Point of law: Though R.14(1) of the Kerala Minor Minerals Concessions Rules, 2015 require a quarrying permit for extraction of ordinary earth, R.14(2) provides that, a quarrying permit is not required in cases where the extraction is in connection with the construction of buildings which do not require environmental clearance, provided that, the construction is on a valid building permit.

JUDGMENT :

S. MANIKUMAR, J.

1. Appellants, who are the respondents 1 and 2 in W.P. (C) No. 12066 of 2021, challenges the judgment dated 29.07.2021 passed by a learned single Judge of this Court in the aforesaid writ petition filed by the 1st respondent herein seeking a direction to the Secretary, Mavelikkara-Thekkekkara Grama Panchayat, 1st appellant, to issue land development permit to the writ petitioner for extraction and transportation of ordinary earth from the property, for the construction of a residential building.

2. Gopinathan Pillai S/o Shankarapillai, Kulathintekizhakkathil, Thekkekkara, Allappuzha, writ petitioner, who is the owner of 12.14 Ares of property situated in Re-Survey No. 645/21 of Thekkekkara Village, applied for a building permit to construct a residential building having an area of 178.36 Sq. m. He has submitted Exhibit P1 application seeking for land development permit to remove ordinary earth from the plot owned by him where he is proposing to construct the building and for its transportation.

3. Thereafter, the Technical Officer has inspected the site and reported that the earth to be removed for the purpose of construction can be deposited and levelled in the very same property. As there is no ‘development’ of the land as defined in the Kerala Panchayat Building Rules, 2019 (Rules, 2019 for short) the Secretary, Mavelikkara-Thekkekara Grama Panchayat and Mavelikkara Thekkekkara Grama Panchayat, appellants rejected his application for development permit. At the same time building permit was granted to him. Hence the writ petition.

4. Adverting to the rival submissions and taking note of Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 (Rules, 2015 for short), writ court, vide judgment dated 29th July, 2021 ordered thus:

7. In this context, it is to be noted that in view of Rule 14(2) of Kerala Minor and Mineral Concession Rules, the petitioner cannot extract and transport red earth without a mineral transit pass issued by the Geologist and statutorily the Geologist will not be legally justified, if mineral transit passes are issued in the absence of a land development permit. The fact that extraction of red earth is required from the land of the petitioner for construction of his house, is not in dispute. In the circumstances, if the respondents 1 and 2 refused to issue land development permit that will put the petitioner in a peculiar situation and the petitioner will have to face even prosecution under the Kerala Minor and Mineral Concession Rules, if the extracted red earth is to be transported.

In the circumstances, this Court is of the considered opinion that the respondents 1 and 2 are compellable to issue land development permit of the petitioner so as to enable the petitioner to obtain mineral transit pass from the Geologist. Accordingly, the writ petition is disposed of directing the respondents 1 and 2 to issue land development permit to the petitioner enabling the petitioner to obtain mineral transmit pass from the Geologist, within a period of four weeks.

5. Being aggrieved, the Secretary, Mavelikkara Grama Panchayat and Mavelikkara Thekkekkara Grama Panchayat, represented by its Secretary, respondents 1 and 2 in the writ petition, have filed the instant appeal on the grounds inter-alia that development permit and transit permit, are not required for the removal of the sand. In support of the above contention, learned counsel for the appellants placed reliance on the provisions of the Rules, 2019, especially Rule 5 and a decision of this Court in Ramachandran T.K. and Another vs. Vellavoor Grama Panchayat and Others, 2021 (5) KHC 51 : 2021 (5) KLT 1.

6. In Ramachandran (supra), a learned single Judge, after considering Rule 14(2) of the Rules, 2015 and in particular the second proviso, held that no development permit is required.

7. That apart, the appellants have also relied on Annexure II Government Order, G.O. (Ordinary) No. 1795/2021/LSGD dated 18.09.2021, in which it has been c