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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 & 31 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 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 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[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 shall take
cognizance of any offence punishable under these rules, except upon a complaint
in writing made by a person authorized in this behalf by the Government or the competent authority. The name or the designation of such
person shall be published in the Gazette.”
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.