JUDGMENT G.P. Mathur, J.
1. This writ petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued commanding the respondents to decide the issue of citizenship of the petitioner at the earliest possible time and further not to deport him to Pakistan till the matter is decided.
2. It is averred in the writ petition that the petitioner Mohd. Ayub was born on 7-5-1921 in Meerut city in a family of Sheikh Muslims. He joined the services of Indian railways and in the year 1946 he was transferred from Kalka to Lahore where he was posted at the lime of partition of India in the year 1947. His family was living at Meerut and he remained at Lahore on account of his job. It is averred in paragraph 4 that when his mother died in the year 1954, he obtained a passport from the Government of Pakistan and came to India to attend her funeral rites. In paragraph 5 it is averred that the petitioner changed his religion and became a Hindu at Arya Samaj, Delhi, and his name was changed to Mohan Lal Arya. He then made an application to the Ministry of Home Affairs, Government of India, to grant him Indian citizenship. The petitioner claims that he made several representations for granting him Indian citizenship. It is averred in paragraphs 7 and 8 that the Senior Superintendent of Police, Meerut, passed an order on 8-7-1976 restricting his movement within the Meerut city. He was prosecuted under the Foreigners' Act and was sentenced to one year R. I. and a fine of Rs. 1,000/- by the judgment and order dated 1-4-1998 passed by the Chief Judicial Magistrate, Meerut. The appeal preferred by him was also dismissed by the Additional Sessions Judge, Meerut, on 23-3-2002, but the sentence was reduced to six months R. I. The petitioner preferred Crl. Revision No. 379 of 2002 in Allahabad High Court in which record was summoned by the order dated 3-4-2002. On these facts, the petitioner prays that the respondents be commanded to decide the issue of his citizenship and he may not be deported to Pakistan.
3. Since the complete facts of the criminal case have not been given in the writ petition, we summoned the record of Crl. Revision No. 379 of 2002 filed by the petitioner. The record shows that the petitioner came to India on 7-4-1954 on a Pakistani passport bearing No. 060721 dated 30-3-1954. He was issued VISA by Indian High Commission which was valid for Delhi and Meerut. Subsequently, he was granted permission to remain in India till 6-9-1973. However, he disappeared on 21-9-1973 without trace but continued to remain in India. A notice was published by the Superintendent of Police, CID, (SB), on 8-5-1974, whereby the authorities were directed to trace him out. Ultimately, he was arrested in Meerut on 10-6-1976 and a FIR was lodged against him, on the basis of which a case was registered under Section 14 of the Foreigners Act as Crime Case No. 361 of 1996 at P. S. Railway Road, Meerut, The petitioner was prosecuted in the said case and by the judgment and order dated 1-4-1998, the Chief Judicial Magistrate, Meerut, convicted him under Section 14 of the said Act and sentenced him to one year R. I. and a fine of Rs. 1,000/-. The petitioner preferred Crl. Appeal No. 29 of 1998, which was dismissed by Additional Sessions Judge (Court No. 1), Meerut on 22-3-2002, but the sentence was reduced to six months R. I. The petitioner then preferred Criminal No. 379 of 2002 in this Court, in which an order was passed on 3-4-2002 to summon the record of the trial Court.
4. According to the petitioner, he was working in Lahore at the time of partition of the country. He came to India on a Pakistani passport and on a VISA given by Indian authorities. He has already been convicted under Section 14 of the Foreigners Act and his conviction has been affirmed in appeal by the Addl. Sessions Judge, Meerut. Though he has preferred a revision in the High Court, but the same has not yet been admitted and, therefore, his conviction under the said Act is still operating against him. On these facts, the question which requires consideration is whether a writ of mandamus can be issued at the instance of a foreign national, for commanding the Central Government to decide the application moved by him for grant of Indian citizenship to him.
5. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies' by F.G. Ferris and F.G. Ferris, Jr. :
Note 187--Mandamus, at common law, is a highly prerogative writ, usually Issuing out of the highest Court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior Court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it maybe said that mandamus is a summary writ, issuing from the proper Court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.--Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196--Mandamus is not a writ of right. Its issuance unquestionably lies in the sound Judicial discretion of the court subject always to the well settled principles which have been established by the Courts. An action in madamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger, public interest which may be concerned an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206- ......................... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.
6. These very principles have been adopted in our country. In The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh, AIR 1977 SC 2149, after referring to the earlier decisions in Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210 and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964, the Apex Court observed as follows in paragraph 15 of the Reports :
"...... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ...................... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same."
7. We are, therefore, clearly of the opinion that a foreign national has no legal right to claim that a writ of mandamus be issued by this Court to command the respondents to decide his application for grant of Indian citizenship to him. Similarly, there is no statutory duty cast upon the Central Government to decide an application moved by a foreign national seeking grant of Indian citizenship.
8. The record of the criminal revision shows that the petitioner was arrested on 10-6-1976 and a case was registered under Section 14 of the Foreigners Act as case Crime No. 361 of 1976 at P.S. Railway Road, Meerut. It is not clear why the case which was registered in 1976 was decided by the Chief Judicial Magistrate, Meerut, after more than 22 years on 1-4-1998. The appeal preferred by the petitioner has been decided on 22-3-2002. The delay in the decision of the case has only helped the petitioner as he had been granted bail and he continued to remain in India without being deported.
9. The writ petition, therefore, lacks merit and is dismissed summarily at the admission stage.