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Uttarakhand High Court · body

2016 DIGILAW 262 (UTT)

Satish Kumar Singh v. State of Uttarakhand

2016-06-22

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. The prayers in this writ petition are as follows: “i. Hon’ble Court is prayed to Command direction to respondents to clarify status of Tibetan Government in Exile and citizenship of Tibetan refugees. ii. Hon’ble Court is prayed to issue Command directions to respondent no. 5 to withdraw their order no. 30/ID/2010-ERS dated 07.02.2014 or alternatively prayed to declare ultra virus by this Hon’ble Court. iii. Hon’ble Court is prayed to Command direction to respondents to immediately stop the process of transferring schools run by CTSA to Tibet Govt. in Exile (CTA). iv. Hon’ble Court is prayed to Declare already transferred schools by CTSA to Tibet Govt. in Exile (CTA) as null & void.” 2. This writ petition has been filed purporting to invoke the public interest litigation jurisdiction of this Court. Briefly put, the case set up by the petitioner is as follows:- i. Petitioner claims to be a public spirited person. It is stated that an agreement was reached between the Republic of India and People’s Republic of China vide Annexure No. 1. It is further stated that the Government of India, by letter dated 26.08.2011 (Annexure No. 5), has ordered as follows: “The Children born to Tibetan Refugee in India will not be treated as Indian citizen automatically based on their birth in India before 01.07.1987 under section 3(1)(a) of the Citizenship Act, 1955 to MHA and thereafter the nationality status of all such children born to Tibetan Refugee in India, will be determined by MHA as per prescribed procedure available under the Citizenship Rules, 2009. All such children as and when their nationality status as an Indian is decided by this ministry, will have to surrender their Tibetan Refugee Certificate and identity Card before accepting Indian citizenship.” ii. It is stated that it is found from the paper that, as per the agreement of 1959 between Dalai Lama and Union of India, colonies of Tibetan people do not fall under the full control of the municipal board or cantonment board or panchayat and are free from all kinds of house tax, service tax or development tax. It is stated that it is found from the paper that, as per the agreement of 1959 between Dalai Lama and Union of India, colonies of Tibetan people do not fall under the full control of the municipal board or cantonment board or panchayat and are free from all kinds of house tax, service tax or development tax. There is reference to order dated 07.02.2014 (Annexure No. 8) of the Election Commission of India, which directed the CEOs of all States/Union Territories to include all Tibetan origin people, who born in between 26th January, 1950 and 1st July, 1997 in the electoral process, i.e. not to deny their names in the voters’ list as citizens of India. This was done, according to the petitioner, wrongly interpreting the findings of Karnataka High Court Judgment (Annexure No. 9). There will be threat to national security, it is stated. There is, then, reference to immovable property being transferred to Chinese citizens. There is also reference to the Foreign Exchange Management (Acquisition and Transfer of Immovable Property) Regulations, 2000. 3. Counter affidavits have been filed in the matter. In the counter affidavit filed on behalf of the Government of India, the stand taken in regard to citizenship of children born to Tibetan Refugees is different and Annexure No. CA 1 is communication dated 12.03.2014 issued by the Government of India, Ministry of Home Affairs (Foreigners Division), to the Secretary, Election Commission of India. Therein, it is inter alia stated as follows:- “2. Issues regarding nationality status of Tibetan Children born in India before 01.07.1987 were discussed by this Ministry in an Inter-Ministerial meeting with MEA and Security Agency on 11.3.2014 and it was reiterated that the children born to Tibetan Refugee in India will not be treated as Indian citizen automatically based on their birth in India between 26.01.1950 to 30.06.1987 under section 3(1)(a) of the Citizenship Act, 1955 for the following reasons:- (i) The persons of Tibetan origin usually apply for Registration under the Registration of Foreigners Act, 1939 and specify their present nationality as “Tibetan”. Thereafter, as soon as they got registered themselves under the Foreigners Act, 1939, an Identity Certificate is issued to these registered persons which is issued to a foreign national by the Regional Passport Officer for extension of stay in India. In the said Identity Certificates, it is clearly endorsed that they are Tibetan national. Thereafter, as soon as they got registered themselves under the Foreigners Act, 1939, an Identity Certificate is issued to these registered persons which is issued to a foreign national by the Regional Passport Officer for extension of stay in India. In the said Identity Certificates, it is clearly endorsed that they are Tibetan national. As such they cease to be an Indian citizen as soon as they register themselves with other country or obtain the citizenship of another country, as the Constitution of India does not allow dual citizenship. (ii) A number of children born to Tibetan Refugees might have registered with other foreign countries or taken the citizenship of another country and hence lost their Indian citizenship. (iii) The Ministry of External Affairs is being requested separately for filing an appeal in the matter of WP No. 15437/2013 filed by Mr. Tenzin Cheophag Ling Rinpocha. 3. The Ministry of External Affairs (East Asia Division) is not in favour of a suo moto grant of citizenship automatically to all Tibetan Refugees born in India between 26.01.1950 to 30.06.1987 on the basis of the High Court judgment as the judgment delivered by the Delhi High Court pertains only to the case of Ms. Namgyal Dolkar and may not be automatically extended to all other such children. 4. It may be noted that while the Citizenship Act (section 3) provides for citizenship by birth to every person born in India on or after 26th day of January 1950, but before the 1st day of July 1987, but the Constitution of India does not allow dual citizenship. The Citizenship Act and Rules state that any person who has acquired citizenship of another country automatically ceases to be citizen of India. It was noted that the children born to Tibetan refugees are usually enrolled as Tibetan refugees to differentiate them from Indian citizens. 5. In view of the above, it is requested that the Election Commission of India clarifies to all Chief Electoral Officers of all the State Governments/UTs to meticulously ensure that any ineligible persons/Tibetans are not enrolled as voters. Any enrolment already done in pursuance of ECI letter dated 7.2.2014 may also need to be carefully reviewed as above.” 4. The Election Commission of India, on the other hand, filed a counter affidavit, essentially, referring to its order dated 07.02.2014. Any enrolment already done in pursuance of ECI letter dated 7.2.2014 may also need to be carefully reviewed as above.” 4. The Election Commission of India, on the other hand, filed a counter affidavit, essentially, referring to its order dated 07.02.2014. It refers to the provisions of Sections 16 & 19 of the Representation of People’s Act, 1950. It is stated that the issue was raised before the High Courts of Delhi and Karnataka and the petitioners therein were directed to be treated as citizens of India. 5. A counter affidavit has been filed by respondent No. 8. It is to be noted, at this juncture, that respondent No. 8 is the Director of Sambhota Tibetan School Society located in Himachal Pradesh. It is part of the petitioner’s case that the Central Tibetan School Administration (CTSA), which is a society registered under the Societies Registration Act, 1860, has transferred land belonging in most cases to the State Governments, and which had been leased to the CTSA, to the Central Tibetan Administration (CTA) illegally. In its counter affidavit, it is inter alia stated as follows:- “5. That the petitioner has filed the above mentioned writ petition as a PIL stating that the respondents have acted unreasonably towards the citizen of India and also acted against the interest of the country by taking a decision to transfer the schools of respondent no. 6 to respondent no. 8. It is submitted here that the petitioner had worked under the respondent no. 6 organization since 01.8.1994 to 08.01.2004 as the Post Graduate Teacher (Geography) initially he was posted at Central School for Tibetan at Shimla the Principal of Central School Tibetan Shimla made several complaints against the petitioner and due to this reason he was transferred to Central School for Tibetan Harbartpur Distt. Dehradun Uttarakhand. Even after transfer to Central School Tibetan, Harbartpur on 16.5.1998 the petitioner indulge in various anti-schools activities, he was not punctual in his duties and remain absent from duties on one pretext to another. The conduct of the petitioner with the superiors and other colleagues was highly objectionable due to these reasons disciplinary action has taken against the petitioner and a charge sheet was given to him on 11.7.2000 and regular enquiry was conducted against him. The charges leveled against the petitioner found correct and was proved. The conduct of the petitioner with the superiors and other colleagues was highly objectionable due to these reasons disciplinary action has taken against the petitioner and a charge sheet was given to him on 11.7.2000 and regular enquiry was conducted against him. The charges leveled against the petitioner found correct and was proved. Thereafter the disciplinary authority imposed the penalty of dismissal from the services upon the petitioner vide order dated 9.01.2004. 6. That due to this personal grudge the petitioner preferred this writ petition with revengeful attitude by leveling false and concocted allegations against the respondents as the matter of fact there is no Public Interest is involved in the present writ petition filed by the petitioner and the writ petition is misconceived. It is further submitted that earlier the petitioner filed a similar writ petition in the name of his wife Smt. Kajal Gosh Singh before Hon’ble High Court of Calcutta as PIL which was dismissed vide order dated 29.1.2014. A copy of the order dated 29.1.2014 passed by Hon’ble High Court of Calcutta is being filed herewith and marked as Annexure No. CA-1 to this affidavit.” 6. We have heard Mr. Shashank Upadhyaya, learned counsel appearing for the petitioner; Mr. H.M. Bhatia, learned Brief Holder appearing for the State of Uttarakhand; Ms. Anjali Bhargava, learned counsel appearing for the Election Commission of India/respondent No. 5; and Mr. Syed Nadim, learned counsel appearing for respondent Nos. 6, 7 & 8. There is no representation on behalf of the Union of India. 7. The learned counsel appearing for the respondents would point out the conduct of the petitioner in having approached the Himachal Pradesh High Court and the fact that his petition was dismissed with heavy cost. The learned counsel for the petitioner, in fact, in the course of submissions, would confine himself to seeking the relief relating to citizenship and the illegality in having the persons born between 1950 and 1987 entered in the electoral rolls. 8. Public Interest Litigation is a very potent tool in the hands of the courts to reach justice particularly for underprivileged, the poor and the voice-less. Though it, in its infancy, grew out of the courts’ overwhelming desire to reach justice at the doorsteps of such sections, it has later seen the phenomenal growth into various other areas. 8. Public Interest Litigation is a very potent tool in the hands of the courts to reach justice particularly for underprivileged, the poor and the voice-less. Though it, in its infancy, grew out of the courts’ overwhelming desire to reach justice at the doorsteps of such sections, it has later seen the phenomenal growth into various other areas. Along with the highly beneficial effects, which has, undoubtedly, flown from the extraordinary power, which the courts exercise in genuine public interest, cases have also come to courts, which are already reeling under a docket explosion, where there is no public interest, but what propels the litigant is pure private interest. Such cases unjustifiably and unnecessarily take the precious time of the court in its daunting task of administering justice, particularly for whose, who are waiting in the queue with genuine claims, which themselves get delayed on account of a huge pendency. 9. In this case, we have noted that there is a personal interest with the petitioner. The uncontrovertable proof of the same is provided by the unrebutted pleadings of respondent No. 8, which we have extracted, namely, that the petitioner was a former employee, he was proceeded against and his services were terminated. Apparently, this provided the motive for him to approach the Court and seek the reliefs. Apparently, on noticing that his case had been thrown out by the Himachal Pradesh High Court, where he appeared in person, he has given up his claim over which much time was spent in the matter of devising pleadings by the parties. Needless to say, petitioner’s wife, whom the petitioner would claim to be an independent person and a citizen of India, had also engaged the Calcutta High Court seeking resolution of similar issues relating to the transfer of property. As far as the issue relating to the Election Commission is concerned, apparently, that was not among the prayers either before the Calcutta High Court or before the Himachal Pradesh High Court. Coming to that, we must remind ourselves that, if a person comes in public interest litigation and it is found that he is ill-motivated, the court’s duty may not yet end, for it is open to the court, if the cause projected is indeed noble and worth entertaining and considering, to even remove the petitioner and appoint an Amicus Curiae and to proceed to decide the matter. In other words, while the motive of the petitioner may be questionable and a litigation may be motivated by private interest, if the cause is good and its answers are to be given, which will promote public interest, the court may not, on the said ground alone, throw out the petition. 10. In this case, conspicuous by the absence in the party array, is a single Tibetan person of Tibetan origin, who was born in between 1950 and 1987. In fact, not a single person, who would be affected by the resolution of the issue in question, has been made a party by the petitioner. On the one hand, the Election Commission has issued order dated 07.02.2014, apparently, following the Karnataka High Court and the Delhi High Court judgments, namely, that persons of Tibetan origin born in between 1950 and 1987 should be treated as citizens under Section 3(1)(a) of the Citizenship Act and, therefore, entitled to be enrolled as voters in the electoral roll; on the other hand, a contrary stand is taken by the Government of India, as is evident from its counter affidavit and also the communication, which is addressed to the Election Commission of India, which we have already adverted to. There are conflicting stands. It is not that we may not be capable of deciding this issue. The issue of citizenship may involve questions of fact. It also involves the choice of either stand taken. The question, however, would be whether we should grant any relief at the instance of the petitioner. Secondly, as already noted, none of the affected persons has been made a party by the petitioner. Quite clearly, the writ petition is filed in personal interest. Furthermore, we may notice that these crucial facts, namely, the petitioner was an employee, he had been proceeded against and his service stood terminated, have been concealed in the writ petition. Therefore, in such circumstances, we do not intend to give any kind of relief to the petitioner. We must always keep in mind that the stream of justice should not be allowed to be polluted, as it will only encourage more such litigation if any such litigation is promoted even in the slightest way. We have also given other reasons as to why we would not interfere in this matter. 11. We must always keep in mind that the stream of justice should not be allowed to be polluted, as it will only encourage more such litigation if any such litigation is promoted even in the slightest way. We have also given other reasons as to why we would not interfere in this matter. 11. In the circumstances, we would think that the writ petition ought to be dismissed also with cost. We, accordingly, dismiss the writ petition with cost quantified at Rs. 10,000/- to be paid to the Advocates’ Welfare Fund.