Delhi High Court
Rinzin Dolma vs Union Of India & Ors on 13 April, 2017
$~13, 15, 17, 18 & 19
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.04.2017
+ W.P.(C) 254/2017
TENZIN PASSANG ..... Petitioner
versus
UNION OF INDIA & ORS .... Respondents
and
+ W.P.(C) 1455/2017
RINZIN DOLMA ..... Petitioner
versus
UNION OF INDIA & ORS .... Respondents
and
+ W.P.(C) 1865/2017
TENZIN YANGZOM ..... Petitioner
versus
UNION OF INDIA & ORS .... Respondents
and
+ W.P.(C) 1893/2017
TSERING DHONDEN LHEWA ..... Petitioner
versus
UNION OF INDIA & ORS .... Respondents
WP(C)254/2017, WP(C)1455/2017, WP(C)1865/2017, WP(C)1893/2017 & WP(C)2171/2017 Page 1 of 12
and
+ W.P.(C) 2171/2017
RINZIN DORJEE ..... Petitioner
versus
UNION OF INDIA & ORS .... Respondents
Advocates who appeared in these petitions:
For the Petitioners : Mr Simarpal Singh Sawhney an Mr Sidhant Krishan Singh
For the Respondents : Mr Dev P.Bhardwaj for Union of India in W.P.(C) 254/2017
& W.P. (C) 1865/2017
Mr Anil Soni, Ms Priyanka Singh and Mr Naginder Benipal
for Union of India in W.P.(C) 1455/2017
Mr Arun .Bhardwaj for Union of India in W.P. (C) 1893/2017
Mr Arun Bhardwaj, Mr Ripu Daman Bhardwaj and Mr T.P.
Singh for Union of India in W.P. (C) 2171/2017
Mr Vishambhar Datt from Regional Passport Office, Delhi, in
person.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
13.04.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The Petitioners in these batch of petitions seek a direction to the
respondents to issue passports to the petitioners. The petitioners are all
born in India and claim to be citizens of India in terms of Section 3 of
the Citizenship Act, 1955 (hereinafter referred to as the Act).
2. The petitioner - Tenzin Passang (W.P.(C) 254/2017), was born
on 25.11.1986 and claims to be a citizen of India in terms of Section
3(1)(a) of the Act.
3. The petitioner -Rinzin Dolma (W.P.(C) 1455/2017), was born
on 01.08.1973 and claims to be a citizen of India under Section
3(1)(a) of the Act.
4. The petitioner - Tenzin Yangzom (W.P.(C) 1865/2017), was
born in India on 11.11.1990 and her mother Rinzin Dolma (petitioner
in W.P.(C) 1455/2017) was born in India on 01.08.1973. As her
mother was born in India and satisfies the requirement of Section
3(1)(a) of the Act, the petitioner claims to be an Indian Citizen under
Section 3(1)(b) of the Act.
5. The petitioner - Tsering Dhonden Lhewa (W.P.(C) 1893/2017),
was born on 10.09.1969 and claims to be a citizen of India under
Section 3(1)(a) of the Act.
6. The petitioner - Rinzin Dorjee (W.P.(C) 2171/2017), was born
on 30.06.1978 and claims to be a citizen of India under Section
3(1)(a) of the Act.
7. Reliance is placed by the petitioners on the judgment of this
Court dated 22.09.2016 in W.P.(C) No.3539/2016 titled Phuntsok
Wangyal versus Ministry of External Affairs & Ors and other
connected petitions. This Court by common Judgment dated
22.09.2016 in Phuntsok Wangyal (supra), W.P.(C) No.4275/2016
titled Lobsang Wangyal Versus Union of India and W.P.(C)
No.7983/2016 titled Tenzin Dhonden Versus Union of India relying
on the decision of the Namgyaal Dolkar versus Government of India,
Ministry of External Affairs dated 22.12.2010 in W.P.(C)
No.12179/2009, held that persons like the petitioner therein, who are
covered under Section 3 of the Act are citizens of India and cannot be
denied a passport on the ground that they are not Indian Citizens in
terms of Section 6(2)(a) of the Passports Act, 1967. The Petitioner in
Phunstok Wangyal (supra) and Lobsang Wangyal (supra) had
claimed to be Citizens of India in terms of section 3(1) (a) of the Act
as they were born in India on or after 26.01.1950 and before
01.07.1987. The Petitioner in Tenzin Dhonden (supra) was born on
16.08.1992 and had contended that his father was born in India on
01.01.1966 and claimed citizenship of India by virtue of Section
3(1)(b) of the Act.
8. The said Writ Petitions were allowed, by a common judgment
dated 22.09.2016, holding the petitioners therein to be Indian Citizens
and entitled all benefits and privileges, as are available to Indian
Citizens. The respondents were directed to issue Indian Passports to
the petitioners, who had been declared to be Indian Citizens.
9. Learned counsel for the respondent submits that the Ministry of
External Affairs, Government of India, has accepted the decision of
this Court dated 22.09.2016 in Phuntsok Wangyal (supra) and other
connected matters and issued an Office Memorandum dated
17.03.2017 to all Passport Offices in India and all Indian
Mission/Posts abroad. The Office Memorandum dated 17.03.2017 is
produced in Court and the same is taken on record.
10. At this juncture, it would be expedient to reproduce the Office
Memorandum in toto. The Office Memorandum dated 17.03.2017
reads as under:
"No. VI/441/1/16/2016 (Vol.III)
Government of India
Ministry of External affairs
CPV Division
Patiala House Annexe, New Delhi
The 17th March, 2017
OFFICE MEMORANDUM
Subject: Grant of passport facilities to the Tibetan
Refugees born in India between 26/01/1950
to 01/07/1987, who have been declared as
the Indian Citizens by birth under Section 3
(1) (a) of the Citizenship Act, 1955 by the
High Court of Delhi vide its judgment dated
22/09/2016 in the W.P. No. 4275/2016 of
Lobsang Wangyal Vs. Union of India &
others - reg.
It may be mentioned that the High Court of Delhi
vide its judgment dated 22/09/2016 in the W.P. (C) No.
4275/2016 of Lobsang Wangyal Vs Union of India and
two other WPs, has not only declared the Tibetan
Refugees (TRs) born in India between 26/01/1950 to
01/07/1987, as the Indian citizens by birth under Section
3(1)(a) of the Citizenship Act, 1955 but also quashed the
executive instructions dated 26/08/2011 of the Ministry of
Home Affairs and the minutes of the meeting dated
30/03/2010, restraining TR applicants to declare
themselves as the Indian citizens by birth under the
relevant section (s) of the said Act. The High Court
besides declaring all such TR petitioners as the Indian
citizens by birth also directed this Ministry/Passport
Issuing Authorities to process their applications for the
issue of passports, if they were otherwise eligible to hold
the same.
2. Pursuant to the judgment dated 22/09/2016 of the
High Court of Delhi, the Ministry to Home Affairs being
the major stakeholder on the TRs as well as Indian
citizenship related issues was requested to apprise this
Ministry whether they are intended to file an Appeal/SLP
against the impugned order dated 22/09/2016 of the
Single bench of the High Court of Delhi before the
Division Bench of the same High Court or the Supreme
Court of India, as the case may be. Since there was no
time bound reply by the MHA in this regard, this Ministry
decided to comply with the Court's order dated
22/09/2016 and issued the passports to all the petitioner
TRs in respect of whom the order was passed.
3. However, the Ministry of Home Affairs
subsequently informed that they are not intended to file
any appeal against the order dated 22/09/2016 of the
High Court of Delhi as their executive instructions,
which had been quashed by the High Court could not
bear the judicial scrutiny.
4. Since the Ministry of Home Affairs has explicitly
stated that they would not file any appeal against the
impugned order dated 22/09/2016 of the High Court of
Delhi and the executive order dated 26/08/2011 of MHA
restraining the TR applicants to declare themselves as
the Indian Citizens by birth under Section 3(1) (a) of the
Citizenship Act, 1955 has been quashed by the High
Court, at present other than the Citizenship Act, 1955
and the order dated 22/09/2016 of the High Court of
Delhi nothing is binding on this Ministry, so far as the
issue of citizenship of TRs born in India in the above
mentioned intervening period is concerned. Moreover, a
number of TR applicants after the issue of order dated
22/09/2016 have also approached the same High Court
requesting the court to also declare them as the Indian
citizens by birth under the relevant section (s) of the
Citizenship Act, 1955 and the court has clubbed all such
matters for the next hearing scheduled on 21/03/2017,
with the observation that unless there is a stay against its
order dated 22/09/2016, non-compliance of the same in
general in respect of all such TRs amounts to contempt of
the High Court. In view of this, there is a huge
probability that on the next date of hearing i.e.
21/03/2017, the High Court may come down very heavily
on the Government.
5. In view of the above it has been decided that all
the Passport Issuing Authorities in India/abroad in
compliance/pursuance to order dated 22/09/2016 of the
High Court of Delhi, subject to usual checks and other
formalities stipulated under the Passports Act, 1967 and
the Passport Manual, 2016, shall process all the pending
applications of TR applicants born in India between
26/01/1950 to 01/07/1987, for the issue of passports
treating them as the Indian citizens by birth under
Section 3(1)(a) of the Citizenship Act, 1955. However,
if the Police Verification Report (PVR) in the cases of
such applicants from the local police authorities or the
security agencies of the Government is received as
"ADVERSE" by virtue of the fact that the applicant
being a TR is not an Indian citizen by birth, shall not be
taken as Adverse but the same shall be accepted as
„CLEAR‟ and passport will be issued to such an
applicant, if he is otherwise eligible to hold the same.
(Y.K. Shukla)
Under Secretary (PV-I)
Ph. 011-23070364
Fax 011-23389802
[email protected]"
11. By the Office Memorandum dated 17.03.2017, the Government
of India, in compliance of and pursuant to judgment dated 22/09/2016
(supra), directed all passport Issuing authorities in India and abroad,
subject to usual checks and other formalities stipulated under the
Passports Act, 1967 and the Passport Manual, 2016, to "process all
the pending applications of TR applicants born in India between
26/01/1950 to 01/07/1987, for the issue of passports treating them as
the Indian citizens by birth under Section 3(1)(a) of the Citizenship
Act, 1955. However, if the Police Verification Report (PVR) in the
cases of such applicants from the local police authorities or the
security agencies of the Government is received as "ADVERSE" by
virtue of the fact that the applicant being a TR is not an Indian
citizen by birth, shall not be taken as Adverse but the same shall be
accepted as „CLEAR‟ and passport will be issued to such an
applicant, if he is otherwise eligible to hold the same".
12. Section 3 of the Act reads as under:
"3. Citizenship by birth- (1) Except as provided
in subsection (2), every person born in India, -
(a) on or after the 26th day of January, 1950,
but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1947, but
before the commencement of the Citizenship
(Amendment) Act, 2003 and either of whose
parents is a citizen of India at the time of his
birth;
(c) on or after the commencement of the
Citizenship (Amendment) Act, 2003, where
(i) both of his parents are citizens of
India; or
(ii) one of whose parents is a citizen of
India and the other is not an illegal migrant
at the time of his birth, shall be a citizen of
India by birth.
(2) A person shall not be a citizen of India by
virtue of this section if at the time of his birth -
(a) either his father or mother possesses such
immunity from suits and legal process as is
accorded to any envoy of a foreign
sovereign power accredited to the President
of India and he or she, as the case may be, is
not a citizen of India; or
(b) his father or mother is an enemy alien and
the birth occurs in a place then under
occupation by the enemy."
13. In terms of the Office Memorandum dated 17.03.2017 all
persons who are citizens in terms of section 3(1)(a) of the Act would
be entitled to a passport, subject to usual checks and other formalities
stipulated under the Passports Act, 1967 and the Passport Manual,
2016.
14. Thus the petitioners, (i) Tenzin Passang (W.P.(C) 254/2017),
born on 25.11.1986, (ii) Rinzin Dolma (W.P.(C) 1455/2017), born on
01.08.1973, (iii) Tsering Dhonden Lhewa (W.P.(C) 1893/2017), born
on 10.09.1969 and (iv) Rinzin Dorjee (W.P.(C) 2171/2017), born on
30.06.1978 and who claim to be a citizens of India in terms of Section
3(1)(a) of the Act are declared to be citizens of India and entitled to a
passport in terms of the Office Memorandum dated 17.03.2017,
subject to usual checks and other formalities stipulated under the
Passports Act, 1967 and the Passport Manual, 2016.
15. The petitioner - Tenzin Yangzom (W.P.(C) 1865/2017), who
was born in India on 11.11.1990 and who claims to be a citizen of
India in terms of Section 3(1) (b) of the Act is also entitled to be so
declared. Her mother Rinzin Dolma, (petitioner in the connected Writ
Petition being W.P.(C) 1455/2017), was born in India on 01.08.1973
and has been held to be a citizen of India in terms of Section 3(1)(a)
of the Act and covered by the Office Memorandum dated 17.03.2017.
16. The case of the petitioner Tenzin Yangzom (W.P.(C)
1865/2017), is also similar to the case of Tenzin Dhonden (supra)
whose petition was also in the batch of cases decided by the common
judgment dated 22.09.2016, which judgment has been accepted by the
Respondents and consequent to which the Office Memorandum dated
17.03.2017 has been issued. The said petitioner is also declared to be
a citizen of India and entitled to a passport, subject to usual checks
and other formalities stipulated under the Passports Act, 1967 and the
Passport Manual, 2016.
17. Another issue that arises is with regard to the Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.) issued to petitioners and other similarly situated persons.
18. Learned counsel for the respondent submits that since the
Office Memorandum has been issued directing issuance of passport to
the petitioners and other similarly situated persons, the Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.), already issued, is required to be surrendered prior to
issuance of the passport.
19. It is submitted that a surrender certificate application form is
proposed to be circulated to all Passport Offices requiring the persons
who are applying for a passport to surrender the existing Identity
Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.) prior to the issuance of the Passport.
20. It is an admitted position that some of the petitioners and some
of the other similarly situated persons are using the Identity Certificate
(I.C.) /Registration Certificate/Residential Permit (R.C./R.P.), as a
travel document.
21. Rule 13 of the Passport Rules, 1980 stipulates that a person
holding a passport or travel document in special circumstances shall
not be entitled to another passport or travel document unless he
surrenders, to the passport authority, the passport or travel document
already held by him.
22. Accordingly, the petitioners are directed to surrender the
Identity Certificate (I.C.) /Registration Certificate/Residential Permit
(R.C./R.P.), if issued, by approaching the respective Passport Office
where they have applied for issuance of a passport.
23. It is clarified that the Identity Certificate (I.C.)/Registration
Certificate/Residential Permit (R.C./R.P.) would be required to be
surrendered prior to the issuance of the passport.
24. In view of the above, the petition is disposed of directing the
respondents to issue the passports, as expeditiously as possible,
preferably within a period of four weeks, subject to the petitioners
satisfying the other requirements of the Passports Act as well as the
Passport Manual, 2016 and the Rules framed there under. There shall
be no orders as to costs.
25. Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
APRIL 13, 2017
'Sn'
