JOY SCARIA vs THE MEENACHIL GRAMA PANCHAYATH COMMITTEE

The petitioner in W.P.(C) No.24865/2015, an

Overseas Citizen of India Cardholder (''Overseas Citizen''

for short), as defined under sub section (ee) of Section 2

of the Citizenship Act, 1955, challenges Ext.P7 order of

the Tribunal for Local Self Government Institutions.

The subject matter is the conduct of a quarry, which the

petitioner submits has been permitted by the District

Geologist and has been carried on with necessary

sanctions and permissions from various statutory

authorities except the Panchayat.

The challenge before the Tribunal was the

refusal of the Panchayat to grant renewal of D&O

license, for the year 2014-2015. There were also

certain residents of the locality who were opposed to

the quarrying operations. They have filed W.P.(C)

No.26397/2015 and W.P.(C) No.33499/2016, the

former of which challenge the Tribunal''s order and the

latter raises a new ground with respect to the

citizenship of the petitioner; in the absence of which the

petitioner would be dis-entitled to have a quarrying

lease.

The parties are referred to as the objectors,

the lease holder and the Panchayat, whose Counsel

have been elaborately heard by me.

The Tribunal interfered with the rejection of

renewal as passed by the Secretary of the Panchayat,

but, however, on grounds of a water tank and the

existence of inhabitants, both within 300 meters (a

church) in violation of Regulation No.164 of

Metalliferous Mines Regulation. The appeal before the

Council was directed to be reconsidered. The lease

holder objects to such remand order on the ground that

the interference caused by the Tribunal was not proper.

The objectors challenge the Tribunal''s order on the

ground that their contentions were not properly

addressed by the Tribunal. It was when these two writ

petitions were pending that W.P.(C) No.33499/2016 was

filed raising the question of the citizenship, the disposal

of which has to be taken up first before consideration of

the other two writ petitions.

The objectors, refer to Section 5 of the Mines

and Minerals (Development and Regulation) Act, 1957

(''Act of 1957'' for short) as also Rule 26 of Kerala Minor

Mineral Concession Rules, 2015 (for brevity KMMC

Rules). Section 5 of the Act of 1957, by sub section (1)

interdicts a State Government from granting a

reconnaissance permit, prospecting license or mining

lease to any person unless such person is an Indian

national. Explanation to the above provision also puts

the matter in the correct perspective insofar as an

individual can be considered to be an Indian national

only if he is a citizen of India. Rule 26 of the KMMC

Rules provides for a quarrying lease to be granted to

any person other than Indian nationals with the

previous approval of the Central Government.

To understand the issue properly, one has to

look at the Citizenship Act, 1955 also. The Citizenship

Act provides for Citizenship by birth, descent,

registration, naturalisation and by incorporation of

territory, of which the former alone is applicable to the

petitioner. There is no dispute that the petitioner was a

citizen of India by birth, but as is evidenced from Ext.P8

passport produced along with I.A. No.12478/2015 in

W.P.(C) No.24865/2015; he is now a citizen of Canada.

On his acquiring such citizenship, going by Article 9 of

the Constitution of India, he has forsaken his citizenship

of India for reason of he having voluntarily acquired

citizenship of a foreign Country.

In such circumstance, there can be no dispute

that the petitioner, as per the Citizenship Act, could

come only under the definition of ''Overseas Citizen''.

Overseas Citizenship was brought in by Act 6 of 2004,

incorporating Sections 7A to 7D . By Section 7A(1)(a)(i),

a person who was a citizen of India at the time of, or at

any time after the commencement of the Constitution

and who is a citizen of another country, of full age and

capacity, would be entitled to be an Overseas Citizen.

The rights conferred on an Overseas Citizen is provided

under Section 7B . Under sub section (1) of Section 7B

it is specifically provided that the rights so provided to

an Overseas Citizen shall be notified by the Central

Government in the Official Gazette, except those rights

specified under sub section (2); which stands

specifically excluded. Having the capacity to obtain a

mining lease is not one of the rights specifically

excluded under sub section (2) of Section 7B . But,

however, there is also no notification brought out by the

Central Government conferring such right.

In this context, it has to be noticed that Rule

26 of the KMMC Rules would not enable the Central

Government to merely approve a mining lease to an

Overseas Citizen, on the request of the State

Government. The KMMC Rules are framed under the

Act of 1957 and the prohibition of granting a mining

lease to any person other than a Indian national, would

make the said provision in the KMMC Rules ultra vires

the Act of 1957. It cannot but be disputed that the

Central Government, under the Citizenship Act, if

brings out a notification, such right would be conferred

on an Overseas Citizen also.

In this respect, one

has to look at the counter affidavit filed by the Central

Government in W.P.(C) No.33499/2016, paragraph 5 of

which is extracted hereunder:

" Section 5 of the Mines and Minerals

(Development and Regulation) Act,

1957 imposes restrictions on the grant

of prospecting licenses or mining

leases. In the instant case, OCI

Cardholder is not one of the categories

of persons entitled for mining lease

under Mines and Minerals

(Development and Regulation) Act,

1957."

The notifications brought out under the

Citizenship Act, conferring power under Section 7B(1),

are also produced at Annexures R7(a) and R7(b). None

of these contain the right of obtaining a quarry lease

and hence, the permit granted to the petitioner itself

would suffer from the vice of illegality.

W.P.(C) No.33499/2016, hence, has to be

allowed. The lease granted at Exts.P1 and P2 shall

stand set aside. In the context of the petitioner''s lease

having been set aside by this Court, W.P.(C) No.

24865/2015 is rendered infructuous and W.P.(C) No.

26397/2015 has to be allowed, setting aside the order of

remand made by the Tribunal, but, on the grounds as

stated herein above. The Tribunal''s order is of no

consequence since the mining lease itself is set aside.

The Contempt Case (Civil) No.1516/2015 arises

from an interim order passed by this Court in W.P.(C)

No.24865/2015. The writ petition itself having been

dismissed, the Contempt Case would stand closed. No

Costs.