ALAVI Vs. PRINCIPAL SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) The successive Orders of the authorities, including the First Appellate Authority and the Second Appellate Authority, in the context of excavation of ordinary earth beyond the permitted area, in terms of Rule 14(4) of the Kerala Minor Mineral Concession Rules, 2015 ('K.M.M.C Rules', for short) are under challenge in this Writ Petition.

(2.) Ext.P1 is the building permit obtained by the petitioner in the year 2020 and Ext.P2 is the development permit. Ext.P3 is an application preferred by the petitioner before the Geologist seeking permission to remove ordinary earth, which was filed in terms of Rule 14 of the K.M.M.C Rules. Ext.P4 is the reply issued by the Geologist pointing out that no permit is required for excavation of ordinary earth for the purpose of construction of the building, unless it involves transportation of earth. In case of transportation, mineral transit pass has to be obtained. Accordingly, the petitioner developed and excavated ordinary earth and kept the same within the petitioner's property. Petitioner applied for a transit pass and the same was allowed, vide Ext.P5. In the meanwhile, on the basis of a complaint by a neighbour, an inspection was conducted by the concerned among the respondents on 15/4/2021. Pursuant thereto, Ext.P6 notice was issued alleging illegal extraction of 4592 m3 of ordinary earth, which is extracted from about 40-45 cents, outside the permitted area of 8.724 ares. Ext.P7 is the reply issued by the petitioner, wherein he would admit excess excavation in page no.3, paragraph no.2. But according to the petitioner, the same was done to provide steps on the back side of the property, which is lying at a lower level. In page no.4, it is the petitioner's contention that, out of 1075 m3 of soil permitted to be transported as per the mineral transit pass issued, only 357 m3 (200 loads) could be transported. In page no.5 of Ext.P7, the petitioner would admit that he has excavated soil from about 30 cents of land, as against the allegation in Ext.P6 of excavation from 40 to 45 cents. The permitted area was only 8.724 ares. Ext.P8 is the Order confirming Ext.P6 and calling upon the petitioner to pay a sum of Rs.9,18,400.00, being five times the royalty of the quantity of earth excavated from the non-permitted area. The petitioner preferred a statutory appeal before the First Appellate Authority, which was dismissed vide Ext.P9. The appeal preferred before the Second Appellate Authority was also dismissed vide Ext.P11. Exts.P8, P9 and P11 are under challenge herein.

(3.) The petitioner's contention is that Rule 14(4) of the K.M.M.C Rules (unamended Rules, as it stood at the time of issuance of Ext.P6) cannot be pressed into service to a case governed by Rule 14(2). According to the learned counsel, the same can be applied only in a case, where permit is issued in terms of Rule 14(1). Secondly, it was pointed out that the violation, if any, in a case governed by Rule 14(2) - especially in the context of Rule 14(3) - is governed by Rule 14(5), and there is no penalty, whatsoever, contemplated, other than by virtue of Rule 14(5) in a case governed by Rule 14(2). Insofar as the second proviso to Rule 14(2) is concerned, learned counsel would submit that the same is applicable to cases where transportation is required and enabled by transit passes; and not in a case where the soil is merely accumulated and not sought to be transported.