W.P.(C) No. 20960 of 2016. Case: Joby Vs District Collector. High Court of Kerala (India)
| Case Number | W.P.(C) No. 20960 of 2016 |
| Counsel | For Appellant: K.A. Jaleel and C.Y. Vinod Kumar, Advs. and For Respondents: Ranjith Thampan, Addl. Advocate General and M.H. Hanil Kumar, Spl. Government Pleader |
| Judges | K. Vinod Chandran, J. |
| Issue | Constitution Of India - Article 141; Indian Penal Code 1860, (IPC) - Section 378; Kerala Conservation Of Paddy Land And Wetland Act, 2008 - Sections 13, 19, 20; Mines And Minerals (development And Regulation) Act, 1957 - Sections 13, 20, 21, 22, 23A, 4A |
| Citation | 2017 (1) KLT 183 |
| Judgement Date | November 29, 2016 |
| Court | High Court of Kerala (India) |
Judgment:
K. Vinod Chandran, J.
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Identical contentions are urged, by the petitioners, who had been carrying on brick kilns; the bricks manufactured wherein were seized by the District Collector, as per the mahazars produced in the respective Writ Petitions. The facts in the various Writ Petitions are slightly different which shall be noticed separately. The petitioner in W.P.(C) No. 20960 of 2016 has obtained a D & O license for brick manufacturing for the period 2015-16 from the Grama Panchayat produced as Ext. P1; which has not been renewed for the current year. The title deed of the property is seen at Ext. P2. The description of the property as per the Schedule is also shown as 'nilam' (paddy land). The District Collector along with a team of officers conducted inspection of the property and found 1,80,000 bricks, manufactured and kept in the property, as is evidenced from Ext. P3 seizure mahazar. The petitioner was not able to offer any explanation as to the source of the raw-material (ordinary clay) used for manufacturing the bricks. In W.P.(C) 20960, 20818, 20980 & 22118 of 2016, the petitioners are owners of the properties (paddy fields) in which the brick kilns were operated. In W.P.(C) 20977, 21247 and 21368 of 2016 the petitioners claim to be lessees from owners of paddy fields in which the brick kilns were functioned. All claim to have taken D & O licenses; but currently valid licenses are not produced and there was hence no valid license even from the Panchayat at the time of seizure.
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On the allegation that the paddy lands were converted into brick kilns, offence under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for brevity 'the Paddy Land Act') was alleged, in the seizure mahazar. The bricks in the property were taken into custody and retained at the site, which has been continued on the interim order of status quo passed by this Court. The petitioners do not produce any permit/license/lease enabling excavation of ordinary clay issued under The Kerala Minor Mineral Concession Rules, 2015 (for brevity KMMC Rules). The petitioners claim that the ordinary clay used in the brick kilns were brought from elsewhere. However the source of the ordinary clay is not disclosed. Ordinary clay being covered under the definition of 'minor minerals' under the Mines and Minerals (Development and Regulation) Act, 1957 (for brevity ' the MMDR Act') and the Schedule of the KMMC Rules, prescribing royalty; the excavation can only be with valid permit/lease/license issued there under and the same can be transported only on the strength of Form 0(A) issued under The Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 (for brevity The Transportation Rules).
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One of the petitioners has a contention that by Ext. P4 (W.P.(C) No. 20960/2016) on 09.05.2016, the District Geologist had inspected the property and levied ` 2,20,000/- as royalty and penalty for the extraction and stocking of bricks illegally under the KMMC Rules. The royalty levied is on the extraction of clay; which has been used for manufacture of the bricks. When the royalty and the penalty for extracted clay; has been paid, though extracted illegally there is no reason for the State to seize the manufactured bricks, is the contention urged. The contention so raised is on the premise that even if a permission was granted, the State could only levy royalty; which has been levied with penalty too; imposed for the illegality and now the finished product has to be conceded to the petitioners.
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In W.P.(C) No. 21247 of 2016, the District Collector seized the bricks and handed over the same to the Nirmithi Kendra, Thrissur. The petitioner takes similar contentions and additionally prays for refund of the value of the bricks, so handed over to the Nirmithi Kendra. In W.P.(C) No. 22118 of 2016, there was no seizure effected. Therein the contention is that the petitioner belongs to a community, who have traditional expertize in making bricks and had manufactured 1,50,000 of bricks, which when attempted to be sold was objected to by the Village Officer, Malampuzha. The petitioner then approached the 1st respondent District Collector for permission to take away the manufactured bricks and has filed the Writ Petition, seeking a direction to the 1st respondent to grant such permission and not to obstruct the sale and removal of the bricks. In all the other Writ Petitions, the seizure mahazar has been produced and the contentions raised are of a similar nature, but however without the source of the ordinary clay disclosed and without any evidence as to any royalty or penalty having been paid or even the transportation having been made validly.
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The learned Counsel for the petitioners argue that the proceedings are taken under the Paddy Land Act, which does not sanction any seizure or confiscation of goods, in this case the bricks. Specific reference is made to S. 19 of the Paddy Land Act to contend that the District Collector does not have jurisdiction or the power of entry and seizure, since the officers so empowered has to make a report to the District Collector, having jurisdiction over that area. It is also argued that the seizure as provided for in S. 19 of the Paddy Land Act, can only be of vessel, vehicle, any other conveyance or machinery used or deemed to have been used for any contravention of the provisions of the said Act. Hence a seizure of goods, as in the present case, that too a manufactured product, is not contemplated under the Paddy Land Act, proceeds the argument.
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The power to recover the minor mineral raised...
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