S MOHSIN SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an application by the petitioner for an appropriate writ in order to quash the orders passed by the Dy. Secretary, Home Department, Government of Jammu and Kashmir, directing deportation of the petitioner to Pakistan in pursuance of the orders of the Union Ministry of Home Affairs. The petitioner has also prayed for a declaration that he is an Indian citizen and is not liable to deportation from the territory of India. Finally the petitioner has asked for any other appropriate relief to which he may be entitled under law. The petition raises substantial questions of law of a unique nature and arises in the following circumstances:

(2.) THE petitioner was born at Daulatabad, Khanyar, Srinagar, on 25 -5 -1925. He was educated in the Government High School at Srinagar and joined the S. P. College. The father of the petitioner, the late S. Mohd. Shah, was doing business in Skardu (Ladakh). In 1945 the petitioner also left for Skardu to join his father there and in order to support himself, be accepted the post of a clerk in the Govt. hospital at Skardu in 1947 -48. The father of the petitioner died in 1967. It may be stated here that Skardu which is a part of Ladakh is in law considered to be a part of the territory of Kashmir and therefore of India even though it is in illegal occupation of Pakistan. The petitioner alleges that he was a first class state subject within the meaning of the Notification dated 20 -4 -1927 and by force of this Notification he became a permanent citizen of the State and therefore a citizen of India. The petitioner received: several letters from his relation, S. Qazim Shah inviting him to Srinagar because his sister was to be married and therefore he decided to visit Srinagar in order to participate in the marriage. In pursuance of this object the petitioner applied to the Secretary to the Government Home Department on 5 -6 -68 for a non -Objection Certificate. This application was forwarded by the Home Secretary to the Dy. Secretary Union Ministry of Home Affairs and after performing a few formalities, a No -Objection Certificate was issued by the State Government. The petitioner further states that as he had no other avenue to come back to Srinagar, he was compelled to apply for a passport from the Pakistan authorities and obtained a visa from the High Commr. of India in Islamabad from 9 -4 -69 for a period of one month. Armed with the passport and the visa the petitioner left Skardu, crossed the Hussainiwala border between India and Pakistan and reached Srinagar on 21 -5 -69. Since then the petitioner has been staying in Srinagar. It is further stated by the petitioner that he had applied for permission to settle permanently at Srinagar and at one time the State Government was inclined to accept his application and recommended to the Central Government that he may be accorded permission for permanent settlement at Srinagar. This recommendation does not appear to have found favour with the Central, Government which insisted on the deportation of the petitioner. The petitioner has also made some other allegations of a personal nature against some officers who, according to him, were out to grab the property of the petitioner at Srinagar which was inherited by him from his father. After a great deal of correspondence between the State and the Central Government, the latter decided that the petitioner should be asked to go back to Pakistan as he ceased to be an Indian citizen. This culminated in the orders of deportation passed by the Central Government dated 31 -5 -71 and 31 -5 -71, Being unable to get any redress either from the State Government or from the Central Government, the petitioner was forced to approach this court for an appropriate writ and hence this petition.

(3.) THE petition has been resisted by the two respondents namely, the Central Government and the State Government on various grounds. The sheet anchor of the case of the Government is that the petitioner having acquired a Pakistani passport ceased to be a citizen of India and became a Pakistan national, and he had therefore no justification to stay in India after the period of his visa was over. In the counter -affidavit filed by the Central Government it is also suggested that the petitioner was, indulging in subversive activities and was a security risk. This aspect of the matter is not germane for the decision of the issues which are raised in the petition.