Krishna Lime Shell Dealers And Products vs. The Director Of Fisheries

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUE AY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942 WP(C).No.16501 OF 2020(K) PETITIONERS: 1 KRISHNA LIME SHELL DEALERS AND PRODUCTS, CHEMPU P.O., VAIKOM, KOTTAYAM DISTRICT, REPRESENTED BY ITS PROPRIETOR V.M. RADHAKRISHHAN, SON OF MADHAVAN, AGED 52 YEARS. 2 SREEMURUKA LIME SHELL, CHEMPU P.O., VAIKOM, KOTTAYAM DISTRICT, REPRESENTED BY ITS PROPRIETOR RAJAN V.P., SON OF PARAMESWARAN, AGED 48 YEARS 3 NANDANA LIME SHELL, 112/11, MATHUNKAL ROAD, CHEMPU P.O., VAIKOM, KOTTAYAM DISTRICT, REPRESENTED BY ITS PROPRIETOR BAIJU.P.C., SON OF CHELLAPPAN, AGED 47 YEARS 4 AMRITHA LIMES, KATTIKUNNU, CHEMPU P.O., VAIKOM, KOTTAYAM DISTRICT, REPRESENTED BY ITS PROPRIETOR MADHANAN, SON OF DEVARAJAN, AGED 58 YEARS BY ADV. SRI.P.M.ZIRAJ RESPONDENTS: 1 THE DIRECTOR OF FISHERIES DEPARTMENT OF FISHERIES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 033 2 THE ASSISTANT DIRECTOR FISHERIES, KOTTAYAM, OFFICE OF THE ASSISTANT DIRECTOR OF FISHERIES, KOTTAYAM,PIN-686 001 3 THE DIRECTOR OF MINING AND GEOLOGY, THE DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PLACE P.O., THIRUVANANTHAPURAM-895 004, KERALA 4 THE DISTRICT GEOLOGIST, KOTTAYAM, DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KOTTAYAM-686 002

WP(C).No.16501 OF 2020(K) 2 5 THE STATE OF KERALA, REPRESENTED BY SECRETARY OF FISHERIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001 6 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF MINING AND GEOLOGY, THIRUVANANTHAPURAM,PIN-695 001 OTHER PRESENT: GP SRI K J MANURAJ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.16501 OF 2020(K) 3 ALEXANDER THOMAS, J. ------------------------------------------- W.P.(C)No.16501 of 2020 ---------------------------------------------- Dated this the 25th day of August, 2020 JUDGMENT The case set up in this Writ Petition (Civil) is as follows:- The petitioners are doing the business of stock, sale and exhibits for sale of lime shell for the past several years. The Lime shell is a minor mineral and stock and transportation of the same requires permit and licence as provided under the provisions of Kerala Mines and Mineral Concession Rules after payment of royalty. The royalty of lime shell has been stated as item No.1 in Schedule No. 1 of the Kerala Minor Mineral Concession Rules and the royalty of the same at present is Rs.75/- per tone. Fact being so, by Ext.P-7 proceedings of the 1st respondent dated 16-10-2017 the collection of royalty and regularisation of the stock, sale, exhibits for sale and transportation of the lime shell has been transferred from the Department of Mining and Geology to the Department of Fisheries. By the said proceedings, the collection of lime shell, stock, sale and transportation of the same will be entrusted to the co-operative societies of the employees who are engaged in in the work of collecting clamps. There is no support of any law for Ext.P-7

WP(C).No.16501 OF 2020(K) 4 proceedings. After Ext.P-7 proceedings of 1st respondent the 3rd and 4th respondents are not issuing dealers license/transit pass to stock, sale and transport of lime shell. Hence the petitioners approached the 2nd respondent and submitted Exts.P-8 to P-11 applications dated 14.07.2020 for dealer's license of stock, sale and exhibits for sale of lime shell and also for transit permit to transport the same. But the 2nd respondent did not receive the application from the petitioners on the ground that the dealer licence and transit permit will be issued only to co-operative societies and will not issue individuals like the petitioners. Since the application of the petitioners were not received by the 2nd respondent, the petitioners sent the same through registered post dated 14-7-2020 and the same was received by the 2nd respondent on 16-7-2020. The petitioners also sent Exts.P-12 representation to the first 1st respondent and thereby projected there grievances. Even after the submission of application through registered post also no action has been taken on the basis of the same by the 2nd respondent. It is in the light of the above factual averments and contentions that the petitioners have filed instant Writ Petition (Civil) with the following prayers:- “i) Issue a writ of mandamus or other appropriate writ, order or direction to the second respondent to consider and dispose exhibit-P8 to P11 application of the petitioners and thereby grant dealers license for the stock, sale and exhibit for sale of lime shell and transit permit and sufficient transit passes for transport the same

WP(C).No.16501 OF 2020(K) 5 without making objection that the petitioners are not a co- operative societies within a reasonable period which this honourable court may deem fit and proper in the interest of justice and circumstances of the above case. ii) Declare that there is no bar or ban to issue dealer license, transit permit and transit passes to stock, sale exhibit for sale and transport the lime shell which is a minor mineral under any of the provision of the Mines and Mineral (Development and Regulation) Act, 1957, Kerala Minor Mineral Concession Rules, 2015 and Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules 2015. iii) Declare that lime shell is a minor mineral as per the schedule of Kerala Mines and Mineral Concession rules, 2015 and hence the first respondent has no right or authority to exclude the lime shell from the Kerala Mines and Mineral Concession rules 2015 and deal the transformation and regulation of the same on the basis of Exhibit P7 proceedings. iv) Call for the records leading to the issuance of exhibit P7 proceedings of the first respondent and sets aside the same as illegal by issuing a writ of certiorari. and v) Issue such other writ, order or direction, which this Honorable Court may deem fit and proper in the interest of justice and circumstances of the case.”

WP(C).No.16501 OF 2020(K) 6 enumerated as a minor mineral as an item No.1 in Schedule 1 appended to the KMMC Rules, 2015. For dealing with lime shell, which is a notified minor mineral, the party concerned will have to take a dealer’s licence as envisaged in Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 framed under the said MMDR Act. That for transportation of such minor mineral like the lime shell, the party concerned will have to take transit pass as envisaged in the said Rules. Further that the exclusive authority for consideration and grant of both dealer’s licence and transit passes as per the abovesaid Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, is the competent officials of the Mining and Geology Department of the Government of Kerala like the District Geologist etc. and that no such statutory power has been conferred on respondents 1 and 2 (Director of Fisheries and Asst. Director of Fisheries) as per the abovesaid statutory provisions contained in the MMDR Act and the Rules framed thereunder. But that the respondents are taking the stand that on the basis of an executive instruction, the power in that regard for issuance of dealer’s licence and transit pass etc. is vested with respondents 1 and 2

WP(C).No.16501 OF 2020(K) 7 and that they have a policy to give such permissions only to Co- operative Societies of Fishermen. It is further pointed out by the petitioners that there are no statutory provisions in the abovesaid parent Act or any of the Rules framed thereunder imposing a prohibition that such licences of permission can be given only to Co-operative Societies of Fishermen etc. and that any person, who satisfies the eligibility conditions in the said rule can apply for consideration of grant of such dealer’s licence and transit pass etc. but in terms of the provisions of the said rules.

WP(C).No.16501 OF 2020(K) 8 1) The petitioners may file the requisite applications before the 4th respondent-District Geologist for grant of dealer’s licence as envisaged in Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 framed under the MMDR Act, without any further delay and on receipt of such applications, the 4th respondent- District Geologist will consider those applications and then take decision thereon strictly in accordance with the provisions contained in the statutory rules framed under the MMDR Act. If the 4th respondent is placing any reliance on any executive order, then such an executive order should necessarily find justification of empowerment in terms of the statutory provisions contained in the statutory rules framed under the MMDR Act. If the 4th respondent is taking the stand that the competent authority in that regard are respondents 1 and 2, then the 4th respondent-District Geologist should specifically point out in writing to the petitioners the statutory provisions in the abovesaid rules and the statutory notifications, whereby respondents 1 and 2 have any source of power to deal with applications for dealer’s licence and transit pass etc. as per the abovementioned rules. If there is no such statutory empowerment for respondents 1 and 2, it shall be the statutory obligation of the 4th respondent to consider the application of the petitioners for grant of dealer’s licence and transit pass, strictly in accordance with the provisions contained in the statutory rules and unless, there are

WP(C).No.16501 OF 2020(K) 9 restrictions. So also, the insistence that the parties should necessarily be associated with Co-operative Societies of Fishermen etc. can also be relied on only if such restrictions are justified in terms of the provisions contained in the statutory rules and not merely on the basis of the executive order, which may not have any support on the basis of the statutory rules. 2) A considered decision on all the abovesaid aspects should be duly rendered by the 4th respondent on the request of the petitioners for grant of dealer’s licences as per the provisions of the Kerala Minerals (Prevention of Illegal Transportation, Storage and Transportation) Rules, 2015, and after affording reasonable opportunity of being heard to them, without any further delay, at any rate, within 5 weeks from the date of receipt of such applications.

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WP(C).No.16501 OF 2020(K) 11 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1OF THE CERTIFICATE OF REGISTRATION OF FIRST PETITIONER UNDER THE KERALA VALUE ADDED TAX,2005 DATED 30.5.2007 EXHIBIT P2OF THE DEALERS LICENSE OF THE FIRST PETITIONER DATED 14.5.2014 ISSUED BY THE 4TH RESPONDENT EXHIBIT P3OF THE DEALERS LICENSE DATED 30.10.2017 ISSUED BY THE 4TH RESPONDENT TO THE FIRST PETITIONER EXHIBIT P4OF THE MOVEMENT PERMIT DATED 30.10.2017 ISSUED BY THE 4TH RESPONDENT TO THE FIRST PETITIONER EXHIBIT P5OF THE DEALERS LICENSE OF THE SECOND PETITIONER DATED 28.05.2014 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P6OF THE REGISTRATION CERTIFICATE OF FOURTH PETITIONER UNDER GST DATED 23.11.2017 EXHIBIT P7OF THE PROCEEDINGS OF THE FIRST RESPONDENT DATED 16.10.2017 EXHIBIT P8OF THE APPLICATION 14.7.2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P9OF THE APPLICATION 14.7.2020 SUBMITTED BY THE SECOND PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P10OF THE APPLICATION DATED 14.7.2020 SUBMITTED BY THE THIRD PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P11OF THE APPLICATION DATED 14.07.2020 SUBMITTED BY THE FOURTH PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P12OF THE REPRESENTATION DATED 23.07.2020 SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE FIRST RESPONDENT RESPONDENTS' EXHIBITS: NIL