DIAMOND CRUSHERS PODIKKALAM Vs. STATE OF KERALA

JUDGEMENT

(1.) Both the writ petitions raise issues regarding the rights of a deemed tenant under Sec. 7E of the Kerala Land Reforms Act, 1963 ('KLR Act' for short) and are hence being heard and disposed of together.

(2.) The petitioner's partnership firm proposes to start a commercial activity, including a granite building stone quarry on 1.7720 hectares of land in re-survey No.275/2A of Thripangottur Village. The land belongs to the petitioners and is covered by Exts.P1 to P3 Registered sale deeds Nos.7/2019, 8/2019, and 9/2019 dtd. 5/1/2019 of Kallikandy Sub Registry. The lands were mutated in the firm's name, and land tax was also paid. Exts.P4 to P6 are the certificates of title for the above lands issued under sec. 7E of the KLR Act, 1963 by the Land Tribunal, Koothuparamba. To apply for a letter of intent and to prepare a mining plan for undertaking mining operations and establishing a crusher unit in the properties, the petitioner required a survey plan countersigned by the 3rd respondent. An application in that regard was submitted by the petitioner. The said application was processed by the 4th respondent and forwarded to the 3rd respondent as per Ext.P7 communication dtd. 12/10/2021 for consideration. The 3rd respondent forwarded it to the District Government Pleader for a legal opinion. The 3rd respondent thereafter requested for clarification from the Advocate General of Kerala. Based on the advice received, the 3rd respondent sent Ext.P8 letter to the petitioner stating that no commercial activity could be permitted in the lands covered by Exts.P1 to P3 documents without getting permission from the Government. The stand of the 3rd respondent is that he can process the application of the survey plan only if the 1st respondent grants the mining permission in advance. The petitioner submits that without a survey plan, the petitioner cannot apply for a letter of intent to the 6th respondent, and it is only after a letter of intent is received that the next stage of obtaining a mining concession arises. It is hence contended that it is legally impossible to comply with the direction contained in Ext.P9. It is further submitted that as the transferees contemplated in Sec. 7E of the KLR Act are deemed tenants, by issuing the Certificate of Title, the statute recognises such deemed tenants as the owners of the property. It is submitted that Sec. 7E of the KLR Act does not use the word 'cultivating tenant'. It is pointed out that Sec. 7E of the KLR Act does not impose any restriction regarding the enjoyment of land. The petitioner hence contends that Sec. 7E of the KLR Act can include commercial tenancy and industrial tenancy also and that request for permission to carry on mining activity cannot be refused. Another contention that is put forward is that mining activities are governed by the Minor Minerals (Development and Regulation) Act, 1957 ('MMDR Act' for short), which is a Central Legislation, and that State Legislature cannot override the provisions of the Central Act and prohibit mineral extraction in the lands covered by Exts.P1 to P3. It is submitted that the MMDR Act was enacted for the development of the Nation by mineral extractions, and the subsoil rights are governed by the Act irrespective of title and that mining activity cannot be curtailed by the State Government on the reason that the land where the activity is proposed is a land assigned under the KLR Act. It is contended that the Director (Mining and Geology) is the competent authority to decide upon the area for mineral extraction. Sec. 2 of the MMDR Act is referred to, and it is submitted that the power to legislate on the matter is vested in the Central Government, and the power of the State is limited to framing rules in respect of minor minerals alone, as seen from Ss. 15 and 23C of the MMDR Act. It is submitted that the Directorate of Mining and Geology is the authority that must consider the grant of a mining lease and that the Revenue Department has no authority on such matters. It is further submitted that the very purpose of issuing a survey plan with a counter signature is to identify the property and its location, which is required for deciding upon the permissibility of quarrying in the land. The petitioner also refers to Ss. 84(4), 106 to 106B of the KLR Act and Rule 122A of the KLR (Tenancy) Rules to submit that the Act does not in any manner restrict the use of lands that are exempted under Sec. 7E of the Act from being used to purposes other than cultivation.

(3.) A counter affidavit has been filed on behalf of the State. The petitioner's claim regarding the exemption under Sec. 7E is not disputed. However, based on the Certificates of Title, which have been produced by the petitioner, it is contended that the certificate is issued treating the petitioner as a cultivating tenant, and hence the petitioner is not entitled to put the land to any other use. The counter affidavit does not answer the contentions raised by the petitioner regarding the MMDR Act and the contention that Sec. 7E does not speak about cultivating tenants alone.