2025:KER:27079 WA NO. 1751 OF 2016 -1- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR & THE HONOURABLE MR. JUSTICE S.MANU WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 WA NO. 1751 OF 2016 AGAINST THE JUDGMENT DATED 07.10.2015 IN WPC NO.17004 OF 2006 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY,DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-01. 2 SENIOR GEOLOGIST DISTRICT OFFICE, DEPARTMENT OF MINING & GEOLOGY,KESAVADASAPURAM, PATTOM.PALACE.P.O.,THIRUVANANTHAPURAM. 3 TAHSILDAR TALUK OFFICE, CHIRAYINKEEZHU,THIRUVANANTHAPURAM DISTRICT. 4 VILLAGE OFFICER OFFICE OF THE VILLAGE OFFICER,ELAMPA, MUTHAKKAL.P.O., ATTINGAL. BY V.TEKCHAND, SENIOR GOVERNMENT PLEADER RESPONDENT/PETITIONER: 2025:KER:27079 WA NO. 1751 OF 2016 -2- MURALIKUMAR S/O.MADHAVAN, PRITHVI KATTUCHANDA, POYIKAMUKKU, CHIRAYINKEEZHU TALUK. THIRUVANANTHAPURAM DISTRICT. BY ADV P.SUJITH KUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:27079 WA NO. 1751 OF 2016 -3- JUDGMENT Dated this the 26 th day of March 2025 NITIN JAMDAR, C.J. Heard Mr. V. Tekchand, learned Senior Government Pleader. 2. This writ appeal is listed on the final hearing board. 3. This appeal is filed by the State challenging the judgment delivered by the learned Single Judge dated 7 October 2015 allowing W.P.(C)No.17004/2006 filed by the Respondent. 4. The Respondent had filed the writ petition challenging the order passed by the State Authorities dated 3 September 2005 and consequential notice dated 15 June 2006. By the said order and notice, the Respondent was called upon to pay royalty in respect of the excavation of sand. Learned Single Judge allowed the writ petition solely on the ground that in an appeal filed by the adjacent property owner who was similarly situated, the Director of Mining and Geology was directed to recover only the amount of royalty of the material on the basis of G.O. (Ms) No.3/2008/ID dated 2 January 2008. The learned Single Judge found that there was no difference between the case of the adjacent property owner and the Petitioner and directed that royalty amount should be reduced to 50,000/- already paid by the 2025:KER:27079 WA NO. 1751 OF 2016 -4- Petitioner as per the interim order of the learned Single Judge. Being aggrieved, the State has filed the appeal. 5. The appeal was filed with delay. Notice was issued on the application for delay condonation which was served, but none appeared for the Respondent. Delay was condoned on 15 November 2019. 6. On 8 October 2024, when the appeal came up for consideration, the matter was adjourned to 25 October 2024, noting that none appeared for the Respondent, and it was recorded that if none appeared for the Respondent, the Court would consider the prayer of the Appellants for an interim order. 7. On 25 October 2024, again none appeared for the Respondent. Learned Senior Government Pleader had contended that the reliance placed in the impugned judgment on an order passed in the appeal filed by the adjacent property owner was misplaced as in that case the State had taken a lenient view considering that it was a case of legal heirs of a deceased and without examining the attendant circumstances, the principle of parity was applied. Considering these arguments, the appeal was admitted and the implementation of the impugned judgment and order was stayed. 8. When the appeal came up on board for consideration on 5 December 2024, none appeared for the Respondent again. It was noted that it is not clear whether the Respondent is interested in taking the 2025:KER:27079 WA NO. 1751 OF 2016 -5- benefit of the interim order, as the Respondent has not appeared in the matter throughout. 9. Thereafter, again the appeal came up on board on 28 February 2025 and today. Yet, none appears for the Respondent. Learned Senior Government Pleader has drawn our attention to the affidavit filed by the State, wherein the following averments have been made: 4. It is submitted that the judgment of the learned Single Judge has been passed on a wrong premise and is liable to be interfered by this Hon’ble Court. The offence was detected pursuant to an inspection carried out by the 2nd appellant on 18.12.2003. It was found that the 1st respondent had extracted 2700 m3 of sand from an area of 53.60 Ares of land comprised in Re-Sy. No.241/6 of Block No.45 of Muthakkal Village of Chirayinkeezhu Taluk. Pursuant to the detection, Ext. P2 demand has been raised. As stated above, as against Ext. P2, an appeal has been filed before the Government and by Ext. P3 order, the total quantity of the mineral extracted has been reduced to 2000 m3. Consequent to the same, Ext.P4 demand of Rs.4,40,000/- has been imposed on the 1st respondent. 5. Section 58(2) of the KMMC Rules 1967 as on the date of detection of the extraction of mineral reads thus:- “Whenever any person raises, without any lawful authority any minor minerals from any land, the State Government may 2025:KER:27079 WA NO. 1751 OF 2016 -6- recover from such person the minerals so raised or, where such minerals has already been disposed of, the price thereof and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.” Thereafter as per GO(P) No.2/2008/ID dated 02.01.2008, Rule 58(2) has been amended whereby the words “price thereof” has been omitted. The said notification has only a prospective effect as the detection and commission of the offence has been made much before the amendment the 1st respondent is not entitled for application of the amended provision. That apart, the learned Single Judge has wrongly applied the order in appeal passed by the Government as per GO(Rt) No.221/2042/ID dated 08.02.2012 which was handed over while the matter was being heard without a copy of the order being served to the appellants. As stated afore, the said order has been issued by the Government in the peculiar circumstances with respect to that matter i.e., it is the legal heirs who has preferred the appeal and Government as a compassionate measure has delete the price of minerals and has directed only to pay the royalty amounts. The same is not applicable to the 1st respondent and he is duty bound to pay the amounts as per the law prevailing at the time of detection of the extraction of minerals unlawfully. 6. It is submitted that Annexure Al document was not a part of record of the writ petition stage and was produced by the 1st respondent at the time of hearing of the writ petition and therefore the same could not 2025:KER:27079 WA NO. 1751 OF 2016 -7- be made part of the records while filing the writ appeal. The acceptance of Annexure Al document will not cause any prejudice to the 1st respondent. Under the circumstances, this Hon’ble Court may be pleased to find that the appeal deserves to be allowed for the reasons stated above and based on the grounds raised in the writ appeal. These averments have gone uncontroverted. Further, the Respondent has shown no interest in contesting the appeal and availing the benefit of the impugned judgement. In these circumstances, the judgment delivered by the learned Single Judge in W.P.(C)No.17004/2006 dated 7 October 2015 is quashed and set aside. The deposit made pursuant to the interim order would be adjusted in respect of the demand. 10. The writ appeal is allowed accordingly. Sd/- NITIN JAMDAR CHIEF JUSTICE Sd/- S.MANU JUDGE uu 2025:KER:27079 WA NO. 1751 OF 2016 -8- APPENDIX OF WA 1751/2016 PETITIONER ANNEXURES Annexure A1 G.O(Rt)No.221/12/ID dated 08-02-2012