Overseas citizens of India are entitled to movement permits and transit passes for construction activities as per Rule 14(2) of the Rules, 2015, despite the prohibition on issuance to non-Indian citizens under Section 5 of the Act, 1957 and Rules 3 & 26 of the Rules, 2015.

JUDGMENT :

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 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 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 matter of purchase o