Kerala High Court
Kunjumon P.D vs Union Of India on 29 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 30684 OF 2023
PETITIONER:
SABU GEORGE
AGED 59 YEARS
S/O K.S. VARKEY, KUZHIPAILLIL HOUSE, KURUMULLOOR P.O.,
KANAKKARY, KOTTAYAM, (OVERSEAS CITIZEN OF INDIA (REG.
NO. A. 1809006) AND PRESENTLY RESIDING AT 6552, WESTERN
SKIES WAY, MISSISSAUGA, ON, CANADA) REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER, RAJU SEBASTIAN, AGED 48
YEARS, S/O SEBASTIAN, KAITHACKAL HOUSE, KURUMULLOOR
P.O., KANAKKARY, KOTTAYAM, PIN - 686632
BY ADV K.C.VINCENT
RESPONDENTS:
1 STATE OF KERALA , REPRESENTED BY THE SECRETARY,
DEPARTMENT OF INDUSTRIES, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE GEOLOGIST
DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY,
COLLECTORATE P.O., KOTTAYAM, PIN - 686002
3 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
JAISALMER HOUSE, MANSINGH ROAD, NEW DELHI, PIN - 110011
BY SR.GP - JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.02.2024, ALONG WITH WP(C).39611/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos. 30684 & 39611 of 2023 :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 39611 OF 2023
PETITIONER:
KUNJUMON P.D.
AGED 57 YEARS
S/O.SEBASTIAN, PALLIKKUNNEL HOUSE,
PADINJATTUMBHAGOM, ATHIRAMPUZHA P.O., KOTTAYAM
DISTRICT, PIN - 686562
BY ADVS.
BABU S. NAIR
SMITHA BABU
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
MINISTRY OF HOME AFFAIRS, JAISALMER HOUSE, MANSINGH
ROAD, NEW DELHI, PIN - 110001
2 THE DISTRICT GEOLOGIST
DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,
KOTTAYAM, PIN - 686002
BY ADV VINU T. V.
SR.GP - JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.02.2024, ALONG WITH WP(C).30684/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos. 30684 & 39611 of 2023 :3:
CR.
VIJU ABRAHAM , J.
===========================
WP(C) Nos. 30684 & 39611 of 2023
============================
Dated this the 29th day of February, 2024
JUDGMENT
Since common issues are raised in these writ petitions they
are heard and disposed of by a common judgment.
It is averred in the writ petition that the petitioner is an
overseas citizen of India who has inherited different items of
property for which tax was remitted as evident from Ext.P2 tax
reciept. The petitioner has secured Ext.P3 site approval and building
permit for the construction of a residential building having a plinth
area of 373.24 square metres comprised in Re.Sy. No.169/1 in Block
No.10 of Kanakary Village. The construction of the building as
permitted in Ext.P3 requires removal of 1420.68 Cubic Meters of
ordinary earth outside the subject premises as quantified by the
Engineer. Petitioner on the strength of Ext.P3 building permit and
site approval, approached the 2nd respondent for issuance of transit
passes as provided under Rule 14(2) of the Kerala Minor Minerals
Concession Rules, 2015 (hereinafter referred to as 'the Rules,
2015'). The said request made as per Ext.P4 was rejected by the 2 nd
respondent Geologist as per Ext.P5 order stating that the petitioner
is not an Indian citizen and as per the provisions of the Rules, 2015,
permission for quarrying cannot be granted to persons other than
Indian citizens.
It is averred that the petitioner is the power of attorney holder
of one John J. Chirayil who is an overseas citizen of India. Petitioner
obtained a building permit issued by the local authority. It is
submitted that ordinary earth has to be removed for the purpose of
construction of residential building. After obtaining the building
permit, the petitioner applied for movement permits for the
transportation of 11417.36 MT of ordinary earth from the property.
The 2nd respondent has issued Ext. P4 movement permit for
transportation of 11417.36 metric tonnes of ordinary earth and the
petitioner has remitted the royalty amount also. Since the ordinary
earth could not be removed within the period allotted in Ext.P4, he
has applied for renewal of Ext.P4 permit which has now been
rejected as per Ext.P5, stating that since building permit is issued in
favour of John J. Chirayil, who is an overseas citizen of India, the
movement permit cannot be renewed.
3. The petitioners contend that the impugned orders were
issued on a wrong understanding of the provisions of the Citizenship
Act, 1955 (hereinafter referred to as 'the Act, 1955'), The Mines and
Minerals (Development and Regulation) Act, 1957 (hereinafter
referred to as 'the Act 1957') and Rules, 2015. The petitioners
contend that they are not seeking any quarrying permit under the
Rules 2015, but only transit passes for the transportation of ordinary
earth in connection with the construction of residential buildings. It
is further contended that an overseas citizen of India has all the
rights of a citizen of India except those listed in Section 7B of the
Act, 1955. It is in the said circumstances that the petitioners have
approached this Court.
4. A counter affidavit has been filed by the 2nd respondent
in WP(C) No.30684 of 2023, wherein it is contended that as per Rule
3(1) of the Rules 2015, a quarrying permit can be granted only to an
Indian National for extraction of any minor mineral. Likewise going
by Rule 29 of the Rules 2015, quarrying leases can be granted only
to Indian Nationals. It is the further contention of the 2 nd respondent
that in case of any violation of the terms on which the transit passes
were issued, there are practical difficulties to initiate action against
an overseas citizen of India.
5. A statement has been filed on behalf of the 3 rd
respondent in WP(C) No.30684 of 2023 wherein it is contended that
the Government of India, Ministry of Home Affairs has issued Ext.P6
notification dated 04.03.2021 specifying the rights to which an OCI
card holder shall be entitled to, and Sub-clause (iii) of Clause (4) of
the said notification, gives parity with Non-Resident Indians in the
matter of purchase or sale of immovable properties other than
agricultural land or farm house or plantation property, and that the
subject matter 'Land' is listed under List-III State List in the Seventh
Schedule of the Constitution of India and being a State subject, the
question of applicability of the Rules, 2015 over the land purchased
by an OCI cardholder needs to be decided by the competent
authority in the State Government.
6. I have heard the rival contentions of the petitioners in
these writ petitions, the learned Central Government Standing
Counsel and also the learned Government Pleader.
7. The question to be considered is as to whether the
petitioners are entitled for the issuance of movement permits and
transit passes as prescribed in Sub Rule 3 of Rule 14 of the Rules,
2015. The Rules 2015 was made as per the power conferred by
Section 15(1) of the Act, 1957. Section 5 of the Act 1957 deals with
restrictions on the grant of prospecting licenses or mining leases,
the relevant portion of which reads as follows.
"5. Restrictions on the grant of prospecting licences or
mining leases.
(1) A State Government shall not grant a (mineral concession)
to any person unless such person -
(a) is an Indian national, or a company as defined in Clause
(20) of Section 2 of the Companies Act, 2013 (18 of 2013) ; and
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---------------
The Rules, 2015 also contains identical provisions. Rule 3 of the said
Rules deals with the grant of quarrying permits and Rule 3(1) reads
as follows:-
"3. Grant of quarrying permit.-(1) On application made to it
the competent authority under these rules may grant a
quarrying permit to any Indian National to extract any minor
mineral [other than the minerals specified in item numbers 4,
6, 7, 8 and 9 of Schedule I] from any specified land within the
limits of its jurisdiction and authority as notified by the
Government in the official Gazette from time to time on
payment of royalty as the competent authority may fix on the
basis of the rates specified in schedule I [xxx] and also on
payment of such surface rent and cess as may be assessable
on the lands."
-------------------
Likewise, Rule 26 deals with restriction and grant of quarrying lease,
which reads as follows:
"26. Restrictions on the grant of quarrying leases.-
Quarrying leases under this chapter shall be granted only to
Indian Nationals:
Provided that a quarrying lease may be granted by the
Government to a person who is not an Indian National with the
previous approval of the Central Government."
So going by the above quoted provisions, a mining lease/licence, or
a quarrying permit can be granted only to an Indian National.
Admittedly, petitioners are not Indian citizens and they are overseas
citizens of India who are holding OCI cards.
8. In this backdrop, this Court is to consider the entitlement
for the reliefs sought for in the writ petition, i.e., issuance of transit
passes as provided in Rule 14(2) of the Rules 2015. Petitioners rely
on Ext.P6 notification produced in WPC No. 30684 of 2023 bearing
No.SO.1050.(E) dated 04.03.2021 which granted certain rights to
the OCI card holders, of which clause 4(iii) reads as follows:-
(4) parity with Non-Resident Indians in the matter of,-
iii) purchase or sale of immovable properties other than
agricultural land or farm house or plantation property;
In the present case, there is no dispute as to the entitlement of the
petitioners for ownership and possession of the subject land
mentioned in these writ petitions and there is no case that the same
is in violation of Ext P6 notification referred to above. What is
requested by the petitioners before the Geologist is for the issuance
of a movement permit and transit pass as mandated in Sub Rule (3)
of Rule 14 of the Rules 2015 in connection with construction of
residential buildlings. The relevant portion of Rule 14 of the Rules
2015 is extracted below:
14. Quarrying Permit for Ordinary earth - (1) A quarrying
permit under these rules shall be obtained for extraction [and
transportation] of ordinary earth used for filling or levelling
purposes in construction of embankments, roads, railways or
buildings in Form N.
(2) Notwithstanding anything contained in sub-rule (1), no
quarrying permit is required under these rules for extraction of
ordinary earth in connection with the construction and digging
of foundations for building that do not require environmental
clearance under the Environment (Protection) Act, 1986
(Central Act 29 of 1986), if the owner of the land obtained a
prior valid building permit from the Local Self Government
authorities concerned. In cases where levelling of land involve
extraction and transportation of ordinary earth outside the
property, authorities who grant building permit under the
Kerala Panchayat Building Rules, 2019 and Kerala Municipality
Building Rules, 2019, shall ensure that following particulars
are provided in the plans submitted by the applicant, namely;-
a. Precise area proposed for extraction of ordinary earth with
demarcation details is provided and that such precise
area does not exceed the sum of plinth area of ground
floor, the open space around the building as per Building
Rules, and the space required for implementing safety
provisions, including the driveway.
b. dimensioned plan and sectional drawing showing the
abutting road level, the levels and depths of cutting at all
places in respect of excavations for building
construction.
c. quantity of ordinary earth proposed to be extracted,
quantity of ordinary earth proposed to be used for filling
and balance quantity of ordinary earth proposed to be
transported outside the property, and
d. drawings, specifications and details of temporary and
permanent protective measures including retaining walls
where excavations to a depth of more than 1.5 meters is
involved.
Provided that, if the proposed building construction site is
located in a hilly terrain with steep slopes where excavation of
ordinary earth may result in slope failures, the building permit
granting authority may insist the applicant to submit a slope
stability study report prepared by any reputable agency
providing geotechnical investigation services and the decision
to grant permit may be taken based on the recommendations
provided in the report].
[(3) For transporting ordinary earth outside the property, the
building permit holder shall obtain a movement permit in Form
S and the required number of mineral transit passes in Form
O(A) appended to the Kerala Minerals (Prevention of Illegal
Mining, Storage, and Transportation) Rules, 2015, after paying
the royalty specified in Schedule 1 of these Rules and shall
prepare the pass in duplicate by filling in all required columns
and give the original of it to every purchaser or driver or
person in charge of any carrier used in transporting the
ordinary earth.];
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(underline
supplied)
As per Rule 14(2) of the Rules 2015 no quarrying permit is required
under this Rules for the extraction of ordinary earth in connection
with the construction and digging of foundation for buildings that do
not require environmental clearance under the Environment
Protection Act, 1986 if the owner of the land obtained a prior valid
building permit from the Local Self-Government Authorities
concerned. Admittedly in these cases, no quarrying permit is
required in as much as the petitioners have obtained prior valid
building permits from the Local Self-Government Authorities
concerned.
9. In view of the above facts and circumstances, the activity
undertaken by the petitioners in these writ petitions is one which
does not require a quarrying permit and therefore the prohibition in
Section 5 of the Act, 1957 and Rules 3 & 26 of the Rules 2015 for
issuance of licence/lease and quarrying permits to any person other
than an Indian citizen cannot be made applicable since they have
not applied for any licence/lease/quarrying permit and have
requested only for issuance of movement permit and transit passes
for removal of ordinary earth so as to enable them to undertake
construction of residential building in the respective properties.
Admittedly, building permits have been granted to the petitioners
which clearly show that the construction of residential buildings in
their subject properties is not a prohibited activity in respect of an
Overseas Citizen of India. Rule 14(2) of the Rules 2015 specifically
mandates that no quarrying permit is required under the Rules for
extraction of ordinary earth in connection with the construction and
digging of foundation of a building that does not require an
environmental clearance under the Environmental Protection Act,
1986 if the owner of the land has obtained a valid building permit
from the local authority concerned and the case of the petitioners
will come within the purview of Rule 14(2) of the Rules 2015. In view
of the above, the stand taken by the geologist in the orders
impugned in these writ petitions that transit passes cannot be
issued since the petitioners are not Indian citizens is unsustainable
and therefore they are liable to be interfered with.
10. Accordingly, Ext.P5 in WP(C) Nos.30684 & 39611 of 2023
are quashed with a consequential direction to the 2nd respondent to
reconsider the request made by the petitioners for issuance/renewal
of movement permits and issuance of transit passes in the light of
the observations made in this judgment and take a final decision in
the matter within a period of one month from the date of receipt of
a copy of this judgment.
With the above-said direction, the writ petitions are disposed
of.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
APPENDIX OF WP(C) 39611/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE GENERAL POWER OF
ATTORNEY EXECUTED BY SRI. JOHN J.CHIRAYIL
IN FAVOUR OF THE PETITIONER DATED, 28-8-
Exhibit P2 A TRUE COPY OF THE AADHAR CARD OF SRI.
JOHN J. CHIRAYIL
Exhibit P3 A TRUE COPY OF THE PAN CARD ISSUED BY THE
INCOME TAX DEPARTMENT IN RESPECT OF SRI.
JOHN J. CHIRAYIL
Exhibit P4 A TRUE COPY OF THE MOVEMENT PERMIT ISSUED
BY THE 2ND RESPONDENT DATED, 5-5-2023
Exhibit P5 A TRUE COPY OF THE COMMUNICATION ISSUED TO
THE PETITIONER BY THE 2ND RESPONDENT
DATED, 13-11-2023
Exhibit P6 A TRUE COPY OF THE NOTIFICATION ISSUED BY
THE MINISTRY OF HOME AFFAIRS, GOVERNMENT
OF INDIA DATED, 4-3-2021 AS NO.SO 1050
APPENDIX OF WP(C) 30684/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE OVERSEAS CITIZEN OF
INDIA, CERTIFICATE OF REGISTRATION BEARING
NO. A. 1809006 ISSUED BY THE CONSULATE
GENERAL OF INDIA AT TORONTO
Exhibit P2 A TRUE COPY OF THE TAX RECEIPT DATED
08.08.2023
Exhibit P3 A TRUE COPY OF THE SITE APPROVAL AND
BUILDING PERMIT ISSUED BY THE GRAMA
PANCHAYAT DATED 16.09.2022
Exhibit P4 A TRUE COPY OF THE REQUEST SUBMITTED
BEFORE THE 2ND RESPONDENT DATED 11.10.2022
Exhibit P5 A TRUE COPY OF THE COMMUNICATION NO.
DOKDT-DMG/3323/2022-M DATED 11.09.2023
ISSUED BY THE 2ND RESPONDENT
Exhibit P6 . A TRUE COPY OF THE CITIZENSHIP ACT, 1955
