magistrate. Needless to say, that on production of the W.P.(C) Nos. 27051 & 27058 2011 :11 : vehicles, it will be open to the registered owners of the vehicles to file appropriate applications for interim custody of the vehicles. 9. Registry will forward a certified copy of this judgment to the Chief Secretary to the Government of Kerala for appropriate action in regard to GO(MS)85/2010 dated 5.4.2010. The writ petitions are disposed of accordingly. Sd/- ANTONY DOMINIC, JUDGE ul/- [true copy] P.S. to Judge