T.OOMMEN PANICKER Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) Petitioner was the Managing Partner of Top Constructions, a firm engaged for the construction of Azheekal Cargo Harbour, a public works project of the Harbour Engineering Department. For the said construction, during the period 1995-2000, rubble required for the construction was quarried from the petitioner's land comprised in Survey No.129/1 of Shivapuram Village in Thalassery Taluk and from the land comprised in Resurvey No.170/1A Ramanthali Village, Thaliparamba Taluk, Kannur District. In response to an application dtd. 31/5/1995, the Geologist, Kannur, issued permit under the Kerala Minor Mineral Concession Rules (KMMC Rules) to transport rubble from the quarry to Azheekal Cargo Harbour work site. Royalty was demanded and the petitioner conceded to all such demands to avoid delay in the execution of the work. It is stated that during the period from 11/10/1995 to 10/2/1999 quarrying permits were issued, collecting a total of Rs.1,40,000.00 towards royalty. Aggrieved by the collection of royalty for the rubble quarried as above, he preferred an appeal before the Director of Mining and Geology, who by order dtd. 6/7/1995 ordered for a grant of quarrying lease on payment of royalty and subject to the conditions stipulated, and thus, a mining lease was executed in the prescribed form on 16/8/1995 which was also registered.

(2.) The Geologist, without hearing the petitioner issued orders on 28/1/2000 stating that the petitioner is liable for royalty for the rubble extracted from the Shivapuram quarry as the contractor employed by the Government and imposed a liability of Rs.16,35,656.00 towards cost, royalty, and penalty denying the exemption under Rule 57 of the KMMC Rules. Aggrieved by the same, the petitioner preferred an appeal before the Director of Mining and Geology regarding the rubble quarried from the petitioner's land in Ramanthali Village as also the Geologist issued an order dtd. 27/8/2005 demanding Rs.4,15,412.00 towards royalty and dead rent for the rubble quarried. This was also challenged in a separate appeal before the Government, and by order dtd. 16/5/2006, the Government rejected the appeal and confirmed the order passed by the Geologist. Thereafter revenue recovery proceeding were initiated against the petitioner, and the same was challenged in WP(C)No.37300 of 2010, contending that the petitioner is entitled to the royalty exemption as provided under Rule 57 of the KMMC Rules for the rubble quarried from his own property. The petitioner had directed to submit a representation for exemption, and this Court directed the same to be considered. Considering the said representation Ext.P9 was passed, rejecting the claim of exemption made by the petitioner and also finding that the petitioner had quarried and removed granite in excess of the permit granted to him as per the lease deed. Accordingly an amount of Rs.16,35,656.00 being the price, royalty and fine was levied. It was the basis of the orders seems to be that though the land was owned by the petitioner, the Government was the owner of the minerals, and therefore the claim for exemption made by the petitioner was rejected. Challenging Ext.P9 and also for a declaration that no royalty is payable by the petitioner as he is the owner of the land with whom vested right for minor mineral available on the surface of sub-soil and a further declaration that he is eligible for exemption under Sec. 57 of the KMMC Rules, this writ petitioner is filed.

(3.) After the filing of the writ petition, the Managing Partner expired, and his legal heir is on record as the additional petitioner.