# Naromattie Devi Ganpat v. Union of India & Ors

- **Citation:** (2024) 2 ILRA 396
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Writ C No. 19866 of 2023
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naromattie-devi-ganpat-v-union-of-india-ors-51430
- **Pages:** 14

## Headnote

Civil Law - Constitution of India,1950Article
226-The
Citizenship
Act,1955CitizenshiRules,2009-the
Petitioner
sought registration as an Overseas Citizen
of India based on her ancestry and marital
connection
to
an
Indian
citizen-The
petitioner claimed her great-grandparents
emigrated from Allahabad and Jaunpur,
India to Guyana in 1882 as indentured
laborers-She
submitted
apostilled
documents from National Archives of
Guyana to prove her ancestry but was
denied the OCI card cue to the nonavailability of a Native Certificate
from
the
district
magistrate,
a
requirement not specified in Indian
law-The court held that under the
Act, 1955 and Rules 2009, a Nativity
Certificate is not mandated for OCI
registration-India, being a signatory
to the Hague Apostille Convention,is
obligated
to
accept
apostilled
documents
as
legal
proof-The
petitioner's documents were deemed
sufficient-the
court
held
that
territorial
jurisdiction
as
the
petitioner's
ancestors
were
from
uttar Pradesh.(Para 1 to 50)

The writ petition is allowed. .( E-6)

List of cases cited:

## Text

_Characters 0–39,859 of 44,700. This is a partial read: ask again with offset=39859 for what follows._

396 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The respondent nos. 1 and 2 are
directed to pay the amount of Rs.5,26,000/-
to the petitioners in three instalments of
Rs.2,00,000/-,
Rs.2,00,000/-
and
Rs.1,26,000/-. The first instalment shall be
paid within a period of three months and
the second and third instalments shall be
paid within a period of two-two months
respectively.

29.

With
the
aforesaid
observations/directions, the writ petition is
allowed accordingly.
----------
(2024) 2 ILRA 396
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2024
BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ C No. 19866 of 2023

Naromattie Devi Ganpat ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishnu Pandey,, Sri Anil Kumar, Sri
Ayush Mittal, Sri Prabhakar Awasthi, Sri
Prateek Srivastava, Sri Vikrant Pratap
Singh, Sri Vineet Kumar Singh, Sri Vipul
Singh

Counsel for the Respondents:
A.S.G.I., Sri Sanjay Kumar Om

Civil Law - Constitution of India,1950Article
226-The
Citizenship
Act,1955CitizenshiRules,2009-the
Petitioner
sought registration as an Overseas Citizen
of India based on her ancestry and marital
connection
to
an
Indian
citizen-The
petitioner claimed her great-grandparents
emigrated from Allahabad and Jaunpur,
India to Guyana in 1882 as indentured
laborers-She
submitted
apostilled
documents from National Archives of
Guyana to prove her ancestry but was
denied the OCI card cue to the nonavailability of a Native Certificate
from
the
district
magistrate,
a
requirement not specified in Indian
law-The court held that under the
Act, 1955 and Rules 2009, a Nativity
Certificate is not mandated for OCI
registration-India, being a signatory
to the Hague Apostille Convention,is
obligated
to
accept
apostilled
documents
as
legal
proof-The
petitioner's documents were deemed
sufficient-the
court
held
that
territorial
jurisdiction
as
the
petitioner's
ancestors
were
from
uttar Pradesh.(Para 1 to 50)

The writ petition is allowed. .( E-6)

List of cases cited:

1. Commr.of Customs Bangalore Vs M/S G.M.
Exports & ors..(2015) SCC OnLine SC 837

2. Lakshmi Kant Pandey Vs U.O.I. & ors..(2010)
12 SCC 735

3. Dr. Sanjay Khanduja Vs PNB & anr.(2021)
SCC OnLine Del 3209

4. Addul Manaf Vs St.of Ker.(2015) SCC OnLine
Ker 29460

5. Hansjurgen Gunther Koch Vs The St. 1 SA 13
of 2005 (2006) NASC 6

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Sri Vineet Kumar
Singh,
learned
counsel
for
the
petitioner
and
Shri
S.P.
Singh,
learned Assistant Solicitor General
of India (ASGI) assisted by Sri
Sanjay Kumar Om, learned counsel
for
Union
of
India.
2 All. Naromattie Devi Ganpat Vs. Union of India & Ors.
397

2. The factual matrix of the case is
that, the petitioner is a citizen of United
States of America though born in Guyana,
but of Indian origin. Her grandfather
Bishnath hailed from Allahabad, Jaunpur
and Hania, who was sent from Calcutta by
a ship "EMS" to Guyana (British Guyana)
vide Immigration no.104709. The petitioner
is also great granddaughter of Ganesh and
Janki hailing from Jaunpur and Hania
respectively, who travelled via Ship from
Calcutta to Guyana. In proof of this, the
petitioner got an apostille copy of her
grandfather's immigration certificate from
National Archives of Guyana, which
clearly showed that they immigrated by
Ship 'Delhet' on 10th October, 1882 and it
also carried the immigration certificate of
her grandmother Janki.

3.

The
petitioner
applied
for
"Ancestry Certificate" for her ancestors
Bishnath, Ganesh and Janaki, which were
issued to her by the Village Pradhan of
village-Sarigaon,
Tehsil-Mariyahoo,
District-Jaunpur,
Uttar
Pradesh
on
3.10.2022, mentioning therein that Ganesh
hailed from Ahir Caste and belonged to the
family of Sadho and Matabhik, who were
deported by the Britishers. The ancestry
chart of the petitioner is as follows:-

Janki (Daughter of Bhola) - was
great grandmother of petitioner,

who
had
immigrated to Guyana on

10.10.1882
vide immigration no.104709

|

Bishnath (son of Janki)

|

Khemraj (son of Bishnath)

|

Naromattie Devi - (Daughter of
Khemraj, Petitioner)

4. The petitioner claims that she got
married to one Bhavin Dinesh Dholakia on
14.9.2018 in a temple in Mumbai, which
was duly registered on 24.9.2018. She then
applied for Overseas Citizenship of India1
Card through her spouse and also through
her Indian origin ancestry, but the same was
denied on the ground that her marriage was
not verified. Thereafter the petitioner
applied for Visa Conversion on 20.9.2022
on both counts, marriage and ancestry
because for OCI registration her Visa
required to have a minimum validity period
of six months. However, it was again
rejected.

5. The petitioner claims to have been
running from pillar to posts to get the
documents by which her OCI Card could
be processed. In the meanwhile, her Visa
expired on 6.2.2023.

6. The petitioner has all her
grandparents origination documents/papers
issued by the officials of Guyana, South
America, which clearly demonstrate that
the grandparents of the applicant were
originally from India and having their
origination from Allahabad(Prayagraj). All
Apostilled
official
documents
are
admissible in Indian law for addressing the
applicant's claim of OCI Card, allowing her
Conversion Visa and issue of Nativity
Certificate.
These
documents
were
sufficient as per the Hague Convention,
19612, which abolishes the requirement of
legalization of foreign documents for use in
any member country, once an Apostille
certificate has been issued by a competent
authority of the country.

7. That inspite of having the required
documents the respondents refused to
process or hand over the OCI Card to the
398 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, so the petitioner filed the instant
writ petition with the following reliefs:-

(i) Issue a writ, order or direction
in the nature of mandamus directing to the
respondent nos.1 to 3 to register petitioner
as OCI card holder on the basis of her
Indian Origination/Indian Spouse, and

(ii) Issue a writ, order or
direction in the nature of mandamus to
respondent nos.1 to 3 to allow Conversion
Visa to the petitioner to X-1 Entry Visa on
the basis of Indian Origination/Indian
Spouse, and

(iii) Issue a writ, order or
direction in the nature of mandamus to
respondent nos.1 to 3 to extend the Visa of
the petitioner which has expired on
06.02.2023 as she is fully eligible to receive
the OCI (Overseas Citizenship of India)
card.

(iv) Issue a writ, order or
direction in the nature of mandamus to
respondent nos.4 and 5 to issue Nativity
Certificate to the petitioner with respect to
her Indian parents."

ARGUMENT
OF
THE
PETITIONER

8. Learned counsel for the petitioner
submitted that the petitioner was granted a
tourist visa which was valid from 7.2.2013
to 6.2.2023 and when her stay visa got
expired on 12.6.2020, it was extended from
time to time. The stay visa was last
extended
upto
8.7.2023
and
further
extension of visa was not granted. Even her
OCI card is not being processed, as her
tourist visa has already expired.

9. The petitioner's counsel further
argued
that
production
of
nativity
certificate is not the requirement of law in
terms of the material provisions contained
in the Citizenship Act, 19553 and the
Citizenship Rules, 20094 in regard to grant
of registration as an Overseas Citizen of
India. The petitioner had duly submitted the
requisite documents in support of her
claim,
a
perusal
of
which,
clearly
demonstrates that she was having Indian
Origin as her forefathers were residing
within the territory of the State of Uttar
Pradesh.

10. He further submitted that the
respondents have failed to take into
consideration the Office Memorandum
dated 18.11.2020 issued by the Ministry of
External Affairs, which clearly records that
an Apostille document should, therefore, be
treated as legalized document in India by
all concerned, in accordance with the
international
obligation
under
the
Convention,
1961.
The
provisions
contained in Section 7-A of the Act, 1955
and the mandate of law engrafted in Part VI
compromising Rules 29 to 35 of the Rules,
2009 do not postulate any such requirement
of furnishing a nativity certificate.

11. He further submitted that Rule 32
of the Rules, 2009, the Central Government
was obliged under the law to scrutinize the
application of the petitioner for grant of
registration as an OCI within a time bound
period.

ARGUMENT OF RESPONDENTS

12. Per contra, Sri S.P. Singh, learned
Assistant Solicitor General of India along
with Sri Sanjay Kumar Om, learned
counsel for respondent nos.1 to 3 submitted
that, the petitioner's application as spouse
of Indian citizen could not be processed as
she could not provide her husband's earlier
divorce/annulment certificate, hence, her
application was closed on 20.4.2023, and
2 All. Naromattie Devi Ganpat Vs. Union of India & Ors.
399
she was informed about it through email
with request to apply afresh with requisite
documents. She did apply again but again
failed to produce copy of dissolution
certificate of her husband's first marriage.
Hence the Visa conversion application was
again closed on 22.8.2023.

13. He further submits that Section
3(2) of the Foreigners Act, 1946 empowers
the Central Government to regulate the
entry stay and departure of any foreigner in
India. Further, the foreign nationals cannot
claim visa services from the Central
Government as a matter of right as per their
convenience. The visa service is meant
only for those foreign nationals who intend
to arrive/stay/depart in/from India legally
and follow Indian laws and rules.

14. With regard to petitioner's second
relief regarding issuance of an OCI card, an
online application was filed by the
petitioner,
vide
reference
no.INDD00365N21 dated 05.05.2021 in
Foreigners Regional Registration Office,
Delhi5,without uploading any documents,
though the hard copy was sent with the
FRRO, she could have scanned and
enclosed to the office. FRRO had sent an
email
reply
on
11.5.2021
intimating
applicant that the OCI card registration
service is temporarily suspended at FRRO,
Delhi due to spread of COVID-19. She
was also advised that in case of any query
she could call on telephone number 01126184824,
thereafter,
no
further
communication/correspondence
was
made by the petitioner and as such the
said OCI application could not be
processed further.

15. This writ petition was filed in
May, 2023. When the matter was taken up
on 10.7.2023, Sri Sanjay Om, learned
counsel for the respondent, very fairly
submitted
that
though
the
relevant
documents were not submitted earlier but if
furnished now, they would definitely be
processed, after the direction of this Court
to the petitioner to submit the same, the
documents were submitted, but again there
was some short coming. She had failed to
provide the Nativity Certificate from the
concerned District Magistrate.

16. He further submitted that the
documents furnished by the petitioner
obtained by her from the archives of
Guyana was not eligible for OCI card
registration under Section 7A(1) or Section
7A(3) of the Act, 1955 read with Articles 5
and 8 of the Constitution of India, as
descendants of Indian origin immigrants,
who migrated as indentured labourers
during British rule to Mauritius, Surinam,
Netherlands and Reunion Island were only
made eligible for OCI Card registration by
granting special dispensation, with the
approval of Ministry of Home under
Section 7A(3) of the Citizenship Act, 1955
from time to time (whereby the documents
of the archives of these countries can only
be considered for OCI registration of their
citizens). However, Indian immigrants of
Guyana were not included in the special
dispensation
category.
Therefore,
the
petitioner cannot be considered eligible for
registration as OCI card holder on the basis
of the documents obtained by her from the
archives of Guyana. She is mandatorily
required to submit a nativity certificate
issued by the concerned District Magistrate
and she cannot be granted any OCI card
merely on the basis of documents obtained
from the archives of Guyana. He further
stated that in the absence of any nativity
certificate from the concerned District
Magistrate, her OCI application cannot be
processed. An OCI card cannot be granted
400 INDIAN LAW REPORTS ALLAHABAD SERIES
to any foreign national who is found not
eligible for the issuance of the same.

ANALYSIS,
REASONING
AND
CONCLUSION

17. We have carefully considered the
submissions advanced by learned counsel
for the respective parties. With the able
assistance, we have perused the pleadings,
grounds taken in the petition, affidavits and
annexures thereto and the reply filed by
concerned parties.

18. The first issue is, as to whether a
Nativity Certificate is mandatory for
processing the application for OCI Card?

19. The second issue is as to whether
an Apostille Certificate issued by the
National Archives of Guyana could be
treated as a valid document under Hague
Convention, 1961?

20. Before proceeding further with the
matter we would first analyze with the
provisions of the Acts and Rules.

21. The relevant provision of the
Citizenship Act, 1955 reads as under :

"7A. Registration of Overseas
Citizen of India Cardholder.--(1) The
Central Government may, subject to such
conditions, restrictions and manner as may
be prescribed, on an application made in
this behalf, register as an Overseas Citizen
of India Cardholder--

(a) any person of full age and
capacity,--

(i) who is a citizen of another
country, but was a citizen of India at the
time of, or at any time after the
commencement of the Constitution; or

(ii) who is a citizen of another
country, but was eligible to become a
citizen of India at the time of the
commencement of the Constitution; or

(iii) who is a citizen of another
country, but belonged to a territory that
became part of India after the 15th day of
August, 1947; or

(iv) who is a child or a
grandchild or a great grandchild of such a
citizen; or

(b) a person, who is a minor child
of a person mentioned in clause (a); or

(c) a person, who is a minor
child, and whose both parents are citizens
of India or one of the parents is a citizen of
India; or

(d) spouse of foreign origin of a
citizen of India or spouse of foreign origin
of an Overseas Citizen of India Cardholder
registered under section 7A and whose
marriage has been registered and subsisted
for a continuous period of not less than two
years
immediately
preceding
the
presentation of the application under this
section:

Provided that for the eligibility
for registration as an Overseas Citizen of
India Cardholder, such spouse shall be
subjected to prior security clearance by a
competent authority in India:

Provided further that no person,
who or either of whose parents or
grandparents or great grandparents is or
had
been
a
citizen
of
Pakistan,
Bangladesh or such other country as the
Central Government may, by notification
in the Official Gazette, specify, shall be
eligible for registration as an Overseas
Citizen of India Cardholder under this
sub-section.

(2) The Central Government may,
by notification in the Official Gazette,
specify the date from which the existing
persons of Indian Origin Cardholders shall
2 All. Naromattie Devi Ganpat Vs. Union of India & Ors.
401
be deemed to be Overseas Citizens of India
Cardholders.

Explanation.--For
the
purposes of this sub-section, "Persons
of Indian Origin Cardholders" means
the persons registered as such under
notification number 26011/4/98 F.I.,
dated the 19th August, 2002, issued by
the
Central
Government
in
this
regard.

(3)
Notwithstanding
anything
contained in sub-section (1), the Central
Government may, if it is satisfied that
special circumstances exist, after recording
the circumstances in writing, register a
person as an Overseas Citizen of India
Cardholder."

22. The relevant provisions of the
Citizenship Rules, 2008 are as follows:-
" PART VI

OVERSEAS
CITIZENSHIP
OF
INDIA - REGISTRATION,

RENUNCIATION
AND
CANCELLATION

29. Application for registration
under section 7A.- (1) An application for
registration as an overseas citizen of India
under section 7A shall be made in Form
XXVIII.

(2) A family consisting of a
spouse and upto two minor children may

apply in the same Form.

30. Application for registration
under section 7A by Person of

Indian Origin card holders.- A
Person of Indian Origin Card holder,

notified vide the notification of
the Government of India in the Ministry of

Home
Affairs
number
26011/4/95-F.I, dated the 19th August,
2002 (published

in
the
Gazette
of
India,
Extraordinary, Part I, Section 1), as
amended from

time to time, who is otherwise
eligible for registration as overseas citizen
of

India, may apply in Form XXVIII
for grant of registration, which shall be
decided in the manner specified in this part
for other applicants.

31.
Authority
to
which
applications
are
to
be
made.-
An
application under rule 29 or as the case
may be, rule 30 shall be made in duplicate
-

(a) in India-

(i) to the Foreigners Regional
Registration Officer situated at

National Capital Territory of
Delhi, Mumbai, Kolkata,

Chennai or Amritsar, who shall
forward the same to the

Central
Government
in
the
Ministry of Home Affairs; or

(ii) to the Foreigners Division,
Ministry of Home Affairs;

(b) outside India-

(i) to the Indian Mission or Post
having jurisdiction over the country of
which an applicant is a citizen; or

(ii) where he is not in the country
of his citizenship, to the Indian Mission or
Post having jurisdiction over the country of
which the applicant is ordinarily resident.

32. Scrutiny of applications.-(1)
The Central Government may, after a
preliminary
inquiry
and
on
being
apparently satisfied that there is no adverse
information
available
against
the
applicant, register the person as an
overseas citizen of India as soon as
possible but not later than a period of thirty
days and the case shall be placed for post
verification of the antecedents.

(2) The Central Government may,
in case of any adverse information against
the applicant, and after making such
inquiry as it considers necessary, approve
402 INDIAN LAW REPORTS ALLAHABAD SERIES
or reject the grant of registration within a
period of four months from the date of
receipt of the application.

33. Certificate or registration
and maintenance of register of persons
under section 7A.-(1) Every person, who is
registered as an overseas citizen of India
under section 7A shall be issued a
certificate of registration in Form XXIX,
signed by an officer not below the rank of
Under Secretary to the Government of
India.

(2) A copy of the certificate of
overseas citizen of India issued under this
rule, shall be preserved for the purposes of
record by the issuing authority.

(3) The issuing authority shall
maintain, a register containing names and
other details of the persons registered as
overseas citizen of India under section 7A
in Form XXX and a copy thereof shall be
forwarded to the Ministry of Home Affairs
in the first week of every months.

34. Declaration of renunciation
of overseas citizenship;(1) A declaration of
renunciation of overseas citizenship of
India under section 7C shall be made in
Form XXXI, accompanied with the original
certificate of registration of overseas
citizen of India, to the concerned India
Mission or Post or the Ministry of Home
Affairs, Government of India who in turn
shall forward the same to the authority
which issued the said certificate of
registration.

(2)
On
receipt
of
the
declaration of renunciation of overseas
citizenship
of
India,
the
issuing
authority
shall
issue
an
acknowledgement in Form XXXII and
remove the name of the declarant from
the register of overseas citizen of India.

35. Cancellation of registration
as overseas citizen.- (1) Where an

order has been made cancelling
the registration as an overseas citizen of
India,

the person whose registration has
been cancelled or any other person in
possession of the certificate of registration
shall, when required by notice in writing by
the Central Government, deliver the said
certificate to such person and within such
period as may be specified in the notice.

(2) On the certificate being
delivered, it shall be cancelled and in case

the certificate is not delivered,
then the Central Government may direct
that it shall be treated as cancelled.

(3) The issuing authority shall
make an appropriate entry in the

registered maintained under subrule (3) of rule 33 stating the cancellation
of registration as overseas citizen of India
and a copy thereof shall be submitted to the
Ministry of Home Affairs in the first week
of every month.

HAGUE CONVENTION , 1961

23. The convention was held in
Hague on 5th October, 1961 for abolishing
the requirement of Legislation for foreign
public documents. In this Convention the
primary
reason
was
to
ensure
the
authenticity of public documents of a
country. This Convention replaced the
traditional and cumbersome process of
certification of any document. The issuance
of certificate was called an "Apostille". An
"Apostille" issued by the State of Origin,
authenticated the origin of public document
so that it can be presented abroad in any
member country.

24. An 'Apostille' is an international
certification that can be used in conjunction
with the legal preparation of the document.
An 'Apostille' granted by the State of
2 All. Naromattie Devi Ganpat Vs. Union of India & Ors.
403
origin suffice to certify the document if the
convention is applicable between two
States.

25. The purpose of the Convention
was to replace the complicated and
expensive legalization process of chain
certification, with the mere issuance of a
single 'Apostille' certificate. Hence, as a
party to the Hague Apostille Convention,
public
documents
issued
by
another
Contracting Party need not undergo the
authentication process by the foreign
country.

26. In this Convention it was decided
that if an 'Apostille' is issued by any
competent authority in any country, it will
be presumed that they are satisfied of the
authenticity of the document. The relevant
Articles of the Hague Convention are as
under:-

Article
1
:
The
present
Convention shall apply to the public
documents, which have been executed in
the territory of one Contracting State and
which have to be produced in the territory
of another Contracting State.

For the purposes of the present
Convention, the following are deemed to
be public documents:

(a) documents emanating from
an authority or an official connected with
the courts or tribunals of the State,
including those emanating from a public
prosecutor, a clerk of a court or a processserver ("huissier de justice");

(b) administrative documents;

(c) notarial acts;

(d) official certificates which are
placed on documents signed by persons in
their private capacity, such as official
certificates recording the registration of a
document or the fact that it was in
existence on a certain date and official
and notarial authentications of signatures.

Article 2 : Each contracting
State shall exempt from legislation the
documents
to
which
the
present
Convention applies and which have to be
produced in its territory. For the purposes
of the present Convention, Legislation
means only the formality by which the
diplomatic or consular agents of the
country in which the document has to be
produced, certify the authenticity of the
signature, the capacity in which the
person signing the documents has acted
and, where appropriate, the identity of the
seal or stamp which it bears.
(Emphasis Supplied)

27. India being a signatory of this
Convention is bound to accept any public
document issued by the other contracting
party (country). An 'Apostille' document
should, therefore, be treated as legalized
document in India by all concerned, in
accordance
with
the
international
obligation under the Hague Apostille
Convention.

28. Since, India had signed on Hague
Convention as a result the Ministry of
External
Affairs
had
issued
Office
Memorandum on 18th November, 2020,
where, the Ministry of External Affairs had
themselves agreed that there is no reason of
attestation of any 'Apostille' document
issued by the member country. It was
further clarified that no other attestation or
legalization of an Apostille document is
required in India as India was a member of
Hague Convention. An Apostille document
should, therefore, be treated as a legalized
document in India by all concerned, in
accordance
with
the
international
obligation under the Hague Apostille
Convention.
404 INDIAN LAW REPORTS ALLAHABAD SERIES

29. The Ministry of External Affairs
issued Office Memorandum dated 18th
November, 2020, which is being quoted
below for ready reference:-

Ministry of External Affairs
(CPV Division)
***
Room No.20, Patiala House Annexe,
Tilak Marg, New Delhi -110001
November 18, 2020
No. Q/OI/433/2/2020

 OFFICE MEMORANDUM

The Hague Apostille Convention,
1961, abolishes the requirement of

legalization of foreign documents
for use in any member country, once an

Apostille certificate (including eApostille) has been issued by a competent
authority of the country where the
document originates.

2. It has been brought to the
notice of this Ministry that some

institutes/organizations/establishments
in India demand an apostilled document of
a member country to be further attested by
the Indian Mission/Post in that country. It
is clarified that no further attestation or
legalization of an apostilled document
should be required in India as India is a
member of the Hague Apostille Convention.
An apostilled document should, therefore,
be treated as legalized document in India
by all concerned, in accordance with the
international obligation under the Hague
Apostille Convention.

3. Copy of a Note on "Issuing
and Accepting Apostilles" is enclosed for
ready reference. The full text of the Hague
Apostille Convention and list of its member
countries are available at:

https://www.hcch.net/en/instruments/c
onventions/specialised-sections/apostille.

4. To avoid unnecessary hassle
caused to general public by demand of
further legalization or attestation of an
apostilled document, all concerned are
requested to disseminate the information
contained in paras 1, 2 & 3 above, among
organizations/academic
establishments,
which are under their charge/in their
jurisdiction or are affiliated with them. The
information may also please be prominently
displayed on the official websites.

(Devesh Uttam)/OSD(CPV)

30. Further the respondent submitted
that this Court does not have territorial
jurisdiction to entertain the present writ
petition as the petitioner is staying in
Uttrakhand is also not correct. Since the
great grandparents of the petitioner hailed
from Allahabad and Jaunpur, which lies
within the territorial jurisdiction of this
Court, hence, their objection regarding lack
of territorial jurisdiction is incorrect and the
same is turned down by this Court.
Accordingly, we hold that this Court has
full jurisdiction to entertain the present
case.

31. The petitioner herein had applied
for OCI Card initially as spouse but since
she could not produce the earlier marriage
annulment certificate of her husband, the
application was initially rejected. However,
she again moved an application for OCI
Card on the account of being great grand
child of Indian citizen who had immigrated
to Guyana in 1882.

32. In the instant matter, the
petitioner, who had applied for OCI Card,
had given the proof that her great
grandfather migrated from Allahabad and
Jaunpur. These documents were taken from
the National Archives of Guyana and were
duly Apostilled, which goes to show that
2 All. Naromattie Devi Ganpat Vs. Union of India & Ors.
405
petitioner's great grandfather Ganesh had
immigrated
from
India
and
another
'Apostille' document shows that her great
grandmother Janki had immigrated to
Guyana on 10th October, 1882. The
parentage had been proved by further birth
certificates by the petitioner filed along
with the petition. Once the immigration of
great grandparents of the petitioner is
proved, there is no reason to disbelieve the
said documents.

33. Section 7(A) of the Citizenship
Act, 1955 lays down for grant of OCI
which can be issued to anyone, who is a
child or a grandchild or a great grandchild
of such a citizen of Indian Origin. Section
18 of the Citizenship Act further obliges the
respondents to frame Rules. Accordingly,
under Section 18 of the Act, 1955, the
Rules, 2009 was framed. Rules 29 to 35 of
the Rules, 2009 which is Part VI of the
Rules, 2009, lays down registration,
renunciation and cancellation of overseas
citizenship of India. In these rules, there is
no mention of Nativity Certificate as
sought by the respondents herein. However,
after the petitioner had furnished all the
documents along with the OCI Card, the
respondents asked the petitioner to submit
Nativity Certificate, though the same is not
required under the Citizenship Act and
Rules.

34. In response to this query, the
petitioner
approached
Nagar
Nigam,
Allahabad
for
issuance
of
Nativity
Certificate.
Nagar
Nigam,
Allahabad
replied that, they do not have the records
prior to 1900, so they are not in a position
to
issue
Nativity
Certificate
to
the
petitioner.

35. On one hand, the Government of
India had amended the Act, 1955 and added
Section 7(A) and also made Rules, 2009 in
which anybody who is eligible can apply
for OCI Card in Form XXVIII.

36. The petitioner herein had given
sufficient evidence(by way of Apostille
document taken from the National Archives
of Guyana) about the great grandparents of
petitioner, who had immigrated from India
on 10th October, 1882. But since Nagar
Nigam, Allahabad had not kept records
prior to 1900, it cannot be taken against the
petitioner. The respondents herein cannot
reject the application of the petitioner on
the ground that she is not able to procure
the
Nativity
Certificate
when
the
government authorities had themselves
failed to maintain the same. The plain
reading of the Act and the Rules clearly
shows that, to apply for OCI Card, the
applicant
has
to
prove
that
his/her
grandparents or great grandparents were of
Indian origin. Here, the petitioner has
successfully proved the same by filing
Apostille document from the National
Archives of Guyana. In the light of the
same it is not open for the respondents to
have rejected the OCI Card on the ground
that the petitioner has not been able to
produce the Nativity Certificate.

37. Respondent nos.1 to 3 cannot take
advantage of their own fault. They have not
maintained any register/record prior to
1900, and at the same time, they cannot
compel the petitioner to produce Nativity
Certificate. Further, apart from Apostille
Certificate issued by the Government of
Guyana the petitioner had also enclosed a
certificate, along with the application,
given by Village Pradhan stating that
Ganesh, petitioner's great grandfather was
'Ahir' by caste who belonged to family of
Sadhu and Mata Bhikh, who were deported
by the Britishers to Guyana. The petitioner
406 INDIAN LAW REPORTS ALLAHABAD SERIES
has produced enough evidence to show that
her great grandparents had immigrated
from India and hence, she is eligible to
apply for the OCI Card.

38. Office Memorandum dated
18.11.2020 issued by the Ministry of
External Affairs clearly state that the
Apostille document by any other country
would be treated as legalized document in
India
by
all
concerned
authorities.
However, the same Ministry of External
Affairs while processing the petitioner's
OCI Card has refused to accept the
Apostille document of the petitioner.

39. On being asked as to whether
respondent nos.1 to 3 are bound by Hague
Convention and Office Memorandum dated
18th November, 2020, the reply given by
the Assistant Solicitor General of India was
that he has been instructed to state that the
Office Memorandum is a valid document
but is not mandatory. This argument per se
is not correct, as the Government of India
had signed the Hague Convention Treaty
and in view of Hague Convention, the
Ministry of External Affairs had issued the
Office Memorandum dated 18th November,
2020 treating the Apostille document as a
legal document, but at the same time they
cannot turn around and say that following
the Hague Convention Treaty is not
mandatory. Respondent nos.1 to 3 are
bound with the Hague Convention, 1961
and also bound to accept the Apostille
document of other countries.

40. Article 51(C) of the Constitution
of India is a Directive Principle of State
Policy which states that the State shall
endeavour to foster respect for international
law and treaty obligations, where India is a
signatory nation to an international treaty,
and a statute is made in furtherance of such
treaty, a purposive rather than a narrow
literal construction of such statute is
preferred. The interpretation of such a
statute shall be construed on broad
principle of general acceptance rather than
earlier domestic precedents, being intended
to carry out treaty obligations, and not to be
inconsistent with them.

41. Hon'ble Supreme Court in the
matter of Commissioner of Customs,
Bangalore vs M/S G.M. Exports & Ors6
has held as under:-

"15. A number of judgments, both
English and Indian, have laid down as to
what is the correct approach to the
construction of a statute made in response
to an international treaty obligation by a
member nation. Thus, in The Jade The
Eschersheim Owners of the motor vessel
Erkowit v. Owners of the ship Jade, [1976]
1 All ER 920, the House of Lords stated:

"As the Act was passed to enable
Her Majesty's government to give effect to
the obligations in international law which
it would assume on ratifying the convention
to which it was a signatory, the rule of
statutory
construction
laid
down
in
Salomon
v.
Customs
and
Excise
Commissioners [1966] 3 All ER 871 and
Post Office v. Estuary Radio Ltd. [1967] 3
All ER 633 is applicable. If there be any
difference between the language of the
statutory provision and that of the
corresponding provision of the convention,
the statutory language should be construed
in the same sense as that of the convention
if the words of the statute are reasonably
capable of bearing that meaning." [at page
924]

XXX

17. In Garland v. British Rail
Engineering Ltd., [1982] 2 All ER 402, the
same Rule was set out with an addition -
2 All. Naromattie Devi Ganpat Vs. Union of India & Ors.
407
that not only should municipal law carry
out treaty obligations, but it should also not
be inconsistent with the terms of a treaty.
This was put by the House of Lords in the
following words:-

"My Lords, even if the obligation
to observe the provisions of article 119
were an obligation assumed by the United
Kingdom under an ordinary international
treaty or convention and there were no
question of the treaty obligation being
directly applicable as part of the law to be
applied by the courts in this country
without need for any further enactment, it
is a principle of construction of United
Kingdom statutes, now too well established
to call for citation of authority, that the
words of a statute passed after the Treaty
has been signed and dealing with the
subject
matter
of
the
international
obligation of the United Kingdom, are to be
construed, if they are reasonably capable of
bearing such a meaning, as intended to
carry out the obligation, and not to be
inconsistent with it." [at page 415]

XXX

20. To similar effect are some of
the judgments of our court. In Vellore
Citizens' Welfare Forum v. Union of India
and others, (1996) 5 SCC 647, when
dealing with the Environment Protection
Act, this Court stated:

"Even
otherwise
once
these
principles are accepted as part of the
Customary International Law there would
be no difficulty in accepting them as part of
the domestic law. It is almost an accepted
proposition of law that the rules of
Customary International Law which are
not contrary to the municipal law shall be
deemed to have been incorporated in the
domestic law and shall be followed by the
Courts of Law. To support we may refer to
Justice H.R. Khanna's opinion in Addl.
Distt. Magistrate Jabalpur v. Shivakant
Shukla [(1976) 2 SCC 521 : AIR 1976 SC
1207], Jolly George Varghese v. Bank of
Cochin [(1980) 2 SCC 360 : AIR 1980 SC
470] and Gramophone Co. of India Ltd. v.
Birendra Bahadur Pandey, [(1984) 2 SCC
534 : 1984 SCC (Cri) 313 : AIR 1984 SC
667]." [at para 15]

42. Hon'ble Supreme Court in the
matter of Lakshmi Kant Pandey vs Union
of India & Ors7 has held as under:

".........procedure prescribed in
the
Hague
Apostille
Convention
be
accepted and followed by the Indian courts
while dealing with the adoption of children
by foreign parents.

...........

(a) Direct the courts of competent
jurisdiction
dealing
with
adoption/guardianship cases to accept
documents
authenticated
by
officers
competent
to
issue
certification
by
"Apostille" in the country of their
execution as provided and covenanted in
the Hague Apostille Convention."

43. Hon'ble Delhi High Court in the
matter of Dr. Sanjay Khanduja vs. Punjab
National Bank and another8 has held as
under:-

"15.
Further,
the
Hague
Convention Abolishing the Requirement of
Legalisation
for
Foreign
Public
Documents,
1961,
i.e.,
Apostille
Convention, is clear to the effect that
legalisation in the Indian Embassy would
not be required if the documents is duly
appostilled. India, being a member of the
Apostille Convention since 2005, there is
no requirement of legalisation of duly
apostilled documents in India. The relevant
portion of the Apostille Convention is as
under:
408 INDIAN LAW REPORTS ALLAHABAD SERIES

"ARTICLE 2 - Each Contracting
State shall exempt from legislation the
documents to which the present Convention
applies and which have to be produced in
its territory. For the purposes of the present
Convention, Legislation means only the
formality by which the diplomatic or
consular agents of the country in which the
document has to be produced, certify the
authenticity of the signature, the capacity in
which the person signing the documents
has acted and, where appropriate, the
identity of the seal or stamp which it bears.

44. In the matter of Abdul Manaf v.
State of Kerala9, High Court of Kerala has
held as follows:-

"3. Ext.P5 certificate of civil
status is issued by the Swiss Confederation,
to prove the bride marital status, attested
by a notary in terms of Hague Convention,
abolishing the requirement of legalisation
for foreign public documents (Apostille
Convention).
India
has
declared
its
accession
to
above
Convention
on
05/10/1961. The Switzerland has not
objected
to
accession
of
India
as
Contracting State under article 12 of the
Convention. Thus, the Indian Court and the
Public Authorities are bound to recognise
such certification of the notaries of the
foreign country.

5.
The
Apostille
Convention
replaced
cumbersome
formalities
of
requirement of diplomatic or consular
legislation for foreign public documents
and legalisation process of authentication
by
issuance
of
Apostille
Certificate.
Therefore, foreign public documents do not
require legislation if it bears apostille
certification."

45. Hon'ble Supreme Court of
Namibia has held in the matter of HansJurgen Gunther Koch vs. The State10 as
follows:-