Importance of Audi Alteram Partem in the Implementation of
Minor Mineral Rules:
While implementing rules and regulations pertaining to
mining, a geologist of the Department of Mining and Geology often issues show
cause notices and adjudication orders against persons/companies involved in
illegal mining activities. This process involves site inspections (sometimes
joint site inspections), taking measurements of the volume of minerals mined,
sending one or two notices, hearing of the party in person, obtaining written
statements from the offender, etc.
However, most of the time, the offender raises objections
before the appellate authorities/Hon’ble courts that the geologist violated
principles of natural justice by not providing him an opportunity for a
hearing. In one such case, the geologist conducted a joint inspection with
revenue authorities, assessed the quantum of minerals extracted, and issued an
adjudicating order cum demand to the offender. The offender approached the
Hon’ble High Court of Kerala for quashing the order issued by geologist,
stating that the geologist violated principles of natural justice as he was not
given an opportunity for a hearing before the quantum of the granite stones
unauthorizedly removed by him was fixed. However, the Single Bench of the Hon’ble High
Court directed the petitioner to file an appeal as per Rule 98 of KMMC Rules,
2015 and to remit 25% of the demanded amounts for deferring recovery
proceedings.
However, the petitioner, instead of filing appeal petition,
filed WA.No.1414 OF 2020 against the judgment in WP(C) 19573/2020(V) dated
06.10.2020.
One of the reasons
raised is that the quantification relied on in the demand notice is not with
notice to the appellant, nor were the reports of measurements served on him. It
was also prayed that the impugned proceedings initiated against him curtail his
right guaranteed under Article 300A of the Constitution of India.
Article 300A provides that no person shall be deprived of
his property save by authority of law. The State cannot dispossess a citizen of
his property except in accordance with the procedure established by law.
1)
Rule 16 of the said rules speaks about cancellation of quarrying
permit and it reads thus:
"16. Cancellation of quarrying permit. - If the Government or competent authority under these rules has reason to believe that a permit was obtained by way of submission of any false documents or in contravention of provisions of any other law or the permit holder has violated any of the conditions stipulated under these rules, the State Government or the competent authority may, after giving the permit holder an opportunity of being heard, direct him not to undertake any quarrying operations in the area to which the permit relates and may cancel the permit and in such cases the quarried materials lying on the land from which they are extracted shall become the absolute property of the Government. In such an event, all the royalties and rents paid in advance or part thereof that may stand to the credit of the permit holder shall also be forfeited to Government."
2)
Rule 22 of the rules speaks about prohibition of working of
quarries and it reads thus:
"22. Prohibition of working of quarries.- If the Government or competent authority has reason to believe that the grant of a quarrying permit is in contravention of any of the provisions of this Chapter, the Government or the competent authority may, after giving the parties an opportunity of being heard, direct the parties concerned not to undertake any quarrying operations in the area to which the permit relates."
3)
Rule 33 of the rules speaks about disposal of application for
grant or renewal of quarrying lease and it reads thus:
"33. Disposal of application for the grant or renewal of quarrying lease.- (1) On receipt of the application for grant or renewal of quarrying lease for undertaking quarrying operations, the competent authority shall make site inspection and take decision regarding the precise area to be granted for the said purpose and intimate the applicant to submit approved mining plan and Environmental Clearance for the precise area.
(2) On receipt of an approved mining plan and Environmental Clearance for the precise area and on production of all other statutory licenses/clearances/No Objection Certificate etc. from other statutory authorities concerned, the competent authority shall grant a quarrying lease within thirty days.
(3) No application shall be refused without affording the applicant an opportunity of being heard.
(4) Where the competent authority passes an order refusing to grant or renew a quarrying lease, the reason thereof shall be communicated through a speaking order within fifteen days of the date of the order."
4)
Rule 50 of the rules speaks about cancellation of quarrying
lease and it reads thus:
"50. Cancellation of quarrying lease.- If the Government or competent authority under these rules has reason to believe that the lease granted is in contravention of provisions of any other law or the lessee has violated any of the conditions subject to which the lease is granted, the Government or the competent authority may, after giving the lessee an opportunity of being heard, direct him not to undertake any quarrying operations in the area of the lease and may cancel the lease and in such cases the quarried materials lying on the land from which they are extracted shall become the absolute property of the Government. In such an event, all the royalties and rents paid in advance or part thereof that may stand to the credit of the lessee shall also be forfeited to Government:
Provided that where the competent authority is of the opinion that it is expedient in the interest of regulation of quarries and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for such other purposes, as the competent authority may deem fit, he may, by an order terminate the quarrying lease with respect to the area or any part thereof covered by such lease."
5)
Rule 51 of the rules
speaks about refusal for renewal of quarrying lease and it reads thus:
"51. Refusal for renewal of quarrying lease.-- Where an applicant for renewal of quarrying lease is convicted for illegal quarrying, and there are no interim orders of any court of law suspending the operation of the order of such conviction in appeals pending against such conviction in any court of law, the Government or the competent authority may, after giving such applicant an opportunity of being heard and for reasons to be recorded in writing and communicated to the applicant, refuse to renew such quarrying lease."
6)
Rule 100 of the rules
speaks about review and it reads thus:
"100. Review.- The competent authority or the Appellate Authority in case its orders have not been challenged in appeal under Clause (a) or Clause (b) of sub-rule (1) of Rule 98, as the case may be, or the final Appellate Authority may, on its own motion or an application by the interested party, review any order passed by it and pass such orders in reference thereto as it may deem fit. No order under Rule 99 or 100 shall be passed against any person interested, unless he has been given a reasonable opportunity of being heard."
The Hon’ble High Court, citing that only in the above six
cases an opportunity for a hearing needs to be given, rejected the ground of
violation of principles of natural justice in not providing an opportunity for
a hearing. The Hon'ble Court dismissed the appeal.
In conclusion, the judgment clarifies that opportunity for a hearing shall be allowed only in certain occasions. According to this judgment by the Division Bench, there is no requirement to quantify illegal mining in the presence of the person who carried out the illegal mining, nor is there a need to share the measurement report with the person who engaged in illegal mining.
Download Judgment: K T Thomas vs State of Kerala dated 30 October 2020
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