Point of Law: Minor Mineral Concession Rules do not seem to explicitly provide for the documents to be submitted for issuance of transit passes in cases where the Building Rules do not provide for issuance of a Development Permit.

JUDGMENT :

SATHISH NINAN, J.

1. The discussions and the findings in this judgment relate to the requirement of a development permit from the local authority, for the issuance of transit pass under Section 14(2) of the Kerala Minor Mineral Concession Rules, 2015. Since common issues of law and facts arise for consideration in these writ petitions, they are being disposed of by a common judgment.

2. To construct a building in the property belonging to the petitioners, they obtained building permits from the concerned Panchayats. For constructing the building, since ordinary earth is required to be extracted and transported, they require transit passes from the Department of Mining and Geology. The first proviso to Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as “the C.R. KMMC Rules, 2015”) mandates production of a ‘land development permit’ from the local authority, for issuance of transit passes. According to the petitioners, since ‘development works’ as defined under the Panchayat Building Rules, 2019 is not required to be done in the property, a Development Permit is not necessary. However, since the Department of Geology insisted for production of a Development Permit as a condition for issuance of transit pass, the petitioners submitted applications to the respective Panchayats for issuance of Development Permit.

3. On the application for development permit, the Panchayats, refusing to issue the permit, have taken the following stance:-

(i) On the issuance of a building permit, it shall be deemed that development permit is also granted.

(ii) In cases where there is no ‘development of land’ within the meaning of the Building Rules, a development permit is not required to be issued.

(iii) For issuance of a development permit, a ‘No Objection Certificate’ from the Geologist is to be obtained in terms of Rule 5(4) of the Kerala Panchayat Building Rules 2019.

4. The Department of Mining and Geology, when approached for the issuance of NOC in terms of clause (iii) above, expressed that, there is no provision of law requiring them to issue such a certificate and that it is for the Panchayat to issue the development permit.

5. It appears that the stand adopted by the Panchayats is based on certain clarificatory instructions/circulars issued from the Town Planning Department on certain queries, based on the particular factual situations obtaining therein. However, the same has been understood by the Panchayats as an universal rule. The respective petitioners are being shunted from pillar to post, but of no avail. It is thus aggrieved, that they are before this Court.

6. Heard learned counsel Sri. Rafeek V.K. and Smt. Saipooja on behalf of the respective petitioners, Sri. Liji J. Vadakkedam, Sri. Ajay Ben Jose on behalf of the respective Panchayats and Sri. Ravikrishnan, learned Government Pleader.

7. In terms of the Kerala Panchayat Building Rules, a development permit is necessary only in cases where “development of land” as defined under the Rules is involved. This Court has consistently taken the view that, for construction of a building by the purchaser of a plot of land where no ‘development of land’ as defined under the Building Rules is involved, no development permit is necessary. [See: Nafeesa vs. Chavakkad Municipality, 2018 (3) KLT 1]. Therefore the Panchayats were right in taking the stand that, since no ‘development of land’ in terms of the Building Rules is involved, a development permit could not be issued.

8. Now coming to the stand taken by the Department of Mining and Geology, before I proceed to discuss on Section 14(2) of the KMMC Rules, 2015 and the provisos thereto, I deem it appropriate to extract Section 14 (1), (2) and the provisos:

“(1) A quarrying permit under these rules shall be obtained for extraction of ordinary earth used for filling or levelling purposes in construction of embankments, roads, railways or buildings in Form N.

(2) Notwithstanding anything contained in sub-rul