Scope Of Rule 106 KMMC Rules Not Limited To Construction Of Common Facilities & Residential Buildings: Kerala HC Quashes Stop Memo Against Construction Of Pond
|The Kerala High Court quashed the stop memo issued against the construction of a pond under Rule 104 of the Kerala Minor Mineral Concession Rules, 2015 and observed that the term “such as” used in Rule 106 indicated that the scope is not limited to construction of common facilities or residential buildings.
The Court said that it is unreasonable to contemplate that, for the purpose of extracting minerals from a residential property for digging a pond, the State Government has to apply its mind and grant a permit/licence.
The bench of Justice C. Jayachandran observed, “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, 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.”
Advocate P.M. Ziraj appeared for the Appellant and Government Pleader Ajith Vishwanathan appeared for the Respondent.
Brief Facts-
The petitioner Rajesh K is the owner of a property and needed to dig a pond for agricultural purposes, which involves granite extraction. The petitioner claimed that the granite will be used for the pond's boundary walls and not transported off-site, thus falling under Rule 106 of the Kerala Minor Mineral Concession Rules, 2015, which requires only intimation to the competent authority. However, a stop memo was issued, treating the activity under Rule 104. The issue for consideration of the Court is whether Rule 104 or 106 applies.
The Court noted, “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.”
The Court further noted that Rule 104 speaks of granting “special permission to extract and remove minor minerals in special circumstances” and as per the Court 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.
Accordingly, the Court held that the stop memo issued treating the activity as one falling under Rule 104 of the Kerala Minor Mineral and Concession Rules is bad in law.
Finally, the Court disposed of the Writ Petition.
Cause Title: Rajesh K v. The District Geologist (Neutral Citation: 2024/KER/45503)
Appearance:
Appellant: Adv. P.M. Ziraj and Adv. Irfan Ziraj
Respondent: Government Pleader Ajith Vishwanathan