1. 1. IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13086 of 2003 For Approval and Signature: THE HON'BLE MR.JUSTICE C.K.BUCH ============================================================== ============================================================== NOORMOHAMMADBHAI KASAMBHAI VORA - Petitioner(s) Versus UNION OF INDIA &3 - Respondent(s) ============================================================== Appearance : PARTY-IN-PERSONfor Petitioner No(s).: 1. MS PJ DAVAWALA for Respondent No(s).: 1. MR JITENDRA MALKAN for Respondent No(s).: 1. MS NV JOSHI, LD.AGP for Respondent No(s).: 2,3. ============================================================== CORAM :THE HON'BLE MR.JUSTICE C.K.BUCH Date : 30/06/2005 CAV JUDGMENT The petitioner-Noormohammadbhai Kasambhai Vora, resident of Golden Society, Bhalej Road, Anand, Dist.Kheda, is an Indian National and a citizen of India. By invoking jurisdiction of this Court under Article 226 r/w. Articles 19 and 21 of the Constitution of India; especially Section 5 of the Citizenship Act, 1955 (hereinafter referred to as 'the Act'), the 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 2. 3. 1. 2. 3. petitioner has prayed for certain reliefs which are mentioned in the petition. It is also relevant to note that this Court, to meet with the ends of justice, can grant any appropriate relief in view of nature of dispute brought before the Court and by the main relief the petitioner is trying to see that his wife-Anilabanu is conferred with the citizenship of India. Undisputedly, till the date of filing of the petition on 25th August, 2003, no such formal citizenship was conferred upon Anilabanu though she is a legally wedded wife of the petitioner since 1980. To appreciate the say of the parties placed before the Court, certain facts are required to be stated in brief, which are as under : The petitioner is the husband and the relief is prayed for his wife- Anilabanu. The petitioner married with Anilabanu as per the customs and religious rites of Islam in the year 1980 in India and on extension of VISA, she continued her stay in India. Thereafter, a representation was made by the petitioner on 30thJanuary, 1986, to grant citizenship/nationality to Anilabanu Noormohammad Vora as she was a national of Pakistan, stating the details and the fact of marriage, which had taken place in the year 1980 and she continued to stay in India upto 2nd April, 2001. It is alleged that wife of the petitioner-Anilabanu stayed in India with him for about 20 years and she was forcibly deported to Pakistan on 2nd April, 2001, on an allegation that she has overstayed in India without any valid permission/VISA. It is alleged that the said Anilabanu out of her wedlock delivered five children namely, (i) Nasimbanu (daughter), (ii) Firoz (son), (iii) Nilambanu (daughter), (iv) Farook (son) and (v) Rafik (son). On the date of filing of this petition, all the five were minors and were student of City School of Anand Town. They were brought up by mother- Anilabanu and father-Noormohammad. As the wife of the petitioner was citizen of Pakistan, technically on her marriage with the petitioner, she was entitled to get citizenship of India under the scheme of the Act; especially Section 5 of the Act. According to the petitioner, his wife had already made a representation to the Secretary, Home Department, Union of India, New Delhi, on 30th January, 1986 and the said representation was considered favourably by Union of India and she was intimated about the decision taken by the Union Government vide letter dated 21st April, 1986. However, the Government had directed her to fulfill certain requirements and to provide some documents including renunciation certificate issued by the Government of Pakistan. It is contended that except the renunciation certificate 1. of Government of Pakistan, all other relevant documents were sent to the concerned department of Union of India in the year 1992. But as she was not able to get "No Objection Certificate" in the year 1992, she could not send the said document either to the Government of India or embassy of Pakistan in India at New Delhi and no renunciation certificate was given by the Government of Pakistan. The Court is informed that National Identity Card is an important document issued by the Pakistan Government to its citizens. But the letter at Annexure-A of the petition clearly reveals that a positive decision to confer Indian citizenship was taken by Union of India and it was conveyed to the Chief Secretary of the State of Gujarat at Gandhinagar and a copy was sent to wife of the petitioner-Anilabanu. In the said letter, reference of the representation made by Anilabanu dated 30th January, 1986, is specifically made. Para :2 of the said letter reads as under : As the petitioner was not getting "No Objection Certificate" from the DSP, Anand, and facing difficulties in the process, he filed Special Civil Application No.3384 of 2001 and prayed for following main reliefs : "(B) Be pleased to directing the respondent no.1 to take decision on representation dated 30.1.86 to petitioner wife Anilabanu Noormohammad Vhora regarding nationality within a one month- looking to the peculiar 1. fact and the circumstances of the case. (C) Be pleased to directing the respondent no.2 to grant extension of Visa application for the period of 1.10.1999 to 1.10.2001 within seven days to looking to peculiar fact and the circumstances of the case." It is contended that the learned senior standing counsel appearing for the Union of India had agreed that the relief "B" as prayed for may be granted and in reference to prayer "C" made in the said petition, it was submitted before the Court that request to consider the VISA application for the period from 1st October, 1999 to 1st October, 2001, shall be considered, looking to the peculiar facts and circumstances of the case, preferably by 8th August, 2001, subject to payment of appropriate fees. It is not a matter of dispute that appropriate fees were paid or not. A copy of the order passed by this Court in the said proceedings is produced with the petition (Annexure- B). In compliance of the order passed by this Court, the petitioner attempted to pay the amount of Rs.110-00 ps. but the authority refused to accept the same is one of the allegations made in the petition and, therefore, the amount was sent by Money Order to the concerned authority. However, the said Money Order was also refused. During oral submissions, the petitioner, who is also an advocate appearing as party-in-person, has submitted that he was shocked when he received Money Order back though there was clear reference of the order passed by this Court in Special Civil Application No.3384 of 2001. Xerox copies of the Money Order sent and refused are also produced at Annexure-C with this petition. In the main petition, the respondent no.2-State of Gujarat, moved one Misc. Civil Application No.1188 of 2003 on 16th June, 2003 and requested the Court for suitable modification in the original order dated 25th July, 2001, passed in Special Civil Application No.3384 of 2001 but as the petitioner remained absent, the Court allowed the application and vide order dated 24thJune, 2003, the Court passed one order and it would be beneficial to quote the relevant part of the order because the same is relevant in view of the nature of reliefs prayed for in the present petition, which is as under : "2. I have gone through the application filed by the State of Gujarat and I have heard Mr. R.M. Chauhan, learned AGP in this behalf. The learned counsel for the applicant submitted that at the time of passing the order by this Court on 25.7.2001 this Court has directed Union of India to take decision on representation dated 30.1.1986 regarding nationality and further directed that the respondent No.2 will also consider Visa application for extension for the period from 1.10.1999 to 1. 2. 1.10.2001. 3. Mr.R.M. Chauhan, learned AGP has stated that when the aforesaid order was passed, an important aspect was not brought to the notice of the Court namely that the respondent who claimed the above two reliefs and which were as directed by this Court to give petitioner lady Aneelabanu could not have been granted because of the fact that Aneelabanu had already been deported to Pakistan on 2.4.2001 for not fulfilling the requirements of the Foreigners' Act. 4. In view of the aforesaid development, the prayer granted by this Court did not survive at that time as she had already deported to Pakistan. The question of determination of nationality also does not arise. In view of the same, this Misc. Civil Application is allowed for condonation of delay as well as this Court also modify the order dated 25.7.2001 directing the respondent not to claim the above two reliefs in view of the fact that Aneelabanu had already deported to Pakistan on 2.4.2001. This Misc. Civil Application is accordingly disposed of." In view of the orders passed in the said Misc.Civil Application, the respondents were relieved from the legal obligation, whereby they were directed to grant extension of VISA application for the period from 1 st October, 1999 to 1st October, 2001 in compliance of the earlier order dated 5th July, 2001. The order dated 26th June, came to be passed only on the ground of one fact that wife of the petitioner was already deported to Pakistan on 2nd April, 2001, much prior to the order passed by the Court on 5th July, 2001. But the fact remains that one attempt was made by the petitioner by way of filing Habeas Corpus petition being Special Criminal Application No.247 of 2001, so that the forcible deportation of Anilabanu can be prevented prior to 2nd April, 2001. It is contended by the petitioner that for want of NOC from the DSP, Anand, the wife of the petitioner was not able to satisfy the officers of the Pakistan Embassy at New Delhi, so that they can accept the passport and renunciation by tendering National Identity Card and, therefore only, the extension of VISA period was prayed for and the petition to grant very relief was also moved in the year 2001. One Habeas Corpus petition came to be disposed of by the Division Bench of this Court (Coram : K.R. Vyas and R.P. Dholakiya, JJ) on the ground that the wife of the petitioner has been deported to Pakistan being a Pakistani citizen and she had overstayed in India and the Court found that when she was deported on or about 30thMarch, 2001, no useful purpose would be served by issuing notice. The Division Bench of this Court preserved the liberty of the petitioner to make appropriate representation either to the respondent no.1 or respondent 3. 1. no.2. The grievance of the petitioner is that his representation was not considered by the concerned authorities and, therefore, he was compelled to file a writ petition for appropriate writ, order or direction being Special Criminal Application No.931 of 2001, but ultimately, that petition also came to be rejected by the Court. It is the say of the petitioner that his wife-Anilabanu ought not have been deported to Pakistan at all as she was not responsible for infringement of any law and especially Foreigners' Act and the approach of all the authorities has remained hyper-technical. They have handled the issue and in dealing with the representations made by the petitioner and his wife, in an arbitrary manner. According to the petitioner, following undisputed facts were very well before the authorities that : (i) Anilabanu was a Pakistani national. Her application being an application well within rules and scheme of Section 5 of the Act was considered and accepted. (ii) Anilabanu married with the petitioner in the year 1980 and the day on which she applied for citizenship by registration, she had remained in India after her marriage with the petitioner for more than five years and for all these period her stay in India was not in violation of any rule or law for the time being in force. (iii) Anilabanu's stay on the date of alleged deportation was of more than 20 years and by that time, she had delivered five children, who can be said to be Indian Citizens and having Indian Nationality since their birth and all of them were school going. (iv) The entitlement to get citizenship on registration was already accepted by the Government of India. (v) There were documents before the authority to show that the petitioner's wife made all attempts to surrender her passport and other relevant documents to Pakistan Embassy at New Delhi. The papers produced in support of the additional affidavit filed by the petitioner reveals that the petitioner as well as Anilabanu had cooperated with the authorities during inquiry and the letter of Additional Collector, Dist.Kheda, dated 13th December, 1992, was responded properly on 24th January, 1993. To satisfy the anxiety of the Court, the petitioner has also produced list of documents demanded by the Pakistan Embassy at New Delhi from the petitioner and the controversy is brought before the Court that the Pakistan Embassy has never demanded NOC while accepting National Identity Card, which is altogether a different document than the NOC from DSP of the concerned district. But the fact remains that all attempts to renounce the Pakistani Citizenship were made by Anilabanu and she had stayed in India under a valid permit/permission till 1st October, 1999. On 16th August, 2000, i.e. after a lapse of more than reasonable period, a letter was received by the wife of the petitioner that she should pay overstay VISA fees to the tune of Rs.1250/- and one another amount of Rs.30/- towards LTV fees as mentioned in the letter dated 16th August, 2000, and she was informed that if such fees are not paid, then appropriate steps under the Foreigners' Act shall be taken against her and she was asked to complete the formalities within four days from the date of receipt of the said letter. Thereafter, after several months, the DSP, Anand, in exercise of powers conferred upon him by Clause 'C' of subsection (2) of Section 3 of the Foreigners' Act, 1946, r/w. Government of India's notification (Ministry of Home Affairs) dated 15th July, 1963, ordered deportation of Anilabanu-wife of the present petitioner. Undisputedly, the wife of the petitioner was prosecuted by the State for the offences punishable under Sections 7(3) and 14 of the Foreigners' Act, 1946, and it was alleged by the prosecution that she had overstayed in India being a Foreign Visitor after 1st October, 1992, and she had never applied for extension. It is the allegation in the complaint that the accused had visited India on Visitor's VISA from 16th June, 1992 to 19th September,1992, and therefore, she was under obligation to pray for extension prior to 1st April, 1992. With additional affidavit, a judgment of the competent criminal Court has also been produced by the petitioner in response to the query raised by the Court and it emerges that technically there was no attraction of Section 7 of the Foreigners' Act, 1946, because Section 7 deals with obligation of Hotel keepers and others to furnish particulars. There was no question of accommodating the wife of the petitioner at Anand because the State machinery were very well aware about the fact that she is a legally wedded wife of the petitioner since 1980. It also emerges from the judgment of the criminal Court and the deposition of the prosecution witness no.1-Police Head Constable-Mangalbhai Chaturbhai that Anilabanu had applied for extension of VISA period on 16th September, 1992, itself, but the said witness was not aware about the process that had taken place. There is documentary evidence to show that the wife of the petitioner was granted extension from 17thJune, 1992 to 11th August, 1996 (pg:17). A xerox copy of the said document is also shown to the Court and the same is at Annexure-C with the additional affidavit dated 30th July, 2004. It also emerges from affidavit that attempt to surrender original passport and other papers to Pakistan Embassy was made by the petitioner but the same was not extended as the first letter received by Anilabanu as the decision taken to confer citizenship on registration was in Hindi, our national language; the Pakistan Embassy was insisting for original in English language. On such a fact 2. 3. situation, the act of deportation branding the wife of the petitioner as foreigner or an offender can be said to be hyper-technical. It is true that in such a sensitive matter, each formality has to be completed in accordance with law and rules framed for the purpose and equity has very little role to play. So it will be difficult for the Court to say that deportation though was forcible and it was possible to grant permit/permission for further period, the deportation could not be said to be totally illegal. The State authorities have accepted in a hyper-technical way, especially when there was a genuine dispute only as to the non-payment of Rs.1250/-. It is rightly submitted that the dispute was genuine and on earlier occasion such amount of fees was never asked by the Government of Gujarat or by the officials, when she was accorded permission to extend her stay. It is also relevant to note that after marriage of the petitioner with Anilabanu, she visited Pakistan on more than one occasion but on all such visits, she had visited Pakistan, after informing State machinery and she had returned to India. In early years of marriage, the wife who visits her parental home on occasions should not be looked with doubt and it would be wrong to interpret that her all these visits indicate her disinclination of renouncing nationality of Pakistan. When the matter was placed before this Court, after hearing the parties and the hardship that the said five minor children must have faced by the time, the Court passed an order whereby the respondents were directed to see that Anilabanu-wife of the present petitioner deported to Pakistan is brought back to India or is permitted to enter in India and thereafter, this Court can pass appropriate orders in reference to the stand taken by the respondent-authority in general and Union of India in particular. I would like to reproduce relevant part of the said order passed by this Court on 20th January, 2004, which is as under : "2. During the course of oral submission made by the petitioner as party in person, Ms.Hansa Punani learned AGP and Mr.D.N. Patel learned Senior Standing Counsel for Central Government, it transpired that the wife of the petitioner was to surrender her National Identity Card popularly known as NI Card issued by her country i.e. Pakistan, to the embassy at New Delhi. 3. Undisputedly, the wife of the petitioner Anilabanu is a citizen of Pakistan and she has married the petitioner in the year 1980 and out of the wedlock they have five children (3 daughters and 2 sons). All these five children are in India and they are Indian citizens. In the month of April, 1992, the application to confer/grant Indian citizenship made by the wife of the petitioner Anilabanu, was considered by the Home Department under the Citizenship Act, 1955 and relevant documents were also sent to the Home Department. 4. The attempts to surrender the passport of Anilabanu along with other documents were made by the present petitioner but according to the petitioner, office of the High Commissioner of Pakistan was insisting upon the production of No Objection Certificate issued by the police authority i.e. DSP, Ahmedabad. The decision to confer the citizenship to Anilabanu was already taken. But before the citizenship could be conferred formally, on renunciation of her citizenship of Pakistan, the authorities of State of Gujarat found that the wife of the petitioner has over stayed without proper extended visa and therefore, she was deported to Pakistan. At present she is in Pakistan. This unwarranted separation is a matter of anguish and anxiety of this court. Now in the present proceedings and hearing it is clarified by the State of Gujarat that as she has been deported to Pakistan. It would not be practicable or possible to issue No Objection Certificate. 5. Ms.Punani learned AGP has fairly accepted that there was nothing incriminating against her till the date on which she was deported to Pakistan. There is no criminal antecedents recorded against her. So in this set of facts, the Union of India can be asked to see that Anilabanu is given fresh visa by the High Commissioner of Pakistan so that she can again enter India to complete the procedure of surrendering her original Pakistani passport to the concerned Embassy and National Identity Card issued by the Pakistan Government. 6(i). The petitioner has fairly accepted that his wife Anilabanu is holding National Identity card and she is ready to apply for fresh Visa and to pay the necessary fees, if the same are required to be paid for such Visa. 6(ii) The wife of the petitioner Anilabanu was even tried for the alleged commission of offence punishable under section 7(3) of the Foreigners' Act, 1948 by the competent criminal court. Criminal Case No.315 of 1993 has been conducted by the learned JMFC, Anand and after appreciating the evidence, the court acquitted the wife of the petitioner vide judgment and order dated 27.2.1998. Ms.Punani learned AGP has submitted that the State of Gujarat has accepted the said order of acquittal. So on merit, the petitioner has a strong case. 7. Undisputedly, the five children delivered by Anilabanu are in India. So the Union of India is required to be directed by way of interim arrangement to see that she is granted visa, at the earliest, preferably 1. within four weeks, on her requesting the office of the Indian High Commissioner in Pakistan. Therefore, the Union of India is directed by way of an interim arrangement to grant Visa, on her requesting the office of Indian High Commissioner in Pakistan. 8. The registry of this Court is directed to send a copy of this order to the office of the High Commissioner of India at Pakistan so that the wife of the petitioner can approach the Indian High Commissioner with a valid application to grant fresh Visa for some reasonable period so that the other administrative formalities can be complied with after her arrival in India. 9. Ms.Punani submits that on her arrival in India, Anilabanu can approach the State Government authorities so that the formalities which are required to be undergone, can be complied with smoothly. 10. It is understood that the process of conferring Indian Citizenship to the present petitioner is still open. But if the same is treated as closed because of lapse of time, then it would be proper to say at this stage that it shall be treated as pending so that appropriate decision can be taken as expeditiously as possible. 11. The court is inclined to keep this petition pending and the same is adjourned to four weeks so that the petitioner can intimate about the progress in the matter." After passing the above order, the matter was adjourned to 6th April, 2004 and on that day the Court passed the following further order : "Heard Mr.Noormohammadbhai K. Vora, party-in-person. It is submitted that earlier order passed by the Court has been substantially complied with and wife of the party-in-person has now come back to India. She has been granted 2 years' Visitor Visa. Hence, not it will be obligatory on the part of the petitioner party-in- person as well as his wife Anilabanu to see that requirements to have formal