In
a significant judgment, the High Court of Kerala has struck down Rule 14(2) of
Kerala Minor Mineral Concession Rules 2015, which exempted the activity of
extraction of ordinary earth in connection with construction of buildings on
the strength of prior valid building permits issued by Local Self Government
Institutions from the requirement of obtaining mining permit.
The Court noted that this provision was
being rampantly misused. On the basis of the report filed by the Tahsildar in
the instant case, and also on the basis of several other instances of misuse
which had come to the attention of the Court, the learned Single Judge Justice
Vinod Chandran noted that “Time and again
it was brought to the notice of this Court that there is widespread illegal
mining on the strength of building permits and no construction being effected.
There are also no safeguards to ensure that a building is constructed, when
earth is removed, on the strength of an exemption based on the building permit.”
In the instant
case, the grievance of the writ-petitioner was regarding the unauthorised and
large-scale excavation of ordinary earth being carried out by the
party-respondents from the adjacent plot, on the strength of building permits.
It was contended that under the guise of building construction, commercial
scale excavation of ordinary earth was being carried out, without any bona fide
construction activity.
For
transportation of ordinary earth so excavated out of the property, transit
passes are to be obtained in Form (OA) under the Rules from Geologists. Several
writ petitions were being filed before the High Court seeking issuance of
Form(OA) for transportation of ordinary earth excavated on the strength of
exemption. The Tahsildar reported that in the particular Taluk 100 permits for
excavation of ordinary earth permitting excavation of 500 metric tons were
issued by the Geological Department, thus resulting in excavation and sale of
more than 50000 metric tons of ordinary earth;which meant excavation of almost
5000 to 10000 lorry loads of ordinary earth. The Court described the figures as
‘mind-boggling’. This was found to be a short-cut method
to circumvent the need for obtaining quarrying permit, and also to avoid
payment of royalty. According to the
Court, there was credence to the
allegation that there is a mafia operating in the State carrying out illegal
excavation under the guise of extraction for the purpose of building residential
houses
In the light of facts revealing rampant
misuse of the exemption, the Court examined the vires of the exemption. It was
held that the State Government lacked the power to provide such exemption in
the form of Rule 14(2). The Mines and Minerals(Development and Regulation)
Act[MMDR Act] is a Central Act. Rules are framed by State Government as
empowered by Section 15 of MMDR Act. The legislative power of State to regulate
mining activity is subject to that of Union ,
as per the entries in Schedule VII of the Constitution. As per Section 4 of
MMDR Act, permit/lease/license is a mandatory requirement for carrying out
mining activity. Excavation of ordinary earth for commercial gains, amounts to
a mining activity, which requires permit under Section 4. Therefore, State made
Rules cannot grant exemption from such requirement under the Central Act.
Hence, Rule 14(2) was struck down as ultra vires the MMDR Act. It was held that
:-
The State in
its anxiety to ensure payment of royalty
had overlooked the object sought to be achieved by the Union Parliament in
providing for regulatory measures for mining operations, which earlier resulted
in indiscriminate removal of mineral resources. The State exceeded its power in
providing for exemption and issuance of transit passes under the KMMC Rules for
excavation carried on without a permit. It is hence declared that Sub-rule (2)
of Rule 14 and sub-rules (1), (2), (3) and (4) of Rule 106 of the KMMC Rules
are ultra vires the MMDR Act.
The Court also examined the need for
getting ‘Environmental Clearance’(EC) for such activity. Adverting to
notification dated 15.01.2016 of MoEF, digging of foundation of buildings were
exempted from need for EC. However, if there was commercial exploitation of
ordinary earth, EC would be necessary. Transit passes in Form OA are sought for
commercial exploitation of ordinary earth, and in such cases EC would be
necessary.
The Court also held that hills and
hillocks cannot be razed down for building constructions. It was held that the
original intent of Rule 14(2) was to exempt excavation of ordinary earth for
digging building foundation, and that the exemption cannot be used for leveling
of land.
The findings and directions can be
summarized as
·
There cannot be excavation of ordinary
earth on the strength of building permits issued by LSGI
·
No transportation passes in Form OA can
be issued to transport ordinary earth excavated without permit/license under
the MMDR Act.
·
If no transportation of ordinary earth
is required, the Geologist shall ascertain the exact quantity of ordinary earth
to be removed for digging of foundation, in consultation with the engineer of
LSGI. Such earth cannot be taken out of
property.
·
Undertaking shall be obtained from the
person by the Geologist that construction of foundation would be completed
within six months, failing which proceedings for recovery of royalty and
penalty can be initiated.
Published in Live Law on 24.12.2016 as <http://www.livelaw.in/exemption-quarrying-permit-building-construction-ultra-vires-kerala-hc-read-judgment/>
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