IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(CRL) 1470/2008

SAIFULLAH BAJWA and ANR. ..... Petitioners
Through: Ms. Meenakshi Arora, Advocate with
Ms. Poli Kataki, Mr. Rahul Narayan,
Mr. Mohit Ram and Ms. Sakshi Chopra,
Advocates.

versus

UOI and ORS .....
Respondents
Through: Mr. A.S. Chandhiok, ASG with
Mr. Neeraj Choudhari and Mr. Khalid
Arshad, Advocates for UOI.
Ms. Meera Bhatia, Advocate with
Mr. Roshan kumar, Advocate for State.
Mr. B.K. Upadhyay, Advocate for Mr. V.
K. Tandon, Advocate for Central Jail Tihar.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN

O R D E R

02.12.2010
Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioners have prayed for following reliefs:-

A. Issue a writ of mandamus or in the nature thereof or any other writ, order or directions quashing the order dated 28.01.2010 whereby the representation for grant of Asylum of the 65 detainees of Pakistani origin listed in Annexure A-1 has been rejected by the Respondents by a non-speaking, general order passed in violation of the principles of natural justice without giving any hearing to the Pakistani Nationals.

B. Issue a writ of Certiorari or in the nature thereof or any other writ, order or directions directing the Respondents to reconsider the application for Asylum of the 65 detainees of Pakistani origin listed in Annexure A-1 after granting them an opportunity of personal hearing and pass a reasoned and speaking order after such hearing in order to enable the said persons to submit an appropriate representation against the said order passed therein, if so required; or in the alternative;

Issue a writ of Mandamus or in the nature thereof or any other appropriate writ,
order or direction, directing the Respondent No.1 to refer the applications for
asylum of the 65 persons of Pakistani origin presently lodged in Tihar Jail, to
UNHCR with a request to enable the said persons to obtain naturalization in any
willing third country.

C. issue a writ of mandamus or in the nature thereof or any other writ, order or directions restraining the Respondents from deporting the persons listed in Annexure-P1 and five children born in custody while detained by the respondent.

D. Issue a writ of Certiorari or in the nature thereof or any other writ, order or directions directing the Respondents to release the 65 detainees of Pakistani origin listed in Annexure A-1 from detention at Tihar Jail and instead of deporting them to Pakistan, direct the Respondents to hand them over to United Nations High Commissioner for Refugees known as UNHCR on the basis of principle of ?non-refoulement.

E. Pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the present case.

Be it noted, on 17th December, 2008 while dealing with CM No.14764/2008,
the following order came to be passed:-

The applicant has prayed in this application to implead United Nations High
Commission for Refugees (UNHCR) as party respondent to the writ petition. The
case of the applicant is that certain letters have been forwarded by the UNHCR
wherein the issue of the petitioner has been taken up with the Central Government. Secondly, according to the petitioners in case the Indian Government is not inclined to grant asylum to them, the UNHCR can be approached for the purpose of naturalization in any other country, which is prepared to grant them refugees status.

Notice be issued to the Union of India, returnable for 11th February, 2009.
Prior to that an interim protection was granted.

When the matter was taken up today, Ms. Meenakshi Arora, learned counsel for the petitioner submitted that United Nations High Commission for Refugees (in short ? UNHCR?), has communicated to the petitioner vide E-mail dated 12th May, 2009 which we think it apt to reproduce as under:-

65 Pakistani members in Tihar Jail
Tuesday, May 12, 2009 4:10 AM

From:
New Delhi India IINDNE@UNHCR.org View Contact details
To

Delhi Center@yahoo.com

Dear Ms. Parbhoo,

We would like to acknowledge receipt of letter and email dated 11 May, 2009 concerning the 65 MFI followers in Tihar Jail in New Delhi. Based on our discussion with you in the past and our advice to the MFI, please note that we continue to appreciate the timely information that your foundation has been sending UNHCR regarding the development in this case. As we have informed your foundation previously, while we will not be present at the hearing on 13 May 2009, please be assured that UNHCR continues to closely monitor these developments. As stated in our earlier communications and over the telephone, given the complex legal and diplomatic environment in which UN agencies operate in India. UNHCR will await the court?s judgment on this issue.

As always, we assure you that UNHCR remains committed to its mandate. We will continue working with relevant government institutions to ensure respect for the principle of non-re-foulement and the right to seek asylum.

Thank you,

(UNHCR New Delhi)

Ms. Meenakshi Arora, learned counsel for the petitioner has also invited our attention to the order passed in the High Court of Judicature at Bombay in Criminal Writ Petition No.2033 of 2005 wherein a letter was issued by the UNHCR and taking the same into account the Division Bench passed the following order:-

The United Nations High Commissioner for Refugees is directed to hear and
dispose of appeal filed by the petitioner, which is pending before it, dated 20/2/2005 within a period of one month from the date of receipt of this order by
it. For the said period of one month and two weeks thereafter, the residents shall not deport the petitioner. This order is passed without going into the merits of the petition.

In view of the aforesaid, we only request the United Nations High Commission for Refugees to take a decision within six weeks with regard to a representation to be submitted by the petitioners within a period of one week from today.

The protection order passed by this Court shall remain in force for a period of ten weeks. In the meantime, the petitioners shall not be deported to the country of their origin. Needless to say, we have not addressed to any other issue which has been urged by the learned counsel for the parties.

The writ petition is accordingly disposed of without any order as to costs. Order dasti under signatures of Court Master.

CHIEF JUSTICE

MANMOHAN, J

DECEMBER 02, 2010

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