KUNJUMON P.D. V. UNION OF INDIA

WP(C)/39611/2023

AI Insights

The case involves two writ petitions filed by overseas citizens of India, Sabu George and Kunjumon P.D., who sought movement permits and transit passes for the transportation of ordinary earth required for construction of residential buildings. The permits were initially denied by the Geologist District Office, citing that the petitioners, being overseas citizens, were not eligible under the Kerala Minor Minerals Concession Rules, 2015. The petitioners argued that their status as overseas citizens did not preclude them from obtaining the necessary permits for transportation of earth, as they were not seeking quarrying permits but merely transit passes. The court examined the relevant laws and rules, including the Citizenship Act, 1955, the Mines and Minerals (Development and Regulation) Act, 1957, and the Kerala Minor Minerals Concession Rules, 2015, and found that the denial of permits was not justified.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 724062 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 29-02-2024
• Assessment Year: misc
• Laws Referred To: Citizenship Act, 1955, Mines and Minerals (Development and Regulation) Act, 1957, Kerala Minor Minerals Concession Rules, 2015, Environment (Protection) Act, 1986, Kerala Panchayat Building Rules, 2019, Kerala Municipality Building Rules, 2019
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JUSTIN JACOB
• Assessee Lawyers: K C VINCENT; BABU NAIR; SMITA BABU
• Keywords: Building Permit; Construction; Overseas Citizen of India; Transit Pass; Quarrying Permit; Movement Permit; Ordinary Earth
• Section: 5; 3(1); 26; 14(2)

Judgement Text

"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 J U D G M E N T Since common issues are raised in these writ petitions they are heard and disposed of by a common judgment. WP(C) No.30684/2023 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 2nd respondent Geologist as per Ext.P5 order stating that the petitioner WP(C) Nos. 30684 & 39611 of 2023 : 4 : 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. WP(C) No.39611/2023 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 WP(C) Nos. 30684 & 39611 of 2023 : 5 : 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 2nd 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 3rd 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 WP(C) Nos. 30684 & 39611 of 2023 : 6 : 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 —------------- —------------- WP(C) Nos. 30684 & 39611 of 2023 : 7 : 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 WP(C) Nos. 30684 & 39611 of 2023 : 8 : 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 WP(C) Nos. 30684 & 39611 of 2023 : 9 : 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 WP(C) Nos. 30684 & 39611 of 2023 : 10 : 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.]; —-------------------- —-------------------- (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 WP(C) Nos. 30684 & 39611 of 2023 : 11 : 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 WP(C) Nos. 30684 & 39611 of 2023 : 12 : 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/- WP(C) Nos. 30684 & 39611 of 2023 : 13 : 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- 2023 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 WP(C) Nos. 30684 & 39611 of 2023 : 14 : 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 "