IMPORTANT POINT
Rule 106 of the Kerala Minor Mineral Concession Rules exempts the need for obtaining quarrying permit/lease for extraction of minor minerals for special purposes, and only requires intimation to the competent authority and payment of royalty if no transportation of the mineral is involved.

JUDGMENT :

Petitioner is the owner in possession of landed property having an extent of 51.19 Ares. The petitioner stands in need of digging a pond therein for agricultural activities. The same involves extraction of granite. According to the petitioner, the granite is intended to be used for constructing the boundary walls of the pond. At any rate, the same is not required to be transported outside the premises. According to the petitioner, his activity will fall under Rule 106 of the Kerala Minor Mineral Concession Rules, 2015, which only speaks of an intimation to the competent authority. However, a stop memo has been issued, vide Ext.P4 treating the activity as one coming within Rule 104 of the Rules afore referred. The short issue, which falls for consideration is whether Rule 104 or 106 applies to the fact situation herein.

2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing on behalf of the respondents.

3. Learned Counsel for the petitioner would submit that, the purpose specified for extraction of granite is the construction of a pond. The specific case espoused by the petitioner is that the granite to be excavated will be used for construction of boundary walls of the pond and there is no requirement, whatsoever, to transport the granite outside the premises. So long as transportation of mineral or earth is not involved, Rule 104 is not attracted, is the submission made. The learned counsel would refer to the terms “extraction and transportation” as employed conjunctively in Rule 104 repeatedly, whereas, there is no such transportation envisaged in the main part of Rule 106. It is only in the proviso, which speaks of transportation of the mineral extracted, which requires enabling transit passes to be issued, after collecting the royalty.

4. Having heard the learned counsel appearing for the respective parties, this Court finds that the petitioner’s case will fall under Rule 106, which is extracted here below:

“106. Extraction of minerals for special purposes.-- (1) In any case or class of cases such as construction of common facilities or residential building where extraction of minor mineral is inevitable as a part of the work, the person doing such work may be exempted from obtaining quarrying permit/lease under these rules:

[Provided that before extraction of minor minerals, the person concerned shall intimate the competent authority his intention to carry out the works to be performed along with detailed proposal for excavation/ use /transportation and shall furnish necessary documents as required by the competent authority in this regard. If the extracted mineral is used as building material in the property from where the same is extracted then the person concerned shall remit royalty for all minerals except ordinary earth and if the extracted mineral including ordinary earth is to be transported outside the work site, the competent authority may issue special mineral transit passes after collecting the royalty.]

Explanation: For the purpose of this rule, "common facility" includes waiting sheds, public wells, public libraries and reading rooms, [recognized educational institutions] temples, churches, mosques used for public purpose.” (underlined by me, for emphasis)

This Court may emphasise the expression “such as” as employed in the beginning part of Rule 106(1), wherefore the case or class of cases is not exhausted by the two utilities specified in Rule 106(1), that is to say, construction of common facilities or construction of residential building. These two specific nature of constructions are prequalified by the term “such as”, wherefore, other case or class of cases can also fall under Rule 106, wherein, extraction of minor mineral is inevitable as part of the work. Once Rule 106 applies, then the remaining question is whether it is a case of extraction simplicitor, or extraction coupled with transport. In the latter case, there should be enabling mineral transit passes t