R.S. Narula, J.
1. The circumstances in which the impugned order dated 25th February, 1965 (annexure A to the writ petition) was passed by the Central Government under Section 9(2) of the Citizenship Act, 1955 (hereinafter called the Act) read with Rule 30 of the Citizenship Rules, 1956, hereinafter referred to as the Central Rules, may first be set out.
2. Notice dated 11th Agrahanya 1885 (corresponding to 2nd November, 1963 A. D.) under Section 9(2) of the Act was served by the Central Government on Mohammad Ibrahim petitioner informing him that the question as to whether and if so how the petitioner had acquired the citizenship of Pakistan had arisen and that the Central Government proposed to determine the said question and calling upon the petitioner to submit to the Government of Rajasthan for onward transmission to and consideration of the Central Government within one month of the service of the notice on the petitioner any representation which the petitioner might wish to make in the matter and to submit any other material which the petitioner might wish to rely upon in support of his contention that he had not voluntarily acquired the citizenship of Pakistan.
A detailed representation dated January 18, 1964 covering 12 typed foolscap pages was submitted by the petitioner in reply to the aforesaid show-cause notice. In the said reply the petitioner alleged, inter alia, that he and his family members did not obtain a passport from Pakistan with the desire to obtain Pakistan citizenship but only under forced circumstances detailed in his said reply with the object of getting out of Pakistan and coming back to India which was the petitioner's birth place. In those circumstances, it was alleged in the said reply, the petitioner could not be said to have 'voluntarily acquired the citizenship of Pakistan'.
According to the petitioner he was forced to take the passport as there was no other wayout for him to get back to this country. He specifically averred in his written reply why in those circumstances no presumption about the petitioner having voluntarily acquired the citizenship of Pakistan after the 26th January, 1950 could be raised. The detailed facts on the basis of which it was alleged that the petitioner had been forced to receive the Pakistan passport were set out in the written reply. Towards the close of the written statement submitted by the petitioner he prayed for a chance of hearing being given to him and for being permitted to be represented by his learned Advocate, Shri M.M. Tewari, Bar at Law of Jaipur.
A specific prayer for holding a proper enquiry in accordance with the Citizenship Rules after hearing the arguments and allowing the petitioner a reasonable opportunity to produce his evidence both oral and documentary was made in unequivocal terms. On January 25, 1964 the Central Government addressed a communication to the Rajasthan Government desiring the Slate Government to inform the petitioner in connection with his request for an opportunity to be heard in person and to produce further evidence in his defence that it was not possible to grant his request but that he may submit within a fortnight additional material which he might desire to submit in the form of affidavits.
On the receipt of the abovesaid instructions from the Central Government the Rajas-than authorities wrote to the petitioner letter dated February 20, 1964 which is quoted below verbatim :---
'I am directed to invite your attention to your application under reference and to say that your request to be heard in person and to produce further evidence in your defence cannot be acceded to. You are, therefore, advised to submit within a fortnight additional material if you so desire in the form of affidavits.'
3. With letter dated 11-3-1964 the petitioner forwarded an additional affidavit dated 9-3-1964 to the Rajasthan Government for onward transmission to the Central Government. In the said covering letter dated 11-3-1964 the petitioner stated that he would be submitting: further documents and affidavits later but that the personal hearing asked for by the petitioner should be afforded to him either by the Government of Rajasthan or by the Government of India in accordance with the rules. It is, however, not disputed that the petitioner did not follow up the above said communication by any further affidavit, or material.
Ultimately the impugned order dated February 25, 1965 (Annexure A) was passed by the Central Government which reads as follows :---
'Whereas it has come to the notice of the Central Government that Shri Mohd. Ibra-him son of late Shri Elahi Bux, by caste Musalman, resident of Lachhmangarh Distt. Sikar (Rajasthan) has claimed Indian citizenship notwithstanding his having obtained a Pakistan passport and a short term visa for entry into India from Pakistan, and whereas a question has arisen as to whether the said Shri Mohd. Ibrahim has acquired the citizenship of Pakistan. Now, therefore, the Central Government acting under Section 9(2) of the Citizenship Act, 1955, and Rule 30 of the Citizenship Rules. 1956, and giving due regard to the principles of evidence contained in Schedule III to the aforesaid Rules, and after considering the cause shown by the said Shri Mohd. Ibrahim against the proposed action under the said Section and rule, hereby determines that the said Shri Mohd. Ibrahim has voluntarily acquired the citizenship of Pakistan after 26th January, and before 10-12-1953.'
4. On May 10, 1965 the present writ petition was filed by the petitioner as well as by his wife and three daughters impugning the above-said order of the Central Government. The writ petition was admitted by the Motion Bench (A.N. Grover and S.K. Kapur, JJ.) on the next day and deportation of the petitioner was stayed ad interim. The stay order was confirmed by Kapur, J. on 3rd March, 1966. During the pendency of the case the wife and daughters of the petitioner withdrew from the petition and got their names scored off from the array of petitioners. Mr. Tewari, the learned counsel for the petitioner submits that this step was taken as the Central Government had not passed any order under Section 9(2) of the Act against the wife and daughters of the petitioner and it was, therefore, wholly unnecessary for them to move this Court. Be that as it may, this has left Mohammad Ibrahim petitioner alone in the field so far as the instant case is concerned.
5. Section 9(2) of the Act reads as follows:--
'If any question arises as to whether, when or how any person has acquired the citizenship of another country, it 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. In exercise of the powers conferred by Section 18 of the Act the Central Government has framed the Citizenship Rules. 1956. Rule 30 of the Central Rules is in the following terms:----
'30. Authority to determine acquisition of citizenship of another country. (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. Rules of evidence, which have been specified in Schedule III to the Central Rules run as below:--
(See Rule 30 (2))
1. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country ft may require him to prove within such period as may be 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.
2. For the purpose of determining any question relating to the acquistion by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.
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 file citizenship of the country before that date.
4. In determining whether a citizen of India has or has not voluntarily acquired tike citizenship of any other country, the Central Government may take the following circumstances into consideration, namely:
(a) Whether the person has migrated to that country with the intention of making it his permanent home;
(b) Whether he has in fact taken up permanent residence in that country; and
(c) any ether circumstances relevant to the purpose.
5. Notwithstanding anything contained in paragraph 4, a citizen of India shall be deemed to have voluntarily acquired the citizenship of Pakistan:--
(a) if he has migrated to Pakistan with the intention of making it his permanent home or
(b) if he has obtained any certificate of domicile in Pakistan or declared himself to be a citizen of Pakistan or of Pakistan domicile; or
(e) if he has applied for and obtained a right, title or interest in evacuee property in Pakistan; or
(d) if he has obtained a temporary permit for entry into India from Pakistan.
Explanation:-- For the purpose of Clause (a) of this paragraph, a person shall not be deemed to have migrated to Pakistan with a view to making that country his permanent home--
(i) if he has left for a place in West Pakistan with a 'no objection certificate' and has returned to India under such permit for permanent return or settlement as may have been issued by or under the authority of any law in force in India or of the Government of India; or
(ii) if having left India at any time between the 1st February, 1950 and the 15th October, 1952, for a place in West Pakistan, he has returned to India with a repatriation certificate issued by or under the authority of any law in force in India or of the Government of India.'
8. The relevant law relating to the matters in dispute has since been settled by their Lordships of the Supreme Court in Md. Ayub Khan's case, AIR 1965 SC 1623. The law laid down by the Supreme Court in the above men-Honed case and in some earlier cases may be summarised as below: --
1. That the Parliament was competent to enact Section 9 of the Act and that Rule 3 of Schedule III to the Central Rules framed under the Act is valid. (This was so held in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052 and the said judgment was followed in the Government of Andhra Pradesh v. Mohd. Khan, AIR 1962 SC 1778.
2. Obtaining of a passport of a foreign country cannot in all cases merely mean receiving of the passport. Indian citizenship is determined by voluntary acquisition of citizenship of any other country and though a conclusive presumption of voluntary acquisition of such citizenship has to be raised from the obtaining of a passport from the Government of any other country it would be implicit in that requirement that the obtaining of the passport in question was the result of the exercise of free volition by the citizen. (So held in Mohd. Ayub Khan's case).
3. The question as to whether when and how foreign citizenship has been acquired has to be determined by the appropriate authority having regard to the prescribed rules of evidence and termination of Indian citizenship being the consequence of only voluntary acquisition of foreign citizenship the authority is bound to determine that the foreign citizenship has been voluntarily acquired by the person.
4. The determination of the question referred to in the preceding paragraph postulates a quasi-judicial enquiry into the matter. In such an enquiry the citizen concerned must be given due notice of the nature of the action proposed to be taken against him which in the view of the authorities involves termination of Indian citizenship. Reasonable opportunity must be afforded to the citizen concerned to convince the Central Government that what is alleged against him is not true. The scope and extent of the enquiry on pleas raised by the citizen concerned would always depend upon the circumstances of a given case. Action can however, be taken only if and after the Government arrives at a decision that the Indian citizen has voluntarily acquired the foreign citizenship.
5. It would not be the function of the Courts to determine the question whether the plea raised by a particular citizen is in fact true or not. It would always be for the authority vested with powers under Section 9(2) of the Act to determine that question if it is raised before it.
9. Mohd. Ayub Khan succeeded in the Supreme Court because it was not disputed in that case that in the inquiry contemplated by Rule 30 of the Central Rules no opportunity at all had been afforded to Mohd. Ayub Khan to prove his case, that he had not obtained the passport voluntarily from the High Commissioner for Pakistan though it was not disputed that he had actually received such a passport and had come to this country on the asis thereof.
10. The sole ground pressed by the learned counsel for the petitioner in the case is drat opportunity to produce evidence and opportunity for a personal hearing specifically prayed for by him has been declined to him by the Central Government and that this is contrary to the law settled by the Supreme Court in Mohd. Ayub Khan's case. Mr. Prakash Narain, the learned Central Government counsel has argued that the petitioner obtained the passport on December 12, 1953 and utilised it for coming to this country in August, 1954 and did not avail of the opportunity afforded to him to submit any further material that he desired, in the form of affidavits or otherwise and that, therefore, on the facts and in the circumstances of the case requirements of law have been fully satisfied and the petitioner is not entitled to any relief.
11. It is neither possible nor proper to lay down any hard and fast rules about the nature of the opportunity which should be afforded to a concerned citizen in proceedings under Section 9(2) of the Act. Each case will depend on its own facts. Nor am I inclined to hold that the opportunity required to be given to a citizen in such proceedings must of necessity include an oral hearing before the Central Government. But the requirements of law would not be satisfied in a ease where a citizen's request to lead evidence in support of his plea about the passport not having been acquired by him voluntarily or for the matter of that to the effect that be has not acquired the citizenship of a foreign country voluntarily, is not acceded to.
It may even be possible to envisage a case where the Central Government may in the first instance require evidence sought to be given by a citizen on affidavits instead of being given orally. Even in a civil Court discretion is vested by Order 19, Rule 1 of the Code to allow evidence being led on affidavits. No rule in Schedule III to the Central Rules appears to entitle a citizen to insist upon giving oral evidence when directed by the Central Government to give the same on affidavits. Evidence on affidavits is as good as oral evidence and it is only a person who disputes the correctness of a deposition contained in an affidavit, who has a right claim in appropriate cases that the witness in question may be called up for being cross-examined to test his veracity.
But in the instant case complication has been created by the letter dated February 20, 1964 wherein not only the claim of the petitioner for a personal hearing has been denied to him but it has been specifically stated that the petitioner's request 'to produce further evidence' in his defence could not be acceded to. This appears to be a clear denial of the petitioner's right to adduce such evidence in support of his defence as he might have liked to produce before the Central Government. IN these circumstances there has been a violation of the Central Rides in this case and the impugned order has been passed without conforming to the letter and spirit of those rules.
12. This writ petition is, therefore, allowed, the impugned order of the Central Government dated 25th February, 1965 is set aside and the Government is prohibited from enforcing the said order until the Central Government redetermines the status of the petitioner according to law as referred to above. There would however, be no order as to costs.