IMPORTANT POINT
Transit passes cannot be denied based on mere apprehensions regarding construction compliance; appropriate actions can be taken for violations post-issuance.

JUDGMENT :

Viju Abraham, J.

1. Petitioner has approached this Court seeking to quash Ext.P4 and for a direction to the 2nd respondent to reconsider the application for transit passes submitted by the petitioner dated 20.5.2022 in tune with Ext.P3 approved building plan taking note of Ext.P7 and permit the petitioner to transport ordinary earth having quantity of 2860.45 M3 from the property of the petitioner situated in Re-survey No. 397/1 in Block No. 23 of Mulakulam Village, Vaikom Taluk, Kottayam District.

2. Petitioner with a desire to start a business of poultry farm in her property covered by Exts.P1 and P2, submitted an application for building permit which was allowed as per Ext.P3. As part of the construction to be undertaken a few areas have to be developed, which necessitated removal of ordinary earth having a quantity of 2860.45 M3. Thereupon petitioner applied for issuance of transit passes before the 2nd respondent under Rule 14(2) of the Kerala Minor Mineral Concession Rules 2015. The 2nd respondent has rejected the same as per Ext.P4 taking a stand that for the proposed construction of a basement is not required and therefore, transit passes cannot be issued. Petitioner relies on Exts.P5 and P6 judgments of this Court, wherein this Court has held that the Geologist has no appellate powers over the orders issued by the appropriate local authority which has been empowered with the consideration of applications for building permit and approved building plans.

3. Heard the learned Government Pleader, who upon instructions submitted that the Geologist has raised an apprehension that the building has no basement and hence once the petitioner enjoys the concession under Rule 14(2), even if no such construction was made, no action can be taken against her and it is in the said circumstance, the application has been rejected.

4. The learned counsel for the petitioner submits that based on an apprehension the application submitted by the petitioner cannot be rejected and further that petitioner has submitted Ext.P7 affidavit undertaking that the petitioner will at least complete the construction of the basement within a period of one year from the date of issuance of the movement permit. Petitioner also undertakes that the construction of the whole building as permitted in Ext.P3 will be completed within a period of one year. I am of the view that merely for the apprehension that the petitioner might not construct the building as per Ext.P3, transit passes cannot be declined and if there is any violation on the part of the applicant in not completing at least the construction of the basement of the building within one year from the date of issuance of movement permit, appropriate action could be taken as provided by Rule 14(6) of the Kerala Minor Mineral Concession Rules.

5. In view of the above, and take into consideration the dictum laid down by this Court in Exts.P5* and P6** judgments, I am inclined to dispose of the Writ Petition as follows:

6. Ext.P4 is set aside, with a consequential direction to the 2nd respondent to reconsider the application for issuance of transit passes submitted by the petitioner as per Ext.P3 approved of building plan and taking note of Ext.P7 and issuance of transit passes to permit the petitioner to transport ordinary earth as requested therein within a period of 3 weeks from the date of receipt of a copy of the judgment. However, the respondents will be free to take appropriate action, if there is any violation of the undertaken given by the petitioner.