Siyad N Nazeer and Riaz N Nazeer v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 ``` ## **`WP(C) NO. 11449 OF 2024`** ## **`PETITIONERS:`** - **`1 SIYAD 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`** - **`2 RIAZ 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 - 695001`** - **`2 DISTRICT COLLECTOR CIVIL STATION, ALAPUZHA, PIN - 688001`** - **`3 SENIOR GEOLOGIST MINING AND GEOLOGY MINI CIVIL STATION, CHERTHALA ALAPUZHA DISTRICT, PIN - 688524`** - **`4 KAYAMKULAM MUNCIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, KAYAMKULAM MUNICIPAL CORPORATION KAYAMKULAM P.O, ALAPUZHA DISTRICT, PIN – 690502`** ``` W.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 15[th] day of July, 2024`**_ ``` Petitioners are aggrieved by Ext.P5 letter of the 3[rd] 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 ``` **==> picture [45 x 9] intentionally omitted <==** ``` 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 3[rd] 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 3[rd] 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 ``` **==> picture [45 x 9] intentionally omitted <==** ``` 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 ``` **==> picture [45 x 9] intentionally omitted <==** ``` 5.In the instant case, it is noticed that the construction isthat of 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 ``` **==> picture [45 x 9] intentionally omitted <==** ``` 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 3[rd] respondent/Geologist is set aside. There will be a direction to the 3[rd] ``` ``` W.P.(C).No. 11449 of 2024 ``` **==> picture [45 x 9] intentionally omitted <==** ``` 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 ``` ``` ..10.. ``` ## **`APPENDIX OF WP(C) 11449/2024`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE POSSESSION CERTIFICATE DATED 19.4.2023 ISSUED BY THE VILLAGE OFFICER KAYAMKULAM Exhibit P2TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.4.2023 ISSUED BY THE VILLAGE OFFICER KAYAMKULAM Exhibit P3TRUE COPY OF THE BUILDING PERMIT DATED 20.1.2023 ALONG WITH THE APPROVED PLAN ISSUED BY THE 5TH RESPONDENT Exhibit P4TRUE COPY OF THE APPLICATION DATED 29.11.2023 SUBMITTED TO THE 3RD RESPONDENT Exhibit P5TRUE COPY OF THE LETTER DATED 23.1.2024 OF THE 3RD RESPONDENT ```