Kerala High Court

Joseph Paily vs State Of Kerala on 6 July, 2022

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                WP(C) NO. 20433 OF 2022
PETITIONERS:

    1    JOSEPH PAILY,
         AGED 65 YEARS
         PARAYIL PUTHEN PURAYIL HOUSE,
         PUTHUPARIYARAM P.O, IDUKKI-685608
    2    EMILY JOSEPH PAILY,
         W/O JOSEPH PAILY ,
         PARAYIL PUTHEN PURAYIL HOUSE,
         PUTHUPARIYARAM P.O, IDUKKI -685608

         BY ADVS.
         T.P.PRADEEP
         MINIKUMARY M.V.
         R.K.PRASANTH


RESPONDENTS:

    1    STATE OF KERALA,
         REPRESENTED BY THE CHIEF SECRETARY,
         GOVERNMENT OF KERALA GOVT. SECRETARIAT,
         THIRUVANANTHAPURAM-695 001

    2    DISTRICT COLLECTOR
         COLLECTORATE
         KUYILIMALA, PAINAV P.O.,
         IDUKKI, PIN - 685 603

    3    THE SENIOR GEOLOGIST
         MINING AND GEOLOGY DEPARTMENT
         DISTRICT OFFICE, MINI CIVIL STATION,
         THODUPUZHA,IDUKKI- PIN- 685584
 W.P.(C) No.20433/2022
                            :2:


    4     MANAKKADU GRAMA PANCHAYATH,
          REPRESENTED BY ITS SECRETARY,
          MANAKKADU GRAMA PANCHAYATH,
          PUTHUPARIYARAM P.O, IDUKKI -685608


          SMT.SURYA BINOY B, SR. GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP        FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.20433/2022
                                        :3:



                                                                             CR


                            N. NAGARESH, J.

           `````````````````````````````````````````````````````````````
                       W.P.(C) No.20433 of 2022

           `````````````````````````````````````````````````````````````
                  Dated this the 6th day of July, 2022

                             JUDGMENT

~~~~~~~~~

The petitioners, who are owners of 50.90 Ares of

property in Re-survey No.35/4-2, 35/4 (S79/81) of

Manakkadu Village of Thodupuzha Taluk, seek to declare

that the 2nd respondent has no jurisdiction to prevent

transportation of red earth using Mineral Transit Pass in

Form-O(A), outside Idukki District.

2. The petitioners obtained Ext.P1 Site Approval and

Building Permit from Manakkad Grama Panchayat of Idukki

District. The property where the building is to be constructed

is above the road level. As the land had to be levelled, the

petitioners obtained Ext.P2 Development Permit also. W.P.(C) No.20433/2022

3. As the petitioners could not find a suitable place in

Idukki District for depositing the red earth removed for

building construction, they applied to the Geologist for

Mineral Transit Pass. In their Ext.P3 application, the

petitioners sought to deposit the red earth outside Idukki

District. The 3rd respondent-Senior Geologist issued Ext.P5

communication to the petitioners informing that permission

cannot be granted for depositing red earth outside the

District without obtaining a special order from the District

Collector.

4. The petitioners state that the 3 rd respondent being

the authority competent to issue Mineral Transit Passes, he

has to consider their application as per the provisions of the

Kerala Minor Mineral Concession Rules, 2015. According to

the petitioners, the District Collector has not issued any

prohibitory order against transporting/depositing red earth

outside the District. The 3rd respondent is therefore

compellable to issue Transit Pass to the petitioners, by

appropriate writ of this Court.

W.P.(C) No.20433/2022

5. I have heard the learned counsel for the

petitioners and the learned Government Pleader

representing the respondents.

6. The petitioners have obtained Ext.P1 Building

Permit and Ext.P2 Development Permit for a building

construction in Idukki District. The construction requires

levelling the land by removing red earth. The petitioners have

applied to the Geologist for issuance of Mineral Transit Pass,

making it clear that they intend to deposit the red earth

outside Idukki District. The Geologist, however, insists for an

order from the District Collector.

7. The respondents have not produced any such

Order or Circular requiring special order from the District

Collector to deposit red earth outside the District.

8. Transportation of minerals in Kerala is governed

by the Kerala Minerals (Prevention of Illegal Mining, Storage

and Transportation) Rules, 2015 (hereinafter referred to as

"the Rules, 2015", for brevity), which are made by the

Government in exercise of the powers conferred by Section W.P.(C) No.20433/2022

23C(1) of the Mines and Minerals (Development and

Regulation) Act, 1957 (Central Act). The Rules contemplate

Mineral Transit Pass for transportation of minerals from one

place to another.

9. Rule 26 of the Rules, 2015 which provides for

preparation and issuance of Mineral Transit Passes reads as

follows:

26. Preparation and issue of Mineral Transit Passes - (1) Every dealer or producer under these rules, before he sells or transports or causes to transport minerals shall obtain mineral transit passes in Form O(A) of these rules with the name, seal and signature of the authorised officer concerned in the original of such passes and while he sells or transports or causes to transport minerals shall prepare the pass in duplicate and give the original of it to every purchaser or driver or person-in-charge of any carrier used in carrying the minerals.

(2) In cases where the lessee desires to transport minerals to the value addition unit from the place of extraction for the purpose of processing, he shall obtain mineral transit passes in Form O(B) of these rules with name seal and signature of the authorised officer concerned in the original of such passes and prepare and issue such pass in the manner described above while transporting or causing to transport minerals to the value addition unit.

(3) The purchaser or driver or person-in-

charge of the carrier, as the case may be, shall produce the valid mineral transit pass at the time of inspection and verification as required by the W.P.(C) No.20433/2022

competent authority or authorised officer in this behalf.

(4) Any consignment of minerals without a valid mineral transit pass shall be considered as illicit and the competent authority or authorised officer may recover the mineral from the person and also seize the receptacles in which the same is found and the carrier used in carrying the same. The date and time on each pass shall be entered both in words and figures by the dealer or producer at the time of despatch of the consignment.

(5) The owner or driver or the person-in- charge of any carrier shall cause it to stop and to remain stationary so long as it is so ordered by any officer of the Department of Mining and Geology or Police or any other person duly authorised by the Government or competent authority in this behalf for the purpose of making any recovery or to prefer complaints in Courts under the Act or these rules.

(6) The Government may require online submission of application for online generation of mineral transit pass (ePass), the permit holder/lessee/dealer/owner of the Registered Metal Crusher Unit can generate ePass in Form O(C) or O(D) instead of passes in Form O(A) or O(B) respectively, at the despatch point through the official website of the Department of Mining and Geology of Government of Kerala. The procedure to be followed for online submission of application and generation of ePasses shall be as specified by the Government. While issuing ePass, the consignor shall give consignee's copy to the purchaser or driver of the vehicle, as the case may be, and shall retain the consignor's copy. In the case of ePass, the rules with respect to transportation of minerals shall also apply wherever applicable.

Every Dealer or Producer, before he sells or transports

minerals, therefore shall obtain Mineral Transit Passes in

Form O(A) of the Rules.

W.P.(C) No.20433/2022

10. The petitioners are not Dealer as defined under

Rule 2(v) of the Rules, 2015. The term "Producer" is defined

under Section 2(xv) to mean any person carrying on the

business of extraction and/or production or collection of

minerals or mineral products in accordance with the

provisions of the Act or Rules made thereunder and includes

a person who has a Registered Metal Crusher Unit and a

person who produces minerals for his own use and

transports it from the place of extraction.

11. Rule 26(4) provides that any consignment of

minerals without a valid mineral transit pass shall be

considered as illicit and the competent authority or

authorised officer may recover the mineral from the person

and seize the receptacles in which the same is found and the

carrier used to carry the same. In view of Rule 26(4),

whether the petitioner is a dealer or producer of minerals or

not, any consignment of minerals without valid mineral transit

pass will be treated as illicit. Therefore, the petitioners are

bound to obtain valid Mineral Transit Pass for transporting W.P.(C) No.20433/2022

the red earth from their property.

12. In view of Rule 26(1) of the Rules, 2015, it is the

Authorised Officer, who is competent to issue Mineral Transit

Passes. As per Rule 2 (ii), the "Authorised Officer" means

District Geologists / Assistant Geologists of the District

Offices of the Department of Mining and Geology within their

respective jurisdiction or any other Officer as may be

authorised by the Government. The 3 rd respondent is

therefore the Authorised Officer to issue Mineral Transit

Passes.

13. In the case of the petitioners, the District Geologist

has denied Mineral Transit Pass to the petitioners on the

ground that without a Special Order of the District Collector,

Mineral Transit Pass cannot be issued to deposit earth

outside the District.

14. When the statute requiring and mandating Mineral

Transit Passes for transporting minerals designates the 3 rd

respondent as the Authorised Officer to issue Mineral Transit

Passes, the 3rd respondent has to consider applications for W.P.(C) No.20433/2022

Passes independently in accordance with the provisions of

the Kerala Minerals (Prevention of Illegal Mining, Storage

and Transportation) Rules, 2015 and subject to the

provisions contained in the Rules, 2015.

15. The action of the 3rd respondent in declining to

consider the application submitted by the petitioners for

issuance of Mineral Transit Pass on the ground that a

Special Order from the District Collector is required,

therefore, amounts to abdication of power by the 3 rd

respondent, on extraneous considerations.

In the circumstance, the writ petition is disposed of

setting aside Ext.P5 and directing the 3 rd respondent to

consider Ext.P3 application submitted by the petitioners for

Transit Pass, in accordance with the provisions of the Kerala

Minerals (Prevention of Illegal Mining, Storage and

Transportation) Rules, 2015 and pass orders thereon within

a period of one month.

Sd/-

N. NAGARESH, JUDGE aks/11.07.2022 W.P.(C) No.20433/2022

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE SITE APPROVAL AND BUILDING PERMIT DATED 27.01.2022 ISSUED BY THE 4TH RESPONDENT Exhibit P2 TRUE COPY OF THE APPROVED LAND DEVELOPMENT PLAN Exhibit P3 TRUE COPY OF THE APPLICATION DATED 10.03.2022 SUBMITTED BEFORE THE 3RD RESPONDENT.

Exhibit P4              TRUE COPY OF THE AFFIDAVIT ALONG WITH
                        DRAFT    502/2001    DATED    22.02.2022
                        SUBMITTED BEFORE THE 3RD RESPONDENT
Exhibit P5              TRUE COPY OF THE COMMUNICATION DATED
                        25.03.2022