സുപ്രീംകോടതി വിധിയുടെ പശ്ചാത്തലത്തിൽ വൈകിയാണെങ്കിലും കേരളത്തിലെ ഖനന ചട്ടങ്ങൾ സമഗ്രമായി പരിഷ്കരിക്കുകയാണ്. മൈനിംഗ് ലോബിയുടെ ഒത്താശയോടെ സർക്കാരിന് കോടിക്കണക്കിനു രൂപയും പൊതുതാൽപ്പര്യവും നഷ്ടപ്പെടുത്തുന്ന രീതിയിലാണ് കരടു ചട്ടം ഉണ്ടാക്കപ്പെട്ടിട്ടുള്ളത്. ഇതെപ്പറ്റി പൌരന്മാർക്ക് അഭിപ്രായം രേഖപ്പെടുത്താനുള്ള അവസാന അവസരമാണ് 2014 ഡിസംബർ 31. മൈനിംഗ് & ജിയോളജി വകുപ്പിന്റെ സൈറ്റിൽ ഇതു സംബന്ധിച്ച അറിയിപ്പ് വന്നിട്ടുണ്ട്, കാണാൻ ഇവിടെ നോക്കുക
എന്റെ അഭിപ്രായം ഇവിടെ രേഖപ്പെടുത്തിയിട്ടുണ്ട്. നിങ്ങളുടെ അഭിപ്രായവും ഇന്നുതന്നെ ഇ.മെയിൽ ചെയ്യൂ. നിങ്ങൾ എന്റെ അഭിപ്രായങ്ങളോട് യോജിക്കുന്നുണ്ടെങ്കിൽ ഈ അഭിപ്രായം കോപ്പി ചെയ്ത് നിങ്ങളുടെ ഇ മെയിലിൽ നിന്ന് director.dir.dmg@kerala.gov.in എന്ന ഇ-മെയിലിലേക്ക് ഇന്നുതന്നെ അയച്ച് ഈ ഖനന ചട്ട പരിഷ്കരണത്തിൽ പങ്കാളിയാകാൻ താൽപ്പര്യപ്പെടുന്നു.
OBJECTIONS
TO THE NEW
“KERALA
MINOR MINERAL CONCESSION RULES, 2014 [DRAFT]”
SUBMITTED
BEFORE 31.12.2014
The Kerala Minor Mineral Concession Rules, 1967 warranted a
radical change in its objectives and reasons in the light of the Hon’ble
Supreme Court verdict in the Deepak Kumar Vs. State of Haryana case on 27.12.2012.
The major directives in the above case were as follows;
(1) Minimum size of mine lease should be 5 ha.
(2) Minimum period of mine lease should be 5 years.
(3) A cluster approach to mines should be
taken in case of smaller mines leases operating currently.
(4) Mine plans should be made mandatory for minor
minerals as well.
(5) A separate corpus should be created for
reclamation and rehabilitation of mined out areas.
(6) Hydro-geological reports should be
prepared for mining proposed below groundwater table.
(7) For river bed mining, leases should be
granted stretch wise, depth may be restricted to 3m/water level, whichever is
less, and safety zones should be worked out.
(8) The present classification of minerals
into major and minor categories should be re-examined by the Ministry of Mines
in consultation with the States."
Though,
Government of Kerala tried many administrative and legal means to appraise the
court about the peculiar situation in Kerala citing the inherent conflicting issues
like environment Vs development, neither the Hon’ble Supreme Court nor the
National Green Tribunal gave a favorable order for Kerala, which underlines the
need for following the directives in the Deepak Kumar Vs. State of Haryana in
its letter and spirit, in the State of Kerala.
The move of
the Government in amending the minor mineral concession Rules is a welcome one
at this juncture. But whether the published draft would cater the needs of the
State is highly questionable and it is afraid it is highly contradictory to the
directives of the Hon’ble Supreme Court and the existing laws.
The Rules
which are highly detrimental to the interest of the State exchequer and its
environment are as follows;
I.
For any sort of
mining to take place in a site, the first step is to identify the mineable
quantity of mineral available at that particular site in a scientific manner.
This is highly important both for the Government and the prospective lessee as
it would give a clear understanding of the reserves of minerals available at
that particular site. There is only one system in Government to do this
assessment and it is the expertise of the geologists in the Department of
Mining and Geology. The geologist are
being exclusively employed to do this work for the State in a scientific manner
and unfortunately they are being involved in the issuance of permits and
licences and regulatory function as per the new Kerala Minerals (Prevention of
illegal mining, storage and transportation) Rules, 2014 as well. This is highly
illegal and these geologists should be either used for the scientific assessment
of granite reserves or they should be relieved from the Department, as they
just cannot any other function based on their qualification. They cannot become
competent authorities under this Rules and if Government notifies any of the
Geologist as competent authority under Rule 2[ii], that will be against the
functional responsibility of the Geologists who are appointed primarily to
professionally undertake the functions of a geological expert for the State.
There should be a Chapter in the Rules to clearly define the roles and
responsibilities of Geologists of the State and the methods for assessing the
rock and mineral reserves in the State. This issue of absence of pre-assessment
of reserves before granting permits has been pointed out by the Assembly
Committee on environment headed by Sri. CP Mohammad MLA as well.
II.
Rule 2[ii] and 89
describes about the Consolidated Royalty Payment [CRP] system which was introduced
in the old KMMC Rules, 1967 citing the issues connected with incapability of
Government systems to properly assess the mined and transported rock from the
quarries. The system was to collect the royalty in advance for a specific area
for one year from the person who is doing the mining activity. As per this a
person who is paying Rs. 15000 to Government can mine any amount of rock from 12.50
cents of land in one year [Refer Schedule IV]. This is highly illegal and would
lead to depletion of the rock reserves of the State in no time. The logic is
beyond any scientific reasoning as even the school students know that, the Mass
of extracted rock can be easily found out by multiplying the Volume [Length
X Breadth X Depth] with Density of rock [2.7]. So the CRP system should
be scrapped from the Rules, as it would give undue advantage to the permit
holders and huge loss to the State exchequer.
III.
Rule 2[xii] describes
about the “Permit” system which in fact is banned by the Hon’ble Supreme Court
through a number of directives including the one in Deepak Kumar Vs, State of
Haryana case. The activity basically being mining, calling the same as “permit”
and /or “lease” does not make any differentiation before the law, and which
might bring wrath of the Hon’ble Supreme Court in future.
IV.
Section 3(d) of the Mines and Minerals (Development and
Regulation) Act, 1957 defines what “mining operations” is. Any operations
undertaken for the purpose of winning any mineral is considered to be mining
operations. As per Section 4 of the Act, which deals with general restrictions
on undertaking mining operations, states that no person shall undertake any
mining operations in any area except under and in accordance with the terms and
conditions of a mining lease granted under this Act and Rules made there under.
The amendment made to section 14 of the Act clearly indicates that, section 4
is now applicable to minor minerals. A conjoined reading of Sections 4 and 14 of the Act would clearly
indicate that without having a mining lease no person shall conduct mining
operations of minor minerals. Therefore the provision for issuing Consolidated
Royalty Payment System in the draft Rule is in contravention to the Act, is
illegal and invalid.
V.
Rule 10[a] narrates
the “Depth of mining”. As per the proposed Rules, the mining can be done up to
the core of earth provided the “Steps” are created at every 6 m depth. This in
fact would be detrimental for the State like Kerala, which is relatively a
naive formation geologically. The water table of the State which is already
going down will become “untraceable” for the common people of the State in the
near future if the “Depth of mining” is not restricted up to a scientifically
fixed limit. In fact this has been clearly prescribed in the Hon’ble Supreme
Court’s order as well.[Supreme Court order : Para.
4.7 Depth of Mining: Mining of minerals, whether major or minor have a direct
bearing on the hydrological regime of the area. Besides, affecting the
availability of water as a resource, it also affects the quality of water
through direct run of going into the surface water bodies and infiltration /
leaching into groundwater. Further, groundwater withdrawal, dewatering of water
from mine pit and diversion of surface water may cause surface and sub surface
hydrologic systems to dry up. An ideal situation would require that quarrying
should be restricted to unsaturated zone only above the phreatic water table
and should not intersect the groundwater table at any point of time. However,
from the point of view of mineral conservation, it may not be desirable to
impose blanket ban on mining operation below groundwater table. It is,
therefore, recommended that detailed hydro-geological report should be prepared
in respect of any mining operation for minor minerals to be undertaken below
groundwater table. Based on the findings of the study so undertaken and the
comments / recommendations of Central Ground Water Authority / State Ground
Water Board, a decision regarding restriction on depth of mining for any area
should be taken on case to case basis.]
VI.
In Gokuldas Vs
Geologist, the Hon’ble High Court has directed to keep the limit of depth of
the quarry as 20 feet / 6 meters in every permits and leases. The Hon’ble court
had struck down the deletion of the provision done by the executive. By the
latest amendment and the proposed amendment, the State is trying to circumvent
the said court order and destroy the environment of the State. The upper limit
of the depth has to be fixed as 20 feet, maximum. The findings and observations
of the Hon’ble High Court in the Judgment Soman Vs Geologist (WPC No.1694 /
2004) shall also be considered before finalizing the draft Rules.
VII.
Rule 19, 31[1]
& 31[2] prescribes about the preferential right of the person who is
applying first. This is the basic issue with 2G Scam and Coal Block allocation
scam which is now being under probe by CBI. How can a responsible State make it
a law making mockery of the commonsense of the people in State? Imagine a
situation wherein a person applies for all the rock reserves in the State
before someone else make an application after the introduction of these Rules.
Government would say this can be controlled by Rule 37[2] where it is
prescribed that a person cannot hold more than 2 sq.km [500 acres] land on
lease in total. This limit is for “a person” and he can avail lease of 500
acres each, in each of his family members’ names. There is provision for the
Government to intervene to fix the preferential right, which might be highly
arbitrary and subjective, in the absence of a fool proof system of online
allocation of quarrying leases as Government of India has introduced for Coal
blocks from December, 2014. There is already a file in Department of Revenue in
Secretariat [No.13437/G1/2010] for introducing the Online Allocation of Granite
reserves.
VIII.
Through legally
permitting the leases, Government is helping a small section of people for violating
the Section 74, of Land Reforms Act, which prohibits any sort of private leases
after 01.01.1970. If this can be done for quarrying, why can not the same are
permitted for doing “corporate agriculture”, which basically wants large
stretches of lands for doing mechanized cultivation.
IX.
Chapters III, IV,
V, VII and VIII talks about the private rights on the minerals. As per the laws
on land in Kerala, all the mineral rights are vested in the “State” except those
in the “Ryotwari lands” in the erstwhile Malabar District of British India. This
being so there cannot be any “private rights” on minerals in the State except
the one mentioned above [This has been reiterated in the latest Hon’ble Supreme
Court order in Thresiamma Jacob & Others Vs Geologist case]. This warrants
scrapping of all these chapters from the proposed Rules as there are no lands
with “Absolute jenm/freehold right” available in Kerala. Moreover, lands which were
assigned by Government cannot include “granite reserves” as the same is banned
from granting assignment. Further if the assigned lands are used for quarrying,
the same would lead to cancellation of assignment, as the assignments are
granted for specific purposes and change of purpose amounts to violation of
Pattayam conditions.
X.
Rule 38 speaks
about quarrying in un-surveyed area. As per the land laws, the cadastral limits
in a village are fixed and there cannot be any place without a survey number, within
the cadastral limits in a village. If such a land is there within the cadastral
limits then it automatically becomes “revenue land “as per Section 3[2] of
Kerala Land Conservancy Act, 1957. If it is outside the cadastral limit, then
naturally it will either forest land or sea. Mining would be practically
impossible in both the cases. So to which area this Rule applies is questionable.
XI.
Rule 10[g] and
40[1][i] gives scope for mining from areas which are just 50 m away from forest
lands. This is detrimental and the officers who suggested this distance should
be punished under the Wild Protection Act of India. Even making such draft
Rules is against the fundamental Principles of Constitution of India. This
unconstitutional move should be stopped and a minimum of 500 m from the forest
boundaries should be prescribed in the case of forest lands.
XII.
Section 15 (3) of the Act states that the holder of a mining lease or any other mineral concession granted under
any rule made under subsection (1) shall pay royalty or dead rent, whichever
is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee,
contractor or sub-lessee at the rate prescribed for the time being in the rules
framed by the State Government in respect of minor minerals. This shows that, the provision of the Act which empowered
the State to form its own Rules intended to collect maximum income from the issuance
of mining concession. The idea of CRP system reduces the possible income and
hence CRP system in the draft Rules is strictly against the legislative
intention and this provision of the Act.
XIII.
One of the major defects of this draft rule is with regards
to the penal provision. Rule 108 deals with the prosecution of offences. It
says “No Court
There
is no provision in the draft rule to initiate any prosecution against the
violator if the competent authority fails to do his/her duty. In similar
statutes which were enacted prior to 30 years, like the Air (prevention and
Control of Pollution) Act – 1981 and The water Act -1974, there are provisions
which empowers any citizen to initiate the prosecution proceedings if the
competent authority fails to do so. The legislative intention behind Section
43 A (2) of the Air Act and Section 49 (1) (b) of the Water Act is very
clear. There would be several instances when the competent authority fails to
act against the offences. In several instances where the Hon’ble High Court of
Kerala found violations done by several offenders, but the competent authority
failed to act as per law. There is only one competent Authority in every
district. Usually he/she has to monitor more than two hundred lease holders or
permit holders, a year. The limited human strength of the office of the
Geologists within the state is clearly incompetent to meet the purpose of this
Act and Rules, there under. Some Geologists in the state are corrupt also, and
had faced disciplinary action for that also. So far, no court in the state had
taken any cognizance of any offence under the existing rules, and that alone
would show the need of a provision for initiating private prosecution. Therefore, adding a provision in Rule 108 for
initiating private prosecution, similar to Sec.49 (1) (b) of the Water Act is a
necessity, without which the amendment of KMMC Rules itself would be a waste
exercise.
XIV.
Rule
109 is drafted as if it is added only to help the offenders. Penalty described
under Rule 106 includes imprisonment also. But Rule 109 says that any offence
punishable under these rules can be compounded by the Competent Authority, by
paying a fine, that too a silly amount. Rule 109 has to be deleted to achieve
the legislative intention. Otherwise, offenders will easily violate the Rule by
paying a silly fine. This is a provision that helps to violate the law, and
against the basic principles of punishment.
XV.
Rule
106 states as follows :
“Whoever contravenes any provision of these rules shall be punishable with
imprisonment for a term which may extend to one year, or with a fine which may
extend to five thousand rupees or with both and in the case of continuing
contravention, with an additional fine which may extend to five hundred rupees
for every day during which such contravention continues after conviction for
the first such contravention.”
This
means, a violator may escape by paying a fine of only Rs.1 as punishment for
the offence of this Rule. Fine amount is too small compared to the potential
commercial benefit of violating the Rule once. Considering the seriousness and
graveness of the result of the offences under the rule, greater punishment is
required. If the fine is too small to
bear, anyone will opt violation of Rule than to obey the same. Fine amount was
the same in the Rule passed in 1967. The value of Rs.5000 in 1967 has now been
increased to Rs.5 Lakhs, at least. Therefore, the fine has to be increased up
to 5 Lakhs rupees, at least. Imprisonment should be a must and fine should be
in addition to that. Therefore, my
suggestion is
Instead
of “imprisonment for a term which may extend to one year, OR with a fine
which may extend to five thousand rupees or with both” the state should insert “imprisonment for a term which may extend to one year, AND
with a fine which may extend to five LAKHS rupees”
XVI.
A proviso to Rule 106 states “Provided
further that whenever a person who opted for Consolidated Royalty Payment
System extracts minor minerals from the area under mineral concession after the
date of expiry of permit without any lawful authority, he shall be liable to
pay the royalty and price of the entire quantity of the minor mineral illegally
extracted from the area at the rate prescribed in Schedule I. In such a case
while calculating the amount of royalty and price payable, the amount already
paid by the permit holder/lessee for obtaining permission shall be deducted.”
This is unfair and against the spirit of the law. According
to this proviso, a person who got permit for CRP system once (which is already termed
as illegal in clause IV in this objection letter) can continue the illegal
mining after expiry of his mining permit until any time, by paying the royalty
and price of the material, that too if caught red handed. According to the
latest decision of Hon’ble Supreme Court of India, illegal extraction of any
minor minerals without the authority to do so should also invite the offence
“theft” under IPC. This shows the seriousness of the offence of mining without
having a valid permit or lease. If it can be legalized by paying a meager
amount, many will perpetuate the illegal mining. This provision is also against
the legal principles of punishment.
XVII.
Condition 7 in Form N is
insufficient to meet the intention and objective of the Act and the Rules.
Condition No.12 in Form U of the earlier KMMC Rule was somewhat better, and was
then included to protect the interest of the public and nearby residents. It
was diluted by bringing an amendment in the eyar 2014. Now it is further
diluted and the public interest regarding the safety for Life and property of
the nearby areas along with the Environmental protection was reduced for the
petty private interest of the mining lobby. Instead of “The permit holder shall carry on the operations
hereby permitted in a fair, orderly,
skillful and workman like manner and shall not cause any damage to life and property in nearby areas and also shall not cause any serious environmental hazard”
You can include
“The permit holder shall carry on the operations hereby permitted in a fair, orderly, skillful and workman like manner and shall not cause any threat or
damage to life and property in nearby areas and also shall
not cause any kind of environmental hazard”.
XVIII.
In Form
H, for conducting mining by using explosives, the minimum distance prescribed
to keep from the nearby residential building is 100 metres. In Form N, the
minimum distance prescribed to keep from nearby residential building is only 50
metres. The activity of mining by explosives by using lease and permit are the
same. The impact on environment is also the same. But the distance is
different, and there is no logic behind fixing such a criteria.
XIX.
50
meter was fixed as minimum distance in the KMMC Rules in 1967 when the mining
was done without using explosives. At present, 50 meter is totally un
acceptable, insufficient and fixed without any scientific basis. In other
neighboring states, the minimum distance prescribed is 300 meters. The
Environmental Clearance issued by SEIAAs in the neighboring states prescribes
to keep a minimum distance of 300 meters from the nearby residence. It is the
minimum safer distance from explosive blasting and mining, to avoid pollution
and harm to life and property. Kerala and other states can not have different
standard for the same act, if it is scientifically fixed. Reducing 300 meters
to 50 meters or 100 meters without logic, reasoning or the backing of any study
is irrational, unfair and it seems to help the mining lobby arbitrarily. A
public interested Litigation to increase the distance into 300 meter is also
now in the active consideration of the National Green Tribunal.
XX.
There
is no provision in the rules to identify whether an area described in the
application is protected under the Biological Diversity Act or not.
Biodiversity Management Committee (BMC) is the statutory authority in every
Grama Panchayath to declare any area as protected (mining free zone) under the
said Act. It is also unknown whether the land described in an application is
protected under the Conservation of Paddylands and Wetlands Act. Local Level
Monitoring Committee (LLMC) is the statutory body to ascertain the same. If any
mining leases / license is issued in contravention to the provisions of the
Biological Diversity Act or Paddylands Wetlands Act, it is illegal and void also.
The person who obtained such mining lease can not entertain the fruit of it,
and the process for issuing lease is a waste of energy and time to the
government also. Before concluding the rule, the Government should ensure that
a conflict will not occur with any other statutes. For that matter, a new
provision has to be inserted in Rule as Rule 4 (2) (i) that, every application
has to be accompanied with an NOC from the concerned BMC and LLMC.
It is humbly submitted that, the above points may please be
considered at the time of finalization of Kerala Minor Mineral Concession
Rules, 2014. The clarification if any on the above submitted items may be
clarified by undersigned if a proper hearing is granted to me in person or
through my counsel.
Yours faithfully,
30.12.2014
1 comment:
Dear Harish,I am in this fight. I have sent an email to the director as suggested by you.Great initiative.
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