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2003 DIGILAW 169 (JK)

Raja Mohd. Hussain v. State

2003-05-27

PERMOD KOHLI

body2003
Petitioner Raja Mohammad Hussain Khan, was resident of State of Jammu and Kashmir and thus a permanent resident of the State.he migrated to Muzaffarabad in the year 1984 and stayed there with his relations.He secured a Pakistani Passport on 27.9.1999 and applied for Visa to Indian High Commissioner at Islamabad for visit to India. His application was allowed and he was granted Visa under No. P233186 by the Indian High Commissioner for visit to Srinagar from 29.8.2001 to 28.11.2001 (60 days). He entered India through Amritsar border on 21st September 2001 and since then is staying with his children at Baghat Barzulla, Srinagar. Before the expiry of the period of his visit under the Visa granted to him, he applied for extension of his stay for three months on medical grounds.He submitted his application on 11.11.2001. 2. The petitioner has approached this Court through the present petition claiming himself to be permanent resident of the State and a citizen of India, being originally resident of Srinagar.He has submitted that he is suffering from "unstable Angina" and is under treatment od doctors who have advised him to take complete bed rest for 16 weeks. He claims that he has a right to stay with his children as he is a state subject and has served as a public servant in the Jammu and Kashmir Government and retired from service in 1965. He being 92 years of age wants to spend rest of his life in Srinagar, where he has spent most precious years of his life and where his children are living. It is also stated that he applied for extension of Visa for 3 months on medical grounds and his application has not been considered. He has accordingly sought the following reliefs: "In the premises, it is therefore, prayed that the Honble Court be pleased to pass an appropriate writ order or direction including one in the nature of:- (a) Mandamus commanding the respondents to allow the petitioner to stay permanently in Srinagar with his family as being a State Subject after fulfilling the mandatory provisions of law like India Citizenship Act. (b) Mandamus, directing the respondent No. 1 to decide the Visa extension application moved by the petitioner on 11th Nov. 2001 before the repondent No. 4 which has been forwarded to respondent No. 2 under FR/SBK-1032 dated 26.11.2001. (b) Mandamus, directing the respondent No. 1 to decide the Visa extension application moved by the petitioner on 11th Nov. 2001 before the repondent No. 4 which has been forwarded to respondent No. 2 under FR/SBK-1032 dated 26.11.2001. (c) Mandamus, commanding the respondents not to deport the petitioner back to the other part of the J&K State. (d) Any other writ, order or direction which this Honble court may deem just an dproper in the circumstances of the case though not prayed for be also passed in favour of the petitioner and against the respondents." 3. Objections have been filed by respondents 1, 3 and 4, where under right of the petitioner to stay back in India has been seriously contested. It is stated that the petitioner has opted for Citizenship of Pakistan.He traveled on pakistani passport and under the visa granted by the Indian High Commission for a specific period.After the expiry of the period for which he was allowed to stay in India, he has no right to continue his stay and liable to be deported to Pakistan. It is further stated that he applied for extension of Visa for a period of 3 months and the period for which extension was claimed expired on 20.2.2002 and during this period, he was never asked to leave, but after the expiry of period, for which extension was sought, he is supposed to leave the country particularly when the petitioner did not apply for further extension and is presently over-staying illegally and in violation of terms and conditions of the Visa and Foreign Registration Rules. Action under law is required to be taken against him. 4. I have heard learned counsel for the parties and pursued the record. 5. Petitioner has placed on record the copy of passport issued by the Government of Pakistan on 27.9.1999. He applied for visa to Indian High Commission at Islamabad, which was granted to him to visit Srinagar for a period of 60 days with effect from 29.8.2001 to 28.11.2001 through Attari border. A copy of the Visa granted by the Government of India on 29.8.2001 is also placed on record. There are certificates from Medical Suprintendent, JLNM Hospital, Srinagar, wherein petitioner is stated to be suffering from "unstable Angina" and is advised complete rest for 16 weeks. A copy of the Visa granted by the Government of India on 29.8.2001 is also placed on record. There are certificates from Medical Suprintendent, JLNM Hospital, Srinagar, wherein petitioner is stated to be suffering from "unstable Angina" and is advised complete rest for 16 weeks. Petitioner has also placed on record a copy of application seeking extension of Visa on the prescribed form. Against Column of Nationality, he has mentioned "Pakistani". He applied for 3 months extension after the expiry of period of his stay. 6. The question that arises for consideration is whether petitioner has a right to stay back in India after expiry of his period of stay for which he was granted Visa by the Government of India through Indian High Commission at Islamabad. From the averments made in the writ petition, it is apparent that the writ petitioner after his migration to pakistan in the year 1984 acquired pakistani Citizenship. He secured Pakistani passport and entered India under the Visa issued by the Indian High Commissioner for a period of 60 days.he applied for extension of Visa only on health grounds for a period of 3 months, though no extension was granted but the period of 3 months for which the extension was sought also expired more than a year back. After the expiry of the period of extension for which he applied, he has no lawful reasons to stay back in India. 7. In order to determine the claim and right of the petitioner to stay in India on the plea of he being a permanent resident of State, certain provisions of the State Constitution and Citizenship Act needs to be noticed.Section 6 of the Constitution of Jammu and Kashmir defines a permanent Resident and Section 9 of the Citizenship Act 1955, which is relevant for the purpose of present controversy are quoted hereunder:- "6.Permanent residents -- (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954:- (a) he was a State Subject of Class I or the Class II; or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to the date. (2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947 to the territory now included in Pakistan returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the state legislature shall in such return be a permanent resident of the State. (3) In this section, the expression, "State Subject of Class I or of Class II" shall have the same meaning as the [State Notification No. 1-L84 dated the 20th April, 1927, read with State Notification No. L dated the 27th June, 1932]." 9. Termination of Citizenship -- (1) Any citizen of India who by naturalization, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such cquisition or, as the case may be, such commencement, ceases to be a citizen of India: Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf." 8. It is not in disputed that the petitioner was a Permanent Resident of the State as defined under Section 6 of the State Constitution referred to above before his migration to Pakistan in the year 1984. Whether he continues to be a permanent resident as on date after he re-entered the State on the strength of a Pakistani Passport and Visa granted by Republic of India, requires to be considered in the light of the aforesaid provisions of law. 9. Section 6 of the State Constitution provides that every person who is or deemed to be a citizen of India under the Provisions of the Constitution of India shall be a permanent resident of the State, if on 14th day of May, 1954, he was a State Subject of Class I or Class II. 10. 9. Section 6 of the State Constitution provides that every person who is or deemed to be a citizen of India under the Provisions of the Constitution of India shall be a permanent resident of the State, if on 14th day of May, 1954, he was a State Subject of Class I or Class II. 10. Petitioner who was a resident of the State of Jammu and Kashmir and was serving in the State Government up to 1965 was definitely a citizen of India by virtue of provisions of the Citizenship Act, 1955 and consequently a permanent resident of the State in terms of the definition as provided under section 6 of the Constitution of Jammu and Kashmir read with State Notification No. 1-L84 dated 20.4.1927 and Notification No. 13-L dated 27.6.1932. 11. The second relevant question is what is the impact of his migration to Pakistan and acquiring Pakistani Citizenship on his status as a citizen of India and a permanent resident of the State? 12. Section 9 of the Citizenship Act deals with termination of Citizenship.Any citizen of India who by naturalization, registration or otherwise voluntarily acquires the citizenship of another country ceases to be a citizen of India. 13. In the instant case, according to his own admission, the petitioner migrated to Pakistan and acquired Citizenship of that country.There is not even a whisper in the writ petition that acquisition of citizenship of Pakistan was/is not voluntary. It can thus be safely concluded that the petitioner voluntarily acquired citizenship of Pakistan, i.e. another country and thus loses the citizenship of India. There is a statutory presumption in respect to the voluntary of act of acquiring citizenship of another country by virtue of Rule 3 of Scedule III of the Rules framed under section 18 of the Citizenship Act. For the convenience, Rule 3 is quoted as under:- "The fact that the Citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the Citizenship of that country before that date." 14. Petitioner having not stated anything about his non-voluntary acquisition of Pakistani Passport, it is deemed that he voluntarily acquired the Pakistani passport and on such acquisition has cease to be the citizen of India which stands terminated by virtue of section 9 of the Citizenship Act, 1955. Petitioner having not stated anything about his non-voluntary acquisition of Pakistani Passport, it is deemed that he voluntarily acquired the Pakistani passport and on such acquisition has cease to be the citizen of India which stands terminated by virtue of section 9 of the Citizenship Act, 1955. The moment, a permanent resident of the State loses the Citizenship of India, he also lose his status of that of a permanent resident of the State of Jammu and Kashmir. Being a citizen of India is a condition precedent for acquiring the status of a permanent resident of State, if on the relevant date, he was a State Subject of Class I or Class II or falls in any other category of permanent residents as defined under section 6 of the State Constitution. The petitioner who was admittedly a citizen of India and a permanent resident of the State after he voluntarily acquired the Pakistani Passport. 15. The petitioner vide his application dated 11.11.2001 requested for 3 months extension of his Visa and by virtue of an interim order dated 8.1.2002, continued to stay in Srinagar.As mentioned hereinabove, though no formal extension was granted by the Government of India in respect to extension in the stay of the petitioner, but the fact remains that he not only stayed for the period for which extension was sought, but over stayed in this country on the basis of the court order. His stay after the expiry of the Visa and at least the expiry of period for which extension was sought, cannot be said to be under any authority of law, but for the court order. The claim of the petitioner that he being a State Subject has aright to stay in Srinagar, cannot be accepted in view of the discussions made hereinabove. 16. The other claim of the petitioner that the legislature enacted an Act namely Jammu and Kashmir Grant of Permit for Resettlememt in (or Permanent return to) the State Act, 1982 and he is entitled to return to India also, cannot be accepted in view of the fact that though the said enactment was passesd by the State legislature in the year 1982 and received assent of the Governor, but it has not been enforced. Otherwise also, with a view to seek remedy under the said Act, one has to make a proper application and the permit can only be granted in accordance with the procedure prescribed under the said Act. It is not the case of the petitioner that he has made any such application under the provisions of the said Act. 17. Learned counsel for the petitioner has finally argued that in view of the judgement of Full Bench of this Court in case of S. Mohsin Shah v.Union of India and others, he is entitled to continue to stay in the State of Jammu and Kashmir.The petitioner is not entitled to any relief on account of the judgement of the Full Bench reported in 1973 JKLR 789, as the facts of the said case are distinct from the present one. In the said case, the petitioner therein migrated to Skardu, a territory which forms part of the State and Indian Union but under illegal occupation of the Pakistan. He specifically pleaded in his representation made to the Government of India as alos in his writ petition before this Court that he did not volunatrily acquire the citizenship of pakistan when he applied for a Pakistani Passport and obtained the same, but he was forced under the circumstances to do so to seek his entry in India (State of J&K). This Court after examining various documents including the application/representation made by the petitioner in the said case, came to the conclusion that he did not acquire Pakistani passport and consequently citizenship of that country voluntarily. The court accordingly issued directions to the Government of India for re-consideration of his representation for his continuation in India, though he entered the Indian territory on the basis of a Pakistani passport. This Court thus held as under:- "... ...A persual of this rule clearly indicates that once a person acquires the passport of another country, the presumption will be that he has lost his citizenship and the onus is on the citizen concerned to show that the acquisition of the passport was not voluntarily....." ".....An analysis of the ratio laid down by their lordships leads to the following conclusions:- 1. That the rule 3 of schedule III raises a presumption that if a person has acquired a passport of another country, that shall be conclusive proof of the fact that the citizenship was lost. 2. That the rule 3 of schedule III raises a presumption that if a person has acquired a passport of another country, that shall be conclusive proof of the fact that the citizenship was lost. 2. That bef ore this act can be conclusively proved, the word `obtainedclearly postulates that the passport must be acquired by free volition or volunatarily. 3. That the onus of proving the fact that the passport was not acquired voluntarily but under duress or other circumstances is on the citizens concerned and once this plea is raised, it has to be examined by the Central Government while making an inquiry under S. 9(2). 4. In other words, the expression `obtained a passport appearing in rule 3 of schedule III does not include the physical or mechanical act of receiving a passport by a person but postulates the securing of a paasport willfully and consciously, knowing full well the consequences of the same.Once this is proved then the presumption under rule 3 will automatically apply to the acquisition of passport and will become a conclusive proof of the loss of citizenship; where, however, it is proved that the passport was obtained under duress, compulsion, undue influence, fraud or fear, it will not amount to obtaining the passport within the meaning of rule 3 Sch.III and therefore, the question of trating the acquisition of the passport as conclusive proof of the loss of citizenship would not arise." 18. Nothing having been said about involuntary nature of acquisition of Pakistani Citizenship, jurisdiction of Central Government under section 9(2) of the Citizenship Act cannot be involved as no such question falls for determination in this case. 19. The ratio of the said judgement has no application to the facts of the present case. Hence it is held that the petitioner is not similarly placed. This petition accordingly fails and is dismissed. As a consiquence of dismissal of the writ petition, respondents are at liberty to deport the petitioner to Pakistan in accordance with law.