1. In this Special Civil Application the petitioner has impugned the order dated 31st December 1970 passed by the Joint Secretary to the Government of India, Ministry of Home Affairs, New Delhi, determining the status of the petitioner under Section 9(2) of the Citizenship Act, 1955. In order to appreciate the grounds of challenge a few facts may be stated:
2. The petitioner was served with a notice dated 5th November 1966 threatening that he will be deported out of the territory of India. Thereupon he filed a suit in the Bombay City Civil Court at Bombay, being Suit No. 98 of 1967. seeking a declaration that he was a citizen of India; he also sought a permanent injunction against the State of Maharashtra and the Union of India restraining them from taking any action against him in the nature of deportation as threatened. In the said suit the following four issues were framed by the trial Court:
'1. Whether the suit is barred by limitation?
2. Whether the plaintiff is a citizen of India under Article 5 and/or under Article 6 of the Constitution?
3. If Issue No. 2 is answered in the affirmative, whether the plaintiff's claim to citizenship stands terminated in view of the provisions of Section 9(2) of the Citizenship Act, read with Rule 30 and Rule 3 of Schedule III to the Citizenship Rules, 1956?
4. Whether the plaintiff is entitled to any relief; and if so, what?' As far as the issue as to limitation was concerned, the defendants did not press the same at the hearing and the said issue was answered in favour of the petitioner/plaintiff. As far as Issue No. 2 was concerned after considering theevidence led before him the learned trial Judge held that the petitioner (the plaintiff before him) had satisfied the requirements of Articles. 5 and 6 of the Constitution of India. However, as far as issue No. 3 was concerned, the same was referred to the Central Government for determination in view of the clear legal position that this aspect was required to be decided by the Central Government. The further hearing of the suit was stayed till the decision of the Central Government was received. This was on 17th December 1969. The decision of the learned trial Judge on the question whether the petitioner satisfied the requirements of Articls. 5 and 6 of the Constitution is annexed as Ex. 'A' to the petition. Thereafter a notice dated 26th August 1970 was served on the petitioner; a copy of the said notice is to be found annexed as part of Ex. 'B' (Collectively)' to the petition. The operative portion of the. said notice (after recital of the circumstances) may be' fully set out and the same reads as follows:--
'...... Now, therefore, the said Shri Abdul Rahim is required to prove within a period of three months that he has not voluntarily acquired the citizenship of Pakistan after the 26th January 1950 and before the 25th May 1953 in the manner aforesaid.
And for this purpose the said Shri Abdul Rahim is required to submit within three months from the date of service of this notice on him to the Government of Maharashtra for onward transmission to and consideration of the Central Government, any representation that he may wish to make in the matter and any other material that he may wish to rely upon to prove that he has not voluntarily acquired the citizenship of Pakistan.'
In reply to the said notice the petitioner filed a detailed representation dated 27th November 1970 which inter alia contained various factual statements and a submission that the passport had been obtained by him under misapprehension and/or on wrong advice, without knowing the nature and its implications and. therefore, the petitioner had not voluntarily acquired the citizenship of Pakistan. It is thereafter and without any further inquiry or hearing or material that the impugned order dated 31st December 1970 was passed. It may be mentioned that on 13th July 1971 the Bombay City Civil Court dismissed the plaintiff's suit with costs and that was on the basis of the decision of the Central Government on Issue No. 3 in the suit, which decision is contained in the said impugned order. A copy of the impugned order of the Central Government is annexed to the petition as Ex. 'C' and &. copy of the consequential order of the City Civil Court is annexed as Ex. 'D'.
3. The grounds of challenge, to the said decision of the Central Government and the consequential order of the trial Court are summarized in paragraph 11 of the petition, and are as follows (1) It is alleged in the first place that Rule 30 of the Citizenship Rules is void and ultra vires the provisions contained in Article 14 of the Constitution of India. (2) Secondly, it is submitted that Rule 30 of the Citizenship Rules and para. 3 of Schedule III thereto are bad and ultra vires the Citizenship Act, 1955. (3) The said Para 3 of Schedule III has been attacked as constituting an unreasonable restriction on the petitioner's fundamental rights under Article 19(1) (d) and (e) of the Constitution and consequently claimed to be void and ultra vires. (4) The impugned decision of the Central Government has been attacked as betraying total and complete non-application of mind, and this plea has been sought to be substantiated in a nine-fold manner in paragraph 11 (d) of the petition. (5) Finally, it has been submitted that the impugned decision has been arrived at by contravening the principles of natural justice. It is submitted that no proper or sufficient particulars were given in the show cause notice to the petitioner and accordingly it is submitted that the petitioner did not have a proper opportunity to meet the case against him. It is further submitted that it was incumbent upon the Central Government to give a personal hearing to the petitioner as also a right to have a legal practitioner in the inquiry before it. The petitioner has also claimed an opportunity to confront the evidence against him as also to cross-examine the witnesses and refute the evidence against him. It has also been submitted that the impugned order has been passed in a routine and a pre-determined manner without taking into account the circumstances since urged by the petitioner in the representation made by him to the show cause notice.
4. At the hearing of this Special Civil Application we restricted counsel for the petitioner to the pleas to be found insub-paragraphs (d) and (e) of paragraph 11 of the petition as were developed during the course of arguments and inasmuch as we were, of opinion that the petition could be disposed of on these pleas, we prevented him from developing the other branches of the argument indicated above. Even as regards the pleas to be found in these two sub-paragraphs, greater emphasis was placed by the learned counsel for the petitioner on the denial of proper opportunity to his client to substantiate his plea, and it was submitted that the rather cursory and unsatisfactory order containing the decision arose because of this denial of opportunity to the petitioner as also as a result of misapprehension on the part of the deciding officer of the true legal position as has been determined by the Supreme Court and the High Courts. In order to appreciate this contention, reference may now be made to the relevant provisions in the statute and in the Rules.
5. Section 9 of the Citizenship Act. 1955 (57 of 1955) provides for termination of citizenship and reads as follows:
'9. Termination of citizenship.--
(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:
Provided that nothing in the subsection shall apply to a citizen of India who. during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether; when or how any person has acquired the citizenship of another country, if shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.'
6. The rule-making power under the said Act is to be found in Section 18 thereof and it is provided that the Central Government may, by notification, make rules to carry out the purposes of this Act; and in particular under Section 18(2)(h) may make provision in such rules for the authority to determine the question of acquisition of citizenship of anothercountry, the procedure to be followed by such authority and rules of evidence relating to such cases. The necessary rules in exercise of the power conferred by Section 18 of the said Act were framed in 1956. being designated as the Citizenship Rules, 1956, and we are concerned in particular with Rule 30 and Schedule III to the said Rules. Rule 30 provides as follows:--'Rule 30-- Authority to determine acquisition of citizenship of another coun-try.--
(1) If any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall for the purposes of Section 9(2) be the Central Government.
(2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule III.'
7. Paras 1 and 3 of Schedule III may also be set out and they make the following provision:--
'1. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may foe fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him,
3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date.'
8. The question whether a citizen of India has between 26th January 1950 and the commencement of the Citizenship Act ceased to be a citizen of India is to be determined in the manner provided by the combined operation of all these provisions earlier set out viz. Section 9 of the Citizenship Act, 1955, and Rule 30 read with Schedule III of the Citizenship Rules, 1956.
9. The question as to proper interpretation of these provisions has arisen before the Supreme Court on a number of occasions, and the question not being res integra it will be useful to make immediate reference to the judgments of the Supreme Court which were cited at the bar before us.
10. The vires of Para 3 of Schedule III as well as the constitutionality of Section 9(2) of the Act were in question in Izhar Ahmed Khan v. Union of India, : AIR1962SC1052 , and by a majority decision the challenge was negatived by the Supreme Court. The majority held that this was a rule of evidence and fell within the scope prescribed by Section 9(2) of the Citizenship Act, and the challenge to its validity on the ground that it was a rule of substantive law had therefore to be repelled. Similarly the challenge to Section 9(2) of the Act on the ground that it enabled the rule-making authority to make a rule to deprive the citizenship rights of citizens was also not sustained. Inasmuch as we have not allowed counsel to urge and develop the plea as to the validity and the vires of these provisions, it is in our opinion unnecessary to refer to this decision in greater detail; in an appropriate case it might be necessary to do so.
11. Izhar Ahmed Khan's case was required to be considered by the Supreme Court in Md. Ayub Khan v. Commissioner of Police, Madras, : 2SCR884 . In Md. Ayub Khan's case the Supreme Court did not entertain the plea which had been sought to be advanced before it viz. that Izhar Ahmed's case required reconsideration as certain aspects of the question had not been brought to the notice of the Court. The Court, however, construed and interpreted the provisions which are required to be applied by us also viz. Section 9 of the Citizenship Act and Rule 30 and Schedule III of the Citizenship Rules. Md. Ayub Khan's case therefore must be considered in some depth. The petitioner before the Supreme Court claimed that he had acquired the status of an Indian citizen on the commencement of the Constitution and was served with a notice dated 17th July 1957 informing him that as he had obtained Pakistani passport No. 071377 dated 1st April 1953, he should leave India within one month from the date of service of the notice; and in default of compliance he was threatened with prosecution and deportation under the Foreigners Act, 1946 as amended by the Foreigners Law (Amendment) Act, 1957. On 19th August 1957 Md. Ayub Khan applied to the Collector of Madras for registration as a citizen of India. Later on he applied to the Central Government under Section 9(2) of the Citizenship Act for determination of the question whether he continued to remain a citizen of India and prayed that he may be given an opportunity to produce all necessary evidence in support of his claim as regards Indian citizenship. Without affording him that opportunity, however, the Government of India by its order dated 7th May 1958 rejected the application of the appellant under S- 9 of the Citizenship Act. He thereupon preferred a petition before the Madras High Court urging, inter alia, that Rule 30 contemplated a quasi-judicial inquiry in which an opportunity must be given to the party sought to be affected to make a representation and to adduce evidence to show that the acquisition of a Pakistani passport was not voluntary. The learned single Judge of the Madras High Court rejected this contention, inter alia, observing that as far as the question of opportunity was concerned the appellant, Md. Ayub Khan, 'had not indicated on what points he intended to lead evidence and what kind of evidence he intended to adduce'. His appeal to a Division Bench of the Madras High Court was also dismissed, the Bench holding that Section 9 'laid down an objective test and when the individual had brought himself within it. the law determines the legal consequences of the situation, independently of his intent or understanding'. It was accordingly held that there was no scope for inquiry of the nature claimed by the appellant. In paragraph 9 of the report we find that the Supreme Court has observed that the determination of the question postulates an approach as in a quasi-judicial inquiry and this requires that the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. It was further observed that what the scope and extent of the inquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of each case. These observations were pressed into service by learned counsel for the petitioner before us who contended that after the plea raised by his client, the determining authority was required to give to his client an opportunity to substantiate the plea which opportunity had not been given and no proper inquiry as contemplated by the statutory provisions as indicated by the Supreme Court in the above decision has been held. We will have to advert to this aspect of the matter a little later on after concluding the discussion of the judicial decisions cited at the bar relevant on this point.
12. Paragraphs 10 and 11 of the reported decision in Md. Ayub Khan's case : 2SCR884 indicate the scope of this inquiry. These observations which we will proceed to quote in full would also seem to suggest the nature of the plea that can be raised, which plea would be required to be substantiated by the party urging the same and which plea would be required to be properly considered and appreciated by the deciding authority. Paragraphs 10 and 11 of the report may now be set out:
'10. Paragraph 1 of Schedule III which raises a rebuttable presumption, when it appears to the Central Government that a citizen has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition, and Paragraph 2 which authorises the Central Government to make enquiries for the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenship, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date voluntarily acquired citizenship of that other country. By the application of the rule in Paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country 'before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualised in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship to obtain a passport from a foreign country. It would be difficult to say that such a passport is one which has been 'obtained' within themeaning of Paragraph 3 of Schedule III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country.
11. We are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from the High Commissioner for Pakistan. Bala-krishna Ayyar J, observed that the plea of the appellant was not bona fide. But it is not the function of the Courts to determine the question whether the plea raised is true or not; it is for the authority invested with power under Section 9(2) to determine the question if it is raised. The High Court in appeal was of the view that Section 9 laid down an objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his 'intent or understanding arose'. We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of Section 9(1), and by virtue of Paragraph 3 of Schedule III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. The view is strengthened by the scheme of Section 9(2) read with Rule 30 which contemplates an enquiry by an authority prescribed under Sub-section (2) for determination of the question whether citizenship of another country has been acquired by an Indian citizen'. (Underlining supplied by us).
13. Reliance had been placed in the course of arguments by the learned counsel for the respondents on Syed Khawaja Moinuddin v. Govt of India, : 1967CriLJ1074 , where, after considering the representation which had been made by the aggrieved citizen, the Supreme Court observed that the facts put forward by the erstwhile citizen indicated that he had gone voluntarily to Pakistan, and there was no explanation forthcoming for exercising this volition of going to that country, in that case there was a long stay in Pakistan and, according to the Supreme Court, in therepresentation to the Government this long stay was also not explained. According to the Supreme Court, in these circumstances the Government of India was not called upon to make any detailed enquiry when the provisions of Paragraph 3 of Schedule III of the Citizenship Rules were clearly applicable. It was urged before us -- and this submission will be required to be considered -- that the pleas to be found in the representation of the petitioner before us which he had submitted in answer to the show cause notice also did not call for a further enquiry, in any case, it was submitted that by the show cause notice the petitioner had been called upon to tender for the consideration of the deciding Officer whatever material he had with him in order to substantiate his pleas-and. therefore, he had been given all necessary opportunity which was postulated and contemplated under the relevant statutory provision and that, therefore, there had been no denial of any opportunity. The argument, shortly put, was that an opportunity had been given and not availed of by the petitioner and, therefore, it did not lay in his mouth to complain that opportunity had been denied to him. In this connection the fact that he had not asked for a personal hearing was sought to be emphasised. We will have occasion to refer to this aspect of the matter after trying to analyse the nature of the pleas submitted by the petitioner in his representation in reply to the show cause notice. In our opinion. Moinuddin's case does not depart from the principles laid down by the Supreme Court in Md. Ayub Khan's case : 2SCR884 nor does it interpret that decision in any manner useful for our purposes. On the facts the Supreme Court had arrived at a particular conclusion and it is clear that whether or not there is denial of opportunity would have to depend upon facts of each case and particularly upon the explanation submitted by the citizen who is told that 'You appear to have lost your citizenship.' If no explanation is furnished by him or if a proper explanation is not furnished by him, then that person cannot be heard to complain that he had been denied the opportunity of substantiating his plea. In other words, it was found in Khwaja Moinuddin's case that there was no plea which was required to be substantiated and this is all that the Supreme Court has observed in that case.
14. These provisions once again came to be considered by the Supreme Court in Mohd. Ilyas v. Union of India, : (1970)3SCC61 . One of the contentions raised before the Supreme Court in the said case was that the Government of India was bound to give a personal hearing to those who make representations under Section 9(2) or to afford opportunity to them to adduce oral evidence. This question was expressly left open, the Supreme Court observing that on the facts of that case it was unnecessary to decide the point free para. 6 of the report). In paragraph 14 of the report there is reference to the pleas contained in the representation made by the aggrieved person and it is observed that it was not his case that he was compelled or forced to obtain a passport from Pakistan or that he was the victim of any fraud. On these pleas, therefore, the Supreme Court rejected the contention advanced on behalf of the appellant before it that the passport had not been voluntarily obtained by him; it observed that on the admitted facts no occasion arose for the Government to give him a personal hearing or to give him an opportunity to adduce oral evidence.
15. It is clear therefore, that in the decision in : (1970)3SCC61 , on the facts of that case the Supreme Court kept the question open viz. whether the person served with a show cause notice had a right of personal hearing or to adduce oral evidence and merely Observed that on the admitted facts of the case and after considering the pleas it could not be said that further opportunity was required to be given to him to substantiate his contention,
16. Thus in the two later judgments the Supreme Court would seem to have adopted the procedure of prima facie considering the pleas contained in the representation made by the aggrieved person in reply to the show cause notice and after applying its mind to these pleas coming to the conclusion whether on these pleas a further inquiry became necessary or not. If on the pleas the view of the Court appears that the case squarely fell within Rule 30 and Schedule III, then the Court did not countenance the grievance of the aggrieved person that he was deprived of his citizenship without a proper hearing. It would appear to us that if examination of the petitioner's pleas suggests or shows that a further inquiry is required, then the order determining or deciding the question made against him without affording him such further inquiry would be required to be quashed as being contrary to the principles of natural justice.
17. Before adverting to two decisions of the Calcutta High Court and of the Kashmir High Court, in which the decisions in Izhar Ahmed's case : AIR1962SC1052 and Md. Ayub Khan's case : 2SCR884 were considered and propositions deduced therefrom, we may dispose of the argument postulated in the petition, viz. that the nature or the importance of the proceeding makes it incumbent in all cases to give a personal hearing to the party on whom a show cause notice had been served as well as the right to adduce oral evidence. It was contended that bearing in mind the nature of the show cause notice served and the consequences of the decision made, it was incumbent in every case in which a plea was raised that the Pakistani passport was not obtained voluntarily that a personal hearing must be given to the person sought to be affected by the decision. It was submitted that admittedly these were quasi-judicial proceedings. Indeed, it was urged that this was an issue in the pending litigation which was required to be determined by the Central Government by the statutory provision. It was accordingly sought to be urged that the proceedings were required to be invested with considerable judicial character and a judicial determination of a lis normally postulated personal confrontation. The fact that no appeal was provided by the relevant statutory provision was also emphasised. Now, it would appear to us that the fact that the further hearing of the suit was stayed and the issue was required to be decided in a pending civil proceeding by the Central Government would not by itself alter or affect the character of the determination, though perhaps it would invest it with further solemnity. It is well settled that the right of personal hearing or the right of representation through a lawyer is not a sine qua non of natural justice. It is impossible to accept the general submission that the moment a general or a bald plea is taken claiming that the action in obtaining the passport was not voluntary, that the party raising the plea must be called for a personal hearing. Indeed, it is possible to conceive of a situation where a party raising such plea is required to indicate the nature of evidence in support of that plea, submit such evidence on affidavits, submit documents on which he relies and even indicate the detailed contentions required to be considered by the determining authority in writing. If this is done and it is found from the order that the pleas have been considered and properly appreciated, it would be difficult to hold that such procedure would violate any requirements of natural justice as ordinarily understood. Our attention was drawn by counsel to observations in a fairly recent English case viz. R.V. Gaming Board for Great Britain ex parte Benaim (1970) 2 All ER 528, where Lord Denning M. R. made reference to the observations (at page 533) of Lord Parker C. J. in Re K (K) (an infant). (1967) 2 QB 617, where in reference to what is required of an immigration officer it was stated '...... even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the Sub-section, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly'. Reliance was placed on this passage and it was submitted that it would apply with all greater force to a quasi-judicial proceeding of the nature which was being determined by the Joint Secretary where the Joint Secretary was required to inform the petitioner of his prima facie impression of the petitioner's plea whereupon the petitioner could attempt to convince the officer concerned of the force in the pleas and substantiate them if necessary. Indeed, it is well settled that it is not possible to lay down rigid rules as to what the principles of natural justice are or when they are to be applied and in what manner. Their scope, extent and application will vary from case to case and even in the type of the decision with which we are confronted we feel that it would depend upon the type of plea raised by the party receiving the show cause notice. Indeed, in our opinion, much depends upon the type of representation made by the aggrieved party. The moment such representation is made, the determining authority will have to apply its mind to the nature of the pleas contained in that representation and decide whether the pleas afford any sort of defence or justification and what is the nature of the evidence indicated in those pleas. It will have to consider whether the party has had the opportunity of bringing such evidence and all other material to substantiate the pleas before the determining authority. If the party has received that opportunity and has availed itself of it or wilfully chosen not to avail of such opportunity, then the determining authority may go ahead and decide on whatever material has been placed before it. If that decision is honestly arrived at, then the procedure adopted cannot be faulted merely on the ground that no personal hearing was afforded to the party or the opportunity to lead oral evidence was denied to that party. The question whether the party has had a proper opportunity or has been denied the opportunity would depend upon the contents of the show cause notice. the reply of the party and, to a limited extent, the impact of denial of the oppor-. tunity might be required to be consider-ed with reference to the final order de-terming the issue. We are unable, therefore, to accept the general submission that a personal hearing or an opportunity to lead oral evidence is a sine qua non of the proper procedure for such inquiries and that the inquiry is vitiated since that procedure was not followed. It may be mentioned at this juncture that this seems to be the main grievance set out in the Special Civil Application. During the course of arguments counsel also contended that even if no personal hearing was required to be given, his client was required to be given a further opportunity to substantiate his case after receipt of the representation by the determining authority, which opportunity has admittedly not been given. Accordingly it was submitted that failure to give such opportunity has resulted in failure of justice inasmuch as relevant considerations which would have been properly brought to the attention of the determining Officer have not been properly and fairly considered by him. We will advert to this aspect of the matter a little later on after completing our discussion of the relevant authorities in connection with the proper scope of Section 9 of the Citizenship Act, Rule 30 and Schedule Ill of the Citizenship Rules.
18. Izhar Ahmed's case and Md. Ayub Khan's case came to be considered by a Division Bench of the Calcutta High Court in Md. Kazaharul Haque v. B. Bagchi : AIR1974Cal29 , where after considering a number of authorities including the abovesaid two Supreme Court decisions Laik J. observed (see para 23 of the report) (Cal WN): (See Para 23 of AIR) as follows--
'23. At any rate, for the purpose of these types of cases as in the instant appeals the following propositions, for which there is ample authority, might be laid down:
(i) The passport obtained by a person from Pakistan would no doubt be evidence that he was a Pakistani national, but that evidence would be subject to the provisions of Section 9(2) of the Citizenship Act.
(ii) A Court cannot decide whether an Indian citizen has acquired the citizenship of another country, but the only authority to so decide is the Government of India acting as a quasi-judicial tribunal under the provisions of Section 9(2) of the Citizenship Act, 1955.
(iii) Section 9(2) of the Citizenship Act and Para 3 of the Citizenship Rules are intra vires the Constitution and valid law,
(iv) The proposition that as soon as it is alleged that a passport has been obtained by a person from a foreign Government, the State Government can immediately proceed to deport him without the necessary inquiry by the Central Government, is not correct It is Only after the Central Government has decided the point after inquiry that the State Government can deal with the person treating him to be a foreigner. In dealing with the said question the Central Government would undoubtedly be entitled to give effect to Para 3 in Schedule 3 of the Citizenship Rules and would be entitled to deal with the matter in accordance with the other relevant rules framed under the Act, but the question must be first considered by the Central Government In other words, the decision by the Government of India is a condition precedent in that behalf.
(v) The provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined. clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry that the citizen concerned has obtained a passport of another country. The authority has also to determine as to whether the person has voluntarily acquired foreign citizenship.
(vi) The enquiry would be quasi-judicial in nature and the citizen concerned must be given due notice of the nature of the action. Reasonable opportunity must be offered to the citizen to convince the authority that what is alleged against him is not true. If a plea is raised by the citizen that he had not voluntarily obtained the foreign passport, the citizen should be afforded an opportunity to prove the said fact Termination of Indian citizenship does not merely depend upon action of a foreign country in issuing the passport
(vii) ...... ...... ......'
The rest of the propositions do not appear to be material for our purposes and are, therefore, not set out
19. In connection with the aforesaid decision, although it must be conceded that the facts of that case were very much stronger than the facts before us, emphasis was laid by learned counsel for the petitioner on these six propositions above set out which would seem to suggest that the stage of giving opportunity occurs subsequent to the plea raised by the citizen after receipt of the show cause notice, and it was submitted that on the facts of the case before as such opportunity was admittedly not given to the petitioner.
20. The last of the authorities to which detailed reference may be made is the decision of a Full Bench of the Kashmir High Court (consisting of five Judges) in S. Mosin Shah v. Union Govt. of India, AIR 1974 J & k 48 . It was reiterated in that decision that an inquiry under Section 9(2) is quasi-judicial in its nature and must be based on proper appreciation of the evidence and it must comply with the cardinal rules of natural justice. But it was observed that a personal hearing was not a necessary concomitant of the principles of natural jutsice. It was clarified that whether or not a personal hearing should be given would depend upon the facts and circumstances of each case. This is in accordance with our view indicated earlier that it is not an invariable or a universal requirement but would depend upon the circumstances of each case; and in the type of case which we have indicated earlier where a proper opportunity has been given and the submissions of the party fully considered, the party cannot seek to impugn the ultimate adverse decision merely on the ground that a personal hearing was not given or thatif such hearing had been given, the opportunity could have been availed of to convert the deciding officer to a different point of view.
21. In Section Mohsin's case AIR 1974 J & K 48 Section Murtaza Fazl Ali, C. J. (as he then was) speaking for the Full Bench of the Jammu & Kashmir High Court referred to Izhar Ahmed's case : AIR1962SC1052 and Md. Ayub Khan's case : 2SCR884 , and after analysing them observed (see para 8 of the report) as follows:
'(1) That Rule 3 of Schedule III raises a presumption that if a person has acquired a passport of another country, that shall be conclusive proof of the fact that the citizenship was lost.
(2) That before this act can be conclusively proved, the word 'obtained' clearly postulates that the passport must be acquired by free volition or voluntarily.
(3) That the onus of proving the fact that the passport was not acquired voluntarily but under duress or other circumstances is on the citizen concerned and once this plea is raised, it has to be examined by the Central Government while making an enquiry under Section 9(2).
(4) In other words, the expression 'ob-tained a passport' appearing in Rule 3 of Schedule III does not include the physical or mechanical act of receiving a passport by a person but postulates the securing of a passport wilfully and consciously, knowing full well the consequences of the same. Once this is proved, then the presumption under Rule 3 will automatically apply to the acquisition of the passport and will become a conclusive proof of the loss of citizenship. Where, however, it is proved that the passport was obtained under duress, compulsion, undue influence, fraud or fear, it will not amount to obtaining the passport within the meaning of Rule 3, Schedule Ill and therefore the question of treating the acquisition of the passport as conclusive proof of the loss of citizenship would not arise.....'
22. The learned counsel for the petitioner submitted that in the view of the Kashmir High Court AIR 1974 J & K 48 (which view was based on the analysis of the Supreme Court decisions) that It was necessary that the application for a Pakistani passport should have been made 'wilfully and consciously', 'knowing full well the consequences of the same'. On the other hand, it was urged by the learned counsel for the respondents that although the use of the expression phrase 'wilfully and consciously' would be in accord with the observations of the Supreme Court in Md. Ayub Khan's case : 2SCR884 above reproduced, the said High Court was not justified in adding the further qualifying words 'knowing full well the consequences of the same', which, it was submitted, was a gloss put by the High Court on the Supreme Court decision. We were urged to read the Supreme Court decision (Md. Ayub Khan's case) for ourselves and apply it ignoring the gloss, which, it was submitted, was not justified by the express provisions contained in Para 3 of Schedule III even as interpreted by the Supreme Court. It was also submitted that even the Kashmir High Court had restricted the possible pleas available to a person who had obtained a Pakistani passport to the pleas indicated in sub-para (4) of paragraph 8 viz. that it would be open to the party only to show that the passport was obtained under duress, compulsion, undue influence, fraud or fear. It was submitted that only if one of such pleas is raised and substantiated, then alone it could be held that the receiving of the passport would not amount to obtaining the same within Para 3 of Schedule III and therefore the question of treating the acquisition of the passport as conclusive proof of loss of citizenship would not arise. It was submitted -- and, indeed, there is some force in that submission --that the available pleas or justifications should not be unduly extended beyond the cases indicated by the Supreme Court or at least beyond the four or five specific pleas indicated by the Jammu and Kashmir High Court.
23. Now, in order to determine whether the plea raised by the petitioner before us in his representation is a permissible plea in the sense that it would amount to some sort of justification for obtaining the Pakistani passport and take the petitioner out of the rigorous application of Para. 3 of Schedule HI, it will become necessary to consider the nature of the plea. A copy of the representation submitted by the petitioner to the Central Government in reply to the show cause notice is to be found annexed as part of Exhibit 'B' to the petition. Paras 1 and 2 of the said representation can be said to deal generally with the previous background and history and the petitioner in these two paras has brought to the attention of the determining authority various facts such as that in 1944 he had sold his land at the native place viz. Dera Ismailkhan (admittedly part of Pakistan after 1947) and had come down with the sale proceeds to Bombay with the intention of settling down permanently in Bombay. It has been brought to the notice of the authority that after his arrival in Bombay he started doing business in partnership with his cousin brother at Worli, which partnership was subsequently dissolved and the petitioner continued the business after dissolution as the sole proprietor thereof. The petitioner has brought to the attention of the said authority that after the said dissolution the premises were transferred to the name of the petitioner as also the licence for the said business, the transferring authorities being the State of Bombay and the Bombay Municipal Corporation respectively. The petitioner has also mentioned his place of residence and he claims that the rent bills of the said premises stand in his name. Then comes para 3 of the representation in which details have been given by the petitioner about the circumstances in which the petitioner obtained the Pakistani passport, that being the gravamen of the charge against the petitioner to be found in the show cause notice, where it is alleged that the petitioner had voluntarily acquired the citizenship of Pakistan by reason of his having obtained on 25th May 1953 a passport from the Government of Pakistan. According to the petitioner, in 1953 he received a letter from his father that he was ill and the petitioner therefore desired to go to Pakistan to see his ailing father. The petitioner consulted his maternal-uncle who advised the petitioner to obtain a passport. Accordingly the petitioner got the application typed from a typist near Mandvi Post Office and obtained a Pakistani passport on the strength of the said application. The petitioner contended that he did not understand the implications of the passport and he obtained the passport without applying his mind in order to see his ailing father and because of the anxiety caused by the intimation of this news. According to the petitioner: 'I never knew what that document was as I am an uneducated man and do not know English or Urdu', and further 'the said passport was not obtained with the intention of becoming | a citizen of Pakistan. I had no intention or desire at any time during my stay in this country to leave the same and/or to acquire Pakistani citizenship......... My only intention was to visit Pakistan for the purpose of seeing my ailing father'. In his representation the petitioner thereafter goes on to say that subsequent to his obtaining the passport he received intimation that his father who was ailing had expired, and the petitioner! therefore did not go to Pakistan and did' not utilise the passport for travel. The; original passport obtained by the petitioner had been exhibited in the trial Court. We had called for the same and it bears out that it has not been utilised by the petitioner for any purpose. It may be pointed out that the passport was obtained on 25th May 1953. Subsequently in his representation the petitioner draws attention the fact that he got married on 26th June 1954, the petitioner's wife hails from Poona. It is pertinent to note that no subsequent endorsement has been obtained in or made on the said passport for including the petitioner's wife or children. The passport shows that it is issued at New Delhi; it has a life for five years, which would mean that it expired on 24th May 1958; and according to the passport, it is valid for India only. In his representation the petitioner refers to the fact of his marriage, of his having seven children of whom five appear to be receiving education in Poona and Bombay respectively. In his representation the petitioner has emphasised the fact that he has married an Indian citizen, that he has no relations in Pakistan, that all his child-. ren have been born, brought up and I educated in India and that since his arrival in Bombay in 1944 and since the partition of the country he has not left India or visited Pakistan. A comment was made -- and with some justification - that the representation lacks proper particulars, although it would not be possible to call it vague. It is true that the name of the maternal-uncle has not been furnished. It is equally true that although the show cause notice required the petitioner to submit for transmission to the Central Government other material, he did not submit any documents or copies of documents for consideration of the determining authority, in particular the letter which he purported to receive in 1953. Again paragraph 3 of the representation does not specifically say that it was the maternal-uncle who advised the petitioner to obtain a Pakistani passportor that such advice was given on the footing that an Indian passport would not be given or would not be easily given or would not be available in the short time which was available to the petitioner if he were to see his ailing father. It was also submitted that the contentions which had been urged by the petitioner that he obtained the passport under misapprehension and/or on wrong advice without knowing the nature and its implications, were not relevant to the question to be decided viz. whether the petitioner had lost his Indian citizenship by reason of the provisions contained in Section 9 of the Citizenship Act read with Rule 30 and Scb. III. In connection with this branch of the argument our attention was drawn to observations in Mohomed Usman v. State of Madras, : AIR1961Mad129 . One of the pleas considered in the said decision of the Madras High Court was that of one of the petitioners appearing who claimed that he had not received any education and who had acted on information given to him by the police and who contended that he did not have the intention of renouncing Indian citizenship; and this plea appears to have been rejected by the Madras High Court. This rejection, however, appears to be based on the view the Division Bench took of the true meaning of the expression 'voluntarily' in Section 9(1) of the Act. According to the Division Bench of the Madras High Court, this expression has been used 'as contra-distinguished from a foreign nationality resulting from the operation of compulsive laws of the foreign State and not dependent on the explicit consent of the individual concerned and termed in Public International Law 'compulsory', 'involuntary' or 'collective' naturalisation'. It appears to us that this along with many of the observations in the above decision with reference to the actual specific pleas of the various petitioners before it would have either to be considered no longer a good law or will require consideration in view of the decision of the Supreme Court in Md. Ayub Khan's case : 2SCR884 above referred to.
24. It has become necessary to consider in the light of the decisions as to what are the permissible pleas available to a party who has received a notice of the nature received by the petitioner before us. It is clear that the obtaining of a passport is not to be equated with the mere receipt thereof. It is equally clear that when the Supreme Court refers to cases where, according to the Court, it would be difficult to accept that the passport could be said to have been 'obtained' (see para 10 of the report in Md. Ayub Khan's case) : 2SCR884 , it was not giving an exhaustive list of the various types of circumstances in which a person can get out of the consequences of obtaining the passport. Nor was the Court holding that the plea of force, compulsion, fraud or misrepresentation would in addition require an averment that the person had no intention of renouncing his Indian citizenship. Indeed, it would appear that if a passport 'has been obtained by force or! fraud or misrepresentation, then the per-son raising such plea and justifying it would be required to be exonerated without there being any further plea or without consideration of his intention of renouncing his Indian citizenship; and it would appear that the question of in-j tention of renouncement of his Indian citizenship is a factor, or an aspect which, according to the Supreme Court. is to be required to be considered apart from the case of fraud or force or misrepresentation resulting in the receipt or acquiring of the passport. This would also appear to be sustained by the observations in para 11 of report of the Supreme Court decision, earlier set out where the view of the High Court holding that the intention or understanding was irrelevant was characterised as erroneous. In other words, if a passport has been taken as a result of force or fraud or misrepresentation, it is not 'obtained' within the meaning of Para 3 of Schedule III. Similarly if a person applies for and receives a passport without any intention of renouncing his Indian citizenship or without understanding the nature of what he was doing, it would be an aspect, a factor to be considered by the determining authority. This is in our opinion, implicit in the observation of the Supreme Court to be found in paras 10 and 11 of Md. Ayub Khan's case, and this aspect of the matter has been made explicit in the subsequent decision of the Jammu and Kashmir High Court in Section Mohsin Shah's case AIR 1974 J & K 48. It is clear to us that the Full Bench of the Jammu and Kashmir High Court considered the Supreme Court as having laid down the requirement that a person is within the mischief of Para 3 of Schedule III only if he had secured a passport wilfully and consciously, knowing full well the consequences of the same. It is also not possible to accept the submission that the Jammu and Kashmir High Court has travelled beyond the law as laid down by the Supreme Court and that this Court considering Section 9 of the Act and Rule 30 and Schedule III for itself and bearing in mind the decisions of the Supreme Court earlier referred to should hold that the intention of the person who applied for a passport and received it or his lack of understanding or the absence of any intention on his part to acquire foreign citizenship or to renounce Indian citizenship were considerations extraneous to and irrelevant for the decision to be given by the Central Government and in that view of the matter hold that the representation submitted by the petitioner did not require or warrant further inquiry. In other words, we were invited to restrict the available pleas to a case of coercion, compulsion, undue influence, fraud or fear. This submission is required to be repelled and it would appear that there are two reasons for doing so. In the first place, this is an all India statute with the rules also having an all India application and when interpreted by one High Court, that interpretation should ordinarily be followed. In Ambika Silk Mills Co. Ltd. v. Commr. of Income-tax, Bombay City. : AIR1952Bom483 , it has been observed by Chagla C. J. that 'this High Court has consistently laid down that as far as possible in construing a statute which is an All-India statute there should be uniformity amongst the different High Courts'. In a later decision viz. in Maneklal Chunilal & Sons Ltd. v. Commr. of Income-tax (Central), Bombay : 24ITR375(Bom) , it was found that the Special Bench of the Madras High Court had considered the point being considered by the Bombay High Court and taken the view in favour of the Commissioner and contrary to the view suggested on behalf of the assessee. It was observed that in conformity with the uniform policy of this High Court as laid down in Income-tax matters, the Madras view was required to be followed 'whatever our own view may be'. Apart from this principle of uniformity, it would appear to us that what is being urged by counsel for the petitioner would seem to follow from a harmonious reading of the provisions of Section 9 of the Act and Rule 30 and Schedule III of the Rules, and it would be impermissible to consider the plea merely with reference to paragraphs of Schedule III without keeping in mind the section and the Rule, it appears to us that in Md. Ayub Khan's case : 2SCR884 the Supreme Court has construed and toned down the scope and operation of Schedule III by a harmonious reconciliation of the paragraphs of that Schedule with the provisions contained in Section 9 of the Citizenship Act, 1955. Bearing in mind the observations of the Supreme Court and of the Calcutta and the Jammu & Kashmir High Court in the decision earlier indicated, it will be impossible to hold that the pleas of the petitioner before us made in his representation to the determining authority were irrelevant and were useless for the purpose of arriving at a proper conclusion whether or not the petitioner had lost his citizenship. It was submitted that the pleas pertaining to the state of mind are not to be easily countenanced and that in almost every case in which a person was sought to be visited with the consequence of his act in obtaining a Pakistani passport he would try to wriggle out of the same by reason of such pleas which would be difficult to repel. It is not to be forgotten, however, that although there are serious consequences involved in the determination of the question, the burden of proof for substantiating the pleas has been cast on the party raising the plea. If that aspect is borne in mind, it would be realised that such pleas frivolously and lightly taken need not be easily or automatically accepted. Such pleas will be required to be closely scrutinised in the light of the available material and ultimately it will be for that party to satisfy the determining authority about the truthfulness of such pleas. For this purpose it appears to us that the various circumstances set out in the representation of the petitioner before us and to which we have briefly alluded in the course of this judgment might have considerable relevance. It will be for the determining authority however, to consider each circumstance and to attach to it the importance it deserves.
25. The question then arises that if, in our opinion, the petitioner had raised certain pleas which were required to be considered, can it be said that he was given proper opportunity to substantiate the same? It was submitted that in the show cause notice the petitioner hadbeen called upon to submit within three months all other materials on which he wished to rely upon to prove that he had not voluntarily acquired the citizenship of Pakistan and that he chose not to furnish necessary particulars or further material. Again, it was emphasised that in his representation the petitioner had not sought any further opportunity or sought a personal hearing, and, indeed, it was pointed out that in the penultimate paragraph of his representation the petitioner had called upon the determining authority to give the necessary decision, though he requested that one be given in his favour. We have already indicated earlier that in our opinion that it is not necessary that a personal hearing or a right to adduce oral evidence is required to be given in all cases. It is, however, impossible to say that by the show cause notice the petitioner was put on guard that apart from making a plea he was called upon to adduce all evidence in his possession and furnish the same, possibly by affidavits, to the determining authority. Indeed, the nature of the inquiry would seem to suggest that it is to be held not in one stage but in two; in the first place, a reply or a plea is to be sought for, and the second or the latter stage must consist in requiring the person to substantiate his plea. If no plea is raised or no proper plea is raised, then the latter stage may not arise at all. In an appropriate case it is possible to visualise that the party may be required to furnish along with his reply all evidence, all clarifications and all documents upon which he relies. This, however, would hardly seem to be a proper procedure, and. indeed, in the instant case it has not been adopted. The show cause notice in our opinion does not call upon the petitioner specifically to substantiate his plea by adducing necessary evidence on affidavits, and it will not serve the respondents by saying that the petitioner did not ask for any further opportunity to substantiate his plea. Once a view is formed that the pleas raised by the petitioner required consideration, then in our opinion it became incumbent on the determining authority to afford to the petitioner such further opportunity as would be reasonable and proper in the circumstances of the case. Indeed, in an appropriate case, though it must not be taken that we are meaning the present, if the plea is complicated or requires detailed investigation, it may be incumbent upon the determining authority to offer a personal hearing or even allow legal representation to the person against whom the show cause notice has been issued. As stated earlier, there is no universal rule and the correct and proper procedure would depend upon the facts of each case and in particular upon the pleas submitted by the recipient of the show cause notice.
26. The question does arise and will be required to be considered whether injury has been caused to the petitioner by the denial of the opportunity which was required to be given to him. Normally in such proceedings where the onus is cast heavily on the person raising the plea, it must be presumed that if further opportunity had been given to that .person that opportunity would have been availed of either to substantiate the plea or to convince the determining authority that the plea had a bearing and was required to be considered in order to lessen the harshness of the rules of evidence contained in paragraph 3 of Schedule III. Indeed, in the instant case after a perusal of paragraph 3 of the impugned order it would appear, though it is impossible from the rather terse language employed to conclude definitely, that the determining authority thought that such plea as was sought to be urged in the representation was not material. All that is to be found in paragraph 3 of the impugned order is a reference to the fact that the petitioner was born in 1926 and, therefore, would be about 27 years old in 1953. It is presumed by the determining authority that by reason of this age the petitioner had achieved maturity of age and understanding. On this basis the said order goes on to recite that the petitioner should have (not that he did) taken great care to understand the implications of obtaining a Pakistani passport and therefore his plea cannot be accepted. Now, the discussion seems to proceed upon the footing that such a plea was not available in view of the mature age of the person. It is true that in the last sentence of paragraph 3 of the impugned order there is some discussion as to a very important consideration whether the petitioner had tried to obtain an Indian passport or not. The last sentence, however, makes it clear that it is the opinion of the determining authority that the intention, of the petitioner, the so-called compelling circumstances, the reason for visiting Pakistan, are all totally immaterial provided ft is established that his act in applying for a Pakistani passport was voluntary. In our opinion, this is based on a clear misapprehension of the true legal position and the determining authority would have been apprised of the same had he granted to the petitioner a further opportunity either of making a detailed submission and preferring evidence substantiating the plea or giving him a personal hearing. Indeed, a fair perusal of the impugned order would confirm the view that the denial of opportunity to the petitioner has resulted in prejudice to him viz. that the decision has been given and an order has been made without properly and fairly appreciating the pleas to be found contained in the representation.
27. It has to be made clear, since our decision will involve a remand of the matter, that no observations in our judgment should be taken to mean that there is material on record which would substantiate the plea or from which it must be held that the petitioner has discharged the burden which is cast on him to show that he had not voluntarily obtained the passport. All that can be said is that there are various aspects to be considered, which would be within the jurisdiction of the Central Government which is the deciding authority, and after which it will be for that authority alone to arrive at the necessary conclusion.
28. As stated earlier, pursuant to the decision of the determining authority the learned Judge of the Bombay City Civil Court has passed a final decree on 13th July 1971 dismissing the plaintiff's suit with costs. This was on the footing that although the Court had found him to be a citizen of India at the commencement of the Constitution, the Central Government had given its decision that his citizenship had been terminated by the act of obtaining a Pakistani passport on 25th May 1953 and therefore he was not entitled to the declaration sought for. It is obvious that if the impugned order dated 31st December 1970 is required to be quashed and the matter remanded back for a proper inquiry and reconsideration in the light of the observations in this judgment, the further order in Suit No. 98 of 1967 and the decree passed therein cannot stand and will be required to be corrected. We are, however, informed that First Appeal No. 739 of 171 has been filed against the said in this Court and it would appeal to us that since that appeal has been filed, the order in this petition ought to be restricted to the order of the Central Government passed on 31st December 1970. If that order is quashed, the foundation of the ultimate decision given in Suit No. 98 of 1967 by the decree of dismissal dated 13th July 1971 will vanish and that decree will be required to be varied. That variation, however, will be required to be done in First Appeal No. 729 of 1971.
29. In the result, the Rule is made absolute as far as the impugned order dated 31st December 1970 is concerned. The let respondents are directed to give a fresh decision in accordance with the observations made in this judgment. Mr. Noorani desires us to give an order restraining the respondents from deporting the petitioner out of India. Mr. Manjrekar states and submits that there is no question of deportation till the necessary decision is given and that in fact despite such decision the petitioner has been permitted to stay in India subject to his good behaviour. In view of this statement it is unnecessary to make the order sought for by Mr. Noorani, We, however, direct that First Appeal No. 729 of 1971 be placed on our board on Monday, the 19th instant, for necessary orders.
30. Mr. Noorani does not press for costs.
31. The parties are directed to bear their own costs of this Special Civil Application,
32. Rule made absolute