Writ Petition (Civil) 12520/2009 Page 1 of 20 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 12520/2009 SYEDA AFSHAN RAHMAN ..... Petitioner Through: Ms. Geeta Luthra, Senior Advocate with Mr. Parinay D. Shah, Advocate versus UNION OF INDIA ..... Respondent Through: Mr. Atul Nanda with Mr. Gaurav Gupta, Ms. Malika Gahlot and Mr. Kamal Bassi, Advocates Mr. Manoj K. Singh with Ms. Sunita Pahwa, Advocate for applicant in CM APPL No. 3754/2010 (for impleadment) CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes O R D E R 02.07.2010 1. Aggrieved by the impugned order dated 12th December 2008 passed by the Overseas Citizen of India („OCI‟) Cell in the Ministry of Home Affairs (MHA) (Foreigners Division), Government of India affirming an earlier order dated 13th June 2008 cancelling the Petitioner‟s OCI registration granted on 2nd February 2007 under Section 7A of the Citizenship Act, 1955 („Act‟), the Petitioner has filed this petition under Article 226 of the Constitution. 2. The averments in the writ petition are that the Petitioner was born in Patna Writ Petition (Civil) 12520/2009 Page 2 of 20 on 13th June 1968 to Syed Kalimur Rahman and Naeema Bano. It is stated that the Petitioner‟s grandparents were permanent residents of Patna in Bihar. The Petitioner‟s father Syed Kalimur Rahman was a Chemical Engineer working in the Government of India from 1965 onwards. It is stated that the Petitioner‟s father was posted at Chittagong in East Pakistan and he died during the 1971 Indo-Pak War. The Petitioner‟s mother along with her elder son aged six years and the Petitioner who at that time was three years old, was unable to return to India. It is stated that in 1978 when the Petitioner‟s grandfather in Patna fell ill, the Petitioner‟s mother was issued a Pakistani passport on which she travelled to India. The names of the children, including the Petitioner herein, who at that time were minor, were also endorsed on the said passport. It is asserted in the petition that as such, the Petitioner never opted for or obtained a Pakistani citizenship. 3. The petition proceeds to state that after returning to India, the Petitioner, her mother and brother stayed with her paternal grandparents. In para 8 of the writ petition it is stated that on 10th September 1990 the Petitioner was issued a certificate of registration as Citizen of India under Section 5 (1) (a)/(c) of the Act. A copy of the said certificate has been enclosed with the petition. As on that date i.e. 10th September 1990 the Petitioner was 22 years old. It is then stated that in the year 1995 the Petitioner married Javed Zia who was a Non-Resident Indian working in Singapore. The Petitioner alleges that Javed Zia concealed the fact that he had already been married and divorced. It is alleged that the Petitioner‟s marriage was as a result of deception and fraud practised upon her. She states that after the marriage, at the insistence of the Petitioner‟s husband Javed Zia, the Petitioner migrated Writ Petition (Civil) 12520/2009 Page 3 of 20 to Canada with him. While in Canada, she gave birth to two children, a boy named Shiraz Zia and the second child a girl named Shabana. Both children are Canadian citizens. 4. The Petitioner states that Javed Zia took all decisions with regard to family. She states that on 24th August 1999 she was issued an Indian Passport bearing No. A8000382. According to her, she was persuaded by her husband to acquire Canadian citizenship in the year 2000. She and her husband shifted to Switzerland for a short while. It is alleged that the Petitioner‟s husband brought her to India with the intention of deserting her. It is further alleged that he made her travel on her Indian passport. He illegally retained her Canadian Passport and deserted her along with the minor daughter Shabana, who was barely one year old, in India. The Petitioner was separated from her son who was five years old. It is alleged that her husband took the minor male child Shiraz Zia with him to Zurich. In the meanwhile, the Petitioner‟s mother expired and her brother migrated to London. The Petitioner states that she and her minor daughter aged one year were left to fend for themselves. 5. It is then alleged that in the year 2004 the Petitioner‟s husband came to India and on some pretext kidnapped the daughter Shabana Zia and took her away to Bangalore. The Petitioner filed a habeas corpus petition to get back the custody of her daughter. 6. The Petitioner complained to the Canadian Embassy about the illegal retention of her Canadian passport by her husband. In March 2005 she Writ Petition (Civil) 12520/2009 Page 4 of 20 applied for the issuance of a duplicate Canadian passport. She approached the office of Foreigners Regional Registration Office (F.R.R.O) who advised that she should apply for the OCI status. It is further stated that on 18th May 2005 she surrendered her Indian passport No. A 8000382 issued on 24th August 1999. The Petitioner applied for OCI registration on 22nd January 2007. She was granted OCI registration on 2nd February 2007. 7. According to the Petitioner, with a view to harassing her to try and get the custody of their minor daughter, her husband Javed Zia made false complaints to the MHA, as a result of which she received a show cause notice dated 31st January 2008. The show cause notice noted that in Column 18 of the application for grant of OCI registration the Petitioner had declared that she had never been a citizen of Pakistan or Bangladesh. The show cause notice further noted that the Petitioner had renounced her Pakistani citizenship and surrendered her Pakistani Passport before the High Commissioner of Pakistan in New Delhi on 19th February 1990. Thereafter, she acquired Indian citizenship on 10th September 1990. These facts had been concealed by her while applying for registration of OCI. She was, therefore, asked to submit her explanation as to why her OCI registration should not be cancelled under Section 7D (a) of the Act. 8. In reply to the above show cause notice, by a letter dated 13th February 2008 the Petitioner, inter alia, stated that her mother decided to apply for Indian citizenship which was a lengthy procedure “but the role of Indian Government was very sympathetic, supportive and cooperative because of her late father‟s cause since he was sent on deputation and died while on Writ Petition (Civil) 12520/2009 Page 5 of 20 duty.” It was, according to the petitioner, a genuine case of a family of Indian origin who became victims of circumstances which were not in their control. As for the procedural formalities she explained that “our separate Pakistani passport was made for the purpose of renunciation as we never had one and hence the family renounced and was finally granted Indian citizenship in 1989/1990, thereafter we got their Indian passport and it is a matter of record to check that since 1979 we never travelled to Pakistan which confirms the fact that we were the victim of unfortunate circumstances as I would like to emphasise the fact that my roots are very much Indian and I am a daughter of a person who gave his life while in the service of Indian government as it is also evident from the fact that in the rarest of the cases the Indian government would grant citizenship to a Pakistani but in our case it had a sympathetic attitude and the highest degree of regard for my late father.” The Petitioner then proceeds to narrate how she had been a victim of her husband who had cheated and blackmailed her. He instituted false proceedings against her by filing an FIR which was thereafter investigated and closed. 9. According to the Petitioner, in May/June 2008 the Petitioner shifted to a flat at Indirapuram, Ghaziabad and due to inadvertence she did not inform the authorities. She claims not to have received a letter dated 13th June 2008 issued by the Respondent cancelling her OCI registration. She also claims not to have received a letter dated 4th July 2008 by which she was asked to surrender her OCI registration and visa by 9th July 2008. She stated that these were sent to a wrong address. Writ Petition (Civil) 12520/2009 Page 6 of 20 10. The Petitioner stated that on 22nd August 2008 she went to inform the authorities about change of her address and make enquiries about the status of her reply dated 13th February 2008 to the show cause notice dated 31st January 2008. She was illegally detained by the Inquiry Officer, MHA, New Delhi who informed her that she was to be deported to Canada. Her daughter aged eight years was separated from her. The Petitioner filed Writ Petition (Civil) No. 6185 of 2008 in this Court challenging her illegal detention. By an order dated 28th August 2008 this Court directed the Respondent to release the Petitioner and give her an opportunity of being heard. The above order was made subject to the following conditions: “(a) The Petitioner will file an undertaking before the Respondent that she will not leave the country without prior permission of the Respondent; (b) The Petitioner will report to the SHO of the concerned area once in 15 days; (c) The Petitioner will hand over the original paper of the property bearing No. L-302, Jaipuria Apartments, New Shipra Mall, Indirapuram, Ghaziabad to the Respondent, however, learned counsel for the Petitioner submits that there is a loan on the property and papers of title have been deposited with the Bank. A letter will be taken from the Bank clearly stating that the title deeds will not be returned to the Petitioner without prior approval of the Respondent.” 11. Consequent upon the above order, on 13th September 2008 the Petitioner made a representation to the MHA for restoration of her OCI registration. On 27th October 2008 she applied to the MHA to extend the regularization of Writ Petition (Civil) 12520/2009 Page 7 of 20 her stay and visa. Her visa was extended on 19th November 2008. 12. On 12th December 2008 the impugned order came to be passed cancelling her OCI registration. Among the reasons given was that she had made a false statement in Column l8 of the application for OCI registration that she had never been a citizen of Pakistan or Bangladesh whereas it was clear that even at the time of applying for the grant of Indian citizenship on 15th December 1987 she had declared her Pakistani nationality. It was concluded that although the Petitioner was a Person of Indian Origin („PIO‟) having been born in India, she could not be granted OCI registration since one of the conditions was that a PIO should never have been a citizen of Pakistan or Bangladesh. It was accordingly held that there was no reason to vary the earlier order dated 13th June 2008 cancelling her OCI registration. 13. In para 35 of the writ petition the Petitioner again asserted that “the Petitioner was never a Pakistani Citizen” and further that assuming without admitting that the Petitioner did not disclose about her being a Pakistani national at the time of acquiring Indian citizenship in 1987, that did not make her a Pakistani Citizen. The Petitioner submitted that the Respondent failed to disclose the reasons for initiating proceedings against her for cancelling her OCI registration. Through a letter dated 22nd June 2009 issued by the Respondent she learnt that a request had been received by them from her mother-in-law Mrs. Amir Jahan to inspect the documents pertaining to the Petitioner‟s OCI registration. From this the Petitioner inferred that the proceedings were initiated at the instance of her husband. Writ Petition (Civil) 12520/2009 Page 8 of 20 14. Among the grounds urged in the writ petition are that the Petitioner was never a Pakistani citizen and thus Section 7A of the Act did not disqualify her from obtaining an OCI Card (Ground B). The endorsement of the Petitioner‟s name in the mother‟s Pakistani passport was only for the purpose of travel back to India and did not change the fact that she continued to have an Indian passport. It is further submitted that even if it assumed but not admitted that the Petitioner was a Pakistani national her subsequent acquisition of Indian citizenship would make Section 7A of the Act inapplicable (Ground F). In ground „K‟, the Petitioner submitted: “K. For that, the Petitioner bonafide believed that endorsement on her mother‟s passport was not making her a citizen of Pakistan or Bangladesh and that she having been born and brought up in India to an Indian parental grandparents had her roots in India and had only Indian citizenship. Even otherwise any such infirmity was wiped out by giving her Indian Passport and citizenship as is borne out by registration of citizenship dated 10th September 1990 and subsequently issuance of a passport to her.” 15. It was reiterated in ground „M‟: “M. For that, without prejudice to the aforesaid contentions even if it is contended that the Petitioner had got Pakistani national by the said endorsement on her mother‟s passport while she was a minor which was only for the purposes of having travel documents, it is submitted, thus, any act that had happened prior to obtaining Indian registration and citizen is wiped out and has no effect and the Respondents are stopped from deporting the Petitioner on the said ground which are actuated by false representations and complaints of the Writ Petition (Civil) 12520/2009 Page 9 of 20 Petitioner‟s husband who was animus against her.” 16. In the counter affidavit filed by the Respondent it is pointed out that in terms of the proviso to Section 7A of the Act no person who had been a citizen of Pakistan shall be eligible for registration as an OCI. The Respondent has placed on record a photocopy of the Pakistani passport AE- 369540 on which the Petitioner‟s mother travelled to India in 1978. It is pointed out that this passport was issued on 7th August 1975 and clearly bears an endorsement that the Petitioner‟s mother is a citizen of Pakistan. It is stated that in terms of Section 8 (2) of the Act since the Petitioner‟s mother ceased to be an Indian citizen as on 7th August 1975 (the date of issuance of her Pakistani passport), each of her minor children including the Petitioner herein also ceased to be a citizen of India. Secondly, it is pointed out that the Petitioner had in her application under Section 5 of the Act declared that her date of birth was 13th June 1968. Clearly she was not an Indian citizen at that time for otherwise there was no need for making such an application for registration as an Indian citizen. The counter affidavit enclosed a letter dated 25th May 1989 written by the MHA to the Deputy Secretary of the Government of Bihar, Home (Special) Department, Patna informing that the Government of India had decided to register the Petitioner‟s mother Smt. Naeema Bano as Citizen of India under Section 5 (1) (a) of the Act and that “she may be asked to renounce her present nationality by applying to the Pakistani Mission in India in accordance with the law of the country concerned” and produce documentary evidence thereof. Likewise, a similar communication was also sent in respect of the applications made by the Petitioner and her brother. Writ Petition (Civil) 12520/2009 Page 10 of 20 17. Annexure R-6 to the counter affidavit is a copy of the letter dated 19th February 1990 issued by the Embassy of Pakistan, New Delhi addressed to the Petitioner informing her of its acceptance of her request for renunciation of Pakistani citizenship. The letter dated 19th February 1990 read as under: “The Government of Pakistan has been pleased to accept request for the renunciation of Pakistan citizenship. Your Pakistan Passport No. E-812677 dated 15th November 1989 at New Delhi has been cancelled and withdrawn. Your renunciation has been registered at Serial No. 8/90 at the relevant register of the concerned office.” 18. The Respondent points out that from the above communication it is plain that the Petitioner was issued a Pakistani passport No. E-812677 dated 15th November 1989 at New Delhi when she was aged 21 years. It is stated that the above document completely demolishes the false contention of the Petitioner that her name was endorsed on her mother‟s passport when she was a minor and she was hence not aware of acquiring Pakistani citizenship. The above separate Pakistani passport of the Petitioner is different from the Pakistani passport of the mother which is No. AE-369540 dated 7th August 1975 issued at Karachi. The Respondent points out that none of the above facts and the corresponding documents issued by the Embassy/High Commission of Pakistan have been placed on record by the Petitioner. 19. It is stated that it was only after the renunciation of her Pakistani citizenship, that the Petitioner came to be registered as an Indian citizen under Section 5 (1) (a) of the Act and was issued a registration certificate on Writ Petition (Civil) 12520/2009 Page 11 of 20 10th September 1990. The Respondent points out that after applying on 15th December 1987 for being declared an Indian citizen, the Petitioner voluntarily applied for and was granted citizenship and the Pakistani passport bearing No. E812677 dated 15th November 1989 was issued to her which was thereafter cancelled on 19th February 1990. It is submitted that OCI registration was granted to her on 2nd February 2007 on the basis of the false statement made by her in Column 18 of the application made on 22nd January 2007 for grant of registration of OCI that she had never been a citizen of Pakistan. The Petitioner was issued a show cause notice dated 31st January 2008 to which she replied on 13th February 2008. She was given a personal hearing on 25th February 2008. It is only thereafter that the order dated 13th June 2008 cancelling her OCI registration came to be passed. Pursuant to the order dated 28th August 2008 of this Court she was given a full-fledged hearing on 19th and 24th September 2008. The Respondent by an order dated 12th December 2008 held that there was no ground made out for varying the order dated 13th June 2008. 20. In the rejoinder to the above counter affidavit and in particular with reference to para 12 the petitioner stated as under: “….. The Pakistani passport of the Petitioner dated 15th November 1989 was issued only after the Petitioner had moved an application for registration as an Indian Citizen in the year 1987. Subsequently the Government of India – Ministry of Home Affairs issued letter dated 25th May 1989 stating that application for citizenship filed by the Petitioner would be accepted provided she renounced her Pakistani citizenship. That only after this letter was sent to the Petitioner that four months later on 15th November 1987 her Pakistani passport was issued Writ Petition (Civil) 12520/2009 Page 12 of 20 solely for the purpose of renunciation. Three months later on 19th February 1990 the Embassy of Pakistan accepted the renunciation of the passport of the Petitioner. Seven months later the Petitioner was registered as a citizen of India on 10th September 1990. The series of events clearly show that the Pakistani passport had been issued to the Petitioner only for the purpose of renunciation. That the cause for Petitioner to apply Section 5 was her own confusion and lack of knowledge of Citizenship Rules in 1987 when she was a minor. It is pertinent to note that by virtue of having made that application her citizenship status could not have changed. As stated earlier the Petitioner has not suppressed any documents. The documents not placed on record by the Petitioner are not in her possession.” 21. This Court has heard the submissions of Mr. Parinay D. Shah, learned counsel appearing for the Petitioner and Mr. Atul Nanda, learned counsel for the Respondent. In rejoinder Ms. Geeta Luthra, learned Senior counsel advanced lengthy arguments on behalf of the Petitioner. 22. Apart from reiterating what has been stated in the writ petition, learned counsel for the Petitioner placed reliance upon the decisions in Karimun Nisa v. State Government of Madhya Pradesh AIR 1955 Nagpur 6 and S. Nalini Srikaran v. Union of India represented by its Ministry of External Affairs AIR 2007 Madras 187 to urge that in the present case the inquiry under Section 9 (2) of the Act which was mandatory, was not carried out by the Respondent prior to forming an opinion that the Petitioner had voluntarily acquired Pakistani citizenship. It is submitted that the mere issuance of a Pakistani passport to her did not mean that the Petitioner had Writ Petition (Civil) 12520/2009 Page 13 of 20 voluntarily acquired Pakistani citizenship. It is submitted that in terms of the proviso to Section 7A of the Act, in order to hold the Petitioner to be ineligible for the grant of OCI registration, it was not enough for the Respondent to show that the Petitioner had been a citizen of Pakistan. It had to be shown that the Petitioner had voluntarily acquired the citizenship of Pakistan. In the instant case, it was on the advice of the Indian passport authorities that the Petitioner applied for and obtained a Pakistani passport only to renounce it within three months thereafter. It is submitted that the Petitioner was under the bonafide impression that she had never become a Pakistani national at any point of time. This explained her statement in Column 18 of the application which should therefore not be treated to be a false representation for the purpose of Section 7D (a) of the Act. It is submitted that the entire proceedings are malafide and have been initiated only at the instance of the Petitioner‟s husband who was hell bent on harassing her and making her life miserable. It is alleged that the officials of the MHA have colluded with her husband in getting her OCI registration cancelled. It is submitted that in the special circumstances of the case, appreciating that the Petitioner was placed in dire straits she should be accorded sympathetic treatment and her OCI registration should be restored. 23. Mr. Nanda, learned counsel appearing for the Respondent on the other hand submits that the willful suppression of material facts in the writ petition by the Petitioner was inexcusable. It is pointed out that although the Petitioner was fully aware of the consequences when after becoming a major she applied for Pakistani passport on 15th November 1989 and surrendered such passport to the Government of Pakistan on 19th February 1990, she Writ Petition (Civil) 12520/2009 Page 14 of 20 deliberately omitted to mention these material facts. The corresponding documents were also not placed on record. It is submitted that for the purpose of the proviso to Section 7A of the Act the mere fact that the Petitioner had been a Pakistani national at any earlier point in time was sufficient to disentitle her to an OCI registration. 24. The above submissions have been considered by this Court. The present petition concerns the validity of the order dated 13th June 2008 passed by the Respondent, reaffirmed by the impugned order dated 12th December 2008, whereby the OCI registration granted to the Petitioner on 2nd February 2007 has been cancelled. The relevant provision is Section 7A of the Act which reads as under: “7A Registration of overseas citizens of India – (1) The Central Government may, subject to such conditions and restrictions as may be prescribed, on an application made in this behalf, register any person