The High Court of Kerala interpreted Kerala Minor Mineral Concession Rules regarding sand extraction for a mixed-use building. It held that extraction falls under Rule 106, not Rule 104, as the property is not purely commercial.
Ext.P5 letter set aside; direction to treat application under Rule 106 and pass fresh orders within three weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 15TH DAY OF JULY 2024 / 24TH ASHADHA, 1946
WP(C) NO. 11449 OF 2024
PETITIONERS:
1SIYAD N NAZEER
AGED 50 YEARS
NADALACKAL SHALIMAR MANZIL PERUNGALA P.O, KAYAMKULAM
ALAPUZHA DISTRICT, REPRESENTED THROUGH THEIR POWER OF
ATTORNEY HOLDER, NAZZARUDHEEN, NADALACKAL SHALIMAR
MANZIL, PERUNGALA P.O, KAYAMKULAM, ALAPUZHA DISTRICT
690559), PIN - 69055
2RIAZ N NAZEER
AGED 51 YEARS
NADALACKAL SHALIMAR MANZIL PERUNGALA P.O, KAYAMKULAM
ALAPUZHA DISTRICT 690559 (BOTH THE PETITIONER
REPRESENTED THROUGH THEIR POWER OF ATTORNEY HOLDER,
NAZZARUDHEEN, NADALACKAL SHALIMAR MANZIL, PERUNGALA
P.O, KAYAMKULAM, ALAPUZHA DISTRICT, PIN - 690559
BY ADVS.
UNNI. K.K. (EZHUMATTOOR)
PRAFIN JOSEPH ZACHARIA
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 6950012 DISTRICT COLLECTOR CIVIL STATION, ALAPUZHA, PIN - 6880013 SENIOR GEOLOGIST MINING AND GEOLOGY MINI CIVIL STATION, CHERTHALA ALAPUZHA DISTRICT, PIN - 6885244 KAYAMKULAM MUNCIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, KAYAMKULAM MUNICIPAL CORPORATION KAYAMKULAM P.O, ALAPUZHA DISTRICT, PIN – 690502W.P.(C).No. 11449 of 2024
..2..
5SECRETARY
KAYAMKULAM MUNICIPAL CORPORATION KAYAMKULAM P.O,
ALAPUZHA DISTRICT, PIN - 690502
BY
ADV.RAJAN T R – STANDING COUNSEL
ADV.AJITH VISWANTHAN – GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15.07.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).No. 11449 of 2024
..3..
J U D G M E N T
Dated this the 15th day of July, 2024
Petitioners are aggrieved by Ext.P5 letter of the
3rd respondent/Geologist, which found that the
petitioners' request (about which detailed
reference is made herebelow) does not fall under
Rule 106, but under Rule 104 of the Kerala Minor
Mineral Concession Rules, 2015 (herein after
referred to as the 'K.M.M.C. Rules', for brevity).
The issue involved in this Writ Petition, is
whether Rule 106 or 104 applies, if extraction of
ordinary sand is required for the construction of
a commercial-cum-residential building.
2.Petitioners are brothers, who own 3.18 ares of
land in Kayamkulam Town. They were issued with a
building permit by the Municipality concerned for
the construction of a commercial-cum-residential
building, the total built up area of which is
W.P.(C).No. 11449 of 2024
..4..
569.70 sq.mtrs. The cellar area and the floor
above the same, both, require construction of 135
sq.mtrs each. The cellar area is for commercial
purpose, whereas the floor above is to be used for
residential purpose. Petitioners made application
to the 3rd respondent for issuance of transit pass
and movement permit, treating extraction of
ordinary earth as one falling under the proviso to
the Rule 106 of the K.M.M.C. Rules. As inspection
conducted by the 3rd respondent revealed that, what
has to be removed is not ordinary earth, but
ordinary sand, a minor mineral. Accordingly, the
petitioners were required to obtain special
permission from the Government under Section 104
of the K.M.M.C. Rules, which also necessitates a
'No Objection Certificate' from the R.D.O.
concerned.
3. Having heard the learned counsel for the
petitioners, learned Government Pleader on behalf
W.P.(C).No. 11449 of 2024
..5..
of the respondents 1 to 3 and Adv.T.R.Rajan,
learned Standing Counsel for respondents 4 and 5,
this Court is of the opinion that, Rule 104 is not
applicable to the instant facts. Rule 104 speaks
of “special permission” to extract and remove
minor minerals in “special circumstances”, as the
heading to the Rule indicates. This Court by
judgment dated 18.06.2024 inRajesh K. v. The
District Geologist and others[W.P(C)No. 13425 of
2024], held thus, as regards the scope of Rule
104:
“Rule 104 speaks of grant of “special
permission to extract and remove minor
minerals in special circumstances”. The
entire gamut of Rule 104 would leave no doubt
that Rule 104 envisages a larger activity,
which requires a special permission from the
State Government. It is unreasonable to
contemplate that, for the purpose of
extracting mineral from a residential
property for digging a pond, the State
Government has to apply its mind and grant
permit/licence.”
W.P.(C).No. 11449 of 2024
..6..
4.Interpreting the expression “such as” as
employed in Rule 106, it was held as follows in
Rajesh K.(supra):
“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 to
be issued by the competent authority, after
collecting the royalty. However, in the
former case, the only liability is to
intimate the competent authority of the
intention to carry out the works and also the
payment of royalty for all minerals, except
ordinary earth.”
W.P.(C).No. 11449 of 2024
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5. In the instant case, it is noticed that the
construction isthatof a commercial-cum-
residential building. It was argued by the learned
Government Pleader that Rule 106 will apply only
in cases of residential buildings and the same
cannot govern the extraction of mineral for a
commercial building, wherefore, special permission
under Rule 104 is required. This Court cannot
accept the said contention of the learned
Government Pleader. As already held in Rajesh K.
(supra), Rule 106 speaks of any case or class of
cases such as construction of common facilities or
residential building, where extraction of minor
mineral is inevitable. It could thus be seen that,
the construction of common facilities or
residential building are two categories, which are
pre-qualified by the term “such as”. Therefore,
other case or classes of cases can also fall under
Rule 106. Two specific nature of constructions
W.P.(C).No. 11449 of 2024
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specified in Rule 106 is not exhaustive, but only
indicative, as could be seen from the expression
“such as”. In the instant case, this Court notice
that, what is being constructed is not a fully
commercial building, but a building where the
cellar portion is used for commercial purpose and
the floor over the same, for residential purpose.
As held inRajesh K.(supra), it is unreasonable to
contemplate that, the State Government should
apply its mind and grant a special permission for
the purpose of extracting mineral from the
property of the petitioners for construction of a
residential-cum-commercial building, which cannot,
by any yardstick, be treated as a 'special
circumstance' to obtain a 'special permission', as
envisaged in Rule 104.
6.In the light of the above discussion, Ext.P5
letter of the 3rd respondent/Geologist is set
aside. There will be a direction to the 3rd
W.P.(C).No. 11449 of 2024
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respondent to treat the petitioners' activity as
one falling under Rule 106 and to pass fresh
orders in Ext.P4 application, in accordance with
law, within a period of three weeks from the date
of receipt of a copy of this judgment.
The Writ Petition (Civil) is disposed of as above.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
W.P.(C).No. 11449 of 2024
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APPENDIX OF WP(C) 11449/2024
PETITIONER EXH |
IBITS |
||||
|---|---|---|---|---|---|
Exhibit P1 |
TRUEDATEDOFFIC |
COPY19.ER KA |
OF4.20YAM |
THE23KULA |
POSSESSION CERTIFICATEISSUED BY THE VILLAGEM |
Exhibit P2 |
TRUEDATEDOFFIC |
COPY25.ER KA |
OF4.20YAM |
THE23KULA |
POSSESSION CERTIFICATEISSUED BY THE VILLAGEM |
Exhibit P3 |
TRUE20.1.ISSUE |
COPY2023D BY |
OFALOTHE |
THENG5TH |
BUILDING PERMIT DATEDWITH THE APPROVED PLANRESPONDENT |
Exhibit P4 |
TRUE |
COPY |
O |
F |
THE APPLICATION DATED |
29.11RESPO |
.2023NDENT |
SUBM |
ITTED TO THE 3RD |
||
Exhibit P5 |
TRUEOF TH |
COPYE 3RD |
OFRE |
THESPON |
LETTER DATED 23.1.2024DENT |
2 issues framed by the court
Whether Rule 104 or Rule 106 of the Kerala Minor Mineral Concession Rules, 2015 applies for extraction of sand for construction of a commercial-cum-residential building.
Whether the construction and mineral extraction necessitate 'special circumstances' warranting state permission under Rule 104.
Colour shows how this judgement treated each authority
Rajesh K. v. The District Geologist and othersFollowed¶34
Rajesh K. v. The District Geologist and others[W.P(C)No. 13425 of 2024]
3 provisions across 2 enactments
SIYAD N NAZEER
RIAZ N NAZEER
STATE OF KERALA
DISTRICT COLLECTOR CIVIL STATION ALAPUZHA
SENIOR GEOLOGIST MINING AND GEOLOGY MINI CIVIL STATION CHERTHALA
KAYAMKULAM MUNCIPAL CORPORATION
C. JAYACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court