(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.)
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 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 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
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:
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 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 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 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:
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.
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 arte making it mandatory for the Court to recognise local customs and practices for deciding litigation between the residents.
18. The aforesaid arte extended an option to the resident population to renounce their personal law and adopt French Law, including personal law. Such 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 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 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 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.’
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:
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.
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.
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. 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 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 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.
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 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.
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 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 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 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 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, 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;
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 admitte
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dly 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. 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. 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. 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.