SREEKUMAR Vs. GEOLOGIST

JUDGEMENT

(1.) Writ Appeals are filed against common judgment of the learned single Judge* declaring clause (e) of sub-r.( 1) of R. 8 of the Kerala Minor Mineral Concessions Rules, 1967, hereinafter called the "Rules" as invalid and impermissible under the enabling provision contained in S. 15 of the Mines and Minerals (Development and Regulation) Act, 1957. In the W.P.C taken up along with Writ Appeals, the prayer is for direction to the respondents to permit the petitioner to use mechanical device for mining sand. We have heard counsel appearing for appellants, counsel for the petitioner, Government Pleader for State and it's agencies and standing counsel appearing for the Velloor Grama Panchayath.

(2.) Petitioners in the WPCs are wet land owners who challenged the above Rule on the ground that mechanical mining of sarid in the neighbouring paddy lands permitted under the Rule causes various problems to them and destruction of their property. However, in the Writ Appeal stage, petitioners even after receipt of notice, have not appeared in Court either through counsel or in person. The above rule declared invalid by the learned single Judge confers right on the permit holder to mine sand using mechanical device. For easy reference we extract here in below the rule impugned in the WPCs and the enabling provision under which the same was prescribed by Government: 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:- (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: S.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. (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 of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations; The contention raised by the petitioners in the W.P.C and accepted by the learned single Judge was that S. 15 does not enable the State to make R.8(l)(e) conferring right on the mining licence holders to engage mechanical devices for mining. Another contention raised was that R.8(l) was unconstitutional inasmuch as it violates Art.21 of the Constitution of India in relation to neighbouring owners and the public. The learned single Judge upheld the challenge against the rule on both the grounds and declared it invalid against which Writ Appeals are filed. In support of his findings, the learned single Judge has referred to Division Bench decision of this Court in Soman v. Geologist (2004 (3) KLT 577) wherein this Court upheld the permit conditions prohibiting mining within 75 metres from a railway line and 50 metres from water tanks, reservoir, canals, etc.

(3.) Counsel for the appellants contended that the impugned rule, namely, R.8(l)(e) is perfectly within the powers of the State under S. 15(1) of the Act, which authorises the State Government to make rules for all purposes in connection with quarrying or mining licences granted under the Rules. Government Pleader appearing for the State also supported the stand of the appellants that the impugned rule is within the rule- making powers of the Government under S. 15(1) of the Act. Even though counsel appearing for the Panchayath did not support the appellants, he contended that Panchayath is not totally against mining using mechanical devices but they are more concerned about the welfare of neighbouring owners and public at large, who may be affected on account of adverse effect of mechanical mining. In our view, the judgment of the learned single Judge is not sustainable because State has power under S.15(l) of the Act to regulate mining through licences to be issued subject to conditions which the Government is free to impose. In fact, when mining is regulated by State and licences for mining are issued subject to conditions, State has all incidental powers to prescribe any rule for the purposes connected with mining. Admittedly all mining licences are issued with strict conditions in regard to depth to which mining is permitted, margins to be left to the neighbouring property, conditions to be satisfied by the licence holder including the duty to fill up the mined pit formed on account of mining. Therefore adverse impacts on environment are neutralised through the conditions imposed in the mining licence. Similarly neighbouring owners and their properties are protected by imposing strict conditions in the mining licence issued under the Rules. The impugned rule was introduced on 12.3.2008 which itself was to get over certain judgments of this Court imposing restrictions on mining with mechanical devices. Art.l9(l)(g) of the Constitution of India gives right to the citizen to practice any profession or to carry on any occupation, trade or business, which obviously means that right can be exercised to carry on the trade or business successfully and profitably. If mining cannot be done successfully or profitably by engaging human labour, licence holder is absolutely free to use mechanical devices so that mining is done profitably. All what is required is that while engaging mechanical devices, licence holders shall not violate any of the conditions of licence. The learned single Judge has considered the adverse impact that could be caused on account of mechanical mining and he assumed that using of mechanical device will result in environmental pollution and damage to neighbouring properties. So long as licence is issued subject to conditions, then it is for the licence holder to carry on mining without any violation, irrespective of the fact that the machine employed by them is capable of mining beyond the limits permitted. In other words, so long as machines employed are used for mining in accordance with terms and conditions of licence issued, nobody can have any objection. In other words, licence holder is free to engage any permissible method for mining whether mechanical or manual and the only condition is that mining should be done in accordance with the terms and conditions of licence. In our view the later part of S. 15(1) giving power to the State Government to make rules for the purposes connected with mining gives-power to the State Government to grant the right to mine by using mechanical devices. We are of the view that R.8(l)(e) is only clarificatory in nature and that licence holder is free to engage any mechanical device and the only restriction is that mining should be done only in accordance with terms and conditions of licence. We therefore reverse the findings of the learned single Judge and hold that it was perfectly within the powers of the Government under S. 15(1) to prescribe the above Rule.