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Patrick Savio Marcelino Almeida Vs. Devanand Vasudev Shirodkar and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Goa High Court
Decided On
Case NumberWrit Petition No. 480 of 2013
Judge
AppellantPatrick Savio Marcelino Almeida
RespondentDevanand Vasudev Shirodkar and Others
Excerpt:
constitution of india - article 5, article 6, article 8, article 9 - civil procedure code, 1908 - order 6 rule 16 and 17, order 7 rule 11 - representation of the people act, 1951 - section 83, section 86, section 87 - citizenship act, 1955 - section 5(1)(c), section 9(2) - goa panchayat raj act, 1994 - section 16, section 17, section 18(7) 창€“ amendment of plaint - appeal against the order of tribunal allowing the amendment application to amend the plaint in the election petition; court held 창€“ first respondent averred that the petitioner has acquired portuguese nationality and has become a foreign citizen - copies of the certificates produced duly show that the certificates are issued under the seal of republic of portugal - since portuguese law on nationality.....1. heard mr. menezes, learned counsel appearing on behalf of the petitioner and mr. pereira, learned senior counsel appearing on behalf of the respondent no. 1. 2. by this petition, the petitioner has challenged the order dated 13/06/2013 passed by the administrative tribunal, panaji, goa (tribunal, for short) in panchayat election petition no. 28 of 2012. 3. the respondent no.1 has filed the said panchayat election petition under section 16 of the goa panchayat raj act, 1994 (panchayat raj act, for short), challenging the election of the petitioner from ward no. 10 of village panchayat anjuna and caisua on the ground that the petitioner, on the date of the election, was not a citizen of india and was thus disqualified from his membership and disqualified to be a voter or to contest the.....
Judgment:

1. Heard Mr. Menezes, learned Counsel appearing on behalf of the petitioner and Mr. Pereira, learned Senior Counsel appearing on behalf of the respondent no. 1.

2. By this petition, the petitioner has challenged the order dated 13/06/2013 passed by the Administrative Tribunal, Panaji, Goa (Tribunal, for short) in Panchayat Election Petition No. 28 of 2012.

3. The respondent no.1 has filed the said Panchayat Election Petition under Section 16 of the Goa Panchayat Raj Act, 1994 (Panchayat Raj Act, for short), challenging the election of the petitioner from ward No. 10 of Village Panchayat Anjuna and Caisua on the ground that the petitioner, on the date of the election, was not a citizen of India and was thus disqualified from his membership and disqualified to be a voter or to contest the election. The respondent no.1 has pleaded that the birth of the petitioner was registered with the office of Village Panchayat at Chicalim, Goa on 27/09/1971 and his marriage was registered on 08/05/2002 with the Civil Registrarcum Sub-Registrar of Bardez-Goa. But thereafter, with a view to get himself registered as Portuguese national and as Portuguese citizen, the petitioner got his birth registered on 05/05/2006, by transcription, with Central Registration office and also got his marriage registered on 30/10/2007 with the Assistant Registrar of Central Registration Office on 30/10/2007. The respondent no. 1 thus contended that the petitioner has acquired Portuguese nationality by registering his birth and marriage with the Authorities in Portugal and as such has become a foreign national and a foreign citizen. The petitioner filed the written statement and denied all the allegations made against him and further stated that at no point of time he was desirous of acquiring Portuguese citizenship or nationality. The petitioner alleged that the election petition does not disclose the material facts which constitute a complete cause of action and that it contains vague allegations.

4. After the issues were framed in the said Election Petition, the respondent no. 1 filed an application for amendment of the same. By way of amendment, the respondent no. 1 sought to insert paragraphs no. 12(a) to 12(j) after paragraph no. 12 of the petition. Certain Articles of Hague Convention 1961; some Articles of Organic Law No. 2 of 2006; some Articles of Decree Law No. 237A/2006; and certain Articles of Decree Law No. 249 of 1977 were sought to be incorporated in the petition. The respondent no. 1 stated that he has pleaded all the material facts in support of his case in the petition based on which the Court framed issues on 10/10/2012 and that by way of amendment, he only seeks to elaborate and/or amplify the existing pleadings by supplying particulars which would enable the court to appreciate the real controversy involved in the petition. The respondent no. 1 annexed the copies of the Portuguese Gazette along with translation of the Organic Law No. 2/2006, as Annexure-A; the copy of the Portuguese Gazette along with translation of the Decree Law No. 237A/2006, as Annexure-B; the copy of the Portuguese Gazette with translation of the Decree Law No. 249 of 1977, as Annexure-C; the copy of Birth Certificate of the respondent No. 1 issued by Central Registry of Births, Marriage and Deaths of Lisbon with Apostille Certificate issued under Hague Convention, along with translation as Annexure-D; the copy of Certificate of Marriage issued by Central Registration office of Lisbon with Apostille Certificate along with translation, as Annexure-E; the copy of the Certificate of Birth of the father of respondent No. 1 and the Marriage certificate of the parents of respondent No. 1 along with translation as Annexure-F; the copy of the Certificate of Birth of the daughter of respondent no. 1, Snela Margaret obtained from the Central Registry of Births, Marriages and deaths of Lisbon with Apostille Certificate along with translation as Annexure-G; and copies of registration of birth and marriage of said Snela Margaret and of the father of respondent no.1 as Annexure-H colly. The petitioner filed his reply resisting the application, on various grounds.

5. By Order dated 13/06/2013, the learned Tribunal observed that there was clear nexus between the pleadings in the petition and the amendment sought. The Tribunal observed that in the election petition, the respondent no. 1 had pleaded that the petitioner acquired Portuguese nationality by registering his birth and marriage with the authorities of Portugal and as such had become a foreign national and foreign citizen, whereas, by way of amendment, he sought to incorporate certain facts and the law. The Tribunal held that as regards the law was concerned, the same could be put up even in the course of arguments and by citing the same in the context, it would not prejudice the rights of the petitioner. The learned Tribunal held that there was proper justification for filing the amendment application and for producing the documents, which have been obtained after filing of the election petition. The learned Tribunal further held that the case of œSheikh Fateh Mohammad Mohd. Raza vs. Kamlesh Somnath Yadav? [2011 (4) Bom. C.R. 261] was not applicable since no new ground has been taken in the matter of amendment. It held that in terms of Order 6 Rule 17 of the Code of Civil Procedure, 1908 (C.P.C., for short), amendment can be allowed at any stage. The Tribunal further observed that the rules of amendment will not be strictly applicable to the pleadings involving law. The application for amendment therefore came to be allowed. The petitioner is aggrieved by the impugned order and has filed the present petition.

6. Mr. Menezes, learned Counsel appearing on behalf of the petitioner submitted that in the original election petition, the respondent no.1 did not state that the petitioner was not a citizen of India, on account of the foreign law which is brought in by way of amendment. According to the learned Counsel, the basic cause of action for maintaining the petition was not pleaded in the petition as it was standing prior to the amendment. He submitted that the petitioner had raised a preliminary objection in the written statement that the petition does not disclose material facts constituting complete cause of action and had even filed an application under Order 7 Rule 11 of C.P.C. for rejection of the plaint. His grievance is that that the Tribunal had first took up the amendment application and allowed the same and is now going to take up the said application under Order 7 Rule 11 of C.P.C. He submitted that there is prescribed limitation period for filing Election Petition. He urged that there are new grounds and new cause of action taken up by way of amendment and the same are barred by limitation. He pointed out that as per the Indian Law if someone voluntarily acquires citizenship of foreign country, he looses the citizenship of India. He submitted that Hague convention was brought in for the first time by way of amendment and entire law is sought to be introduced in the petition. He submitted that the point of foreign law is a matter of fact, which has to be pleaded. In this regard, he relied upon œHari Shanker Jain vs. Sonia Gandhiœ [(2001) 8 SCC 233]. Mr. Menezes, learned Counsel appearing on behalf of the petitioner submitted that what was originally pleaded was only the conclusions and not the facts of law and by way of amendment, the law is sought to be introduced. According to the learned Counsel, this is not permissible. Mr. Menezes, learned Counsel has relied upon the judgment of the Supreme Court in the case of œBhagwati Prasad Dixit 'Ghorewala' vs. Rajeev Gandhi?, [(1986) 4 SCC 78]. He submitted that in terms of Section 16 of the Panchayat Raj Act, the Election Petition has to be filed within 30 days from the date of declaration of result. He alleged that no amendment is permissible after the prescribed period of limitation. He relied upon the judgment of the learned Division Bench of this Court in the case of ?Sheikh Fateh Mohammad Mohd. Raza? (supra). He submitted that if the matter had gone for trial as per the unamended petition, the respondent no.1 would not have succeeded and therefore the respondent no. 1 has brought in the entire Portuguese law in the pleadings. He submitted that it is wrong to say that law can put up during arguments in Election Petition. He therefore, urged that the impugned order of the Tribunal is arbitrary and perverse and interference of this Court with the same is warranted.

7. On the other hand , Mr Pereira, learned senior Counsel for the respondent no. 1, submitted that in terms of Section 18(7) of the Panchayat Raj Act, C.P.C. is applicable to the election petition and hence Order 6 Rule 17 of C.P.C. applies. Counsel relied upon the judgment of the Hon'ble Supreme Court in the case of œSethi Roop Lal Vs. Malti Thapar (Mrs) and Ors.,? [(1994) 2 SCC 579]. He contended that in the case of œSonia Gandhi? (supra), only preliminary objections were raised by the respondent Sonia Gandhi under Order 6 Rule 16 read with Order 7 Rule 11 and Section 151 of C.P.C. and no written statement was filed whereas in the present case written statement has been filed and even issues have been framed. Learned Counsel urged that thought in the case of œSonia Gandhiœ (supra), it has been held that the law should be pleaded in an election petition, however, that was in the facts and circumstances of that case. He pointed out from paragraph 28 of the judgment supra that opportunity was given to the appellants to show any book, authority or publication based whereupon, the Apex Court could form an opinion, but the appellants could not show anything. Learned Counsel relied upon the case of œK.K. Ramachandran Master Vs. M. V. Sreyamakumar and Ors.?, [(2010) 7 SCC 428]. He submitted that material pleadings were absent in the case of œSonia Gandhi? (supra). He submitted that in the present case, there is clear pleading in paragraph 4 of the election petition that the petitioner, as on the date of the election was not a citizen of India. He further submitted that in paragraphs 5 to 8, the respondent no. 1 had laid foundation to show as to how the respondent no. 1 acquired Portuguese citizenship by registration. He also invited my attention to paragraphs 9 to 13 of the election petition and submitted that material facts concerning disqualification and law applicable were averred. He urged that in paragraphs 14 and 15 of the election petition Indian law was stated. According to him, the foreign law as now pleaded will have to be proved and this will have to be done under the Indian Evidence Act. He further urged that the averments already made in the election petition were within the framework of law and the respondent no. 1, by way of amendment, has only elaborated the facts. Learned Counsel submitted that the respondent no. 1 has only set out the number of sections and details of the provisions, now by way of amendment. He submitted that the allegations in this case are not bald as were in the case of œSonia Gandhi? (supra). Learned senior Counsel urged that the provisions of law are to be pleaded in order to put the opposite party to notice. He submitted that in the case of œSheikh Fateh Mohammad Mohd. Raza? (supra), additional ground was to be added and hence the said case is not applicable. He submitted that the respondent no. 1 has produced on record the relevant documents like certificate of registration of birth, etc.. He, thus urged that the Tribunal has exercised the jurisdiction judiciously and the impugned order is good and does not warrant interference.

8. I have perused the material on record and considered the submissions advanced by the learned Counsel on behalf of the parties and the judgments relied upon by them.

9. In the present case, the election petition is filed under Section 16 of the Panchayat Raj Act, challenging the election of the petitioner on the ground that as on the date of election, the petitioner was not a citizen of India and was thus disqualified from his membership. The election of the petitioner is not challenged on the grounds of any corrupt practice. Section 17 of the Panchayat Raj Act provides for the contents of the petition and reliefs that may be claimed. Section 17 is pari materia with Section 83 of the Representation of the People Act, 1951 (R. P. Act, for short). Sub-sections (1) to (6) of Section 18 of the Panchayat Raj Act which deal with trial of election petition are pari materia with Sub-sections (1) and (3) to (7) of the R. P. Act. Sub-section (7) of Section 18 of the Panchayat Raj Act is similar to Sub-section (1) of Section 87 of the R. P. Act. and Sub-section (8) of Section 18 of the Panchayat Raj Act is similar to Sub-section (2) of Section 87of the R. P. Act. Lastly, Sub-section (9) of Section 18 of the Panchayat Raj Act is similar to Section 93 of the R. P. Act. Section 18(4) of the Panchayat Raj Act provides that the prescribed authority, may upon such terms as to costs and otherwise as he may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in his opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition, which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Since, the election of the petitioner in the present case is not challenged on the ground of corrupt practice, restrictions on the amendment of the petition envisaged in Sub-section (4) of Section 18 of the Panchayat Raj Act are not applicable. In terms of Section 18(7) of the Panchayat Raj Act, inter alia, subject to the provisions of this Act, every election petition shall be tried by the prescribed authority, as nearly as may be in accordance with the procedure applicable under the C.P.C., to the trial of suits. Therefore, the amendment application in the present case is governed by general principles under Order 6 Rule 17 of C.P.C.. In the case of œSethi Roop Lal? (supra), upon which reliance has been placed by the learned Counsel for the respondent no. 1, the Hon'ble Apex Court has held that in view of Section 87(1) of the Representation of the People Act, 1951 [which is pari materia with Section 18(7) of the Panchayat Raj Act], Order 6 Rule 17 C.P.C. afortiori is applicable to election petitions subject, however, to the provisions of the Act and any Rules made thereunder. It has been held that when, therefore, the amendment sought for relates to corrupt practice, Section 86(5) of R. P. Act [which is similar to Section 18(4) of the Panchayat Raj Act] would apply to the exclusion of general provisions of Order 6 Rule 17 of C.P.C., but where the amendment sought for does not pertain to corrupt practice, it has to be considered in the light of Section 87(which is similar to Section 18(7) of the Panchayat Raj Act] i.e. in terms of Order 6 Rule 17 of C.P.C. and de hors Section 86(5). Thus, it is clear that amendment of the election petition in the present case was permissible and was governed by Order 6 Rule 17 of C.P.C.

10. In the case of œSonia Gandhi? (supra), admittedly, the respondent-Sonia had acquired Indian Citizenship by registration under Section 5(1)(c) of the Citizenship Act and the validity(correctness) of the same was disputed and challenged by the appellants (election petitioners). It was not the case of the election petitioners that the certificate of citizenship granted to Sonia Gandhi was canceled at any time. One of the questions in the said case was whether the pleadings of any of the two election petitioners disclosed any cause of action and raised a triable issue which should be put up for trial. The Hon'ble Supreme Court observed that in spite of a certificate of registration under Section 5(1)(c) of the Citizenship Act, 1955 having been granted to a person and in spite of his having been enrolled in the voters' list, the question whether he is a citizen of India and hence qualified for, or disqualified from, contesting an election can be raised before and tried by the High Court hearing an election petition, provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations. It has been held that it is well settled that the material facts required to be stated in an election petition are those facts which can be considered as materials supporting the allegations made and that in other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the C.P.C.. It has been held that omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. It is further observed by the Hon'ble Supreme Court that the function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. It has been held that mere quoting of the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. The observation of the Apex Court in the case of œV. S. Achuthanandan Vs. P. J. Francis?, [(1999) 3 SCC 737] has been referred to wherein it was observed, on a conspectus of a series of decisions of the Apex Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead œmaterial facts? is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. It was found by the Hon'ble supreme court that the averments made by the election petitioners were bald allegations without any basis thereof and did not amount to pleading material facts which may warrant enquiry into those allegations. The Apex Court has held that there is no manner of doubt that in the Courts in India, a point of foreign law is a matter of fact and, therefore a plea based on a point of foreign law must satisfy the requirement of pleading a material fact in an election petition filed before the High Court. The Apex Court found that the averments made in the two election petitions did not satisfy this requirement and did not go beyond making bald assertions. The pleadings did not give any indication of such Italian law on which were based the averments made in the election petitions-whether it was any statutory enactment or any other provision or principle having the force of law in Italy. It was found that no foundation was laid in the pleadings by stating all relevant material facts enabling the Court to enter into examining such a plea of far-reaching consequences and implications. The election petitions were found to be hopelessly vague and completely bald in the allegation made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as œtrue? to their knowledge, without indicating the source. Hence, the decision of the High court dismissing the two election petitions at the preliminary stage, was sustained and the appeals were dismissed.

11. In the case of œRajeev Gandhi? (supra), the appellant (election petitioner) had questioned the validity of the election of the respondent(Rajeev Gandhi) by an election petition filed before the High Court of Allahabad, inter alia, on the ground that the respondent had ceased to be an Indian citizen and, therefore, was disqualified to be a candidate. In support of this ground, the election petitioner alleged that because the respondent had been married to an Italian lady and had acquired properties in his own name as well as in the name of his wife in Italy, the respondent must be deemed to have acquired Italian citizenship as per the Italian Law and ceased to be an Indian citizen under Section 9 of the Citizenship Act, 1955 and that, therefore, under sub-clause (d) of clause (1) of Article 102 of the Constitution of India, the respondent was disqualified for being chosen as a member of the Lok Sabha. It was not disputed that the respondent was a citizen of India by virtue of Article 5 of the Constitution. There was also no allegation that there had been a decision given on the question whether the respondent had ceased to be a citizen of India by the competent authority under the Citizenship Act, 1955 nor was it the case of the election petitioner that there was any such adjudication declaring that the respondent had ceased to be a citizen of India. The Hon'ble Supreme Court held that the question regarding voluntary acquisition of citizenship of a foreign State is to be decided exclusively by central Government under Section 9(2) of the Citizenship Act and not by High Court trying the election petition. It has been held that in the absence of a contrary declaration by Central Government under section 9(2) in respect of the candidate against whom allegation is made in the election petition, High Court must presume him to be an Indian citizen. The Apex Court has held that it is now well settled that in election petitions, pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine. It was found that the allegations made in the election petition filed by the election petitioner against the respondent's election, even if taken as true, did not disclose any cause of action. The allegations were found to be so frivolous and vexatious that the only order to be passed on the petition was to dismiss it as not disclosing any cause of action.

12. From the above decisions of the Supreme Court, it is clear that it is now well settled that in election petitions, pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine. It is further clear that a point of foreign law is a matter of fact and, therefore a plea based on a point of foreign law must satisfy the requirement of pleading a material fact in an election petition filed before the High Court. In the light of the above, it can certainly be said that the amendment by which the respondent no. 1 sought to incorporate the provisions of all the foreign laws which were applicable to the case, in the election petition, was necessary in order to determine the real controversy between the parties.

13. In the case ofœShaikh Fateh Mohammed Mohd. Raza? (supra), the point for consideration was whether an election petition under Section 33 of the Mumbai Municipal Corporation Act 1888 (the Act) can be permitted to be amended. An application for amendment of the election petition was filed on the ground that during the pendency of the election petition, the petitioner came to know certain material facts regarding the election of respondent no. 1. The petitioner wanted to add certain paragraphs viz paragraphs no. 13(A) to 13(E) in the original election petition by taking the ground that the name of respondent no. 1 was appearing in the electoral role at two places i.e. one at the native place at (234) Barsathi Assembly Constituency and the second at the place from which the respondent no. 1 was contesting the municipal election. The other grounds which the petitioner was desirous to add in the election petition were that the respondent no. 1 had submitted false declaration in the nomination form and that the respondent no. 1 was habitual in constructing illegal and unauthorized structures and had suppressed material facts before State Election Commission. The trial Judge had partly allowed the amendment application in connection with paragraph 13(B) only holding that the proposed amendment in paragraph 13(B), did not change the nature of the proceedings as it was clarificatory in nature. From the plain reading of section 33(1) of the Act, it was clear that the election petition was required to be filed within a period of 10 days from the date on which the list prescribed under clause (k) of Section 28 was available for sale or inspection. The election petitions were filed, by the respective petitioners on 12/02/2007, but amendment application in the election petition no.176 of 2007 came to be preferred in September 2007 whereas in the election petition no. 72 of 2007, amendment application was preferred by the petitioner on 06/02/2008. Thus, the respective applications for amendment were filed by the election petitioners after the period of limitation prescribed for filing the election petition. The learned Division Bench of this court held that though the provisions of the Representation of the People Act, are not straight way applicable so far as election petition filed under Section 33 of the Act, is concerned, however, analogy and principles of the R.P. Act, can be made applicable to the election petition even under the Act. It has been held that Section 5 of the limitation Act, is not applicable to election petition and under section 33 of the Act, election petition is required to be filed within a period of 10 days as stipulated under Section 33(1) of the Act and if there is no cause of action and if no particulars of the grounds made out have been given, election petition can be dismissed at a preliminary stage. The learned Division bench held that no amendment is permissible after the prescribed period of limitation and no new ground can be taken once it is filed and even within the period of limitation, no new ground can be added.

14. In terms of Section 16 of the Panchayat Raj Act, an election petition has to be filed within 30 days from the date of declaration of the election of the returned candidate at the election. Section 18(1) of the Panchayat Raj Act, mandates that the election petition which does not comply with any of the provisions of Sections 16 or 17, i.e which, inter alia, lacks material facts shall be dismissed. Failure to plead œmaterial facts? is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. In the present case, undoubtedly, the amendment application was filed after the expiry of the period of 30 days from the date of declaration of the election of the petitioner. The question is therefore whether the election petition lacked such material facts and if not amended it was liable to be rejected in limine and whether the amendment introduced material facts. In the present case, the petitioner has filed written statement and the Tribunal has already framed issues. This means that according to the Tribunal there were material facts to frame issues. The amendment application was filed by the respondent no. 1 after the framing of issues. If material facts and sufficient particulars already existed in the petition, there was no difficulty in allowing further particulars which were material for conduct of fair trial with a view to determine the real controversy between the parties effectually, so that the petitioner knows the whole case of the respondent no. 1 before going to trial. In the circumstances above, the application for amendment cannot not be said to be barred by limitation.

15. In the case of œK. K. Ramachandran Master? (supra), relied upon by the learned counsel for the respondent no. 1, it has been reiterated that an election petition which does not disclose material facts can be dismissed on ground that it does not disclose cause of action. The Hon'ble Apex Court further held that in a case where the material facts and sufficient particulars are present but full particulars are absent, and where averments set out material facts and gave sufficient particulars that would justify grant of opportunity to appellant/election petitioner to prove his allegations, dismissal of petition is not justified and the deficiency in particulars could and ought to have been rectified by directing petitioner to disclose and provide the same with a view to preventing any miscarriage of justice on account of non-disclosure of the same. It has been held that material facts are primary and basic facts which must be pleaded by plaintiff, while particulars are details in support of such material facts. It was observed that the particulars ensure conduct of fair trial so that opposite party was not taken by surprise. It was further held that defect in verification of pleadings or affidavit was curable and petition could not be dismissed for any such defect and what consequences, if any, such defect(s) would entail would be judged at the trial.

16. In the present case, the petitioner was born and married in Goa and was a citizen of India but according to the respondent no. 1, the petitioner subsequently acquired Portuguese nationality by registering his birth and marriage with the authorities in Portugal and hence has become a foreign national, since 05/05/2006 and has thus lost Indian citizenship. In terms of Article 9 of the Constitution, no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State. In the unamended petition, the respondent no. 1 has averred that the petitioner has acquired Portuguese nationality by registering his birth and marriage with the authorities in Portugal and as such has become a foreign national and a foreign citizen. The copies of the certificate of birth issued by Central Registration Office and the copy of the marriage certificate issued by the Assistant Registrar of the Central Registration Office were produced along with the petition. The said copies of the certificates duly show that the said certificates are issued under the seal of the Attorney General of the Republic of Portugal. This was done in terms of Hague Convention. Therefore, the respondent no.1, by way of amendment, gave the material particulars regarding the provisions of said Hague Convention 1961. In paragraph 10 of the unamended petition, the respondent no. 1 has pleaded that under the Portuguese Law, citizens born in erstwhile Portuguese territories of Goa, Daman, Diu, Dadra, Nagar Haveli and Tiracol are Portuguese citizens even if considered Indians by the Indian Republic because the Portuguese Laws on Nationality accept dual citizenship and therefore they are European citizens and have the right to an European Passport. In paragraph 13 of the unamended election petition, the respondent no. 1 averred that the petitioner is disqualified for being chosen as and for being a member of the Panchayat as he is disqualified by or under the law for the time being in force for the purpose of the elections to the State Legislature. With the above material facts and many other averments giving sufficient particulars, the petition was filed by the respondent no. 1 within 30 days from the date of declaration of election results. The allegations made in the petition cannot be termed as bald assertions. Since the Portuguese Law on Nationality bearing No. 37/81 stood amended by Organic Law dated 17/04/2006, by way of amendment, the respondent no. 1 sought to incorporate in the petition the provisions of said Organic Law. Decree Law No. 237A/2006, the provisions of which are sought to be incorporated in the petition, also pertains to the Portuguese Law on Nationality as it contains the regulations of Portuguese Nationality. The decree Law 249 of 1977, also contains regulations on the problems of Portuguese Nationality. The respondent no.1, by way of amendment has sought to introduce the said regulations of the Decree Law 249 of 1977, in the petition. In my considered view, the above details sought to be introduced by the respondent no. 1 in the petition, though appear to be voluminous in nature, are only material particulars in support of the material facts, already on record, and these particulars ensure conduct of fair trial so that opposite party is not taken by surprise. The amendment cannot be said to have introduced any new ground of challenge to the election of the petitioner. Whether the question regarding voluntary acquisition of citizenship of a foreign State is to be decided exclusively by Central Government under Section 9(2) of the Citizenship Act and not by the Tribunal trying the election petition, will be decided on merits. The learned Tribunal has rightly allowed the amendment application. No prejudice can be said to have occurred to the petitioner. The petitioner would get an opportunity to file additional written statement, if desired. The impugned order cannot be termed as perverse or arbitrary and no interference is called for.

17. The petition is dismissed with no order as to costs.


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