Kottikulam Naduthoppil Mohammed Jiffrey v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935** ## **WP(C).No. 28260 of 2011 (F)** ## **----------------------------** ## **PETITIONER :** **--------------------------** **KOTTIKULAM NADUTHOPPIL MOHAMMED JIFFREY, S/O LATE K N KUNHI AHAMED, KOTTIKULAM NADUTHOPPIL HOUSE, KOTTIKULAM,BEKAL POST, KASARAGODE DISTRICT, KERALA STATE., PIN-671 318.** **BY ADVS.SRI.MANJERI SUNDERRAJ SRI.M.PROMODH KUMAR** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA,REP BY SECRETARY TO GOVT. OF KERALA, HOME MINISTRY, NORTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR GENERAL OF POLICE, KERALA POLICE, HEAD QUARTERS, THIRUVANANTHAPURAM.** **3. UNION OF INDIA, REP BY SECRETARY TO GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI.** **4. THE DISTRICT COLLECTOR, KASARAGODE DISTRICT, COLLECTORATE, KASARAGODE, KERALA, PIN-671 123.** **5. THE SUPERINTENDENT OF POLICE, KASARGODE DISTRICT POLICE OFFICE, KASARAGODE, KERALA, PIN-671 123.** **R1 & R2,R4 & R5 BY SR GOVERNMENT PLEADER SRI.T.P.SAJID R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SMT.GOVINDU P.RENUKADEVI, CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.28260/2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF JUDGMENT DTD. 24/08/2011 OF HON'BLE HIGH COURT OF KERALA IN WP(C) 22081/2011.** **EXT.P2 TRUE COPY OF THE PETITIONER'S APPLICATION FOR CITIZENSHIP U/S 5(1) (F) TO SEC. TO GOK, HOME G DEPT.** **EXT.P3 TRUE COPY OF POSTAL ACKNOWLEDGMENT CARD SIGNED BY SEC. TO GOK, HOME DEPT.** **EXT.P4 TRUE COPY OF LETTER DTD. 04/10/2011 BY UNDER SEC. TO GOI,MINISTY OF HOME AFFAIRS TO THE PETITIONER. EXT.P5 TRUE COPY OF LETTER DTD. 05/10/2010 BY UNDER SEC. TO GOI, MINISTRY OF HOME AFFAIRS TO THE SEC. TO GOK, HOME G. DEPT.** **EXT.P6 TRUE COPY OF LETTER DTD. 10.02.2011 FOR ADDL. CHIEF SEC. TO GOK, HOME G DEPT. TO THE DISTRICT COLLECTOR, KASARAGODE. EXT.P7 TRUE COPY OF THE JUDGMENT OF CJM IN CC.NO.2043/02 EXT.P7 TRUE COPY OF THE PETITIONER'S APPLICATION FOR CITIZENSHIP TO DISTRICT COLLECTOR, KASARAGODE (IN I.A.NO.11297/2012)** **EXT.P8 TRUE COPY OF THE PETITIONER'S FORMAT APPLICATION FOR CITIZENSHIP SUBMITTED AT COLLECTORATE, KASARAGODE ALONG WITH ENCLOSURES** **EXT.P9 TRUE COPY OF THE ON LINE APPLICATION FOR CITIZENSHIP TO GOI, MINISTRY OF HOME AFFAIRS.** - **EXT.P10 (NOT MARKED)** - **EXT.P11 TRUE COPY OF THE PETITIONER'S SRI LANKAN PASSPORT** - **EXT.P12 TRUE COPY OF THE HON'BLE HIGH COURT'S JUDGMENT DATED 28/07/1992 IN OP.NO.2502/1988** **EXT.P13 TRUE COPY OF THE HON'BLE HIGH COURT'S JUDGMENT DATED 24/02/2010 IN WP(C)NO.6134/2010** **EXT.P14 TRUE COPY OF THE HON'BLE HIGH COURT'S JUDGMENT DATED 24/08/2011 IN WP(C)NO.22081/2011** **EXT.P15 TRUE COPY OF THE B M SADIQUE'S FALSE COMPLAINT DATED 16/07/2012 BEFORE THE COMMISSIONER OF POLICE, KOZHIKODE** **2/-** **sts** **-2-** **WP(C)NO.28260/2011** **EXT.P16 TRUE COPY OF THE PETITIONER'S LAWYER NOTICE DATED 22/08/2012 TO B M JAMAL AND B M SADIQUE** **EXT.P17 TRUE COPY OF THE PETITIONER'S LAWYER NOTICE DATED 03/09/2012 TO B M JAMAL, KAMARUDDEN AND B M SADIQUE EXT.P18 TRUE COPY OF THE REPLY DATED 04/09/2012 SENT BY B.M.SADIQUE** ## **RESPONDENTS' EXHIBITS & ANNEXURES:** **ANNEX R3(1) TRUE COPY OF THE LETTER NO.29845/G2/10 HOME DATED 30/06/2010 ANNEX R3(2) TRUE COPY OF THE LETTER DATED 5/10/2010 ANNEX R3(3) TRUE COPY OF THE LETTER NO.26015/188/1996-IC.II DATED 4/10/2011** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No. 28260 OF 2011** ......................................................................... **Dated this the 4[th] October, 2013** ## **J U D G M E N T** The petitioner, who is a Sri Lankan citizen and holder of Sri Lankan Passport came to India in 1981 and is residing here, inspite of the fact that the petitioner is not having any valid documents so as to sustain the residence in India. It is stated that various applications have been preferred at different points of time, which came to be rejected. But, by virtue of Ext. P4 issued by the third respondent with reference to an enabling provision under Section 5(1)(c) of the Indian Citizenship Act, the petitioner made another application , i.e., Ext.P8, which is still pending consideration before the 4th respondent. Non-finalisation of the same and the coercive proceedings pursued to deport the petitioner, made him to approach this Court seeking for issuance of a writ of mandamus, directing the respondents to expedite the proceedings in the petitioner's application for granting Indian Citizenship and for such other incidental reliefs. 2. A detailed statement has been filed by the State Government and also by the Central Government. **2** ## **W.P.(C)No. 28260 OF 2011** 3. The learned Counsel for the petitioner submits that the petitioner's parents were born in India and his father went to Sri Lanka in search of job where the petitioner was born and acquired the Citizenship of Sri Lanka. It is stated that the petitioner's mother is residing in India and the petitioner came back to India in 1981, married a lady in Kasaragod and has children in that wed-lock. The mother, wife and children are residing in Kasaragod. Since the petitioner did not have any intent to go back to Sri Lanka, he continued here and sought for Indian Citizenship by filing necessary applications in this regard. It is stated that, on three different occasions, the petitioner had approached this Court earlier, by filing three separate petitions, which culminated in Exts.P12, P13 and P1 judgments. In the first case, leading to Ext.P12, the Union Government was directed to consider the application preferred by the petitioner and pass appropriate orders in accordance with law, despite which, nothing turned out in positive. After waiting for quite long, the petitioner approached this Court again by filing W.P.(C)No. 6134 of 2010, wherein Ext.P13 judgment was passed giving a fresh direction to **3** ## **W.P.(C)No. 28260 OF 2011** consider the matter and to take further steps; simultaneously ordering that coercive steps shall not be pursued in the meanwhile. Still nothing has turned out in positive, to have the grievance redressed. The factual position is sought to be rebutted from the part of the Central Government Counsel stating that, pursuant to the direction given by this Court, Ext.P5 order was passed whereby the Secretary, Home (C)Department, Govt. of Kerala was let known that the application preferred under Section 5(1)(c) of the Citizenship Act could not be considered for want of recommendation from the State Government. In the third round, the petitioner approached this Court by filing W.P.(C)No.22081 of 2011, seeking for a direction to consider and dispose of his application preferred under Section5(1)(c), wherein the factual particulars with regard to existence of several criminal cases registered against the petitioner was brought to the notice of this Court . After referring to the facts and figures , a specific finding was rendered as per Ext.P1 judgment dated 24.08.2011 that the order passed by the Government of India rejecting the application preferred under Section 5(1)(c) had not been **4** ## **W.P.(C)No. 28260 OF 2011** subjected to challenge from the part of the petitioner and as such, there was no question of any interference, and accordingly, the writ petition was dismissed . However, it was observed in the said verdict that, if the petitioner was entitled to make any ' _**other application',** the j_ udgment passed would not stand in the way of the petitioner. Taking a 'cue' from the said judgment, the petitioner preferred another application under Section 5(1) (c) of the Indian Citizenship Act, a copy of which has been produced as Ext.P2. After considering the same, the first respondent sent Ext.P4 communication dated 04.10.2011 as to the proper manner in which the application has to be filed, pointing out in crystal-clear terms that no direct application under Section 5(1)(c) can be effected and that the same had to be routed through the State Government, as prescribed. It was accordingly mentioned in paragraph '4' of the said communication that the petitioner could make an application under Section 5(1) (c) in the proper manner through the office of the District Magistrate. The case of the petitioner is that, it was accordingly that Ext.P8 application was filed (also 'online', as borne by **5** ## **W.P.(C)No. 28260 OF 2011** Ext.P9) and that the same is still kept in cold storage by the District Collector. Hence this writ petition, for immediate interference. 4. The learned Counsel for the petitioner submits that, by virtue of the mandate under Section _**5(1)(c**_ ) of the Indian Citizenship Act, the petitioner stands qualified in all respects, having married a woman in India and is residing for more than 25 years, whereas the statutory requirement is only to an extent of '7' years. Reliance is sought to be placed on _**Explanation 1(ii),**_ referring to the necessity to have satisfied '8 years' preceding the date of application. Reliance is also sought to be placed on the decisions rendered by the Apex Court in _**MD.AYUB KHAN vs. COMMISSIONER OF POLICE**_ **[AIR 1965 SC 1623] and in** _**NATIONAL HUMAN RIGHTS COMMISSION vs. STATE OF ARUNACHAL PRADESH**_ **[AIR 1996 SC 1234],** as to the necessity to arrive at a finding as to the acquisition of Citizenship of Sri Lanka on a 'voluntary basis', contending that it was only by virtue of a chance, that the petitioner acquired the Citizenship of Sri Lanka and not by his choice. **W.P.(C)No. 28260 OF 2011** **6** 5. The learned Government Pleader submits that the petitioner does not have a valid Passport, which, going by the pleadings itself, had expired as on 12.06.2013; in response to which, the learned Counsel for the petitioner submits that, it was subsequently renewed for a period of six months, though the pleadings do not reflect the same. 6. The learned Government Pleader further submits that a 'VISA' is also necessary to have the application considered. But since the 'VISA' was cancelled as early as in 1986 and since the petitioner admittedly has not taken any steps to have the 'VISA' renewed, his application is not liable to be entertained. It is also pointed out that the application preferred by the petitioner under Section 5(1)(c) earlier was already considered and rejected as per Ext.P5 and that the matter was meticulously considered by this Court vide Ext.P1 judgment, whereby interference was declined. This being the position, no fresh application under the very same provision is liable to be entertained. It is also brought to the notice of this Court that, even in Ext.P8 application, there is a misrepresentation against Column No.14 to the effect that **W.P.(C)No. 28260 OF 2011** **7** the petitioner has not filed any previous application, nor his application has been rejected in this regard which is factually incorrect; and this being the position, the discretionary jurisdiction of this Court, even otherwise is not liable to be extended to the petitioner, submits the learned Government Pleader. . 7. The learned Government Pleader points out that, as many as '8' criminal cases have been registered against the petitioner, as described in detail in _paragraphs 5 and 6_ of the statement and that, even going by the admitted version of the petitioner, only few of such cases have been ended up in acquittal, while the others are still pending. The 8th instance is with reference to Crime No.346/09 of Beka **l** Police Station, registered under Section 14 of the Foreigner's Act, Sec. 31 of the Representation of the People Act, Sec. 3 of National Security Act and Sec.12 of the Pass port Act . It is also stated that the petitioner obtained two Indian Passports by using forged documents, which is stated as a serious crime. The learned Counsel for the petitioner submits that the above version is not **8** ## **W.P.(C)No. 28260 OF 2011** fully correct in so far as the petitioner has not applied or obtained any Indian Passport. 8. The learned Central Government Counsel submits that the petitioner is not entitled to have any relief, particularly in view of the fact that the State Government has not recommended his case and that the concerned authority could not recommend his case by virtue of the mandate under the relevant provisions of law, whereby the conduct of the person is also a very relevant aspect to be satisfied. The existence of various criminal cases registered against the petitioner, as mentioned herein before illustrates the conduct of the petitioner, who is a Sri Lankan citizen and the petitioner has not produced any valid 'VISA' or 'Resident Permit' so far, to have the application considered even otherwise. 9. After hearing both the sides, this Court finds that the only point to be considered by this Court is whether the application preferred by the petitioner by way of Ext.P8 could be caused to be considered by issuance of a Writ of Mandamus; more so when similar relief sought for by the petitioner with **9** ## **W.P.(C)No. 28260 OF 2011** reference to the application under Section 5(1)(c) filed earlier was turned down by this Court as per Ext.P1 judgment. There is no dispute with regard to the factual position that the application preferred by the petitioner is only with reference to Sec.5(1)(c). After considering the facts and figures, a clear finding has been rendered by this Court vide Ext.P1 judgment in W.P.(C) No.22081 of 2011 holding that, in view of finality of the matter in so far as the earlier orders passed by the Government rejecting the application for want of recommendation by the State having not been challenged by the petitioner, no interference was possible, thus dismissing the writ petition. 10. The observation made by this Court in the last paragraph enabling the petitioner to pursue the matter, _**if any other application is preferred,**_ can only be in respect of an application under any other relevant provisions of law enabling to have such an exercise. In so far as the application under Section 5(1)(c) is concerned, the finding has become final and there is no case, that Ext.P1 judgment has been caused to be challenged/reviewed by filing any Appeal or Review Petition. This **10** ## **W.P.(C)No. 28260 OF 2011** being the position, Ext.P1 bars the way of the petitioner and the 'principles of res judicata' come into operation. This Court finds it difficult to entertain the reliefs sought for by the petitioner. There is absolutely no merit in the writ petition. Interference is declined and the writ petition is dismissed accordingly. ## **P.R.RAMACHANDRA MENON JUDGE** lk