The court clarified the necessity of genuine verification beyond permits for excavation related to construction activities.

J U D G M E N T

The petitioner owns a property in Re.Sy.No.274/1, 274/2, 274/3 of Kangazha Village at Changanacherry Taluk, in which she intends to construct a residential building of 279.67 sq. metres, the permit of which is produced at Ext.P1. The petitioner is exempted from obtaining a quarrying permit by virtue of Rule 14 of the Kerala Minor Mineral Concession Rules , 2015 (for brevity the 'Rules'). However, she has to obtain O(A) Forms under the Rules for transportation of the excavated earth.

2. By virtue of Rule 14 of the Rules the persons doing construction of residential building including flats or commercial buildings having a plinth area upto 300 square metres are exempted from obtaining quarrying permit under the Rules, if the owner of the land has obtained a prior valid permit for construction of such building from the concerned Local Self Government authority. The said Rule reads as follows:

“14. Quarrying permit for Ordinary earth:

(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-rule (1), no quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction of residential buildings including flats or commercial buildings having a plinth area of 300 square metres if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned;

Provided that in cases where transportation of ordinary earth is required, the owner shall pay royalty for the quantity to be transported and shall obtain mineral transit passes under the Kerala State Minerals (Prevention of illegal mining, storage and transportation) Rules, 2015 from the competent authority;

Provided further that the competent authority shall not issue mineral transit passes for removal of ordinary earth exceeding the quantity needed to be extracted, as ascertained by it through a site inspection.”

3. The mere existence of a permit cannot lead to a presumption that there is, in fact, a construction intended. It cannot also be presumed that there would be requirement of sand excavated for carrying on the construction. These are factors which has to be looked into before the extraction is permitted and the extracted earth allowed to be transported. The petitioner, hence, shall file an application to the Geologist producing the permit and the plan as also an undertaking to finish the construction, of at least the foundation of the building, within a period of not more than six months. The District Geologist then shall consider issuance of 'Mineral Transit Pass' in Form O(A) of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 (for brevity “Transportation Rules”), without insisting for 'NOC'/Mining permit; however, the same shall be only on satisfaction of the genuineness of the claim of the petitioner based on the building permit issued by the Local Self Government Institution; after due verification from the Panchayath and on the petitioner proving her identity.

4. The respondent Geologist shall inspect the property and determine the amount of earth to be extracted, if found necessary, as per the requirement of the building plan. The petitioner shall then extract the earth after which, a further inspection shall be conducted and only then; passes be issued limited to removal of the quantity so stacked. It is made clear that the mining passes shall be issued only after the ordinary earth to be transported is stacked in the property which has to be physically inspected by the Geologist. The Geologist shall also issue as many number of passes as there are vehicles required for transporting the heaped quantity of ordinary earth after ensuring that the entire details required in form O(A) is filled up by the petitioner. It g