Andhra Pradesh High Court - Amravati

Nalam Suraj Karthikeya vs The Union Of India on 19 October, 2023

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
THURSDAY, THE NINETEENTH DAY OF OCTOBER, '
' TWO THOUSAND AND TWENTY THREE
:PRESENT: aoe
THE HONOURABLE SRI JUSTICE GANNAMANEN} RAMAKRISHNA PRASAD

IA Nos. 1 & 2 of 2023
IN
WP NO: 27668 OF 2023
Between:
Nalam Suraj Karthikeya, S/o Nalam Durga Ram Kumar, Aged about 15 years, R/o
78-1-3/15, Vinateya Apartment-2, Flat No.333, Gandhipuram-2, A V Apparao Road,
Syamala Nagar, Rajamahendravaram (Urban), East Godavari District-533103, Rep.
by his Father/Guardian, Nalam Durga Ram Kumar.
.. Petitioner
(in both the petitions)
AND

1. The Union of india, Rep. by its Ministry of Youth Affairs and Sports, Room
No.401, C-Wing, Shastri Bhawan, New Delhi-110 001,

2. Sports Authority of India, Rep. by its Authorized Signatory, Jawaharlal Nehru
Stadium Complex (East Gate), Lodhi Road, New Delhi-110 003."

3. The Indian Olympic Association, Rep. by its General Secretary, Olympic
Bhawan, B29, Qutub Institutional Area, New Delhi, Delhi-110 016.

4, The State of Andhra Pradesh, Rep. by its Prificipal Secretary, Department of
Sports and Youth Affairs, Secretariat, Velagapudi, Guntur District, Andhra
Pradesh. --

5. The Archery Association of India, Rep. by its Secretary General, DDA,
Yamuna Sports Complex, Gate No.2, Near Archery Ground, SurajmalVihar,
Delhi-110 692.

6. The Andhra Pradesh Archery Association (Regd. No.126/2014), Rep. by its
General Secretary, Office at. D.No.46-4-130/A, Cherukuri Volga Road, B.H.
Nagar, Vijayawada, Krishna District, Andhra Pradesh.

7. The Sports Authority of Andhra Pradesh (SAAP), Rep. by its Vice Chairman
(V.C} and Managing Director (M.D), .G.M.C., Stadium, Labbipet, Vijayawada-
10, Krishna District, Andhra Pradesh,

8. The Andhra Pradesh Olympic Association (Regd. No.569/2016), Rep. by its
General Secretary, 19-592/1 , Masonic Co-operative Housing Colony, Near
Yogananda Ashram, Mittoor, Chittoor District, Andhra Pradesh.

9. The Games and Technical Conduct Committee, Rep. by its Chairman, Andhra
Pradesh Inter-District 43rd Junior (Boys and Girls) (indian, Recurve and
Compound) Archery Championship Office at. D.No.46-4-130/A, Cherukuri
Volga Road, B.H. Nagar, Vijayawada, Andhra Pradesh.

..Respondents
{in both the petitions)

Counsel for the Petitioner : Sri Akula Sri Krishna Sai Bhargav
Counsel for the Respondent No.4 : GP for Sparts



Counsel for the Respondent No.7 ~---: Sri Kumar Babu, counsel appearing
on behalf of Ravi Kiran Kumar Kolusu,

standing counsel

(Counsels in both the petitions)

iA No. 1 OF 2023

Petition under Section 151 CPC praying that in the circumstances stated in
the affidavit filed in support of the petition, the High Court may be pleased to
suspend the 'Note No.3'of Circular vide bearing Ref.No.2023/APAA09/02 dated
26.09.2023 issued by the Respondent No.6 by permitting the Petitioner to participate
in 19th Senior Compound (Men and Women) Archery Championship, 2023 Pending
disposal of WP No. 27668 of 2023, on the file of the High Court.

IA No, 2 OF 2023 ,

Petition under Section 151 CPC praying that in the circumstances stated in
the affidavit filed in support of the petition, the High Court may be pleased to
suspend the Letter of Communication vide bearing Ref.No. AAVAC/APAA/2023-24
dated 10.10.2023 issued by the Respondent No.5 and consequential Letter of
Communication dated 12.10.2023 issued by the Respondent No.6 by permiting the
Petitioner to participate in Games and Competitions recognized and affiliated to the
Respondents at parity with other individuals/citizens of India/NRIs at Domestic Level
and to represent India at International Level, Pending disposal of WP No. 27668 of
2023, on the file of the High Court.

The court while directing issue of notice to the Respondents herein to show
cause as to why this applications should not be complied with, made the following
(The receipt of this arder will be deemed to be the receipt of notice in the case)

ORDER:

"Heard Sri Akula Sri Krishna Sai Bhargav, Ld. Counsel for. the Writ Petitioner and Sri Kumar Babu, Ld. Counsel appearing on behalf of Sri Ravi Kiran Kumar Kolusu, Ld. Standing Counsel for SAAP (Sports Authority of Andhra Pradesh)-Respondent No.7.

2. In LA.No.1 of 2023, the Writ Petitioner is seeking suspension of the Letter of Communication bearing Ref. No. 2023/APAA09/02, dated 26.09.2023 [Ex.P11] issued by the Respondent No.06 with a further direction to the Respondent No.6 to permit the Writ Petitioner to participate in the 19'" Senior

Compound (Men and Women) Archery Championship, 2023.

Merrie cnnnerercnes

3. In LA.No.2 of 2023, the Writ Petitioner is seeking suspension of the Letter of Communication bearing Ref. No. AAIAC/APAA/2023-24, dated 10.10.2023 [Ex.P13] issued by the Respondent No.5.

4. Sri Akula Sri Krishna Sai Bhargav, Ld. Counsel for the Writ Petitioner has submitted that the Respondent No.6 has placed reliance on the Notification issued by the Government of India, dated 04.03.2021 (which is extracted in the Order passed by the Hon'ble Supreme Court, dated-03.02.2023 in W.P.(C)No.503 of 2022 and batch - part of the material documents) and two Orders passed by the Hon'ble High Court of Delhi in W.P.(C).No.4148 of 2010 and batch, dated 03.08.2010 and W.P.(C).No.3075 of 2022, dated 04.05.2023.

5. Similarly, the Respondent' No.5 has issued Proceedings dated 10.10.2023 referring to the Notification issued by the Government of India, dated 04.03.2021 which was considered by the Hon'ble High Court of Dethi.

§. Ld. Counsel for the Writ Petitioner would submit that the Hon'ble Supreme Court has held to the effect that the Notification, dated 04.03.2021 issued by the Government of India would only apply prospectively. Ld. Counsel for the Writ Petitioner would refer to Para Nos.53 to 59 of the decision rendered by the Hon'ble Supreme Court, dated 03.02.2023 in W.P.(C).No.803 of 2022 and batch in ANISH ASHUTOSH JOHARAPURKAR vs. UNION OF INDIA. The said paragraphs are usefully extracted hereunder:

"53. In the above circumstance, keeping in view, the object with which

the Act, 1955 was amended so as to provide the benefit to Overseas

Citizen of India and in that context when rights were given to the OCI

cardholders through the notifications issued from time to time, based

on which the OCI cardholders had adopted to the same and had done things so as to position themselves for the future, the right which had accrued in such process could not have been taken away in the present manner, which would act as a 'retroactive' notification.

Therefore, though the notification ex-facie does not specify

retrospective operation, since it retroactively destroys the rights

which were available, it is to be ensured that such of those beneficiaries of the right should not be affected by such notification.

Though the rule against retrospective construction is not applicable

fo statutes merely because a part of the requisite for its action is drawn from a time antecedent to its passing, in the instant case the rights were conferred under the notification and such rights are being affected by subsequent notification, which' is detrimental and the same should be avoided to that extent and be allowed to operate without such retroactivity.

54. We note that it is not retrospective inasmuch as it does not affect the OCI Cardholders who have participated in the selection process, have secured a seat and are either undergoing or completed the MBBS course or such other professional course. However, it will act as retroactive action to deny the right to persons who had such right which is not sustainable to that extent. The goal post is shifted when the game is about to be over. Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.

55. Therefore in the factual background of the issue involved, to sum up, it will have to be held that though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.ethe date of the notification and who seek for a registration as OC! cardholder fram that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State.

56. In light of the above, it is held that the respondent No.7 in furtherance of the policy of the Sovereign State has the power fo pass appropriate notifications as contemplated under Section 7B(1) of the Citizenship Act, 1955, fo confer or alter the rights as provided for therein. However, when a conferred right is withdrawn, modified or altered, the process feading thereto should demonstrate application of mind, nexus to the object of such withdrawal or modification and any such decision should be free of arbitrariness. In that background, the impugned notification dated 04.03.2021 though

competent under Section 7B(1) of Act, 1955 suffers from the vice of

non-application of mind and despite being prospective, is in fact

'retroactive' taking away the rights which were conferred also as a

matter of policy of the Sovereign State.

57. Hence, the notification being sustainable prospectively, we

hereby declare that the impugned portion of the notification which

provides for supersession of the notifications dated 11.04.2005.

05.01.2007 and 05.01.2009 and the clause 4(ii), its proviso and

Explanation (1) thereto shail operate prospectively in respect of OCI

cardholders who have secured the same subsequent to 04.03.2021.

58. We further hold that the petitioners in all these cases and all other

similarly placed OCI cardholders will be entitled to the rights and

privileges which had been conferred on them earlier to the notification dated 04.03.2021 and could be availed by them notwithstanding the exclusion carved out in the notification dated

04,03.2027. The participation of the petitioners and similarly placed

OCI cardholders in the selection process and the subsequent action

based on the interim orders passed herein or elsewhere shall stand

regularised, |

59. Notwithstanding the fact that we have held the impugned

notification dated 04.03.2021 to be valid with specific prospective

effect in view of the power available ta respondent No.1 under

Section 7B(1) of Act, 1955, keeping in perspective the wide

ramification it may have in future alsa on the Indian diaspora and

since it is claimed to be based on the policy decision of the

Sovereign State, we expect that the same would be examined in the

higher echelons of the Executive with reference to the rights already

created,"

7. Ld. Counsel for the Writ Petitioner would submit that the Respondent No.6 has passed the Order dated 26.09.2023 [Ex.P11] and the Respondent No.5 has passed the Order dated 10.10.2023 [Ex.P13] as they were uninformed about the subsequent clarification rendered by the Hon'ble Supreme Court in

W.P.(C).No.503 of 2022 and batch in ANISH ASHUTOSH JOHARAPURKAR vs. UNION OF INDIA, dated 03.02.2023.

8. The Hon'ble Supreme Court has clearly held at Para Nos.53 to 59 of the judgment dated 03.02.2023 in W.P.(C).No.503 of 2022 and batch in ANISH ASHUTOSH JOHARAPURKAR vs, UNION OF INDIA (extracted supra) that the Notification dated 04.03.2021 shall be applicable prospectively against such Indian diaspora who had secured OCI status subsequent to 04.03.2021; and therefore, the Writ Petitioner is entitled to the benefit of the ratio rendered by the Hon'ble Supreme Court.

3. Prima facie, this Court is also of the opinion that the Order passed by the Respondent No.6 dated 26.09.2023 [Ex.P11] and the Order passed by the Respondent No.5, dated 10.10.2023 [Ex.P13] are in ignorance of the binding Order of the Hon'ble Supreme Court dated 03.02.2023 and therefore, they cannot be sustained. |

10. In this view of the matter, the Letter of Communication bearing Ref. No. 2023/APAA09/02, dated 26.09.2023 [Ex.P11] and the Letter of Communication bearing Ref.No. AAVAC/APAAI2023-24, dated 10.10.2023 [Ex.P13] shall stand suspended until further Orders, with a further direction that the Writ Petitioner shall be permitted to participate in the 19% Senior Compound (Men and Women) Archery Championship, 2023. There shall be a further direction that the Respondent No.6 shall not prevent the Writ Petitioner from participating in Games and Competitions recognised and affiliated to the Respondents at parity with other individuals/citizens of india/NRIs' at Domestic level (State Level and National Level) until further orders."

__ SG. HELA Naipu : ASSISTANT REGISTRAR |

cary AF

TRUE COPYI ee For A - SECTION OFFICER :

To,

1. The Ministry of Youth Affairs and Sports, Union of india, Room No.401, C- Wing, Shastri Bhawan, New Delhi-110 001,

2. The Authorized Signatory, Sports Authority of India, Jawaharlal Nehru Stadium Complex (East Gate), Lodhi Road, New Delhi-110 003.

CVSS

3. The General Secretary, Indian Olympic Association, Olympic Bhawan, B29, Qutub Institutional Area, New Delhi, Delhi-110 016.

4. The Principal Secretary, State of Andhra Pradesh, Department of Sports and Youth Affairs, Secretariat, Velagapudi, Guntur District, Andhra Pradesh.

5. The Secretary General, Archery Association of India, DDA, Yamuna Sports Complex, Gate No.2, Near Archery Ground, SurajmalVihar, Delhi- 110 092.

§. The General Secretary, Andhra Pradesh Archery Association (Regd. No.126/2014), Office at. D.No.46-4-130/A, Cherukuri Volga Road, B.H. Nagar, Vijayawada, Krishna District, Andhra Pradesh.

7. The Vice Chairman (V.C) and Managing Director (M.D), Sports Authority of Andhra Pradesh (SAAP), |.G.MeC., Stadium, Labbipet,. Viayawada-10, Krishna District, Andhra Pradesh.

8. The General Secretary, Andhra Pradesh Olympic Association (Regd. No.569/2016), 19-692/1, Masonic Co-operative Housing Colony, Near Yogananda Ashram, Mittoor, Chittoor District, Andhra Pradesh.

9. The Chairman, Games and Technical Conduct Committee, Andhra Pradesh Snter-District 43rd Junior (Boys and Girls) (Indian, Recurve and Gompound) Archery Championship Office at. D.No.46-4-130/A, Cherukuri Volga Road, B.H. Nagar, Viiayawada, Andhra Pradesh.(Addressee nos.1 to 9 by RPAD)

10.One CC to Sri Akula Sri Krishna Sai Bhargav, Advocate [OPUC]

11.One CC to Sri.N. Harinath, Deputy Solicitor General of India [OPUC]

12.Two CCs to GP for Sports, High Court of Andhra Pradesh. [OUT]

13.One CC to Sri Ravi Kiran Kumar Kolusu, Standing Counsel [OPUC]

14.One spare copy

HIGH COURT

GRKPJ

DATED:19/10/2023

LIST THE MATTER ON 30.11.2023,

ORDER

IA Nos, 1 & 2 of 2023 IN

WP NO: 27668 OF 2023