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Bhaktiarkhan Khwaja Nausadkhan Vs. the Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberA.F.A.D. No. 597 of 1960
Judge
Reported inAIR1961Guj109; (1961)GLR57
ActsConstitution of India - Article 6; Citizenship Act, 1955 - Sections 9 and 9(2)
AppellantBhaktiarkhan Khwaja Nausadkhan
RespondentThe Union of India (Uoi) and anr.
Appellant Advocate Rajni Patel, Adv.
Respondent Advocate J.R. Nanavaty, Assistant Government Pleader
DispositionAppeal allowed
Cases ReferredState v. Ibrahim Nabiji
Excerpt:
constitution - termination of citizenship - section 9 of citizenship act, 1955 and article 6 of constitution of india - citizen went to pakistan on order of deportation and not voluntarily - challenged order of deportation - applied for passport in pakistan to return to india - came to india - no evidence for renouncement of citizenship - held, citizenship of india not renounced. - - one fact which seemed to have weighed considerably with the learned district judge was that although the appellant had established that he had come over to this country in 1932 and had resided here until his deportation, he had failed to prove that he bad acquired domicile in this country; in other words, that he had failed to establish that when he came to reside in this city, be had the intention to.....shelat, j.1. this appeal arises from a suit in which the appellant sued for a declaration that he was a citizen of india; that the order of deportation passed against him on 10-8-1953 was illegal and inoperative; that the passport taken out by him from the pakistani authorities was void and had no effect against him that his registration as a foreigner was null and void and for an injunction rer training the respondents-defendants from taking any steps against him under the passport act. 2. the appellant was born in the village xalakali in swat state. in 1932 he came to india from his native village and settled down in this city. from 1932 to 1945 he worked in several textile mills and from 1946 until he was deported, he worked continuously in lal mills as a weaver. during this period he.....
Judgment:

Shelat, J.

1. This appeal arises from a suit in which the appellant sued for a declaration that he was a citizen of India; that the order of deportation passed against him on 10-8-1953 was illegal and inoperative; that the passport taken out by him from the Pakistani authorities was void and had no effect against him that his registration as a foreigner was null and void and for an injunction rer training the respondents-defendants from taking any steps against him under the Passport Act.

2. The appellant was born in the village Xalakali in Swat State. In 1932 he Came to India from his native village and settled down in this City. From 1932 to 1945 he worked in several textile Mills and from 1946 until he was deported, he worked continuously in Lal Mills as a weaver. During this period he also worked as a member of the managing committee of a Trade Union of Textile Workers. On 2-2-1949 he got himself registered as a foreigner under the Registration of Foreigner's Act, 1939. On 24-1-1950, he returned his registration, certificate to the Police as a protest along with several other Pathans who were working in the textile Mills in this city. On 10-8-1953, an order of deportation was made against him by the Central Government under the Foreigner's Act, (1946, and on 12-9-1953 he was removed to Pakistan from this city. On 22-9-1953, a criminal application No, 1022 of 1953 was filed in the High Court of Bombay under Art. 226 of the Constitution by one Natok Desai. On 2-2-1954, that application came up for hearing. While that application was being heard, the learned Government Pleader who appeared for the State of Bombay made a statement to the effect that the Government would not enforce the order of deportation against the appellant and would not prohibit him from re-entering the country. Upon that statement, the High Court observed that it would: not be possible for the appellant to return to India from Pakistan unless the diplomatic authorities for India in Pakistan were to render facilities to the appellant to return to India, that being the only method whereby he could come back to India as a citizen of this country. In the meantime the appellant was kept in police custody in Pakistan. After he was released and on reading a newspaper report of the judgment of the High Court in Criminal application No. 1022 of 1953, the appellant went to the office of the High Commissioner for India at Karachi. Notwithstanding repeated requests he was not given the facilities to re-enter India. It was the case of the appellant that finding himself in a position where he could not return to India, he made a false application for a passport to the Pakistani authorities declaring therein that he was a national of Pakistan. He also made an application for a visa to the High Commissioner for India wherein also he described himself as a citizen of Pakistan. Having got a passport and a visa, the appellant relumed to India on the strength of those two documents. On 15-9-1954 he filed a Special Criminal Application No. 1040/1954 in the High Court of Bombay challenging the order dated 10-8-1953. On 20-9-1954 he withdrew that application on the learned advocate representing the Government stating to the High Court that the Government would not take action under the said order. On 4-10-1954 he served the usual notice under Sections 80 of the Code of Civil Procedure and subsequently filed the present suit for the reliefs above stated.

3. The respondents in their written statement raised several contentions. The contentions were that the appellant was not a citizen of India; that he was registered as a foreigner on 2-2-1949; that he had not got his domicile in India; that he had accepted Pakistan nationality and come to India as a Pakistani National, and that he was not entitled to the declaration asked for. One more contention was that the Court had no jurisdiction to entertain the suit. The learned trial Judge held that the Court had jurisdiction; that the plaintiff was a citizen of India that the order of deportation against him was illegal and inoperative; that the Pakistani passport obtained by him was void and inoperative and that he had been registered as a foreigner under the Registration of Foreigner's Act under compulsion. On these findings the learned trial Judge decreed the suit. The respondents then filed an appeal which was heard by the learned District Judge, Ahmedabad. The learned District Judge held that it had not been established that the appellant was a citizen of India nor had he established that his registration under the Registration of Foreigner's Act was under coercion. He agreed, however, with the learned trial Judge that the Court had jurisdiction to try the suit and that the passport obtained by the plaintiff while he was in Pakistan was inoperative against him. One fact which seemed to have weighed considerably with the learned District Judge was that although the appellant had established that he had come over to this country in 1932 and had resided here until his deportation, he had failed to prove that he bad acquired domicile in this country; in other words, that he had failed to establish that when he came to reside in this city, be had the intention to make this country his permanent home. The learned district Judge, therefore, found that without such proof, the appellant could not be said to have become a citizen of this country. Upon that finding he set aside the judgment and decree passed by the trial Court and allowing the appeal dismissed the appellant's suit with costs.

4. The learned District Judge was obviously in error for while disposing of the appeal be took into account only Article 5 of the Constitution. He did not consider Article 6 which presumably was not pointed out to him. Article 5 reads as under:

'At the commencement of this Constitution, every person who has his domicile in the territory of India and-

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been Ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India'.

5. Mr. Rajni Patel who appears for the appellant stated that he did not rely upon Article 5, but that the appellant was a citizen of India under Article 6. That article inter alia provides that:

Notwithstanding anything in Article 5, a per-son who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if-

(a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935, as originally enacted; and

(b) (i) in the rase where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration.

*****

The requirements of Article 6, thus are: (1) that a person to be deemed to be a citizen of India at the commencement of the Constitution, must be a person who has migrated to the territory of India from the territory now included in Pakistan, (2) that he or either of his parents or any of his grandparents was born in India, as defined in the Government of India Act, 1935, (3) that a person who has so migrated before the 19th day of July 1948 has been an ordinary resident in the territory ot India since the date of his migration.

6. It is not in dispute that the appellant was bom in the village Kalakali in Swat State, that he migrated to this city in 1932 and that he has been ordinarily a resident of this city right irom the time when he came over here until August 1933. The only question, therefore, that remains to be considered is whether he can be said to be a person who was born in India as defined in the Government of India Act, 1935.

7. Under Section 311(1) of the Government of India Act 1935, 'India' means British India together with all the territories of any Indian Ruler under the suzerainty of His Majesty, all territories under the suzerainty of such an Indian Ruler, the tribal areas etc. Mr. Nanavati, who appears for the respondents, contended that Swat State did not form part of India as it was neither in British India nor in any of the territories of any Indian Rulers under the suzerainty of the Crown nor in any of the tribal areas. This very question arose in First Appeal No. 119 of 1956 decided by Cha-gla, C. J. and S. T. Desai, J. (as he then was), on the 1st of May 1958. Though the judgment is not reported, Mr. Rajni Patel produced an uncertified copy of that judgment. There is, however, no difficulty, in accepting that copy as Mr. Nanavall agreed that it was a correct copy of the judgment in that appeal. In that appeal also the plaintitt was born in 1926 in Swat State and had migrated to Bombay in 1939. As in this case he was registered as a foreigner under the Foreigners' Act on December 23, 1948 and the Government had passed an order ordering him to leave India. It was contended on behalf of the State that Swat State was a part of tribal area and was not part of India as defined in the Government of India Act, 1935. The learned Chief Justice who delivered the judgment of the Bench observed that the plaintiff in that case had been able to place certain materials before the Court from which an irresistible conclusion could be drawn that Swat State was part of India as defined in the Government of India Act, 1935. The learned Chief Justice has referred to several publications of the Government of India as also certain maps and reports published under the auspices of the Government. From all these materials he came to the conclusion that for all official purposes Swat State was looked upon as an Indian State and constituting a part of India. I also find in The Imperial Gazetteer of India, Vol. 11, at page 361 that the three States of 'Dir', 'Swat' and 'Chitral' have been described as forming part of the Political Agency in the North-West Frontier Province. It is there-stated that after the relief of Chitral in 1896, Dir and Swat were formed into a Political Agency, to which Chitral formerly under the Gilgit Agency, was added in the following year. In 1901 the control of the Agency was transferred from the Foreign Department of the Government of India to the Chief Commissioner of the North-West Frontier Province and since then the headquarters of the Agency were at Malakand Volume 19 of the same Gazetteer, 1908 edition, contains at page 218 a map of the North-West Frontier Province and Kashmir. In that map also the State of Swat had been included as an Indian State. In view of these passages in the Imperial Gazetteer and other materials that were considered in the judgment in First Appeal No. 119/1956, there can be no difficulty in holding that Swat State formed part of India as defined in Section 311(1) of the Government of India Act, 1935. The other requirements of Article 6 of the Constitution not being in dispute, it clearly follows that the appellant was a citizen of India as defined by that article at the commencement of the Constitution.

8. Article 10 then provides that every person, who is or is deemed to be a citizen of India shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen Mr. Nanavati has fairly conceded that the learned District judge was in error who on a mere consideration of Article 5 of the Constitution has held that the appellant was not a citizen of India.

9. It was, however contended by Mr. Nanavati that appellant had after his deportation to Pakistan acquired citizenship of that country and thereby lost is citizenship of this country. He-based this argument upon the fact that alter the appellant had been removed to Pakistan in Sep-tember 1953, he had obtained a Pakistani passport and a visa from the Indian diplomatic authorities there and in both these documents he had declared himself to be a national of Pakistan thereby showing that he had renounced his citizenship ot India. On behalf of the appellant, however, it was urged that these declarations were untrue and that he had been forced to make them in the extraordinary circumstances that he had been placid while he was in Pakistan. Notwithstanding the observations made by the High Court of Bombay he had been unable to procure the necessary facilities from the Indian Diplomatic authorities in Pakistan with the result that the only wav left open to him to return to India was by obtaining a passport from Pakistan authorities and for that purpose he had been compelled by stress of circumstances to make these untrue declarations. It was urged that in these circumstances it cannot be said that the appellant had renounced his citizen-ship of India or had voluntarily acquired the citizenship of Pakistan, Mr. Nanavati, however, contended that these declarations show at least, prima facie that he had acquired the citizenship of Pakistan. On these contentions the question is whether the appellant had given up his citizenship of this country and acquired that of a foreign country, viz. Pakistan. Mr. Nanavati contended that such a question can only be tried by the Central Government and not by a Court of law by virtue of Section 9(2) of the Citizenship Act No. LVII of 1955 and Rule SO of the rules tramed under Sections 18 of that Act. His contention was that the Central Government was the Special Tribunal under that Act or that when such Tribunal is set Up under a statute as is done under Section 9(2) and Rule 30 of the Citizenship Rules made thereunder, it. would be that tribunal alone which would have jurisdiction to decide that question, and that, therefore, by implication, there was a bar against the jurisdiction of Civil Courts to try such an issue.

10. To appreciate these contentions, it is necessary to turn to Articles 9 and 10 of the Constitution and also to some of the provisions of the Citizenship Act. Articles 9 provides that no personshall be a citizen of India by virtue of Article 5,or be deemed to be a citizen of India by virtue of Article 6. or Article 8, if he had voluntarily acquired the citizenship of any foreign State. Article 10 provides that every person who is or is deemed to be a citizen of India shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen. Article 11 reserves the right of Parliament to regulate by law the rights o citizenship. It is under the powers reserved to it under Art, 11 that Parliament enacted the Citizenship Act, LVII of 1955.

The object of that Act is to supplement the provisions in the Constitution in the matter of citizenship by making provision for the acquisition and termination of citizenship. Sections 3 to 7 or the Act provide for the acquisition of citizenship of this country either by birth by descent or by registration, or by naturalisation, or by incorporation of territory. Sections 8 of the Act then provides for the renunciation of citizenship. Finally, Section 9 provides that any citizen of India, who, by naturalisation or otherwise, voluntarily acquires or has at any time between the 26th January, 1950 and the commencement of the Act voluntarily ac-quired the citizenship of another country, shall upon such acquisition or as the case may be, suchcommencement, cease to be a citizen of India. Ac-cording to the respondents, the appellant in this case acquired the citizenship of Pakistan before the Act came into operation, but, after the Constitution came into force. Sub-sections (2), of section9 then provides that if any question arises as to whether, when Or how any person has acquired the citizenship of another country, it shall be de-termined by such authority in such manner and having regard to such rules of evidence as may be prescribed in this behalf. The procedure and the evidence upon which such question is to be determined by the competent authority has been provided in the rules framed under Sections 18 of the Act and the competent authority under these rules is the Central Government.

11. The question then is whether Section 9(2) bars the jurisdiction of Civil Courts to decide the question whether a person has lost his citizenship by acquiring the citizenship of another country. As I have pointed out, Article 10 of the; Constitution categorically lays down that every person who is or is deemed to be a citizen of India shall continue to be a citizen subject to the provisions of any law that may be made by Parliament. Such provisions are those contained in the Citizenship Act. Therefore, until it is established that such a person has acquired citizenship of any other country and thereby terminated the citizenship of India, such a person continues to be the citizen of this country. Where the rights of such an individual are challenged by means of an order of deportation against him issued on the footing that he is a foreigner within the meaning of the Foreigners' Act. 1946, prima facie such a person would be entitled to have them declared by means of a suit under Sections 42 of the Specific Relief Act and the relevant provisions of the Code of Civil Procedure. Equally prima facie such a suit would be triable by civil Court in India. If such jurisdiction of the Civil Court is to be taken away one would expect a clear provision to that effect either in the Citizenship Act itself, or any other statute. Even Mr. Nanavati conceded that such an explicit provision is not to be found in the Citizenship Act. Rut his argument was that since a special tribunal has been prescribed under Sub-sections (2) of Section 9, it impliedly means the ouster of jurisdiction of the Civil Courts. On a reading of Section 9(2) of the Citizenship Act, it seems to me that what is there provided is that where a question arises as to whether a person who was a citizen of India had his citizenship terminated by his acquiring the citizenship of a foreign country, such a question would be determined for the purposes of Section 9(2), by the competent authority, viz. the Central Government, in the manner prescribed in Rule 30 of the rules framed under the Act. Bull that would not mean that a Civil court is barred from trying suits in which questions as to citizenship of an individual arise. It is impossible to think that after the Constitution guaranteed under Article 10 that a person who is or is deemed to be a citizen of this country at the commencement of the Constitution, shall continue to he such, Parliament could possibly have intended by enacting Section 9(2) of the Citizenship Act to deprive him of the vital right to establish his citizenship of this country in the ordinary courts of law and to compel him to establish them, when challenged, before a special tribunal viz. the Central Government and that too, under a special procedure and special rules of evidence of extraordinary restrictive nature.

12. Mr. Nanavati, however, relied upon a decision of the Patna High Court in Syed Shah Mohammed Abdali v. State of Bihar, AIR 1960 Pit 98. The petitioners there challenged the validity of an order of deportation against them on the ground that they were the citizens of India. The petition, however, was dismissed on the ground that they had returned to India on a Pakistani passport and a visa in Form C which meant that there was prima facie proof against them of their having acquired foreign citizenship. At page 101 of the report it has been observed that it would be open to the petitioners to convince the Tribunal established under the Citizenship Act, that they had not voluntarily acquired the citizenship of Pakistan. It is also observed that If the petitioners were to make such a claim before the Tribunal and dispute the allegation that they had acquired Pakistani citizenship, then the matter would have to be considered and determined by the Central Government under Rule 30 of Citizenship Rules. The learned Judges who dismissed the petition observed that as the matters stood there was prima facie evidence that the petitioners had acquired Pakistani Citizenship and they were, therefore, foreigners within the meaning of the Foreigners' Act. These observations were relied upon by Mr. Nanavati in support of his contention that it would be the Special Tribunal referred to under Section 9(2) of the Citizenship Act which would have the exclusive jurisdiction to try such an issue. It will, however, be seen that no question was raised, as is raised before me, that the Central Government was the only Tribunal which could decide the question as to the termination of the citizenship of the petitioners there. Such a question not having been raised there was no occasion for the High Court of Patna to lay down the proposition which Mr. Nanavati canvasses for. On a proper reading of that decision it would be clear that the only proposition that was laid down in that case was that a passport obtained from a foreign Government containing a declaration that the person obtaining it was a citizen of that foreign country would constitute prima facie proof of his having given up the citizenship of this country. Even then such A passport and the declaration therein contained being merely prima facie proof, such prima facie proof, it must necessarily follow, is always rebut-table.

13. Reliance was next placed on Ahdul Rehman v. State : AIR1958All165 in which Mr, Justice Mukerji deciding a petition under Article 226 held that Section 9 of the Citizenship Act and Rule 30 provided for a forum for the determination of the question whether or not a person is an Indian national or a national of any other country. He also held that such a person has, therefore, to adopt tie course laid down and prescribed by the Statute and not seek a remedy by approaching the High Court under Article 226 of the Constitution. The petitioner there alleged that he was a citizen of India having been born and bred up at Tanda in Faizabad District; that he had been carrying on his family profession as a weaver and that he hart carried on that profession at Tanda upto 1953 when he was tempted to leave India and go to Pakistan to try his luck there. The petitioner also alleged that he left India temporarily with no intention of giving up his Indian domicile or of acquiring Pakistani domicile as he had no intention of permanently settling down in the territory of Pakistan. The petitioner and his wife returned to Tancla sometime in May, 1955. after obtaining a passport from the Govt. of Pakistan which was issued to him as a Pakistani national. After returning to India the petitioner also applied several times to the Government of Uttar Pradesh for the extension of his period of stay under the passport. When his attempts to get further extension failed, it would seem that he conceived the idea of alleging that he was an Indian national and. therefore, could not he deported. On these facts, the learned Judge held that by reason of Section 9(2) of the Citizenship Act and the Rules framed thereunder the forum for the determination of the question whether or not a person is an Indian national ornot was constituted and therefore the petitioner had to get that question decided by that special forum and was not entitled to seek remedy under Article 226. If the view expressed by Mr. Justice Mukerji were to be correct then obviously the appellant would be nut of court. Since that decision, however, the High Court of Allahabad has, on more than one occasion, taken a view directly contrary to the view expressed by Mr. Justice Mukerji. In a recent case decided by Broome J. of that High Court in Sarafat Ali Khan v. State of Uttar Pradesh : AIR1960All637 , it has been held that obtaining a passport from a foreign Government on the basis of a declaration that the applicant was a national of that country would at best constitute an admission which such an applicant would be entitled to explain and that a passport raises a presumption of acquiring foreign citizenship which presumption too is rebut table. Mr. Justice Broome also held that Rule 30 of the Citizenship Rules was consistent with Article 226 and that, therefore, ouster of the jurisdiction of the High Court can only be achieved by a proper amendment of the Constitution. He also held that Rule 30 was binding on the Central Government only in an inquiry before it as a special tribunal. The learned Judge, however, left open the question whether Section 9(2) was a bar to the jurisdiction of the Civil Courts, but held that in any event it did not bar the High Court's jurisdiction to entertain a petition under Article 226. As against the view of Mukerji J. it was observed that the powers conferred by Article 226 for the enforcement of the fundamental rights incorporated in Part III of the Constitution are as sacrosanct as the fundamental rights themselves, for rights without the necessary machinery for enforcing them would clearly be of little value, and it is not possible for any law short of an amendment of the Constitution itself to abridge or fetter those powers. This decision thus does not support the view taken by Mukerji J. in the earlier decision that even the jurisdiction of the High Court under Article 228 was excluded by Section 9(2) of the Citizenship Act. In Ali Husain v. State : AIR1960All336 , Mr. Justice Desai, while dealing with an appeal against the prosecution of the applicant there under Sections 14 of the Foreigners' Act and Rule 7 of the Foreigners' Order. 1948 observed that a Court having jurisdiction to try an accused for an offence has jurisdiction to determine all facts in issue and all relevant facts. In a case under Sections 14 of the Foreigners Act, the allegation that the accused is foreigner is a fact in issue to be decided by the Court. The Court has therefore jurisdiction to decide the question whether the applicant acquired the citizenship of Pakistan and unless it decided it, it cannot decide whether he was a foreigner and whether he was guilty. He held that this jurisdiction of the Court to decide such questions has not been taken away by Section 9(2) of the Citizenship Act as it does not repeal the provisions of the Code of Criminal Procedure and the Evidence Act which confers power upon the criminal courts to decide all facts in issue and relevant facts. He observed that what Section 9(2) lays down is simply that an authoritative or a binding decision on the question can be given only by the Central Government and that if such a decision has been given by it,it Would bind all Courts but so long as it hag not been given. Courts are competent to decide the question themselves in exercise of their ordinary jurisdiction. If as the High Court of Allahabad Has held in these two decisions that the power of the High Court to grant relief under Article 226o and the jurisdiction of the criminal Courts to deride the issue as to the acquisition of foreign citizenship is not taken away under Section 9(2) of the Citizenship Act, it must follow that that Sections does not militate against the jurisdiction of the Civil Courts to try such an issue arising in suits before them. As Mr. Justice Desai held, Section 9(2) does not in so many terms take away such jurisdiction nor does the Sections contain any provision which is inconsistent with the provisions of the Code of Civil Procedure. In yet another decision of the same High Court Mr. Justice Mathur, in Ali Sher v. State : AIR1960All431 , has observed that the rules contained in Schedule III of the Citizenship Rules are for the guidance of the Central Government only and are not binding on Courts and that Rule 3 of Schedule III which lays down that mere obtaining a passport of another country is a conclusive proof that the person has acquired citizenship of that country from that date can be disregarded by Courts of law. He has also obseved that the law as laid down by the Courts not only in this country but also in others is that mere acquisition of a foreign passport is not conclusive evidence as to the citizenship or nationality of that person though from the fact that he possesses a foreign passport, it can be presumed that he is a foreigner and the burden lies upon such a person to prove that he is not a foreigner. He has then held that the Central Government was the competent authority to determine the question of acquisition of citizenship of another country for the purpose of Section 9(2) of the Citizenship Act, and for no other purpose. Thus, as against die solitary view of Mr. Justice Mukerji, there are at least three decisions of the High Court of Allahabad which do not lay down that Section 9 of the Citizenship Act bars the jurisdiction of ordinary courts of law to decide the question as to citizenship and in particular whether a person has ceased to be a citizen of this country. All the three decisions are unanimous that a passport of Pakistan on the strength of which a person enters the country would raise at least a presumption against him that he has acquired the citizenship of that country. But as I have said such a presumption is rebuttable. The burden of proof in that event would shift on that person to explain that the declaration contained therein that he was a national of Pakistan is not true. The last decision upon which reliance was placed by Mr. Nanavati was State v. Ibrahim Nabiji, 61 Bom LR 803 : (AIR 1959 Rom 525) where Mr. Justice Shah has stated that prima facie when a person enters India under a passport issued by a foreign country and under a visa obtained on an application submitted by him that he was a national of a foreign country ana that he desired to visit India for a limited perind, it may be assumed that he is not a citizen of India. If after entering India such a person claims the stainsof a citizen by virtue of Rule 30 of the Citizenship Rules the question whether, when or how he has acquired the citizenship of another country, must be determined, for purposes of Section 3(2) of the Citizenship Act, 1955, by the Central Government. These observations were relied upon by Mr. Nana-vati in support of the contention put forward by him. But I may again observe that in this case also no question arose as to whether Section 9(2) of the Act of 1955 takes away the jurisdiction of the ordinary courts of law. All that Shah and Desai, JJ. held was that when a question arises under Section 9(2) of the Act whether a person has acquired citizenship of this country or whether a citizen-of this country has lost his citizenship by acquisition by him of the citizenship of a foreign country and a decision is given by the competent authority, namely, the Central Government that decision would be binding upon the Courts. The learned Judges, therefore, were not called upon to decide the question whether the effect of Section 9(2) was to oust the jurisdiction of the ordinary courts of law and they have in fact not decided, so.

14. From the discussion of the case-law, It appears to me clear that barring the solitary view taken by Mr. Mukerji J. in AIR 1958 Ail 165, which as I have pointed out, has not found support in the subsequent decisions of that very High Court, there is no authoritative pronouncement which lays down that Section 9(2) takes away the jurisdiction of the courts of law to determine ques-tions relating to citizenship. As has been repeatedly pointed out in these decisions Section 9(2) deals with the question of acquisition and termination of citizenship, If such a question arises under that Sections it has to be determined for the purposes or that Sections by the special tribunal appointed thereunder and that tribunal shall then decide the question in accordance with the procedure and the rules of evidence laid down in the Citizenship Rules. But this does not mean that in proceedings arising either under the Code of Criminal Procedure or Code of Civil Procedure under which courts of law have unlimited powers to determine issues arising therein, the jurisdiction of such-courts is taken away or is barred by Section 9(2) of the Act. In none of these decisions it has been held that that Sections has that effect. If the Legislature. while enacting Section 9 had that intention it would surely have declared it in explicit language. The exclusion of jurisdiction of the ordinary courts of law on questions affecting the rights of a citizen declared to be sacrosanct by the Constitution itself cannot be held to have been brought about unless it has been done clearly and in explicit terms in that behalf. In my view, the only thing that has been done under Section 9(2) is that the competent authority has been given jurisdiction to decide questions of citizenship for the purposes of that Sections only. That as I have said does not mean that questions relating to right of citizenship arising in suits and proceedings filed under the Code of Civil Procedure cannot be determined by the Court before which they come up for decision.

15. There is yet another aspect which would seem to throw light upon the construction to be put on Section 9 of the Citizenship Act. Sections 14(1) of the Act lays down that the presented authority or the Central Government may, in its discretion, grant or refuse an application under Sections 5 or Sections 6 without having to assign any reasons for such gram or refusal. Under Sub-sections (2) of that Sections it lias been provided that subject to the provisions of Sections 15, the decision ot the prescribed authority or the Central Government on any such application shall be final and cannot be called in question in any Court. It may be noted that Section 9 does not provide for any such finality in respect of a decision given by the competent authority thereunder. That again shows that Section 9 was not intended to exclude jurisdiction of Courts of law. If there was such an intention, the Legislature would also have given finality to decisions of the competent authority under Section 9(2) as it has done to decisions under sections 5 and 6. Thus it must appear that a decision under Section 9(2) is not final so as to be binding upon a court of law and it would seem thai such a decision is open to a chellenge in a court of law.

16. In my view, Section 9(2) of the Citizenship Act does not exclude or bar the jurisdiction of Civil Courts in determining the question as to the acquisition or termination of citizenship when such a question arises in any proceedings before them.

17. On the merits of the case, it is clear that the appellant was a citizen of India but was deported on the strength of his having registered himself as a foreigner under the Registration or Foreigners' Act. 1939. It is true that the learned District Judge has held that there was no proof adduced by him to show that he got himself so registered under force or compulsion as alleged by him. But once it is held that he was a citizen of India by virtue of article 6 of the Constitution, he could not be registered as a foreigner, as the Question of his registration cannot possibly arise. Therefore, the question that he was registered under force or compulsion is irrelevant. It is nobody's case that he got himself registered for the purpose of renouncing his citizenship of India. He, therefore, continued to be a citizen of India as laid down in Arts. 5 and 10 of the Constitution until September 1953 when he was deported. It is not in dispute that when he went to Pakistan he did so as a result of the order of deportation and not voluntarily. He filed a petition in the High Court of Bombay against the order of deportation and the State gave an assurance that it would not take objection to his re-entering this country. He could re-enter only by obtaining necessary facilities from the Indian Diplomatic authorities in Pakistan. It cannot be disputed that not having got them, he applied for a passport from the Pakistani authorities and on the strength of that passport he returned to India. In para 21 of his judgment, the learned District Judge has found that the appellant had to obain the Pakistani passport only with a view to return to India. Having been refused facilities by the Indian Diplomatic authorities he obtained a passport from the Pakistani authorities as that was the only way by which he could return to India. It is therefore obvious that the appellant made a false declaration for obtaining the passport as also the visa. That would mean that when he obtained the two documents he had not renounced the citizenship of this country. There is thus clear evidence to explain the fact of his having obtained the passport and the declaration made therein by him which rebuts the presumption that he had renounced the citizenship of this country and had acquired the citizenship of Pakistan. That being the position, the learned District Judge was in error when he set aside the decree passed by the learned trial Judge. In my view, both in fact and in law, it would not be correct to hold that the appellant had renounced his citizenship of this country by acquiring the citizenship of Pakistan or otherwise.

18. I. therefore, allow this appeal, set aside the decree passed by the learned District Judge and restore the decree passed by the lamed trial Judge. The respondents will pay to the appellant costs all throughout.


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