Yaro Khan @ Ahmad Shah vs Uoi & Ors.
2011 Latest Caselaw 4437 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 12th September, 2011

+                                   W.P.(C) 2599/2007

         YARO KHAN @ AHMAD SHAH                 ..... Petitioner
                     Through: Mr. Bahar U. Barqi, Adv.

                                               Versus
         UOI & ORS.                                                  ..... Respondents
                                    Through:      Mr. Ravinder Aggarwal, Adv.
                                                  Ms. Zubeda Begum & Ms. Sana
                                                  Ansari, Advs. for R-4.

                                               AND
+                                   W.P.(C) 4112/2007

         YARO KHAN @ AHMAD SHAH                 ..... Petitioner
                     Through: Mr. Bahar U. Barqi, Adv.

                                               Versus
         UOI & ORS.                                                 ..... Respondents
                                    Through:      Mr. B.V. Niren, Adv. for UOI.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                      YES
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                     YES

3.       Whether the judgment should be reported                    YES
         in the Digest?

W.P.(C) Nos.2599/2007 & 4112/2007                                             Page 1 of 22
 RAJIV SAHAI ENDLAW, J.

1. The petitioner, in W.P.(C) No.2599/2007 seeks a declaration that he is

an Indian citizen by birth and a direction to the respondents to treat him as

an Indian national by birth; he also impugns the order dated 13.04.2006 of

his deportation from India and seeks to restrain the respondents from taking

any action towards his deportation.

2. W.P.(C) No.4112/2007 has been filed impugning the order of

cancelling / impounding the Indian passport earlier issued to the petitioner

and seeks a mandamus for issuance of a fresh passport to the petitioner.

3. Notice of both the petitions was issued and vide interim order dated

04.04.2007 in W.P.(C) No.2599/2007, which continues to be in force,

deportation of the petitioner was stayed.

4. The counsel for the petitioner has argued with reference to W.P.(C)

No.2599/2007 and has stated that the result thereof would determine the fate

of W.P.(C) No.4112/2007 also.

5. It is not for the first time that the order of deportation of the petitioner

has been issued. Prior thereto also, an order dated 05.05.1998 under Section

3(2) of the Foreigners Act, 1946 restraining the petitioner from remaining in

India and directing him to depart from India latest by 15.05.1998 was issued.

The same was challenged by the petitioner by filing Crl. W.P. No.397/1998.

It was the case of the petitioner in that petition that he was born in Guwahati

on 13.01.1952; his father came from Pathtoonistan and his mother died when

he was just nine months old; that he made an application with the authorities

at Kamrup, Assam for grant of Indian citizenship; that the order of

deportation was bad since he was lawfully staying in India and since he was

not having citizenship or nationality in any other country and was born,

brought up, nurtured and had grown up in India.

6. Crl. W.P. No.397/1998 was contested by pleading, that the petitioner

was holding a Afghan passport issued at Kabul; that he had however

fraudulently obtained an Indian passport issued at Guwahati; that he is a

kingpin in Hawala and smuggling business and has amassed wealth through

illegal means; that the very fact that he had applied for citizenship was

indicative of his not being an Indian citizen; that the ration card and other

documents fraudulently obtained by him by misrepresenting facts did not

vest any rights in him.

7. The aforesaid Crl. W.P. No.397/1998 was disposed of vide judgment

dated 21.08.1998 of the Division Bench of this Court. It was held, that the

very fact that the petitioner claims that he has applied for Indian citizenship

was sufficient to repel his contention that he was an Indian citizen; that no

material had been brought on record to show that he was born in India;

rather the material on record showed that in 1962, he applied as a Pakhtoon

national seeking permission to stay in India; that there was no question of

having acquired citizenship by mere prolonged stay; that the very fact that

he sought permission as a foreigner to stay in India falsified his stand of his

being an Indian citizen; that he continued to be a foreigner and had no right

to stay in India. However, finding that the order of deportation of the

petitioner had been made without hearing him, the writ petition was allowed,

the order of deportation set aside with liberty to the respondents to pass a

fresh order in accordance with law.

8. Thereafter yet another order dated 18.12.1998 was issued by the

respondent Foreigners Regional Registration Officer (FRRO) of deportation

of the petitioner. The same was again challenged by the petitioner by filing

Crl. Writ Petition No.1107/1998. It was again the claim of the petitioner

that he was an Indian national having been born in Guwahati on 10.01.1950

and cannot be treated as an alien.

9. The said Crl. Writ Petition No.1107/1998 was dismissed by a Division

Bench of this court vide judgment dated 17.02.1999. It was held:

"The contention of the petitioner that he is an Indian Citizen and

was born in India is belied from the fact that he had made an

application for grant of Indian citizenship and also an

application for permission to stay in India. Learned counsel for

the petitioner submitted that the petitioner was misguided in

making the application. It is significant to note that the

petitioner does not claim to have moved any application to the

concerned authorities withdrawing his earlier application

seeking Indian Citizenship and permission to stay in India. It is

also not his case that he had made application to the concerned

authorities clarifying the position that as he was born in India

and is an Indian citizen the application for grant of Indian

Citizenship and the application seeking permission to stay in

India were made under a wrong advice. It appears that the plea

that the petitioner had made the said applications on a wrong

advice is an afterthought. The petitioner having applied for

Indian Citizenship and for grant of permission to stay in India

and having acquired Afghan passport repels the contention of

the petitioner that he is an Indian citizen. In Abdus Samad Vs.

State of West Bengal AIR 1973 SC 505, where the appellant

had made an application under Section 5(1)(a) of the Citizenship

Act, 1955, for being registered as a Citizen of India, it was held

that the application for registration as an Indian Citizen totally

repels any plea of citizenship of the appellant. Thus, the claim

of the appellant that he had come to Calcutta in 1914 and

therefore, at the commencement of the Constitution he became a

citizen under Article 5 (c) of the Constitution did not find favour

with the Apex Court.

Learned counsel for the respondent has invited our

attention to the International Driving Licence of the petitioner

bearing No.7159 issued at Kabul by Kabul Traffic Licence

Department and Identity Card No.237658 of the petitioner

issued by the Royal Government of Afghanistan on September

30, 1338 (...... Nov. 1958). As against this, the petitioner has

not placed on record any material or evidence to show that he

was born at Guwahati. We are also not impressed by the

submission of the learned counsel for the petitioner that the

passport produced by the first respondent as that of the petitioner

was never issued by the State of Afghanistan. It is well settled

that an alien cannot have a right of permanent abode in India. In

Louis De Raedt Vs. Union of India and Others AIR 1991 SC

1886, it was held that the fundamental right of the foreigner is

confined to Article 21 and does not include the right to reside

and settle in this country. In Hans Muller of Nurenburg Vs.

Superintendent, Presidency Jail, Calcutta and Others AIR

1955 SC 367, the Supreme Court held that the power of the

Government in India to expel foreigners is absolute and

unlimited and there is no provision in the constitution fettering

this discretion."

10. The petitioner preferred Special Leave Petition (Crl.) No.674/1999

against the judgment aforesaid of the Division Bench of this Court and Crl.

W.P.No.25/2006 before the Apex Court which were dismissed in limine.

11. However notwithstanding the dismissal aforesaid, it appears that the

petitioner was not deported; according to the counsel for the respondents,

because the petitioner had gone "underground" and which is controverted by

the counsel for the petitioner. However, vide order dated 13.04.2006

impugned in W.P.(C) No.2599/2007, the Ministry of External Affairs, New

Delhi requested the Embassy of the Islamic State of Afghanistan in New

Delhi to prepare necessary travel documents for deportation of the petitioner.

12. Notwithstanding the findings aforesaid of the Division Benches of this

Court in the earlier two writ petitions preferred by the petitioner, the

petitioner by way of this writ petition seeks declaration of his Indian

citizenship, relying on, i) Certificate of Birth dated 07.09.2006 issued by the

Department of Economics and Statistics of the Government of Nagaland

under Section 17 of the Registration of Births & Deaths Act, 1969 and ii) a

letter dated 16.01.2003 purportedly of the Embassy of the Transitional

Islamic State of Afghanistan at New Delhi to the Ministry of Home Affairs,

Government of India.

13. The counsel for the petitioner contends that the Birth Certificate

establishes the petitioner having been born in India and the letter dated

16.01.2003 (supra) establishes that the Afghan passport which the petitioner

was stated to be holding had in fact not been issued by the Government of

Afghanistan.

14. The counsel for the petitioner has further contended, that Crl. Writ

Petition No.1107/1998 was dismissed because the petitioner had then been

unable to prove his birth in India; that since now the petitioner has been able

to establish his birth in India making him an Indian citizen by birth, the

petitioner is entitled to the declaration aforesaid.

15. Notice of W.P.(C) No.2599/2007 was issued on the aforesaid

argument only and the respondents were directed to verify the authenticity of

the said Birth Certificate issued by the Government of Nagaland on which

the petitioner relies. The same order was reiterated on 12.01.2011.

16. A status report has been filed by the respondents and to which

response has been filed by the petitioner.

17. The Birth Certificate produced by the petitioner shows the birth on

10.01.1950 of a male named Yaro Khan at Dimapur with the name of the

father as Alim Khan and of the mother as Shap Paro, with permanent

address as Dimapur, Nagaland and the date of Registration as 07.09.2006. It

is thus not as if the birth, of which the said Certificate has been issued, was

registered contemporaneously; rather the Registration is after 56 years of the

birth.

18. It has been enquired from the counsel for the petitioner as to on what

basis, the aforesaid birth was got registered i.e. what was produced before

the Registrar of Births to show that the birth in fact had taken place. Neither

is there any pleading in the petition or proof to the said effect, nor is the

counsel for the petitioner able to state so.

19. It has further been enquired from the counsel for the petitioner as to

whether the Registrar of Births, Government of Nagaland was informed of

the judgment (supra) in the writ petition earlier preferred by the petitioner

holding that the petitioner was not a citizen of India. The answer is in the

negative; it is stated that the petitioner was not required to so disclose.

20. The status report filed by the respondents of verification of the Birth

Certificate aforesaid, though does not controvert the issuance of the Birth

Certificate but states that the documents on the basis of which the said Birth

Certificate is stated to have been issued are shown as misplaced in the office

of the Registrar of Births of the Government of Nagaland. It is also stated

that neither Yaro Khan nor his father Alim Khan were found enrolled in the

electoral list of Dimapur on or before 1963 and the other enquiries to

ascertain the parentage, domicile and activities etc. or of residence of

Dimapur did not yield any result.

21. The petitioner in his response to the aforesaid status report has

emphasized that the issuance of the Birth Certificate is not disputed; it is

stated that it was the responsibility of the Government of Nagaland to

preserve the records on the basis of which the Certificate was issued; that

since the petitioner till the year 1963 was only 13 years of age, the question

of his name appearing in the electoral rolls did not arise; that he had vide

legal notice dated 30.05.2011 to the authorities in Nagaland disclosed that he

along with his parents was residing in the rooms of Bari Masjid, Dimapur.

22. I have again enquired from the counsel for the petitioner that even if

the documents on the basis of which the Birth Certificate aforesaid was

issued have been misplaced from the office of the Registrar of Births,

Government of Nagaland, certainly the petitioner would be in possession of

the documents by furnishing which the registration was obtained. The

counsel for the petitioner states that he has no instructions.

23. The Registration of Births and Deaths Act, 1969 under which the

Birth Certificate aforesaid has been issued was itself enacted after 19 years

of the birth of the petitioner and came into force in the State of Nagaland on

1st October, 1971. The same requires a birth to be notified immediately and

in Section 13(1) thereof permits registration on intimation within 30 days of

occurrence; registration thereafter but within one year of occurrence is

permitted only with the written permission of the prescribed authority and

any registration which has not been registered within one year of occurrence

can be only registered by a Magistrate of the first class or a Presidency

Magistrate after verifying the correctness of the birth or death. The

registration on 7th September, 2006 of the birth on 10th January, 1950, as in

the present case could thus under Section 13(3) of the 1969 Act have been

only on an order made by a Magistrate. Neither any such order has been

disclosed nor any other explanation furnished. I also entertain serious doubts

as to whether registration at all of births occurred prior to coming into force

of the 1969 Act could have been made under the said Act and Certificate

thereof issued. There is nothing to show that the 1969 Act is retrospective or

requires any record to be maintained of the births of prior to the coming into

force thereof. I find the Division Bench of the Kerala High Court in Usman

Vs. Hindustan Machine Tools Ltd. 1987 (2) K.L.T. 1028 to have held that

the 1969 Act is prospective and regulates only the events that have taken

place after coming into force thereof and does not permit registration of a

birth occuring prior to coming into force of the Act. I am in respectful

agreement with the said view. I may notice that prior to the 1969 Act also,

registration inter alia of births was governed by the Births, Deaths and

Marriages Registration Act, 1886. I am however unable to find that the said

Act extended to the State / Union Territory of Nagaland or to the State of

Assam of which Nagaland was earlier a part. Rather, it is stated in the A.I.R.

Manual Civil & Criminal 5th Edn. 1989 that the State of Assam had a

separate legislation of registration. No document issued under the

contemporaneous law of the births, of the birth if any of the petitioner has

been produced.

24. The letter dated 16.01.2003 of the Government of Afghanistan refers

to Mr. Yaro Khan as originally an Afghan national and now possessing

Indian nationality. It certifies that the Afghan passport purportedly in the

name of Mr. Yaro Khan, had not been issued by the Govt. of Afghanistan.

The petitioner on the basis of the said letter contends that the passport on the

basis whereof he was in the earlier round of litigation held to be an Afghan

national, has in fact not been issued by the Govt. of Afghanistan. Upon it

being enquired from the counsel for the petitioner as to how the petitioner, if

originally an Afghan national as mentioned in the said letter, is shown to

have acquired Indian citizenship, the counsel states that in fact the passport

to which the said letter pertains was not issued qua the petitioner but qua

another person also named Yaro Khan but son of Nik Mohammad. Reliance

in this regard is placed on another letter dated 03.07.1998 issued by

Embassy of Islamic State of Afghanistan. It has been enquired as to why the

petitioner is relying on the said document if according to the petitioner the

same does not pertain to him. No satisfactory answer has again been

forthcoming. Also, the letter dated 03.07.1998 was available at the time of

earlier litigation and cannot be said to be a fact not available then.

25. I am of the view that the relief claimed by the petitioner of declaration

that he is Indian citizen by birth is barred by the principles of res judicata.

This court having already in the judgments in the earlier two writ petitions

aforesaid preferred by the petitioner having held the petitioner to be not an

Indian citizen, the Birth Certificate and the letter dated 16.01.2003

subsequently obtained by the petitioner do not relieve the petitioner from the

bar of res judicata. The principle of res judicata is based on two age old

principles, namely that it is in the interest of the State that there should be an

end to litigation and that no one ought to be vexed twice in a litigation. The

doctrine of res judicata is common to all civilized systems of jurisprudence.

The principle of finality of litigation is based on high principle of public

policy. In the absence of such a principle, great oppression may result under

the colour and pretence of law inasmuch as there will be no end to litigation

and a rich malicious litigant will succeed in infinitely vexing his opponent

by repetitive suits and actions. The plea of res judicata is not a technical

doctrine but a fundamental principle which sustains the rule of law in

ensuring finality in litigation. This principle seeks to promote honesty and a

fair administration of justice and to prevent abuse in the matter of accessing

Court for agitating issues which have become final (see M. Nagabhushana

Vs. State of Karnataka (2011) 3 SCC 408). The petitioner herein is also

found to be such a litigant who has by repetitive litigation succeeded in

thwarting his deportation for the last more than one decade.

26. Moreover in the present case the Birth Certificate and the letter from

the Embassy of Afghanistan are highly suspect as aforesaid. Mere

production thereof would not entitle the petitioner to again seek an

opportunity to establish his citizenship of India. This court would not allow

its process to be abused. The contention of the petitioner that since the

genuineness of the Birth Certificate is not disputed, till the Registrar of Birth

traces the documents on the basis whereof registration was effected he

cannot be deported, cannot be accepted when the Birth Certificate is found

to have been issued in violation of the Rules for issuance thereof. The

Courts cannot be fooled and the Statute mocked at. The law, as Mr. Bumble

(in Oliver Twist) said, "is a ass - a idiot". Now to accept the contention of

the petitioner and to start an enquiry as sought would vindicate Mr. Bumble.

Recently also, in Krishnadevi Malchand Kamathia Vs. Bombay

Environmental Action Group (2011) 3 SCC 363, the Supreme Court

observed that justice is only blind or blindfolded to the extent necessary to

hold its scales evenly; it is not, and must never be allowed, to become blind

to the reality of the situation, lamentable though that situation may be.

27. I have also enquired from the counsel for the petitioner whether in the

matter of claim of citizenship, there can be said to be any exception to the

rule of res judicata. The counsel of course answers in the affirmative but

without any support. He rather seeks adjournment to study the question

raised by this Court. I am not inclined to grant any adjournment. It is for

the petitioner to make out and prepare a case and no hearing would attain

finality if the counsels are permitted adjournments as sought. It may be

noted that it is only under threat meted out on the last date of vacation of the

interim order being enjoyed by the petitioner that the arguments are being

heard today.

28. I however find the Supreme Court in Joseph Pothen Vs. State of

Kerala AIR 1965 SC 1514 to have observed that though every citizen whose

fundamental right is infringed by the State has a fundamental right to

approach the Court for enforcing his right but if by a final decision of a

competent Court his title to property has been negatived, he ceases to have

the fundamental right in respect of that property and therefore, can no longer

enforce it and the doctrine of res judicata may be invoked.

29. The counsel for the respondents have also argued that the falsity in the

case of the petitioner is apparent from the inconsistencies in the pleadings in

the earlier writ petitions and now of the petitioner; that while in the earlier

writ petitions, it was unequivocally stated that the petitioner was born at

Guwahati in the year 1952; it has now been stated that he was born at

Nagaland; that while earlier it was said that he was residing here since the

age of 10, it is now stated that he was born here; that in the

contemporaneous applications, it was stated that he was originally an

Afghan national.

30. The counsel for the petitioner of course has responded that the

petitioner is illiterate and acted as per advice from time to time and

Nagaland was earlier a part of Assam.

31. I am unable to buy the aforesaid arguments also. The petitioner in the

earlier petitions categorically gave the place of his birth as Guwahati but is

now claiming the same to be Dimapur. The counsel for the petitioner has

also argued that the earlier application for citizenship was on wrong advice.

Such arguments cannot be allowed to defeat the ends of justice. The

petitioner has approached this Court in the exercise of equity jurisdiction and

his conduct disentitles him to any relief.

32. There is thus no merit in W.P.(C) No.2599/2007. The claim of the

petitioner for declaration of being an Indian citizen by birth is barred by the

principles of res judicata and the new documents furnished by the petitioner

are not found, as aforesaid, to help the petitioner. W.P.(C) No.2599/2007 is

accordingly dismissed. Consequently, W.P.(C) No.4112/2007 is also

dismissed.

33. The petitioner under interim orders of this Court has enjoyed stay of

deportation and this Court while disposing of the petition is required to

balance equities and to ensure that the petitioner upon dismissal of the

petitions is deported. However, opportunity has to be given to the petitioner

to avail his remedies in law. The counsel for the petitioner seeks protection

for 60 days. The same is allowed.

34. However, to safeguard that the petitioner does not now disappear and

in the event of his remedies against this judgment failing, is deported, it is

directed to the petitioner to report to the SHO, Police Station having

jurisdiction over the area of Balli Maran where the petitioner is stated to be

residing everyday at 1600 hours. Upon the petitioner failing to so report, the

SHO concerned is directed to immediately take the petitioner into custody.

Unless there is a stay of deportation of the petitioner, the respondents to

deport the petitioner immediately after the expiry of 60 days.

35. The petitioner is also burdened with costs of `50,000/- of these

petitions payable to the respondents within four weeks of today.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 12, 2011 „gsr‟