C/SCA/2602/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2602 of 2019
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REET SANJAY PATEL THROUGH GRAND MOTHER LILABEN
RAMCHANDRA PATEL
Versus
REGIONAL PASSPORT OFFICER
================================================================ Appearance:
MR MANTHAN K BHATT(6549) for the Petitioner(s) No. 1 KSHITIJ M AMIN(7572) for the Respondent(s) No. 1 ================================================================
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 03/05/2019
ORAL ORDER
[1] This petition is filed by the petitioner under Article 226 of the Constitution of India initially with a prayer for necessary direction to complete the pending process of the application being No. ARN 18-0014422450 dated 25.09.2018, which pertain to the the passport of the minor petitioner. Pending the petition, it appears that the decision was taken by an order dated 30.01.2019 and hence, the petition came to be amended with the prayer clause (B). Under the amended prayer, it was prayed to quash and set aside the order dated 30.01.2019 and also prayed for issuing passport and/or any travel document to the petitioner.
[2] The facts of the case indicate that the petitioner, who is minor aged 9 years old is residing with her grandmother in India, while father and the mother of the petitioner are residing and are citizen of USA. Originally when the petitioner was born on 22.08.2009 at Taluka: Karjan, District: Vadodara in India and at that time, the parents had migrated to USA prior to 2009. As the petitioner desire to travel to join his parents, the
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petitioner made application for passport. The passport authority was not taking any decision and hence, the petition came to be filed. However, pending the petition, by an order dated 30.01.2019, the passport authority took a decision, wherein the petitioner was communicated that when the both the parents of a minor having acquired foreign citizenship and ceased to be an Indian citizen, hence, not eligible for an Indian Passport.
[3] Learned advocate Mr. Manthan Bhatt, appearing for the petitioner submits that the petitioner being minor is required to be with his parents, who are now in USA and have already undertaken necessary formalities to manage the travel of the petitioner to USA through Immigration Department of USA. However, non-issuance of the passport is causing the impediment even for the proceedings before the USA Immigration Department.
[4] Learned standing counsel Mr. Kshitij Amin appearing for the respondent-passport authority has drawn attention of this Court to the Circular vide Office Memorandum No.VI/401/1/1/2018 dated 25.10.2018, clause 3.1(e) reads as under:-
"3.1(e) If both parents have acquired foreign citizenship, the minor child ceases to be an Indian citizen and hence not eligible for an Indian passport."
[5] Section 3 of the the Citizenship Act, 1955 provides for citizenship by birth, which reads as under:-
"3. Citizenship by birth.-(1) Except as provided in sub- section (2), every person born in India,-
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(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, 1987, 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 an 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;
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy."
[6] In the present case, by virtue of Circular, it appears that the respondent-department has treated the petitioner to be the non-citizen which in the opinion of this Court is directly against what is provided under Section 3 for citizenship by birth. Section Clause 3(a) reads as under:-
"3. Citizenship by birth.-(1) Except as provided in sub- section (2), every person born in India,-
(a) on or after the 26th day of January,1950, but before the 1st day of July, 1987."
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[7] The provision begins with an exception to read the issue as provided in sub-section(2) that every person born in India is citizen by birth. The undisputed fact that the petitioner was born in India and there is ample evidence to substantiate his claim to be born in India so as to claim citizenship by birth as provided under Section 3 and as the petitioner is to be treated as citizen of India, it is obligatory upon the passport authority to recognize his citizenship and issue a passport in this regard.
[8] In the facts of this case, reading of circular on which reliance is placed will not in any way affect the right of the petitioner to claim citizenship by birth under Section 3.
[9] In view of the aforesaid, the impugned order is required to be quashed and set aside and the matter is remanded back to the passport authority to reconsider the application being No. ARN 18-0014422450 dated 25.09.2018 in light of Section 3 of the Citizenship Act, 1955, which includes considering the issuing of the passport as prayed for in the application or any other travel document under the provision of law to facilitate travel of the minor petitioner to his parents to USA.
[10] With the aforesaid, the petition stands allowed to the aforesaid extent. The respondent-passport authority is directed to consider the application being ARN 18-0014422450 dated 25.09.2018 within a period of three months from the date of receipt of writ of this order.
(A.Y. KOGJE, J)
SIDDHARTH
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