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K.L. Modi Vs. Union of India Through Secy, Ministry of Home Affairs, Govt. of India, New Delhi - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petn. No. 1569 of 1967
Judge
Reported inAIR1970Delhi76
ActsCitizenship Act, 1955 - Sections 9(1) and 9(2); Citizenship Rules - Rules 3, 21 and 30; Constitution of India - Article 226; Indian Law
AppellantK.L. Modi
RespondentUnion of India Through Secy, Ministry of Home Affairs, Govt. of India, New Delhi
Appellant AdvocateH.L. Anand; and Ashok Grover, Advs
Respondent Advocate S.S. Chandra, Adv.
Cases ReferredIzhar Ahmad Khan v. Union of India
Excerpt:
a) it was held that it was on the part of the central government to decide the question of citizenship as provided by section 9 (2) of the citizenship act with rule 30 of the citizenship rules, after considering the rules of evidence b) the case dealt with the dual citizenship - it was ruled that dual citizenship was not recognized in indian law with the exception of section 9 (1) of the citizenship act, 1955 c) it was ruled that provisions under section 9(2) of the citizenship act, 1955 and rule 3 of schedule iii of the citizenship rules are valid - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k...........the question of his citizenship nor did the central government itself under take to do so. this attitude on the part of both the parties seems to us to be difficult to appreciate. apparently, they were both labouring under some misapprehension about the legal position. the same having now been clarified, it is hoped that the disputed question of the termination or continuation of the petitioner's india citizenship would soon be determined as required by section 9 of the indian citizenship act and the petitioner's advocates would place before the central government all material on which reliance is placed in support of his claim to indian citizenship. we are unable to give any further direction at this stage in the present proceedings. this petition is thus disposed of in the terms just.....
Judgment:
ORDER

1. One Shri K. L. Modi s/o Shri court under Art. 226 of the Constitution of India praying for a writ of mandamus and/or a prohibition restraining the Union of India from interfering with the petitioner's fundamental right to enter into India and to continue to stay in this country. In the alternative, it has been prayed that a writ of mandamus be granted directing the Union of India to determine the question as to whether the petitioner could be said to have ceased to be a citizen of India or could be treated a foreigner and also to treat him as a citizen until such determination is made in accordance with law.

2. According to the averments in the writ petition, the petitioner claims to be a citizen of India by virtue of the fact that he was born in 1911 in Palanpur (now in the State of Gujarat). At the time of the commencement of the Constitution of India, the petitioner's domicile was thus within the territories of India. His ordinary place of business and residence is also claimed to be in Bombay within the State of Maharashtra where he has his home at 69, Kamal Building, Block No. 15, Walkeshwar Road, Bombay -6.

In 1953, so proceed his averments, the petitioner went to Singapore in search of business enterprise on the basis of a passport granted to him as an Indian citizen by the Union of India (Passport No. A 005758 issued on 28-1-1949 at Bombay). He carried on extensive business in Singapore between 1953 and 1958 and stayed there most of the time on account of exigencies of business, but he continued to possess the Indian domicile where his wife and dependent children as also some other members of his family continued to reside. The petitioner used to come to India every now and then. The passport issued to the petitioner by the Union of India expired on 28-1-1954 and a fresh passport valid till 1959 was issued to him by the Indian Authorities in Singapore. In 1959, the political situation in Singapore was such that the petitioner had either to leave Singapore leaving his entire property and interest there unattended and return to India or to acquire Singapore citizenship. Compelled by these adverse circumstances, according to the petitioner's averment, he involuntarily acquired the citizenship of Singapore but he never relinquished Indian citizenship, nor had he the intention to do so. Throughout his stay in Singapore, he had animus revertendi in relation to India which continued to be his home. His wife did not acquire Singapore citizenship because there was no such compulsion felt by her. In 1959, the petitioner wanted to come back to India to stay here for some time with his family members, but he was told that, by virtue of his Singapore citizenship, he could not leave Singapore without obtaining a Singapore passport, with the result that he was compelled to obtain a Singapore passport.

At the present moment, according to the petitioner's averment, he holds a Malaysian passport valid up to 1969. This passport is also stated to have been obtained by the petitioner under compulsion and stress of circumstances without any intention to relinquish his Indian citizenship. Between October, 1959 and February, 1967, he claims to have made 15 trips to India where he stayed with his family for different periods. Lastly he came here on 4-3-1967, but was detained by the Indian Immigration Authorities in Bombay on 6-3-1967 and was thereafter deported to Singapore. According to the petitioner, he was deported without assigning any reason, but presumes that it was done because he was treated as a foreigner. Since then many enquiries have been made by the petitioner's Solicitors from the Government of Maharashtra and also from the Government of India, but without any satisfactory result. It is on these averments that the reliefs, as mentioned above, are claimed in these proceedings.

3. In the affidavit in reply sworn by a Deputy Secretary in the Ministry of Home Affairs, a preliminary objection has been taken to the competence of this writ petition on the ground that disputed questions of fact have been raised which cannot be decided by this Court and it is added that it is neither feasible nor possible for this Court, to decide them. The Central Government, it is said, is in possession of definite information that the petitioner is a citizen of Singapore and this fact has also been ascertained by the Central Government from its diplomatic office in Malaysia and Singapore. The petitioner obtained certificate No. 44190 dated 23-1-1958 from the Government of Singapore after getting himself registered as a citizen of that country, and on such acquisition, the petitioner ceased to be a citizen of India by virtue of Section 9(1) of the Citizenship Act of 1955. He is on this premise described to be a foreigner and his allegation to the contrary is controverter. The assertion by the petitioner that the acquisition of Singapore citizenship by him was involuntary, has also been denied.

The fact that even now the petitioner hold Malaysian passport valid up to 1969, is also relied upon in support of the plea that the petitioner has relinquished Indian citizenship and it is urged that Indian citizenship automatically terminated under Section 9(1) of the Citizenship Act the moment the petitioner acquired Singapore citizenship by registration. The petitioner's intention in regard to the acquisition of Indian citizenship and also the fact that the petitioner visited India on several occasions, have been described to visit India on the strength of a valid passport. The petitioner being a foreigner according to the reply, the fundamental rights guaranteed to citizens under Art. 19 of the Constitution are stated not to be available to him.

4. The petitioner's learned counsel has in his elaborated arguments drawn our attention to certain Articles of the Constitution and has placed principal reliance on a recent decision of the Supreme Court in Mohd. Ayub Khan v. Commissioner of Police, Madras : [1965]2SCR884 . The following passage from this decision has been specifically relied upon:-

'(10) Paragraph 1 of Sch. 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 had 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 visualized in which 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 the meaning of Paragraph 3 of Sch. 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. Balakrishna 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 that question if it is raised. The High Court in appeal was of the view that S. 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 Sch. Iii of the Citizenship Rules and 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 result of the exercise of free volition by the citizen. This 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.'

The learned counsel has taken us through Sections 8, 9, 10 and 18 of the Citizenship Act 57 of 1955 and has also submitted that under Rule 30 of the Citizenship Rules, if any question arises as to whether, when or how any person has acquired the citizenship of another country, then it is for the Central Government alone to decide this question. Shri Anand has also referred us to the decision of the Supreme Court in Government of Andhra Pradesh v. Syed Mohd. Khan : AIR1962SC1778 , in which Gajendragadkar, J., (as he then was), speaking for the Bench, observed as follows:-

'It has been urged before us by Mr. Tatachari for the appellant that the effect of our decision in the case of Izhar Ahmad Khan : AIR1962SC1052 , is that as soon as it is shown that a person has acquired a passport from a foreign Government, his citizenship of India automatically comes to an end, and he contends that in such a case, it is not necessary that the Central Government should hold any enquiry and make a finding against the person before the appellant can issue an order of deportation against him. In our opinion, this contention is clearly misconceived. In dealing with the question about the validity of the impugned section and the Rule, this Court has, no doubt, stated that 'the proof of the fact that a passport from a certain date conclusively determines the other fact that before that date he has voluntarily acquired the citizenship of that country.' But in appreciating the effect of this observation, it must be borne in mind that in all the cases with which this Court was then dealing, the question about the citizenship of the petitioners had been expressly referred to the Central Government and the Central Government had made its findings on that question. It was after the Central Government had recorded a finding against the petitioners that they had acquired the citizenship of Pakistan that the said writ petitions came before this Court for final disposal and it is in the light of these facts that this Court proceeded to consider the contention about the validity of the impugned section and the impugned rule. It is plain, thereforee, that the observations on which Mr. Tatachari relied were not intended to mean 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 enquiry by the Central Government. Indeed, it is clear that in the course of the judgment, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner.'

Shri Anand has also referred to Section 8 of the Citizenship Act and R. 21 of the Citizenship Rules dealing with the declaration of renunciation of citizenship and has submitted that the statutory scheme of the Act and the Rules contemplates dual citizenship.

5. On behalf of the respondents, Shri S.S. Chadha has relied on the decision of the Supreme Court in Izhar Ahmad Khan v. Union of India : AIR1962SC1052 . Before the Supreme Court in this case, the constitutional validity of Section 9(2) of the Citizenship Act and of Rule 3 Sch. Iii of the Citizenship Rules was challenged, but without success. After reproducing Section 9 of the Citizenship Act, it was thus observed by Gajendragadkar, J., (as he then was) while expressing the majority opinion:-

'There is no ambiguity about the effect of this section. It is clear that the voluntary acquisition by an Indian citizen of the citizenship of another country terminates his citizenship of India, provided the said voluntary acquisition has taken place between the 26th January, 1950 and the commencement of the Act, or takes place thereafter. It would thus be seen that whereas Art. 9 of the Constitution dealt with the acquisition of citizenship of a foreign State which had taken place prior to the commencement of the Constitution Section 9 of the Act deals with acquisition of foreign citizenship subsequent to the commencement of the Constitution. There is, thereforee, no doubt that the Constitution does not favor plural or dual citizenship and just as in regard to the period prior to the Constitution, Art. 9 prevents a person who had voluntarily acquired the citizenship of foreign country from claiming the status of an Indian citizen, so does Section 9(1) make a similar provision in regard to the period subsequent to the commencement of the Constitution. Section 9 provides that the acquisition of foreign citizenship can be the result either of naturalisation or registration or any other method of voluntarily acquiring such citizenship. Just as the citizenship of India can be acquired by naturalisation, or registration, so can the citizenship of a foreign country be similarly acquired by naturalisation or registration. If it is shown that the person has acquired foreign citizenship either by naturalisation or registration there can be no doubt that he ceases to be a citizen of India in consequence of such naturalisation or registration. These two classes of acquisition of foreign citizenship present no difficulty. It is only in regard to the last category of cases where foreign citizenship is acquired otherwise than by naturalisation or registration that difficulty may arise. But the position in respect of the last category of cases is also not in doubt and that is that if it is shown that by some other procedure foreign citizenship has been voluntarily acquired, Indian citizenship immediately comes to an end.'

According to Shri Chadha, where citizenship of a foreign country has been acquired by registration, the observation of the Supreme Court in the case of Mohd. Ayub Khan : [1965]2SCR884 are inapplicable. Our attention has been invited to the return dated 1-3-1968 in which it has been solemnly affirmed by Shri T.K. Ramakirshnan, Deputy Secretary, Ministry of Home Affairs, that the petitioner had got himself registered as a Singapore citizen on 23-1-1958 and had obtained registration certificate No. 44190 of that date (paragraph 10 of the return).

6. After considering the arguments advanced before us in the light of the decisions of the Supreme Court cited at the Bar, in our opinion, it is for the Central Government to decide the question as to whether. When and how the petitioner acquired the citizenship of Singapore. The petitioner claims in paragraph 1 of the writ petition that he was born in Palanpur (now in the State of Gujarat) within the territories of India in 1911 and this assertion has not been admitted in the return for want of knowledge. In the return, what has been specifically denied is that the petitioner has his ordinary place of business and residence in Bombay. In such a case, the Central Government has a duty to decide the question of citizenship as provided by Section 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules, sub-rule (2) of which shall, in determining the question raised have due regard to the rules of evidence specified in Schedule Iii of the said rules. The question of the petitioner's citizenship has, thereforee, to be first determined by the Central Government under the Citizenship Act and the rules framed there under..

This Court is not inclined, and indeed is not competent, in these proceedings on the existing pleadings to make any order direction the respondents to permit the petitioner to enter and stay in the territories of India. It is not for this Court to adjudicate on the question of the petitioner's citizenship in writ proceeding on the material on this record. The question of voluntary or involuntary acquisition of citizenship of some other country is also not for this Court is not in a position, as a matter of law , on the existing material to hold that the petitioner is an Indian citizen. The question whether the petitioner has lost his citizenship of India and acquired citizenship of some other country is to be decided any the Central Government and not by this Court in the person proceedings. We are, in the circumstances, inclined to direct the respondents to consider and adjudicate upon the question of the petitioner's citizenship under S. 9 of the Citizenship Act.

7. The petitioner's argument that the Citizenship Act and the Rules framed there under contemplate dual citizenship has not impressed us and we are unable to accept this submission. Dual citizenship does not seem to us to be possible under our law except to the limited extent as contemplated by the proviso to Section 9(1) of the Citizenship Act.

8. Before concluding, we may print out that on behalf of the petitioner, his Solicitors and Advocates have had correspondence both with the Bombay Government and the Ministry of the Government of India in connection with the question of the citizenship. On 21-8-1967. A letter was addressed on behalf of the petitioner by Anand Dasgupta & Sagar. Solictors and Advocates, to the Secretary to the Government of India, Ministry of Home Affairs, pointing out that the question of the termination of the petitioner's citizenship had never been determined under Section 9(2) of the Citizenship Act, with the result that the petitioner must be held never to have been deprived of his Indian citizenship. The Government was called upon to accept the petitioner as an Indian citizen and not to interfere with his right to enter the territories of India and to stay there. Unfortunately, the quired by this letter to decide the question as contemplated by Section 9. From the record it does not appear that any reply was sent thereto..

It seems that neither the petitioner formally required the Central Government to decide the question of his citizenship nor did the Central Government itself under take to do so. This attitude on the part of both the parties seems to us to be difficult to appreciate. Apparently, they were both labouring under some misapprehension about the legal position. The same having now been clarified, it is hoped that the disputed question of the termination or continuation of the petitioner's India citizenship would soon be determined as required by Section 9 of the Indian Citizenship Act and the petitioner's Advocates would place before the Central Government all material on which reliance is placed in support of his claim to Indian citizenship. We are unable to give any further direction at this stage in the present proceedings. This petition is thus disposed of in the terms just stated. In the peculiar circumstances of the case, there will be no order as to costs.

9. Order accordingly.


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