AMINA Vs. STATE OF U P

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the prayer is that a writ of Certiorari may be issued quashing the order dated 10-9-82 passed by the Superintendent of Police, Bulandshahr, (Annexure-1) to the petition, directing the petitioners to leave India within 7 days and proceed to Pakistan, and if they fail to do so, proceedings under the Foreigners Act would be initiated. The petitioners perferred the writ petition with the allegations that petitioner No. 1. Smt. Amina was born in 1936 at Sikenderabad, Bulandshahr with Indian parents and she was brought up by her parents there and was married to Jumma Khan i that from the union of Jumma Khan, a son was born to petitioner no. 1 on 21-9-1952 (petitioner no. 2). Petitioner no. 3 was the wife of Zamir Ahmad and petitioners nos. 4 to 6 are the sons of Zamir Ahmad. Petitioners nos. 1 and 2 remained in India until 1954. Petitioner no. 1 received information that her brother, Yaqoob Ahmad was seriously ill in Karachi, Pakistan and she has to go to Pakistan to see him and it was not possible to get a Passport in a short time, and as advised she went to Pakistan through Khokrapor border to which passage the passport would not be required. She consequently along with petitioner no. 2, who was then minor, reached Pakistan without any passport and remained there. jumma Khan husband of petitioner no. 1 and father of petitioner no. 2, has been the Indian citizen. Petitioner no. 3 was born after 26th January, 1950 at Sikenderabad, Bulandshahr. Petitioner no. 3 remained in India till 1970 when she went to Pakistan. Petitioners nos. 4 to 6 are the minor sons of petitioners nos. 2 and 3. All the petitioners are citizens of India and could not acquire the citizenship of Pakistan, nor their Indian citizenship has been lost. The petitioners came to India in May, 1980 on a valid passport and they have not acquired Pakistani citizenship, but on the basis of the impugned order they have been directed to leave India.

(2.) IN the counter-affidavit, it was averred that petitioners are not the INdian citizens, rather in the visas it was mentioned that they were Pakistani citizens. Petitioner no. 2, Zameer Ahmad entered into INdia on 9-6-71 on a Pakistani Passport no. AC 741911 and INdian Visa No. 10843 dated 21-5-71, valid upto 7-9-71. Petitioner no. 1. Smt. Amina Begain entered into INdia on 9-6-71 on the strength of Pakistani passport and INdian visa which was valid up to 7-7-71. Petitioners nos. 1 and 2 reported their departure from this country for Pakistan on 6-9-71 and 6-7-71 and crossed INdian border on 7-9-71 and 7-7-71 respectively. Petitioners nos. 1 and 2 voluntarily went to Pakistan and acquired citizenship of that country. Petitioner no. 3 also went to Pakistan voluntarily with her husband, petitioner no. 2 in 1971 and acquired citizenship of Pakistan. They neither applied here for long term visa, nor for INdian citizenship, but they left for Pakistan during the validity of their visas. Smt. Amina Begam, petitioner No. 1 entered into INdia on 28-6-80 on the strength of a Pakistani passport. Petitioner No. 2 also entered INdia on 28-6-80 on the strength of a Pakistani passport. Their visas were valid for Sikenderabad, District Bulandshahr and Meerut up to 27-9-80. Petitioners 4 to 6 also came to INdia along with petitioners 1 and 2 and petitioners 1 to 3 applied to the Secretary, Ministry of Home Affairs, Government of INdia, New Delhi, requesting for grant of long term visa and INdian citizenship. IN this way, it was denied that petitioners were INdian citizens.

(3.) HAVING heard learned counsel for the parties, we are of the opinion that as the application for acquiring Indian Citizenship has already been rejected, under the provision of section 9 (2) of the Act read with Rule 30 of the Rules, it was open to petitioners to challenge that order, but they did not do so. Even the Authority or the Tribunal, i. e. Secretary, Ministry of Home Affairs, Government of India or the Central Government rejecting the application of petitioners was not impleaded as respondent in the petition, nor any relief was claimed against them. When we enquired as to why not the authority, i. e., Central Government, rejecting the petitioners' application for Indian Citizenship was made party, learned counsel stated that he can implead them provided (the court required them. At the close of arguments, an application for impleadment was made. But neither the order rejecting their application under section 9 (2) of the Act read with Rule 30 of the Rules was challenged, nor the Authority deciding the application has been impleaded as a party.