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Exemption From Quarrying Permit For Building Construction Ultra Vires: Kerala HC [Read Judgment]

Manu Sebastian
24 Dec 2016 6:10 AM GMT
Exemption From Quarrying Permit For Building Construction Ultra Vires: Kerala HC [Read Judgment]
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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.

Read the Judgment here.

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