Madras High Court
Namassivayane … vs The District ... on 13 September, 2022
W.P. No.26238 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.26238 of 2022
Namassivayane … Petitioner
Vs
1.The District Collector-Cum-Appellate Authority
Under the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007,
Government of Puducherry,
Pettaiyanchitram, Valudavur Road,
Puducherry-605 009.
2.The Special Officer,
Department of Revenue and Disaster Management,
Government of Puducherry,
Pettaiyanchitram, Valudavur Road,
Puducherry-605 009.
3.Kejalakshmi JeyanthiLourdemarie
4.Eric Saravanan Jacques
5.Udhyakumar
6.Ramesh
7.Kanagavalli
1
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8.The Secretary to Government,
Ministry of Home Affairs,
New Delhi. … Respondents
(R8 Suo Motu impleaded vide order dated 04.03.2022
Made in WP.No.26238 of 2019 by this Court)
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying
Writ of Certiorarified Mandamus, calling for the records on the file of the 1st
Respondent relating to the order in No.10557/DRDM/Sr.Citizen/B3/2018 dated
03.06.2019 passed by the 2nd Respondent and quash the same and consequently
allow the appeal before the Respondent No.1.
For Petitioner : Ms.V.Kamala Kumar
For Respondents : Mr.J.Kumaran, (for R1 & R2)
Additional Government Pleader (Puducherry)
Mr.V.Chandrasekaran, (for R8)
Senior Panel Counsel
No Appearance (for R3, R4, R5, R6 & R7)
ORDER
This writ petition has been filed by a super senior citizen, seeking a writ of
certiorarified mandamus calling for, and quashing an order on the file of the
District Collector-cum-Appellate Authority, dated 03.06.2019 passed by the
Special Officer, Department of Revenue and Disaster Management, Puducherry
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holding that he is ineligible to claim protection under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (in short ‘Welfare Act’).
2. I had on 04.03.2022 heard the parties in brief and had crystallised the
issue arising in the writ petition as follows:
‘An interesting question has been raised in this writ petition as
to the entitlement of a holder of an Overseas Citizenship of India
(OCI) card to the benefits under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. The petitioner claims
entitlement by virtue of the provisions of Section 7(B) of the
Citizenship Act, 1955 pointing out that an OCI card holder is
disentitled only to specific rights enumerated under Clauses(a) to (i)
of Section 7(B)(2).
2.Per contra, Mr.C.T.Ramesh, learned Additional Government
Pleader appearing for the official respondents/R1 & R2 draws
attention to the same provision of the Citizenship Act as aforesaid
stating that the entitlement of an OCI card holder would only be in
regard to any rights as the Central Government may, by Notification
in the Official Gazette, grant.
3.In addition, he refers to the provisions of Section 2(h) of the
2007 Act pointing out that it is only a senior citizen who is a ‘Citizen
of India’ who is entitled to the benefits under the Act.
4.Since the Centre is a necessary party in the matter, the
Secretary to Government, Ministry of Home Affairs, New Delhi is
impleaded suo moto as respondent in this writ petition.
5.Mr.V.Chandrasekaran, learned Senior Panel Counsel accepts
notice for newly impleaded R8 and seeks two weeks to obtain
instructions in this regard and file a counter.
6.Since the petitioner was aged 75 years in 2019 itself, it is
imperative that a resolution/answer be found at the very earliest to
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the legal issue raised. Final opportunity of two weeks is granted to
file counter. List on 21.03.2022.’
3. Pursuant thereto, a clarification has been obtained from the Government
of India, Ministry of Home Affairs dated 17.03.2022. They rely on Section 7 B (1)
of the Citizenship Act, 1955 (in short ‘Citizenship Act’) and Notification issued in
terms thereof, dated 04.03.2021. Specific reference is made to clause (5) of the
aforesaid notification, the relevant portion of which is extracted below:
‘MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 4th March, 2021
S.O.1050(E).-In exercise of the powers conferred by sub-section
(1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in
supersession of the notification of the Government of India in the
Ministry of Home Affairs published in the Official Gazette vide
number S.O.542(E), dated the 11th April, 2005 and the notifications of
the Government of India in the erstwhile Ministry of Overseas Indian
Affairs published in the Official Gazette vide numbers S.O. 12(E),
dated the 5th January, 2007 and S.O. 36(E), dated the 5th January,
2009, except as respect things done or omitted to be done before such
supersession, the Central Government hereby specifies the following
rights to which an Overseas Citizen of India Cardholder (hereinafter
referred to as the OCI cardholder) shall be entitled, with effect from
the date of publication of this notification in the Official Gazette,
namely:-
(1) grant of multiple entry lifelong visa for visiting India for any
purpose:
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Provided that for undertaking the following activities, the OCI
cardholder shall be required to obtain a special permission or a
Special Permit, as the case may be, from the competent authority or
the Foreigners Regional Registration Officer or the Indian Mission
concerned, namely:-
……….
(5) in respect of all other economic, financial and
educational fields not specified in this notification or the rights and
privileges not covered by the notifications made by the Reserve Bank
of India under the Foreign Exchange Management Act, 1999 (42 of
1999), the OCI cardholder shall have the same rights and privileges
as a foreigner.
Explanation.- For the purposes of this notification.-
(1) The OCI Cardholder (including a PIO cardholder) is a foreign
national holding passport of a foreign country and is not a citizen of
India.
………….
4. The stand taken is that a person who holds an Oversees Citizenship of
India card, (OCI card holder) is a foreigner national, as he holds the passport of a
foreign country and is hence not a citizen of India. Thus, and not being a citizen of
India, he is not entitled to the rights set out under the Welfare Act.
5. Notice has been issued and served upon the private respondents and their
names are printed in the cause-list. However, there is no appearance caused by, or
on their behalf. Mr.J.Kumaran, learned Additional Government Pleader appearing
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for the respondents has filed a brief counter and has advanced detailed
submissions as well as has referred to case-law.
Submissions of the petitioner in regard to the facts:
6. Ms.V.Kamala Kumar, learned counsel appearing for the petitioner
submits that the petitioner is a French National of Indian origin holding an OCI
card with lifetime visa to stay at Puducherry. His wife had purchased a property at
Plot No.63 and 64, in Re-survey No.37/34Pt., Town S.No.179, Ward-G, Block
No.5 of Pudupalayam Revenue Village,consisting of a two storied residential
house at postal address No.26. at Iyyanar Koil Street, Kosapalayam, Puducherry
(‘property’/‘property in question’).
7. In accordance with French Law, the petitioner claims 50% title, right and
interest over the aforesaid property. The petitioner’s wife passed away on
04.02.2012 and the petitioner thus became the full owner of the property in
question. R3 and R4 are his daughter and son respectively. R3 is employed in, and
a permanent resident of the United Kingdom and R4 is employed and a resident of
France.
8. In 2012, when the petitioner’s son and daughter visited Puducherry, the
petitioner had been deceived into executing a partition deed dated 30.07.2012, in
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terms of which, one portion of the property was allotted to the petitioner’s share
and the remaining, jointly allotted to R3 and R4. On 23.08.2012 the petitioner had
executed a settlement deed in terms of which he had settled his share of the
property upon R3. The petitioner alleges that the partition and the subsequent
settlement were entirely malafide, obtained by manipulation and
obtained/executed in collusion with the other private respondents i.e. R5 to R7.
9. He specifically avers that there is no element of his free will in the
aforesaid events. He claims that after execution of the settlement deed, he was
beaten up and forced out of the property in question by R3 and R4 with the active
assistance of R5 and R6, thus, forcing him to stay in rented premises in
Puducherry itself. He further alleges that R5 to R7 have purchased the property in
question from R3 and R4, which is why they had actively assisted R3 and R4 in
ousting the petitioner from out of the property.
10. The petitioner had lodged a complaint on 21.06.2018 in terms of Section
7 of the Welfare Act that R1, by letter dated 13.11.2018, returned as non-
maintainable, on the ground that the Welfare Act applies only to Indian Citizens.
Despite efforts to persist with the complaint, the official respondents have
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reiterated the aforesaid view, that an OCI card holder is not entitled to the benefit
of the Welfare Act, thus constraining him to come before this Court.
Submissions of the petitioner in regard to the law:
11. Section 7B of the Indian Citizenship Act grants to an OCI card holder
all rights stipulated by Notification by the Central Government in the Official
Gazette, barring those rights specified under Sub-Section (2) thereof.The case of
the petitioner rests on Section 7B of the Citizenship Act. They argue that an OCI
cardholder is entitled to all rights available to a citizen other than those excluded
in sub section (2) thereof.
12. Sub-section (2) is specific to the situations set out under clauses (a) to
(i) which does not cover the applicability of the Welfare Act or the entitlement of
an OCI cardholder to the benefit of the Welfare Act. Learned counsel for the
petitioner would, in this context, lay great emphasis on the Process-Verbal that
crystalized the conclusions arrived at by the two delegations on administrative,
social, judicial, economic and financial right and other miscellaneous questions in
regard to the residents of Puducherry at the time of execution of the Treaty of
Cession in 1956. Hence this writ petition.
Submissions of the official respondents:
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13.The official respondents have, in the course of their arguments, relied
upon relevant provisions of the Welfare Act, Citizenship Act and the Puducherry
Administration Act, 1962 as well as the decisions of this Court in D.Gobalusamy
Vs. Union Territory of Puducherry (CDJ 1966 MHC 105), Gautam Chand Jain
Vs. Arumugam alias Tamilarasan, [(2013) 10 SCC 472] and Tamil Nadu
Veterinary and Animal Sciences University and another vs. Shanthi Esther
Puyravaud and Ministry of External Affairs in W.A.No.1809 of 2017 dated
28.03.2018 in support of their stand that the application filed by the petitioner
seeking the benefit of the Welfare Act is not maintainable.
14. The facts, as put forth by the petitioner are not really traversed by the
respondents, as they dispute the very maintainability of the application filed by the
petitioner under the Welfare Act. According to the official respondents, the
application of the Welfare Act is specific to Citizens of India alone. Though
Section 1(2) of the Welfare Act states that it extends to the whole of India except
the State of Jammu and Kashmir and also to citizens outside India, a ‘senior
citizen’ under Section 2(h) is defined as any person being a citizen of India who
has attained the age of 60 years or above.
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15. The provisions of Section 7B are, according to the respondents,
inapplicable in the case of the petitioner, as an OCI cardholder is not a citizen of
India. That apart, the benefit extended under the Welfare Act has, admittedly, not
been notified as a right available to an OCI cardholder and hence Section 7B of
the Citizenship Act is of no avail to the petitioner. Thus taking succour under the
admitted position that the petitioner is a France National, though resident in India,
the official respondents argue that the benefit of the Welfare Act is unavailable to
the petitioner.
Issue to be decided
16. I am thus to decide whether the Welfare Act would apply to an OCI card
holder, who is a French National, resident in Puducherry.
Historical and legal Background
17. The territories of Karaikkal, Mahe and Yanam were occupied by the
French during the period 1720 to 1761 AD and on 06.04.1819, the Governor of
Puducherry issued an arête making it mandatory for the Court to recognise local
customs and practices for deciding litigation between the residents.
18. The aforesaid arête extended an option to the resident population to
renounce their personal law and adopt French Law, including personal law. Such
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persons were required to apply for such renunciation and their names and those of
their family members came to be entered into a register maintained by the
municipalities and commune Panchayat across the Union Territory of Puducherry.
They came to be referred to and are known as ‘Renocants’. Renocants are thus,
those individuals who continue to hold Indian Nationality, but who are governed
by French laws, including personal law.
19. The Constitution of India that came into force in India on 26.01.1950,
inter alia, contained Article 229 empowering the President of India to administer
States de-alienated under Part-C of the First Schedule to the Constitution, that
later came to be referred to as Union Territories. On 21.10.1954, the Government
of India and the Government of France entered into a defacto agreement
whereunder defacto control of the Union Territory of Puducherry was taken by the
Government of India, on and with effect, from 01.11.1954.
20. On 08.05.1956 a Treaty of Cession came to be entered into between
India and France under which France ceded what is presently the Union Territory
of Puducherry, with all benefits of special administration, to India. This bilateral
agreement extended an option to the inhabitants of the Union Territory to be either
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Indian or French citizens. Those that opted for French citizenship could own
property and continue their avocations in Puducherry itself.
21. The Treaty of Cession contained some protection in regard to such
persons and expressly set out the contours of that protection. Such individuals
came to be known as Opthons.Opthons are thus such individuals who have opted
for French Nationality and are governed primarily by French law. However, since
they continue to reside in Puducherry are have been permitted to continue their
avocations there, they have been extended the beneficial cover of some of the
welfare legislations under the Treaty of Cession.
22. Simultaneous therewith, on 01.11.1956 by the Constitution of India (7th
Amendment Act 1956), Articles 239 and 240 were substituted and the President
given the power to administered the Union Territories by appointment of the
Administrator for that purpose.On 16.08.1962 a dejure transfer took place by
which the Union Territory of Puducherry came to be vested with the Union of
India. The Constitution 14th Amendment Act inserted Article 239A that enabled
parliament to create a legislature for the Union Territory.
23. The merger of the erstwhile French territory of Puducherry with India
thus took place on 16.08.1962 following the Treaty of Cession concluded between
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France and India on 28.05.1956. This established the cession of the French
establishment by France to India, in full sovereignty. The Puducherry
Administration Act, 1962 (in short ‘1962 Act’) was enacted to specifically provide
for the administration of Puducherry and all matters thereof. Section 4 has been
referred to, as it deals with the continuance of the existing laws and their
adaptation.
24. On 16.03.1963 an Agreed Process-Verbal was signed between India and
France whereunder Clause-2 of Part-1 confirmed that the Renocants will be
continued to be governed by French Law. On 05.12.1962, the 1962 Act came into
force and Section 4 of the Act provided that existing laws in the Union Territory
of Puducherry shall continue to apply even after merger of Puducherry with the
Union of India. In the interests of completion, Section 4 of the 1962 Act is
extracted below and reads as follows:
‘Section 4.-Continuance of existing laws and their-
adaptation.(1) All laws in force immediately before the appointed day
in the former French Establishments or any part thereof shall
continue to be in force in Puducherry until amended or repealed by a
competent Legislature or other competent authority:
Provided that references in any such law to the President or
Government of the French Republic shall be construed as references
to the Central Government, references to the Governor of the French
Establishments in India, to the Commissioner of the Republic for the
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French Establishments in India, to the Chief Commissioner for the
French Establishments, to the Chief Commissioner of the State of
Puducherry or to the Chief Commissioner, Puducherry, shall be
construed as references to the Administrator of Puducherry and
references to the State of Puducherry shall be construed as
references to Puducherry.
(2) For the purpose of facilitating the application of any such
law in relation to the administration of Puducherry and for the
purpose of bringing the provisions of any such law into accord with
the provisions of the Constitution, the Central Government may,
within three years from the appointed day, by order, make such
adaptations and modifications, whether by way of repeal or
amendment, as may be necessary or expedient and thereupon every
such law shall have effect subject to the adaptations and
modifications so made.’
Discussion
25. The petitioner is, admittedly, a French National, holding a lifetime visa,
who seeks protection under the Process Verbal and is thus an Opthon.
26. Articles 4 and 6 of the Treaty of Cession deal with the status of persons
in Puducherry at the time of coming into force of the Treaty of Cession and Article
5 provides for the exceptions thereto, and are extracted below:
‘Article 4
French Nationals born in the territory of the Establishments
and domiciled therein at the date of the entry into force of the Treaty
of Cession shall become nationals and citizens of the Indian Union,
with the exceptions enumerated under Article 5 hereafter.
Article 5
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The persons referred to in the previous article may, by means
of a written declaration drawn up within six months of the entry into
force of the Treaty of Cession choose to retain their nationality.
Persons availing themselves of this rights shall be deemed never to
have acquired Indian nationality.
The declaration of the father or, if the latter be deceased, of
the mother, and in the event of the decease of both parents, of the
legal guardian shall determine the nationality of unmarried children
of under eighteen years of age. Such children shall be mentioned in
the aforesaid declaration. But married male children of over sixteen
years of age shall be entitled to make this choice themselves.
Persons having retained French nationality by reason of a
decision of their parents, as indicated in the previous paragraph,
may make a personal choice with the object of acquiring Indian
nationality by means of a declaration signed in the presence of the
competent Indian authorities, within six months of attaining their
eighteenth birth day. The said choice shall come into force as from
the date of signature of the declaration.
The choice of a husband shall not affect the nationality of the
spouse.
The declarations referred to in the first and second
paragraphs of this Article shall be drawn up in two copies, the one
in French, the other in English, which shall be transmitted to the
competent French authorities. The later shall immediately transmit
to the competent Indian authorities the English copy of the aforesaid
declaration.
Article 6
French nationals born in the territory of the Establishments
and domiciled in the territory of the Indian Union on the date of the
entry into force of the Treaty of Cession shall become nationals and
citizens of the Indian Union. Notwithstanding, they and their
children shall be entitled to choose as indicated in Article 5 above.
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They shall make this choice under the conditions and in the manner
prescribed in the aforesaid Article.’
27. Article 4 states that French nationals born and domiciled in Puducherry
as on the date of coming into force of the Treaty shall become Nationals and
Citizens of India with the exceptions enumerated under Article 5 that provide for
persons to make a Declaration that they opt for French Nationality.
28. Persons who choose to retain French nationality shall be deemed never
to have acquired Indian Nationality. Such a choice was to be given in the case of
all minor children under 18 years of age by the father or the mother or the legal
guardian. Male married children of over 16 years of age were entitled to make a
choice themselves. In the present case, the petitioner has admittedly chosen to
retain his French nationality and in terms of paragraph-1 of Article 5, has never
acquired Indian Nationality, preferring instead to hold only an Oversees Citizen of
India card.
29. Detailed discussions were undertaken by two delegations of high-
ranking officials that discussed and deliberated upon various issues that touched
upon the residents of Puducherry. The conclusions arrived at by the delegations
were crystallized in a document entitled Agreed Process-Verbal. Inter alia, certain
‘Administrative and Social questions’ were discussed and protection provided on
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various fronts, including by way of benefit/advantages granted under labour and
social security legislations.
30. The Preamble and relevant portions of the conclusions are as follows:
‘A delegation representing the Government of France led by His
Excellency Mr.Jean-Paul GARNIER, Ambassador Extraordinary and
Plenipotentiary of the Republic of France in India, discussed in New
Delhi from the 13th of November, 1962 to the 15th of March, 1963 with a
delegation representing the Government of India, led by Mr.Rajeshwar
Dayal, Special Secretary, Ministry of External Affairs, various matters
concerning certain provisions of the Treaty of Cession of the French
Establishments of Puducherry, Karaikal, Mahe and Yanam concluded
on the 28th of May, 1956 in New Delhi between the French Republic and
the Republic of India.
The two delegations reached the following conclusions:
I.ADMINISTRATIVE AND SOCIAL QUESTIONS:
1.Situation of persons domiciled in the former French
Establishments in India on the 1st of November, 1954.
A. Establishment and exercise of their activities – The Indian
delegation stated that the Government of India had taken
steps to ensure that the provisions of articles 11 and 17 were
observed. If new laws or regulations were promulgated, it
would be ensured that the provisions of articles 11 and 17
were not infringed.
In the special case of article 17, the existing laws and
regulations are, according to the Indian delegation, adequate
for the purpose, except in the case of certain requirements
such as registration and residential permits which apply to
all foreign nationals. The Government of India shall exempt
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French nationals domiciled in the former French
Establishments from these requirements.
In answer to an enquiry made by the French delegation, the
Indian delegation stated that the above mentioned persons
shall be in a position to undertake the following activities in
the same manner as other inhabitants of the former French
Establishments.
(a)setting up of industrial, commercial, agricultural or
handicraft enterprises;
(b)setting up of companies according to the laws in force in
the Establishments and acquiring interest in companies
functioning in other parts of the Indian Union;
(c)taking part in activities of bodies representing economic
interests;
(d)carrying on wage-earning activities.
They shall also enjoy:
(a)private rights, particularly the right of purchasing,
owning, managing or renting movable and immovable assets,
rights, and interests, using them and disposing of them;
(b)judicial protection: free and easy access to courts, at every
level of jurisdiction, for the purpose of asserting and
defending their rights and interests; benefit of judicial
assistance and exemption from the provision of security for
costs in accordance with laws and regulations in force;
(c)social protection; benefit of the advantages granted by
legislation in regard to labour and social security;
participation in trade union activities.
The vested rights of private persons or corporate bodies will
be respected.
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The French delegation asked that the benefits of articles 11
and 17 be extended to French nationals who had elected their
domicile in the former French Establishments after the 1st of
November, 1954 and up to the 16th of August, 1962 and who
continued to maintain their domicile there.
The Indian delegation agreed.
B. Right to return to the Establishments – The French
delegation requested that the provisions of paragraph 2 of
article 9 be extended to all French nationals born in the
Establishments. The Indian delegation pointed out that article
9 specified certain categories of persons. If, however, other
categories of persons, born in the Establishments or keeping
their family links in the Establishments, desired to return to
Puducherry, their applications would be considered
sympathetically. As a rule, such person would be granted the
necessary visas except in the case of persons considered
“undesirable”.
C. Right of property – The Indian delegation confirmed that
Indian laws did not prohibit foreigners from owning real
estate.
D. Payment of pensions, allowances and grants – The Indian
delegation stated that French nationals, including those who
would establish their domicile outside India, would be
granted by the Government of India their due pensions,
allowances and grants which are the responsibility of the
territory, as contemplated in article 10 of the Treaty. They
further explained that:
(a) pensions shall be paid in rupees to persons who had their
domicile in Puducherry their remittance abroad being subject
to the relevant Exchange Control Regulations in force.
Pensions of retired persons having their domicile outside
India shall be payable, through their banks in India, in the
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money of the country where such persons shall have elected
their domicile;
(b) the payment of the indemnity of 75% paid to the
pensioners of the “Caisse de la France d’Outre-Mer” will be
continued but will not be extended to new beneficiaries, i.e.,
to persons having elected their domicile in Puducherry after
the 16th August, 1962. Persons who reside in Puducherry for
less than six months during any financial year will not be
entitled to such payment.
2. Situation of the “Renoncants”
It was agreed that the “Renoncants” will continue to be
governed in respect of personal laws like those relating to
marriage, divorce, adoption, succession etc., by the relevant
articles of the French Civil Code dealing with these matters.
Discussion of the cases cited by the Respondent
31. In the case of Gautam Chand Jain (supra) the issue that arose was
whether the civil suit filed by the Appellant therein, was barred by limitation. In
deciding this question the Court was concerned with whether the law of limitation,
as per French law or Indian law would apply. In this context the Court refers to
and relies upon their earlier judgment in the case of Cadar Constructions Vs. Tara
Tiles [AIR(1994) Bombay 258], where the Court had considered this very
question, though in the context of interaction between the provisions of the
Limitation Act, 1963 and Article 535 of the Portuguese Civil Code.
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32. In conclusion, the Court held that with the coming into force of the
Limitation Act on and from 01.01.1964, Article 535 of the Portuguese Civil Code
stood impliedly repealed. The Court also held that it is in the interests of the
Country that there is one general law of limitation, the 1963 Act, and furthermore
that the Portuguese Civil Code cannot be termed to be a local law or a special law
applicable to the State of Goa, Daman and Diu.
33. It would be an entirely inappropriate situation for the Union territories
of Goa, Daman and Diu to be governed by limitation of 30 years whereas the rest
of the country would be bound by the provisions of the Limitation Act which
stipulated a limitation of three years for civil suits. Thus, even on the anvil of
uniformity, it stood to reason that it must be the local law or the law of the land,
that must apply.
34. The case of D. Gobalousamy(supra) related to prayers for the issuance
of Writs of quo warranto. D. Gobalousamy, an Advocate – Conceil had been
practicing in the Puducherry Courts for nearly 2 decades and had challenged
orders of appointments of two individuals as President of the Tribunal Superieur
d’ Appeal and the Puisne Judge of the same Court. Inter alia, the grounds of
attack centered around the Process Verbal dated 15.03.1963, which was regarded
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as integral to the Treaty of Cession and had guaranteed certain rights to the
citizens of Puducherry touching upon judicial organisation and qualifications of
persons to be appointed to the judiciary.
35. I will restrict my observations to the discussion concerning the Agreed
Process-Verbal itself that have been recorded from pages 89 to 93 of the MLJ
report. Since the discussion is extremely comprehensive, in the interests of brevity
I would merely extract the following portion that crystallizes the issue in regard to
the Process Verbal that was noticed by the Bench in the following terms:
We have been at some pains to ascertain the status of a Process
Verbal in diplomatic usage, and in International law, accepting
the two affidavits on record that this document came into
existence between the high contracting parties, not as formal
minutes of a procedure followed under Art. 29 of the Treaty of
Cession, but as a subsequent informal consultation and
agreement unrelated to Art. 29. In Harrap's French and English
Dictionary Process Verbal is defined as "an official report,
proceedings, minutes, of meeting; record of evidence, etc". There
is another significance in this term in the French processual law
relating to claims, as a report of police officer who takes down
the particulars of a minor offence "(delit)".
36. The Bench notices that the term Process Verbal suffers from some
degree of ambiguity and have referred to Oppenheim’s International Law, Volume
I (8thEdn.) and Mcnair’s Law of Treatise, 1961 Edn. to arrive at a proper
understanding of the term. They conclude, after discussing several cases in the
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context of incorporation of one enactment into another, that the Process Verbal is
not a part of the Treaty of Cession and cannot be so regarded in International Law.
37. The Bench categorically concludes that ‘it is impossible to contend that
there is a constructive incorporation of the Process Verbal or any part of it, in
Sec.6 of Act XLIX of 1962. It follows that the guarantee, assuming that it has
been infringed by the appointments, is not justiciable, in the Municipal Court.’
Thus, on that ground, the Bench was of the view that the Writ Petitioner had to
fail. However, in conclusion, the Bench does note that ‘whatever can be done to
observe the spirit of the assurances of the Process Verbal during the transitional
period, should surely be done, since the solemn obligation of the high contracting
parties are not denied at all before us.’ With these observations, the Bench
proceeded to dismiss the Writ Petition.
38. Thus, if the attempt of Mr.Kumaran was to say that the Process Verbal is
not intended to bind the official respondents or that the guarantees extended under
it are to be eschewed, in that attempt, he fails. As noted by the Bench, the
agreement has been entered into between two delegations comprising high ranking
officials and crystallises the rights that flow to persons who have opted for French
Nationality but to continue as residents of India on a life-long Visa. Thus, the
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assurances and promises extended under the agreement must be honoured to the
fullest.
39. Since the case of the petitioner rests substantially upon the provisions of
Section 7B of the CA, the same is extracted below in the interests of clarity and
completion:
7B. Conferment of rights on Overseas Citizen of India
Cardholder.-(1) Notwithstanding anything contained in any other
law for the time being in force, an Overseas Citizen of India
Cardholder shall be entitled to such rights, other than the rights
specified under sub-section (2), as the Central Government may, by
notification in the Official Gazette, specify in this behalf.
(2) An Overseas Citizen of India Cardholder shall not be
entitled to the rights conferred on a citizen of India-
(a) under article 16 of the Constitution with regard to equality
of opportunity in matters of public employment;
(b) under article 58 of the Constitution for election as
President;
(c) under article 66 of the Constitution for election as Vice-
President;
(d) under article 124 of the Constitution for appointment as a
Judge of the Supreme Court;
(e) under article 217 of the Constitution for appointment as a
Judge of the High Court;
(f) under section 16 of the Representation of the People Act,
1950 (43 of 1950) in regard to registration as a voter;
(g) under sections 3 and 4 of the Representation of the People
Act, 1951 (43 of 1951) with regard to the eligibility for being a
member of the House of the People or of the Council of States, as the
case may be;
(h) under sections 5, 5A and section 6 of the Representation of
the People Act, 1951 (43 of 1951) with regard to the eligibility for
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being a member of the Legislative Assembly or the Legislative
Council, as the case may be, of a State;
(i) for appointment to public services and posts in connection
with affairs of the Union or of any State except for appointment in
such services and posts as the Central Government may, by special
order in that behalf, specify.
(3) Every notification issued under sub-section (1) shall be laid
before each House of Parliament.’
40. A reading of Section 7B of the Citizenship Act with Notification dated
04.03.2021 makes it clear to me that the benefits of the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007 have not been expressly extended to
overseas OCI Card Holders, who are non-citizens, equated to foreigners.
41. However, this is a unique matter, the understanding of which cannot rest
merely upon a singular enactment, the Citizenship Act, and related Notifications.
The issue to be decided, will have to be set, seen and decided in the context of the
Welfare Act specifically, and in the background of the objects and reasons for
which that Legislation was enacted.
42. The object and reasons of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 are as follows:
Statement of Objects and Reasons-Traditional norms and values of
the Indian society laid stress on providing care for the elderly.
However, due to withering of the joint family system, a large number
of elderly are not being looked after by their family. Consequently,
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many older persons, particularly widowed women are now forced to
spend their twilight years all alone and are exposed to emotional
neglect and to lack of physical and financial support. This clearly
reveals that ageing has become a major social challenge and there is
a need to give more attention to the care and protection for the older
persons. Though the parents can claim maintenance under the Code
of Criminal Procedure, 1973, the procedure is both time-consuming
as well as expensive. Hence, there is a need to have simple.
inexpensive and speedy provisions to claim maintenance for parents.
2. The Bill proposes to cast an obligation on the persons who
inherit the property of their aged relatives to maintain such aged
relatives and also proposes to make provisions for setting-up old age
homes for providing maintenance to the indigent older persons. The
Bill further proposes to provide better medical facilities to the senior
citizens and provisions for protection of their life and property.
3. The Bill, therefore, proposes to provide for:
(a) appropriate mechanism to be set up to provide need-based
maintenance to the parents and senior citizens;
(b) providing better medical facilities to senior citizens;
(c) for institutionalisation of a suitable mechanism for protection of
life and property of older persons;
(d) setting up of old age homes in every district.
4. The Bill seeks to achieve the above objectives.
43. The definition of the terms ‘parent’ and ‘senior citizen’ are as per
Section 2(d) and (h) as below:
2. Definitions.—In this Act, unless the context otherwise requires,—
(d) “parent” means father or mother whether biological, adoptive or
step father or step mother, as the case may be, whether or not the
father or the mother is a senior citizen;
(h) “senior citizen” means any person being a citizen of India, who
has attained the age of sixty years or above;
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44. Thus, while a senior citizen is defined as any person who has attained
the age of 60 years or above, who is a citizen of India, the definition of ‘parent’ is
far wider and encompasses a mother and father, in all the hues and colours that
those terms may assume, whether or not the mother and father are senior citizens.
45. The petitioner is admittedly born in, and resident in Puducherry apart
from being entitled to the benefits assured under the Agreed Process-Verbal. His
status as a parent is unquestioned. The Division Bench of this Court in
D.Gobalousamy’s case (supra) has also specifically, and in conclusion, reiterated
the spirit in which the Agreed Process-Verbal is to be understood and applied. I
am thus unable to accept the limited interpretation and application of the Welfare
Act as urged by the respondents and reject the same.
46. The Process Verbal at clause (b) refers to the decisions of the
delegations to provide judicial protection and free and easy access to the Courts at
every level of jurisdiction for the purpose of ascertaining and defending the rights
and interests of the residents and obtaining the benefit of judicial assistance and
exemption from the provision of security for costs. It also assures them social
protection and though in the context of labour legislation, such social protection,
in my view, should also extend to the protection of parents under the Welfare Act.
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Thus, upon a combined reading and understanding of the provisions of the
Welfare Act with the relevant provisions of Agreed Process-Verbal, both in letter
and spirit, I am of the considered and categoric view that the petitioner must
succeed.
47. I hasten to add that nothing in this order will touch upon the merits of
the grievances expressed by the petitioner as I am concerned solely with his
entitlement to approach the respondent authority for redressal. The application is
held maintainable. It is now for the authority to issue notice to the parties in terms
of the relevant provisions of the Act read with the Puducherry Maintenance and
Welfare of Parents and Senior Citizens Rules, 2011 (in short ‘Rules’), notified
under G.O.Ms.No.32 of 2011 dated 27.10.2011 in the Gazette of Puducherry.
48. The procedure set out therein read with the procedure under Section 6 of
the Welfare Act provides for service upon persons who are residents in India or
outside and Section 6(5) of the Welfare Act, specifically provides for service of
summons by the Tribunal to Children or relatives residing out of India through
such authority as the Central Government may, by Notification in the official
Gazette stipulate in this behalf. Thus, the procedure facilitates participation of
children/relatives wherever they may be so resident.
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49. In conclusion, I make reference to a decision of a learned single Judge
of the Punjab and Haryana High Court, who has taken the same view as I have in
this Writ Petition in the context of an Overseas Card Holder, a US citizen, in
Hamina Kang V. District Magistrate (U.T.), Chandigarh (CWP No.18009 of 2015
(O&M) dated 25.01.2016). The learned single Judge was faced with a similar
argument by the petitioner therein that the benefit of the Welfare Act is not
available to a citizen of the United States who does not satisfy the definition of a
‘senior citizen’ under the Welfare Act, and has proceeded to decide the issue in
favour of the respondent, her father-in-law.
50. The petitioner, who was aggrieved on this score, had filed an appeal
before the Division Bench of the Punjab and Haryana High Court and by order
dated 26.05.2017 in LPA No.291 of 2016 (O&M), the same has been dismissed as
withdrawn.
51. It is trite to state that once a particular interpretation of a Central Act has
been accepted by the authorities in one State/UT, such an interpretation must be,
in the interests of uniformity and consistency, be applicable throughout the
Country.
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52. In any event, the present petitioner stands in a more elevated position
when compared to the senior citizens in the Writ Petition before the Punjab and
Haryana High Court, since he has also the benefit of the Agreed Process-Verbal as
an additional factor. In fine, this Writ Petition is allowed. The application filed
before R2 stands restored to his file. The petitioner shall be heard and orders
passed on merits in line with the procedure under the Welfare Act and the Rules
within a period of six (6) Weeks from date of receipt of a copy of this order. No
costs.
13.09.2022
Vs/sl
Index:Yes/No
Speaking/Non-speaking order
To
1.The District Collector-Cum-Appellate Authority
Under the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007,
Government of Puducherry,
Pettaiyanchitram, Valudavur Road,
Puducherry-605 009.
2.The Special Officer,
Department of Revenue and Disaster Management,
Government of Puducherry,
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Pettaiyanchitram, Valudavur Road,
Puducherry-605 009.
3.The Secretary to Government,
Ministry of Home Affairs,
New Delhi.
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DR.ANITA SUMANTH, J.
Vs/sl
W.P. No.26238 of 2022
13.09.2022
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