Quarries not exempt from land ceiling in Kerala: Supreme Court

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An aerial view of a stone quarry in Malapuram district. Photo: Shaju John

A severe shortage of rocks in Kerala, among other reasons, has delayed the construction of the breakwater of the multi-purpose seaport project at Vizhinjam by the Adani Group, one of Kerala’s flagship infrastructure projects. Photo: R. Krishnakumar

The Supreme Court order against the plea to exempt quarries from the ceiling limits under the Kerala Land Reforms Act has far-reaching implications for various economic sectors in the State.

Over four decades after the legal question whether a rocky land used for quarrying could be considered a “commercial site” and hence exempted from land ceiling provisions under the Kerala Land Reforms Act, 1963 was first raised in a court of law, the Supreme Court, in a blow to unscrupulous quarrying interests in Kerala, ruled on September 30 that it could not be. The apex court upheld an earlier ruling of a full bench of the Kerala High Court which held that quarries were not covered by the expression “commercial site” in the Act, and, therefore, such sites could not be exempted from the land ceiling provisions of the Act. The Act defines a “commercial site” as “any land…which is used principally for the purpose of any trade, commerce, industry, manufacture or business”. The court ruled that “extension of the words ‘commercial sites’ to quarries would result in defeating the purpose of the Act”.

The implications of the ruling may not be confined to curbing unauthorised quarrying activities within the plantations in the State alone. Environmental activists and lawyers say that by clearly reiterating the objective of the Kerala Land Reforms Act, 1963, in the ruling, the apex court has also curtailed sustained incremental efforts in the State to dilute or override land ceiling laws. They say that the order will have a bearing on hundreds of cases connected with the Act currently being heard in various courts in Kerala.

The Supreme Court gave this ruling in a case (K.H. Nazar vs Mathew K. Jacob and others) in which petitions were filed against the environmental clearance granted to an individual for launching quarrying activities inside a plantation site.

Illegal quarrying in plantation land has become a commercially attractive proposition in Kerala, a State that is facing the disastrous ecological impacts of unbridled exploitation of natural resources on the one hand and an acute scarcity of much-needed construction material on the other, as was evident after the disastrous back-to-back floods in the State in 2018 and 2019 (“Extreme weather events: Tough time ahead”, Frontline, September 13, 2019). Under the Kerala Land Reforms Act, 1963, no person can own land in excess of the ceiling of a maximum of 15 standard acres fixed under its provisions, and any land owned in excess is to be taken over by the government for redistribution among landless people in the State.

However, several categories of land were exempted from this ceiling on ownership, including plantations and commercial sites.

Accordingly, a person can own large extents of plantation land in the State, unaffected by the legal limit on land ownership. However, as production of plantation commodities such as tea, coffee, cocoa, rubber, cardamom and cinnamon increased all over the world and their prices fell as a result, plantation activity began to lose much of its original charm (“Price is the rub”, Frontline, August 5, 2016).

Many plantations were closed down or remained defunct, with production stopped and workers rendered jobless. But the value of plantation land as an untapped resource of rocks and other construction material began to rise simultaneously and attracted the attention of quarry business interests even though the conversion of such land for any activity other than agriculture would make it illegal and invite the land ceiling provisions in the Act.

Objectives and the reality

Kerala’s acclaimed land reforms had the important objectives of abolition of the tenancy system, giving ownership rights to occupants of homestead (kudikidappu) lands and reducing the concentration of ownership of landholdings (“The land question”, Frontline, January 18, 2008).

The third key objective, that is imposition of ceilings on land ownership and distribution of excess land to the landless was, however, not so successfully implemented. To escape the ceiling rules, landlords transferred their land on a large scale to relatives or others, either by illegal means or with the help of new legal amendments. Such measures, including the exemption given for different categories of land, eventually left nearly one-third of the State’s population landless, including the poorest of the poor fishermen, Dalits and tribal communities.

A controversial provision exempting plantations from ceiling limit was included in the Act out of a concern that agricultural production would be affected as a result of the fragmentation of large tracts of plantations.

But over the years, as land became a premium “commodity” rather than a means of production in Kerala, plantation land too got fragmented to a great extent and converted for other uses through convenient amendments to the provisions of the 1963 Act or through illegal means.

Court rulings

Large extents of plantation land began to be used for quarrying, for instance, on the basis of a judgment of the Kerala High Court’s division bench in 1996 (in State of Kerala vs Muhammedali), which said that quarries would indeed come under the definition of “commercial sites” under the Act and thus were entitled for exemption from the ceiling provisions.

Subsequently, a single judge of the High Court expressed doubts about the view of the division bench in the Muhammedali case and referred it to another division bench with the observation that such a view would aid the conversion of agricultural land, defeating the very purpose of the Act and lead to environmental degradation. The doubt expressed by the single bench was endorsed by the division bench and referred to a full bench of the Kerala High Court.

The ruling of the Kerala High Court’s full bench on November 16, 2018, was that a quarry will not come under the definition of “commercial site” under the Kerala Land Reforms Act, 1963, and hence was not eligible for exemption from the ceiling provision.

In the latest judgment delivered on September 30, the Supreme Court bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta upheld this ruling of the full bench of the High Court. Significantly, the apex court said that Section 81 of the Act, which exempted certain lands and sites from the ceiling provision, should be interpreted in a manner that promoted the object of the Act and restricted the concentration of large swathes of land in the hands of a few individuals. Wider interpretation of the words “commercial site” would defeat the laudable object of the Act.

The court said that the extent of land that can be held was fixed and any land in excess has to be surrendered to the government and distributed to landless people in the State. The provisions of the Act should be interpreted in a manner that promoted the said objective.

Implications

Activist-lawyer Harish Vasudevan, who argued the case in the High Court, told Frontline: “The Supreme Court’s ruling has important implications. It limits the area of operation of quarries to a maximum of 15 acres. It says ‘no’ to the use of plantation land for quarrying. Quarry owners who misuse plantations for quarrying will lose the land. Moreover, by clearly defining the objective of the Kerala Land Reforms Act, 1963, it leaves open a legal avenue that makes the government take over plantation land illegally in the possession of quarry owners and distribute it to the landless.”

In the order, the Supreme Court bench, in fact, pointed out that the exclusionary provisions in a beneficial legislation should be construed strictly so as to give a wide amplitude to the principal objective of the legislation and to “prevent its evasion on deceptive grounds”.

“The dominant legislative intent of the Act is the imposition of ceiling on landholdings and distribution of excess land among landless people. Large number of people have no place of abode in the State of Kerala, which is known as God’s own country. To provide land to such landless people by taking it from those who possess in excess is the major objective of the Act,” the court said.

“The issue of land ceiling is already a settled matter. No person can hold more than 15 standard acres of land in Kerala. There is nothing further the government needs to do regarding this. But there are hundreds of cases in the courts where the Supreme Court verdict may play a role,” Dr V. Venu, Principal Secretary, State Revenue Department, told Frontline. He said that the State government has asked the Advocate General for legal advice on the implications of the apex court judgment. “But there is no change in the government’s stand. It has stopped giving exemptions for plantation land to be used for other purposes. It does not give sanction for quarries in plantation land and no licenced quarry is functioning in plantation land. But rocks are available in plenty in plantation land. And it was the plantation owners who wanted exemption who approached the court in the first place.”

Harish Vasudevan said it was significant that the intention of the Act had been clearly defined by the Supreme Court. No plantation can now be converted into quarries, as it has been happening in many places in Kerala. This judgment, he said, was a milestone. It prevented the possibility of hundreds of acres of plantation land in Kerala from being opened up for quarrying in the future. Plantation land now illegally in the possession of quarry owners will become government land that can be used for distribution to the landless.

The environmental activist C.R. Neelakandan described it as a judgment that has a long reach. “It could affect estates that have been given for quarrying activities at many places, as in Pathanamthitta, Kottayam and Thiruvananthapuram and other such districts which I have visited. It could affect the government’s reported moves to allow agricultural land to be converted for use as quarries. It could influence the course of litigation in hundreds of cases. But all of this requires the law to be applied strictly, not loosely,” he said.

For example, he said, today a quarry may start functioning in an inaccessible plantation area with a conditional licence or with the intention of getting post-facto approval. There has been no active legal involvement or regular monitoring. Only when complaints arose did the government take note that it was an illegal quarry. Joseph Jacob, secretary, Registered Metal Crusher Owners Association, told Frontline that there was a lack of clarity in the Supreme Court judgment and a “policy vacuum” in Kerala when it came to the issue of quarries.

“In our view, there are just over 600 quarries surviving in Kerala. Ever since environmental laws began to be strictly implemented, the number of quarries has come down drastically. But the need for granite and related products is increasing day by day. Quarrying involves a number of allied activities and requires a large area for operation. The extent of government land has come down. There is a need for a proper study. I am not saying there are no illegal quarries in the State. But when violations occur, the impression is that all quarrying activity is illegal. The government adopts a policy of looking the other way when there is a shortage of raw material. Effective legal changes are not brought about in a timely manner. Such a policy vacuum makes it difficult to run quarries strictly according to the law.”

“The government must treat quarrying as an industry and frame the necessary rules for it, clearly saying what can be done and what should not be done. But because of the increasing uproar over the environmental impact of quarrying, the state often does not take a stand, especially when controversies arise. Nevertheless, quarrying requires certain facilities. Large extents of land, for sure. There has to be a proper policy on this,” he said.

Jacob also said there was often a conflict of interest between legitimate players and those who acted illegally, between big players and small-time players in the State. “There are illegal quarries in the State, especially in the northern districts. Can illegal quarrying function without the knowledge and involvement of the government machinery? The point is, when there is an issue, all quarries are seen as engaging in illegal activity. And it is ultimately the legitimate players who suffer. Take the case of the recent judgment which says quarrying is not a commercial activity and a quarry owner cannot have more than 15 acres. The result could be that it would tempt people to launch ten companies each with 15 acres and find the required spread for quarrying. It is not a business-friendly decision and ultimately it encourages people to bypass the rules.”

Reliable data on the actual number of quarries in Kerala and their location are unavailable. There are sharp differences of opinion even on whether plantation land is being converted on a large scale into quarries in the State. Government officials deny that quarries are operating at all in plantations. Environmental activists say otherwise. There are also sharp differences in the way activists and quarry owners interpret the implications of the Supreme Court ruling. Only time will tell how this significant court ruling will be made use of by the State and whether the problem of acute scarcity of construction raw material will force the government’s hand to favour the logic of the quarry owners and ignore the pleas of the environmental and social activists.

According to the State Mining and Geology Department, there are only 723 licensed quarries in Kerala now. Moreover, on the basis of a recent High Court order, over 100 of the 723 quarries are listed to be closed down soon, department sources said.

According to them, “exaggerated figures” have gained currency; for example, a recent study using Google Maps has wrongly estimated the number of quarries as nearly 6,000, without a proper verification of the number of functioning quarries on the ground. They also challenge the credibility of a Comptroller and Auditor General’s report on economic activities in Kerala in 2017 that said that between 2011 and 2016, 11,059 quarrying permits were granted in Kerala and that 20,821 cases were detected that included those involving illegal quarrying, illegal transportation and illegal storage of minor minerals.

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