Bombay High Court
Mehdi Shacheraghi Shahrezaei vs Union Of India Thr The Home Secretary ... on 29 March, 2022
Author: Madhav J. Jamdar
Bench: G.S. Patel, Madhav J. Jamdar
937-ASWP-3151-2022.DOC
Sonali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3151 OF 2022
Mehdi Shacheraghi Shahrezaei ...Petitioner
Versus
Union of India & Ors ...Respondents
Mr Dormaan Dalal, with Abhishek Srinivasan, for the Petitioner.
Mr Rui Rodrigues, Senior Advocate, with Naveena Kumai & Raju
Manpal, for Respondents Nos.1 to 4 & 6-UOI.
Mr SS Panchpor, AGP, for Respondent-State.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 29th March 2022
PC:-
1. Rule. Respondents waive service. By consent, Rule is made Digitally returnable forthwith and the matter is taken up for hearing and final signed by disposal.
SONALI
SONALI MILIND
MILIND PATIL
PATIL Date:
2022.03.30
17:20:13
+0530
2. The Petitioner is a citizen of Iran. He was born on 3rd January 1988. He came to India on a student Visa in 2005. He renewed his Visa periodically. The last extension was until 31st March 2022. The Petitioner lived in Bengaluru from 2005 to 2010. He has been in Pune since May 2010. He has been residing at the address Page 1 of 6 29th March 2022 937-ASWP-3151-2022.DOC mentioned in the cause title of the Petition since 28th October 2016. Those residential premises are on leave and licence.
3. The Petitioner took his Bachelors degree in Commerce from the Mahatma Gandhi University in Meghalaya in 2016 and his Bachelor's in Business Administration from the Sikkim Manipal University in 2016. He is also an athlete registered to participate in Mixed Martial Arts in India.
4. On 20th March 2019, having by then already been in India for a considerable period of time, the Petitioner sought to acquire Indian citizenship. He filed an application under Form VII read with Rule 10(1) (a) of the Citizenship Rules, 2009 (File No. 2019080187) seeking citizenship by naturalisation under Section 6(1) of the Citizenship Act, 1955. After following the mandated procedure, the District Magistrate Pune by his letter of 4th October 2019 submitted a report on the Petitioner's application to the Section Officer, Home Department. In turn the Section Officer of Home Department by his letter dated 8th November 2019 submitted a report regarding the Petitioner for final consideration to the 2nd Respondent, the Under Secretary to the Government of India, Ministry of Home Affairs, Foreign Division. This is the competent authority. There does not seem to be any indication that at any level District or State that the Petitioner had not satisfied the necessary compliances for citizenship naturalisation in accordance with the third schedule to the Indian Citizenship Act, 1955.
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5. What follows is possibly a comedy of errors with quite unfortunate consequences.
6. On 15th May 2020, the 3rd Respondent, the Director to the Government of India, Foreigners Division sent an email and SMS on the registered mobile of the Petitioner rejecting the Petitioner's citizenship application. The reason for this was that the address given in the application form could not be located.
7. The Petitioner filed a review application under Section 15(A) of the Citizenship Act. It emerged that the Government of Maharashtra's Home Department Section Officer had made two errors in forwarding its communication dated 8th November 2019. The errors were two numerals in the pincode at the very end of the letter, where the document was copied to the Petitioner. Instead of correct pincode of 411036, a Pune pincode, the Section Officer entered a pincode 400036, a Mumbai pincode.
8. Thus began the stuff of a nightmare from Franz Kafka. The review application was said to be under process. The Petitioner waited to be called to at the hearing of the review application. He then asked for status update on 25th August 2020. There was no response. He wrote an email on 9th December 2020. Another reminder followed on 19th May 2021. There was no response to any of this. Now realising that the sands of time where running out on him, the Petitioner did the predictable: he filed a Writ Petition in this Court being Writ Petition No.2936 of 2021 asking -- as almost everyone seems to do -- that the review application filed in June Page 3 of 6 29th March 2022 937-ASWP-3151-2022.DOC 2020 be decided expeditiously. On 30th July 2021 that Writ Petition was disposed of with a direction to the Respondents to decide the application at earliest possible and to communicate the order to the Petitioner in writing. The order noted that the review application had been scheduled for 16th August 2021 at 4.30 pm.
9. That hearing was rescheduled and was held on the next day on 17th August 2021. Every one was, by then, in the midst of one or the other variant of the COVID-19 lockdowns. The Petitioner and his Advocate attended the hearing by video conferencing. A month passed with no communication. The Petitioner tried to telephone the officials. There was no response either to those calls or emails.
10. Ultimately, on 8th December 2021, the 4th Respondent passed an order saying that the Petitioner's citizenship application case was being reopened and was to be again returned to the security agencies on the basis of which the application would be "processed afresh".
11. The grounds in the Petition from page 13 to 14 speak for themselves. In a compact fashion, it is stated that there has been an extraordinary delay of three years, none of it due to any fault of the Petitioner. All these delays are attributable to and only to a typographical error in two digits on the part of the Section Officer of the Home Department, Government of Maharashtra. For this, the Petitioner has his citizenship application, otherwise in favour of the Petitioner, delayed and held in limbo. In parallel, the Petitioner's Page 4 of 6 29th March 2022 937-ASWP-3151-2022.DOC existing visa is slated to expire as soon as 31st March 2022. The Petitioner's citizenship and visa is in some sort of twilight zone.
12. There has to be some limit beyond which sheer bureaucracy cannot be allowed to affect the legal and constitutional rights of person. Here we are not dealing with the rights of a person who is yet a citizen -- that is something to which he aspires. We are dealing with right of a person. Some of those person-oriented rights are enshrined in Part III of the Constitution. The specific invocation in the Petition and rightly so is Article 21. The Article 21 argument is itself compelling given the expanded scope of Article 21. Further, whether the Petitioner invokes it or not, there is certainly a question of Article 14, a matter of a reasonableness particularly when we are looking at judicial review of an administrative action. One of the parameters for the exercise of writ jurisdiction would be to ensure fairness in administrative action.
13. Prayer (A) of the Petition reads thus:
"[A] That this Hon'ble Court be pleased to issue a Writ of Mandamus or Writ of the nature of Mandamus or any other appropriate Writ, direction or order under Article 226 of the Constitution of India, 1950, directing the Respondent no.1 to 4 or any other officer designated by the said Respondents to decide the citizenship case of the Petitioner bearing File No.26018/187/2019-IC-II within a period of sixty (60) days from the date of passing an order by this Hon'ble Court [or within such fixed period of time as this Hon'ble Court may deem fit] and communicate the said decision to the Petitioner."
14. We have deleted the struck-through portion.
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15. We find the prayer (as bracketed) reasonable. The Petitioner does not seek a mandamus to grant him citizenship. He only seeks that case be decided within a reasonable time period. This is a sober and moderate prayer and we find impossible to refuse such a request. We make Rule absolute in terms of prayer clause (A) as modified above.
16. We however note that the Petitioner had applied for an extension for his present Visa status. We direct the FRRO, joined as Respondent No.6, to consider that request in view of this order. In any event, no coercive action should be taken against the Petitioner pending the decision in terms of prayer clause (A). Equally, the fact that the Petitioner remains in this country beyond 31st March 2022 awaiting the decision on his citizenship application is not to be counted by any authority as a violation or breach of the terms and conditions of his existing Visa for the duration of this period.
17. The Petition is disposed of in these terms. No costs.
(Madhav J. Jamdar, J) (G. S. Patel, J)
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29th March 2022