Writ Petition No.2266 of 2009

14th June, 2011

Petitioner Counsel: Shri ANAND PARCHURE
Respondent Counsel: Shri S.K. MISHRA,Shri ANAND DESHPANDE

JUDGMENT

JUDGMENT :- The petitioners who are citizens of United States of America and presently residing at Nagpur, have challenged the action of the respondent no.1 in cancelling their "Person of Indian Original Card" [hereinafter referred to as P.I.O. Card for the sake of brevity.] The petitioners have also sought some ancillary reliefs.

2. The petitioner no.1 was born in Nagpur district of Maharashtra and was shifted to United States of America in 1979. The petitioners were granted citizenship by the United States of America in the year 1990. In December 2004 the petitioners returned to India with Transfer of Residence Permit. Before returning to India on 16.9.2004 the petitioners had acquired P.I.O. Cards. The residential permit was also issued in favour of the petitioners in November 2005.

3. With a view to permanently settle in India, the petitioners sold 15 and 6 acres of irrigated lands belonging to the petitioner no.1 and in June 2008 applied under the Foreign Exchange Management Act for permission to purchase agricultural land in Nagpur district. It was informed by the Reserve Bank of India to the petitioners that the residents of India were not required to obtain such permission under the Foreign Exchange Management Act. Hence, the petitioners purchased 2.12 hectares of agricultural land situated at Mouja Sangam of Nagpur district. The petitioners were shocked to receive a show cause notice issued to the petitioners on 6.11.2008 by the respondent no.1 asking them to show cause as to why their P.I.O.Cards should not be cancelled for violation of P.I.O.Card Scheme of 2002. According to the respondent no.1 the petitioners had purchased / acquired 2 acres of agricultural property in India in clear violation of the P.I.O.Card Scheme 2002. The petitioners furnished their reply to the show cause notice stating therein that they believed that there was no contravention of the P.I.O.Card Scheme of 2002. The petitioners asked the respondent no.1 to drop the proceedings which were sought to be initiated in pursuance of the show cause notice. However, the respondent no.1 by the impugned order dated 23.1.2009 cancelled the P.I.O.Cards of the petitioners and directed them to surrender the P.I.O.Card to the D.C.P./ F.R.O. Nagpur.

4. Shri Anand Parchure, the learned counsel for the petitioners took this court through the P.I.O.Card Scheme 2002 and specially clauses 9 and 11 thereof to canvass that the respondent no.1 did not have any authority to cancel the P.I.O.Cards of the petitioners as the cancellation of the P.I.O.Cards could be done only under any of the circumstances envisaged under the sub-clauses of clause 11 of the Scheme. It is submitted on behalf of the petitioners that the P.I.O.Cards could not have been cancelled because the petitioners had acquired property in India. The learned counsel for the petitioners submitted that the respondent no.1 did not cancel the P.I.O.Cards under any of the subclauses oo clause 11 of the P.I.O.Card Scheme 2002. It is submitted on behalf of the petitioners that the P.I.O.Cards could have been cancelled only on one of the grounds mentioned in sub-clauses (a) to (e) of clause 11 and none other.

5. Shri S.K.Mishra, the learned Assistant Solicitor General for respondent no.1 submitted that the petitioners incurred disqualification to hold the P.I.O.Cards no sooner than they acquired the agricultural lands in India. It was submitted that the petitioners could not have availed the facility of purchasing the agricultural land in India in terms of the provisions of clause 9(iv) of the P.I.O.Card Scheme. It is submitted on behalf of the respondent no.1 that since the petitioners purchased the land in India their P.I.O.Cards were rightly cancelled by the respondent no.1. The learned counsel for the respondent no.1 sought for the dismissal of the writ petition.

6. Shri Deshpande, the learned Assistant Government Pleader appearing on behalf of the respondent no.2 had nothing much to say on the correctness or otherwise of the action taken by the respondent no.1, and merely submitted that the petitioners had indeed purchased the agricultural property in Nagpur District.

7. For considering the correctness or otherwise of the action taken by the respondent no.1 it would be necessary to consider the provisions of the P.I.O.Card Scheme 2002. It is not in dispute that the petitioners fall within the definition of the term "Person of Indian Origin" and hence were granted P.I.O.Cards. Clause 9 and 11 of the Scheme of 2002 are relevant for deciding the controversy involved in this case. Clause 9 of the Scheme of 2002 reads as under:

9. Facilities to be extended to a PIO Card holder :

(i) A PIO Card holder shall not require a visa to visit India

(ii) A PIO Card holder will be exempted from the requirement of registration if his stay in India does not exceed 180 days.

(iii) In the event of continuous stay in India of the PIO Card holder exceeding 180 days, he / she shall have to get himself/herself registered within 30 days of the expiry of 180 days with the concerned Foreigners Registration Officer at District Headquarter.

(iv) A PIO Card holder shall enjoy parity with NRIs in respect of all facilities available to the latter in the economic, financial and educational fields except in matters relating to the acquisition of agricultural/ plantation properties. No parity shall be allowed in the sphere of political rights.

The other clause relevant for the purpose of resolving the controversy is clause 11. The same reads as under:

11. Cancellation of PIO Card:-

The Central Government may by order, cancel the PIO Card, if it is satisfied that:

(a) the PIO card was obtained by means of fraud, false representation or the concealment of any material fact; or

(b) the PIO Card holder has shown himself by act or speech to be disaffected towards the Constitution of India and other laws of India; or

(c) the PIO Card holder is a citizen or subject of any country at war with, or committing external aggression against India; or of any other country assisting country at war with, or committing such aggression against India; or

(d) the PIO Card holder has been sentenced in India for indulging in acts of terrorism, smuggling of narcotics, arms, ammunitions etc. or has been sentenced for committing an offence punishable with imprisonment up to one year or fine upto rupees ten thousand; or

(e) it is not conducive to the public interest that the person should continue to hold a PIO Card.

No reasons will be assigned for withdrawal of the card. A bare reading of clause 9 of the Scheme of 2002 shows that certain facilities are extended to the P.I.O.Card Holders. We are mainly concerned with the sub-clause (iv) of the clause 9 which states that a P.I.O.Card holder shall enjoy parity with N.R.Is. in respect of all facilities available to the latter in the economic, financial and education fields except in matters relating to the acquisition of agricultural/ plantation properties. The respondent no.1 has mainly relied on clause 9(iv) of the Scheme of 2002 to cancel the P.I.O.Cards of the petitioners. The case of the respondent no.1 is that the petitioners could not have purchased the agricultural / plantation properties in India as that was not a facility to be extended to the P.I.O.Card Holder.

It would now be necessary to consider whether the P.I.O.Cards of the petitioners could have been cancelled in terms of clause 11 of the Scheme of 2002 for acquiring an agricultural property in India. A reading of clause 11 of the Scheme of 2002 shows that the P.I.O.Cards could be cancelled only under one of the grounds enumerated in clause 11 of the Scheme of 2002. It is not the case of the respondent no.1 that the P.I.O. Cards of the petitioners have been cancelled for one of the reasons stated in sub-clauses (a) to (e) of the Clause 11 of the Scheme of 2002. In fact it is stated on behalf of the respondent no.1 that the action is not taken under any of the sub-clauses of clause 11 but is taken under sub clause (iv) of clause 9. The provisions pertaining to the cancellation of the PIO Card are exhaustive in nature. Since the respondent no.1 was empowered to cancel the P.I.O.Cards only on any of the grounds enumerated in clause 11 of the Scheme of 2002 and none other the respondent no.1 surely committed a serious error in cancelling the P.I.O.Cards of the petitioners on the ground that the petitioners had acquired agricultural property in India. The respondent no.1 erroneously held that the petitioners had incurred a disqualification under clause 9(iv) of the Scheme of 2002. The respondent no.1 failed to consider that clause 9 of the Scheme of 2002 merely referred to the facilities which could be extended to the P.I.O.Card Holders. A P.I.O.Card Holder was privileged to enjoy parity with N.R.Is. in respect of the various facilities mentioned in sub-clause (iv) of clause 9 except the matters relating to acquisition of agricultural property. All that clause 9(iv) stipulates is about the privilege or the facility which could be extended or enjoyed by a P.I.O. Card Holder. At the most, the respondent no.1 could have been justified in saying that the petitioners had enjoyed a privilege or facility which could not have been enjoyed by the petitioners in view of clause 9(iv) of the Scheme of 2002. The respondent no.1 also would have been justified in cancelling the P.I.O.Cards of the petitioners, had the acquisition of the agricultural property by a P.I.O.Card holder entailed a disqualification or a reason for cancellation of the P.I.O.Card under clause 11 of the Scheme of 2002. However, there is nothing in clause 11 of the Scheme of 2002 which empowers the respondent no.1 to cancel the P.I.O.Cards for having acquired agricultural properties in India and it is also not the case of the respondent no.1 that the action was taken under any of the sub-clauses of clause 11 of the Scheme of 2002. Since the respondent no.1 was empowered to cancel the P.I.O.Cards only if it was satisfied that any of the conditions mentioned in sub clauses (a) to (e) of clause 11 existed and since admittedly the action was not taken under any of the sub-clauses of clause 11 of the Scheme of 2002, the orders cancelling the PIO Cards cannot be sustained and are liable to be set aside.

8. Hence, the writ petition is allowed. We hereby quash and set aside the impugned orders passed by respondent no.1 on 23.1.2009, 4.5.2009 and 22.6.2009. Rule is made absolute in the aforesaid terms with no order as to costs.

Writ Petition allowed.