The non-obstante clause in Rule 106(5) of the KMMC Rules prevails over the requirement for NOC under Rule 104, allowing for the transportation of clay without the need for NOC, provided identity cards issued by competent authorities are produced.

JUDGMENT :

MURALI PURUSHOTHAMAN, J.

1. The petitioner is an industrial Co-operative Society registered under the Kerala Co-operative Societies Act, 1969. The members of the Society are traditional artisans engaged in clay and pottery works. They have been issued with identity cards by the Ministry of Textiles, Government of India through the Assistant Director (H), Handicrafts Service Centre, Thrissur, the 2nd respondent.

2. On receiving information that large quantities of clay have been stacked in 2.08 Acres of land in Mukundapuram Taluk, the petitioner submitted Ext.P1 request before the 1st respondent, the District Geologist, to issue special transit passes to the artisans and the Society for the transportation of the clay invoking the provisions under Rule 106(5) of the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as ‘the KMMC Rules’ for short). Identity cards of 314 artisans were also submitted along with Ext.P1. However, the Geologist issued Ext.P4 letter to the petitioner informing that, as per the judgment in W.P. (C) No. 31702 of 2022 filed by the land owners, the clay dug out from their properties for the construction of ponds shall not be transported out of the property without obtaining permission from the Geologist and that the said property is classified as ‘nilam’ in the revenue records and as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as Paddy Land and Wetland Act), the application of the petitioner can be considered only after obtaining No Objection Certificate (NOC) from the Revenue Divisional Officer (RDO).

3. The petitioner contends that, as per Rule 106(5) of the KMMC Rules, there is no requirement for traditional artisans making earthern pots to obtain NOC from the RDO for issuance of transit passes for transportation of ordinary clay up to 50 tonnes. According to the petitioner, the only requirement under Rule 106(5) is that the traditional artisans shall produce identity cards issued by the competent authorities. It is stated that the identity cards of the members of the Society were already produced along with Ext.P1 application. The petitioner states that Rule 104 of the KMMC Rules is not applicable in the case of the artisans issued with identity cards by competent authorities in view of Rule 106(5) of the said rules. Accordingly, this writ petition is filed challenging Ext.P4 and for a direction to the 1st respondent to issue special transit passes as sought for in Ext.P1 without insisting for NOC from the RDO.

4. A counter affidavit has been filed by the 1st respondent reiterating the stand taken in Ext.P4 and stating that since the subject land is classified as ‘nilam’ in the revenue records, NOC from the RDO is necessary. Reference is made to Rule 104 of the Rules and the judgment in W.P. (C) No. 31702 of 2022 [Ext.R1(a)] and the order in R.P. No. 204 of 2023 [Ext.R1(b)].

5. Heard Sri. Abraham Vakkanal, the learned senior counsel for the petitioner and Sri. Bimal K. Nath, the learned senior Government Pleader for the respondents.

6. W.P. (C) No. 31702 of 2022 referred to above is filed by the owners of properties from where the petitioner has sought to remove the clay. The said properties are lying contiguous. They sought permission of the RDO to dig pond for aquaculture activities. The properties are shown in the Basic Tax Register as nilam. The Tahsildar has reported that there is no paddy cultivation in the said land or adjoining lands for the last several years. However, in view of the instructions of the District Collector not to grant permission for converting the paddy land for fish farming activities, the application was rejected. Challenging the same, the above writ petition was filed. This Court, by Ext.R1(a) judgment, permitted the petitioners therein to dig pond for aquaculture activities on condition that they give an undertaking that the ordinary earth removed for construction of pond will not be trans