IMPORTANT POINTS
The violation of Rules 25 and 26 of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules. Contention has also been raised that the vehicles and JCB were seized not in transit of ordinary earth, as is evident from Ext.P7 mahazar. Moreover, the vehicles were seized and taken into custody when they were kept in the premises of the building site.

JUDGMENT :

S.MANIKUMAR, J.

Being aggrieved by the judgment dated 10.1.2020 in Writ Petition No.234 of 2020, appellants/writ petitioners have filed instant writ appeal. Challenge raised in the writ petition is that seizure and detention of vehicles and earth remover for the alleged extraction and transportation of ordinary earth unauthorizedly from the property of one Mohammed Faris, Marekkara comprised in R.S.No.S.80/1C-2.2, is illegal.

2. Learned Single Judge, after considering the rival submissions, dismissed the writ petition, relevant portion of which reads thus:

“2. The learned Government Pleader points out that by virtue of Rule 14 (1) and (2) of the amended proviso the owner WP(C).No.234 OF 2020(D) 3 of the land shall obtain minerals transit passes for the quantity to be transported. The petitioners ought not to have accepted the contract for transporting of the earth, as the owner did not have the transit passes and the petitioner has an alternate remedy under Rule 27 of Kerala Minerals (Prevention of illegal Mining, Storage and Transportation) Rules, 2015.

3. I have heard the learned counsel for the parties. It would be difficult of things to extract Rule 14 (1) and (2) along with the amended proviso:

“[provided that in cases where transportation of ordinary earth is required, the owner of the land shall obtain minerals transit passes for the quantity to be transported under the Kerala Minerals (Prevention of illegal Mining, Storage and Transportation) Rules, 2015 after making payment of royalty, on an application submitted in this regard. Such application shall be accompanied by (1) valid building permit for construction of building obtained from the Local Self Government authorities concerned, (2) land development permit obtained from the Local Self Government authorities concerned in cases where the leveling of the land and extraction of ordinary earth is involved and (3) possession and enjoyment certificate of the land issued by the Village Officer concerned: Provided further that in cases where leveling of land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authorities concerned which shall contain the area of land to be developed for the construction of the building and the quantity of ordinary earth to be extracted for such construction].”

On plain and simple reading of the aforementioned provisions, it is discernible that whenever the transportation of ordinary earth, it is mandatory for the owner to obtain transit passes for the quantity to transported under Kerala Minerals (Prevention of illegal Mining, Storage and Transportation) Rules, 2015. The petitioners have not ascertained whether the owner had taken the transportation of ordinary earth after obtaining mineral transit passes. The contention of the counsel for the petitioners regarding the applicability of sub Rule 2 of Rule 14 is only with regard to the quarrying permit and not for the transportation. Both the expressions are totally different context in a plain and ordinary language. Therefore, I do not interfere in this matter under Article 226 of the Constitution of India.

Accordingly, this writ petition stands dismissed.”

3. Learned counsel for the appellants submitted that since the owner of the property has obtained Ext.P6 building permit, valid upto 14.10.2021, for construction of a residential building having an extent of 184.08 sq.mtrs., no permit is required for extraction of ordinary earth as provided under Rule 14 of the Kerala Minor Mineral Concession Rules and therefore, the seizure and custody of earth remover is without any authority of law.

4. Further contention raised in the writ petition is that, as per Rules 26 and 27 of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, under which transit passes are issued in Form O(A) and O(B) makes it very clear that such transit passes are required only in case