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Sejal Vikrambhai Patel and Etc. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 6659 and 6682 of 1992
Judge
Reported inAIR1993Guj150; (1993)1GLR602
ActsCitizenship Act, 1955 - Sections 4, 4(1), 8, 9, 9(2), 10, 13 and 18; Constitution of India - Articles 9, 14, 21 and 226; Admission Rules - Rule 1.4; Citizenship Rules, 1956 - Rule 30 and 30(2)
AppellantSejal Vikrambhai Patel and Etc.
RespondentState of Gujarat and ors.
Appellant Advocate G.N. Desai, Adv. for; Pravanav Desai and; M.H. Barejia
Respondent Advocate Dhaval C. Dave, AGP
Cases ReferredState of U.P. v. Shah Mohammad
Excerpt:
constitution - citizenship - sections 4, 8, 9, 10, 13 and 18 of citizenship act, 1955, articles 9, 14, 21 and 226 of constitution of india, rule 1.4 of admission rules and rule 30 of citizenship rules, 1956 - petition filed for restraining respondent authorities from insisting acquisition of indian citizenship by petitioner as condition precedent for admission to physiotherapy course and for directing respondents to admit petitioner treating her as citizen of india - central government to decide question whether petitioner voluntarily acquired citizenship of any other country under section 9 read with rules framed thereunder - respondent authorities directed to grant provisional admission to petitioner subject to final outcome of decision by central government. - - desai submitted.....orderc.k. thakker, j.1. common questions of law and fact have been raised in the present two petitions and it is, therefore, appropriate to decide both the petitions by a common judgment.2. to appreciate the controversy in question, few relevant facts of special civil application no. 6659 of 1992 may be stated :petitioner sejal vikrambhai patel has filed this petition for an appropriate writ, direction or order restraining the respondent authorities from insisting the acquisition of indian citizenship by the petitioner as a condition precedent for getting an admission to psysiotherapy course and by directing them to admit the petitioner by treating her as a citizen of india. prayer is also made to declare rule 1.4 of the rules for admission to the first mbbs course at the government.....
Judgment:
ORDER

C.K. Thakker, J.

1. Common questions of law and fact have been raised in the present two petitions and it is, therefore, appropriate to decide both the petitions by a common judgment.

2. To appreciate the controversy in question, few relevant facts of Special Civil Application No. 6659 of 1992 may be stated :

Petitioner Sejal Vikrambhai Patel has filed this petition for an appropriate writ, direction or order restraining the respondent authorities from insisting the acquisition of Indian Citizenship by the petitioner as a condition precedent for getting an admission to Psysiotherapy Course and by directing them to admit the petitioner by treating her as a citizen of India. Prayer is also made to declare Rule 1.4 of the Rules for admission to the First MBBS Course at the Government Medical Colleges as arbitrary, unreasonable and violative of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. It is prayed that the order Annexure 'M' to the petition, dated Sept. 16, 1992 passed by Dean of B.J. Medical College, Ahmedabad be quashed and set aside being contrary to law.

3. It is the case of the petitioner that her father Vikrambhai Patel was born in India at the time of commencement of the Constitution. Mother of the petitioner also resided in India at the time of commencement of the Constitution. Both of them were citizens of India when the petitioner was born. It is the case of the petitioner that her parents were staying in USA when she was born on May 7, 1974. Her parents, however, came back to India in or about Sept., 1980. It was the desire of petitioner's parents to provide education to the petitioner in India. Therefore, eventhough the petitioner was born in USA, she continuously resided and domiciled in India from Std. I to HSC (Higher Secondary Certificate Examination). The petitioner studied at Mt. Carmal School and then at St. Xavier's High School at Ahmedabad. She obtained 85.3% marks in HSC Examination in Science Stream. She was eligible for getting admission in Physiotherapy Course in B.J. Medical College, Ahmedabad and hence she filled in an admission form for that purpose. She was, however, asked to produce proof of acquiring Indian Citizenship as per Rule 1.4 of the Rules for admission to the 1st MBBS/BDS/ Physiotherapy Courses at the Government Medical Colleges (hereinafter referred to as 'the Rules'). The said Rule reads as under:

'1.4 Notwithstanding anything contained in these rules, only the candidates who are Indian citizens shall be considered eligible for admission to the Government Medical Colleges/physiotherapy/Dental college in the State. However those who are born out side India and not holding valid Indian passport and/or holding citizenship other than Indian citizenship shall have to produce the proof of submitting the application for acquiring Indian citizenship to the competent authority before the date of interview. They will be considered eligible for admission provided they produce the Certificate of Indian citizenship on or before 31st December of the year of joining the college failing which their provisional admission will be cancelled without giving any notice thereof.

3A. Reading the above rule, it becomes clear that if an applicant is born out of India and is not holding valid Indian Passport and/r holding citizenship other than Indian citizenship, he/she shall have to produce proof of submitting an application for acquiring Indian Citizenship to the competent authority before the date of interview. It is not disputed by the petitioner that she was born in U.S.A. It is also not disputed that she is holding valid foreign passport. Column 6 of the application form relates to citizenship and an applicant is required to put figure (1) which relates to 'Indian' citizenship or figure (2) which relates to 'others', namely; citizenship of any country other than India. It is an admitted fact that the petitioner at the time of filling up the form on June 23, 1992 has written (2) in column 6 of the application form which means that she was having citizenship of any country other than India. It is no doubt true that subsequently it appears to be the case of the petitioner that there was bona fide mistake on her part in putting figure (2) instead of figure (1) in the application form but I will deal with that aspect of the matter at an appropriate stage.

4. In view of the above facts, considering Rule 1.4, the respondent authorities insisted for a certificate and did not grant admission to the petitioner. Being aggrieved by that action, the petitioner approached this Court by filing Special Civil Application No. 4532 of 1992. The learned single Judge did not find any illegality in such a course being adopted by the authorities and rejected the petition. The matter was then carried by filing Letters Patent Appeal No. 319 of 1992 which came to be allowed by the Division Bench and the authorities were directed to decide the representation of the petitioner by issuing the following directions:

'(i) The appellant shall make a detailed representation setting forth all the factual features concerning herself being an Indian citizen by descent as per Section 4(1) of the Citizenship Act, 1955 and continuing to be such a citizen, within a period of three days from today to the second respondent.

(ii) If such a representation is made, the second respondent shall enquire into it permitting the appellant to place all the materials in substantiation of her case as put forth in the representation to be made and decide it within a period of one week from the date of the receipt of the representation and communicate the decision thereof to the applicant within a period of one week thereafter.

(iii) If the appellant is to be aggrieved by any decision to be rendered by the second respondent, the option is hers to seek the due process of law.

(iv) The direction given by us on 3/8-92 in the Civil Application No. 1517 of 1992 to the respondents to keep one seat in the discipline in question vacant until further orders is kept alive until the decision on the representation of the applicant is rendered and communicated to the appellant and for a further period of one week thereafter.'

5. The representation came to be rejected by the respondent authorities by an order dated September 16, 1992, Annexure 'M' which is impugned in the present proceedings. One more development may also be mentioned at this stage. After rejection of the representation, the petitioner approached this Court by filing this petition. During the pendency of the petition, she prayed for mandatory interim relief permitting her to prosecute study subject to the result of the petition. The learned single Judge issued 'Rule'. He, however, rejected the prayer for interim relief. Again, the petitioner approached the appellate Court by filing Letters Patent Appeal No. 400 of 1992 and the Division Bench partly allowed that appeal and directed the respondent authorities to keep one pass seat vacant during the pendency of the petition. The Court also passed an order for expeditious disposal of the main matter and that is how the present petition is placed for hearing.

6. Mr. G.N, Desai, learned counsel for the petitioner raised a number of contentions. He submitted that the petitioner is a citizen of India and is entitled to get admission on that basis. The authorities have erred in law in insisting upon the acquisition of Indian Citizenship by the petitioner as if the petitioner were not an Indian Citizen and such an order is, therefore, illegal and unlawful. He further submitted that in the instant case, Rule 1.4 of the Rules has no application. The Rule applies only to those applicants who are not citizens of India. In the alternative, Mr. Desai submitted that if the interpretation of Rule 1.4 put forward by the respondent authorities is accepted, the Rule would be ultra vires the Citizenship Act, 1955 as also Articles 14 and 21 of the Constitution of India being arbitrary and unreasonable. Mr. Desai also submitted that the impugned action requires to be set aside on the ground that the authorities have misdirected themselves to the inquiry which was altogether irrelevant. According to him, the inquiry ought to have been made to ascertain whether the applicant was or was not a citizen of India and once it was held that the applicant was a citizen of India, the authority had no power, authority or jurisdiction to inquire whether or not the applicant was resident and/or domiciled of any other country or was holding foreign passport. It was also submitted that holding of a foreign passport had nothing to do with the enquiry which the authorities were required to make for the purpose of granting or refusing admission to the applicant, Mr. Desai submitted that looking to the provisions of the Constitution as well as the Citizenship Act, the petitioner can be said to be a citizen of India and, therefore, is entitled to get admission on that basis. Mr. Desai, therefore, prayed that the petition requires to be allowed by directing the respondent authorities to grant admission to the petitioner without insisting on the requirement laid down in Rule 1.4 of the Admission Rules.

7. Mr. Barejia, who appeared for thepetitioner in a companion matter (SpecialCivil Application No. 6682 of 1992) supported Mr. Desai and adopted the argumentsadvanced by him.

8. Mr. D.C. Dave, learned AGP appearing for the respondent authorities, on the other hand, supported the order passed by the third respondent and submitted that the action taken by him cannot be said to be contrary to law. According to him, even if it is assumed that the petitioner could be said to be a citizen of India, in view of admitted, undisputed and uncontroverted facts that she was having a valid foreign passport and in column 6 of the application form, figure (2) was written, if the authorities have prima facie formed an opinion that the petitioner was not a citizen of India and/or she had voluntarily acquired citizenship of some other country, such an opinion by no stretch of imagination can be said to be arbitrary, unreasonable or capricious. Mr. Dave further submitted that the third respondent has rightly observed in the impugned order that the concept of dual citizenship has not been accepted either under the Constitution of India or under the Citizenship Act. Mr. Dave made a statement under the instructions of the third respondent that if the petitioner will produce necessary certificate in accordance with the provisions of Rule 1.4, third respondent has no objection in granting admission to her. According to Mr. Dave, the provisions of Rule 1.4 of the Rules are legal and valid. He submitted that the rule must be read as a whole. According to him, if a person is a citizen of India, he/she will be considered eligible for admission to the medical course. He, however, submitted that if a person is born out of India and is not holding valid Indian passport and/ or holding citizenship of a country other than India, he/she has to acquire citizenship by submitting an application for acquisition of Indian Citizenship to the competent authority. Mr. Dave submitted that if the applicant believes that she is and she continues to be a citizen of India, and has not acquired citizenship of any other country, it is open to her to satisfy the competent authority. But if the applicant is born out of India and is not holding valid Indian passport and/or holding citizenship of any other country, there is nothing illegal on the part of the third respondent in insisting upon the procedure laid down in Rule 1.4 being followed. He also submitted that initially a passport might have been obtained by the father of the petitioner by filing an application but it is not disputed by the petitioner herself that last two extensions have been obtained by her under her signature. No doubt both the extensions were during the period of minority but after the petitioners reached the age of understanding. It is also submitted that after attaining majority, the petitioner did not take any objection against act of obtaining foreign passport by her father. Again, reliance was placed on the fact that the application form was filled in by the petitioner on June 23 1992. Admittedly, the petitioner was born on May 7, 1974 and thus, she attained majority on May 7, 1992. Thus, when the form was filled in by the petitioner, she was undisputedly major. On her own, in column 6, figure (2) was written, meaning thereby that she was holding citizenship of a country other than India. Mr. Dave submitted that the form was taken by the petitioner on June 17, 1992 and was filled in after considerable period of about six days and thus, the petitioner had sufficient time to consider all columns and after understanding the contents in various columns, she had put figure (2) in column 6 of the application form.

9. Reliance was also placed on a circumstance that after the application form was submitted, the petitioner did not approach the third respondent stating that she had committed an error or there was a bona fide mistake on her part in filling up the application form by putting figure (2) in column 6 of the application form. It was also submitted that when the compliance of Rule 1.4 was insisted by the authorities, the petitioner approached this Court by taking such plea. Mr. Dave submitted that it was afterthought and taken only with a view to avoid consequences of Rule 1.4. According to Mr. Dave, the petitioner is not entitled to any relief and the petition requires to be dismissed.

10. I have anxiously and carefully considered the facts and circumstances of the case. For the purpose of deciding the points raised by the parties, it is necessary to consider the relevant provisions of the Constitution as also the Citizenship Act, 1955 (hereinafter referred to as 'the Act'). Part II of the Constitution deals with citizenship at the commencement of the Constitution. Article 11 enables Parliament to enact a law relating to acquisition and termination of citizenship and in exercise of the said power, the Citizenship Act has been enacted by Parliament. Section 4 provides for citizenship by descent, the relevant part thereof reads as under:--

'(1) A person born outside India on or after the 26th January, 1950 shall be a citizen of India by descent if his father is a citizen of India at the time of his birth:'

Section 8 enables that any citizen of India of full age and capacity, who is also a citizen or national of another country may by a declaration in the prescribed manner renounce his Indian Citizenship. Section 9 provides for termination of citizenship in certain circumstances. It is a material provision and requiries to be quoted in extenso :

'9. Termination of citizenship.-- (1) Any citizenship 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 this sub-section 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, 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.'

Section 10 provides for deprivation of citizenship. Section 13 deals with a situation where there exists doubt regarding citizenship of a particular person. Section 18 empowers the Central Government to frame Rules. In exercise of the powers, the Central Government framed the Rules known as the Citizenship Rules, 1956 (hereinafter referred to as 'the Rules'). Rule 30 lays down that if any question arises as to whether or how any person has acquired citizenship of another country, the authority to determine such question shall, for the purpose of Section 9(2), be the Central Government. The Central Government shall in determining such question have due regard to the rules of evidence specified in Schedule III to the Rules. Clause 3 of Schedule III read with Rule 30(2) provides that the fact that a citizen of India has obtained on any date a passport from the Government or any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.

11. Mr. Desai submitted that the provisions of Section 4 are clear and unambiguous and in no uncertain terms, they provide that a person born outside India on or after January 26, 1950 shall be a citizen of India by descent if his father was a citizen of India at the time of his birth. It is not disputed that the father of the petitioner was born in India and was a citizen of India. The petitioner was born out of India after January 26, 1950. Thus, according to Mr. Desai, as per the mandate of Parliament, the petitioner shall be treated as a citizen of India. He submitted that once it is held that a person is a citizen of India, he/she is entitled to all the benefits on that basis and he/she cannot be deprived of those benefits unless there is renunciation, termination or deprivation of citizenship of India. Section 8 of the Act provides for renunciation of citizenship. It is a voluntary act by a person concerned. Mr. Desai submitted that the petitioner has not renounced citizenship of India and hence, Section 8 does not apply. Section 9 provides for termination of citizenship in certain cases. If a citizen of India by naturalisation, registration or otherwise voluntarily acquires citizenship of another country, he/she ceases to be a citizenship of India. Mr. Desai submitted that the petitioner has not voluntarily acquired citizenship of any other country by naturalisation, registration or otherwise and, therefore, Section 9 is also not attracted. The petitioner is also not deprived of Indian citizenship by any order passed by the Central Government under Section 10 of the Act. The authorities have, thus, committed an error of law in not granting admission to the petitioner. Mr. Desai submitted that the authorities ought to have considered and applied Section 4 and ought to have decided whether or not the petitioner was a citizen of India. The decision of the authorities is vulnerable since the said question has not been decided by the authorities. Mr. Desai submitted that this Court may, therefore, decide that question and direct the authorities to grant admission to the petitioner. For the said purpose, reliance was placed on the decision of the Hon'ble the Supreme Court in the case of State of A.P. v. Abdul Khader, reported in : 1961CriLJ573a , the Court observed :

'The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide. The courts can decide it.'

12. Similar view was again taken by the Supreme Court in the case of Akbar Khan v. Union of India, reported in : [1962]1SCR779 . In that case, a suit was filed by the plaintiff for declaration that they were citizens of India and for permanent injunction restraining the defendants from deporting them to Pakistan. It was contended by the defendants that the plaintiffs were not citizens of India as they had voluntarily acquired Pakistani citizenship by obtaining passports from that country. The suit was held to be not maintainable in view of the provisions of Section 9(2) of the Act read with Rule 30 of the Rules. Reversing the decree, the Supreme Court stated (at p. 72 of AIR);

'It seems to us clear that Sub-section (2) of Section 9 of the Citizenship Act bars the jurisdiction of the Civil Court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by anyone else. The only question, however, which Civil Court is prevented by Section 9(2) of the Citizenship Act from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The Civil Courts are not prevented by this provision from determining other questions concerning nationality of a person.'

'The jurisdiction of a Civil Court to decidethat question is not in any way affected by Section 9(2) of the Citizenship Act. Therefore, itseems to us that the entire suit should not havebeen dismissed. The Courts below shouldhave decided the question whether the appellants had never been Indian citizens. If thatquestion was answered in the affirmative,then no further question would arise and thesuit would have to be dismissed. If it wasfound that the appellants had been onJanuary 26, 1950, Indian citizens, then onlythe question whether they had renounced thatcitizenship and acquired a foreign citizenshipwould arise. That question the courts, cannotdecide. The proper thing for the Court wouldthen have to stay the suit till the CentralGovernment decided the question whetherthe appellants had renounced their citizenshipand acquired a foreign citizenship and thendispose of the rest of the suit in such a manneras the decision of the Central Governmentmay justify.'

13. Relying on the above decisions, Mr. Desai submitted that as per the law laid down by the Hon'ble Supreme Court, the question whether a person is or not a citizen of India can be decided by the Court and in the above two cases, the Supreme Court held that by not deciding the question, the Court had not acted in accordance with law.

14. Mr. Desai also submitted that another error has been committed by the authorities in taking into account extraneous considerations such as holding of a foreign passport by the petitioner and drawing inference that the petitioner was a citizen of some other country. Relying upon a decision in Bhagwati Prasad Dixit v. Rajeev Gandhi, reported in AIR 1986 SC 1534 it was submitted that once a person is admitted or held to be a citizen of India, unless there is a decision of the Central Government under Section 9(2) of the Act that he had acquired citizenship of a foreign country, he should be presumed to be a citizen of India. Mr. Desai submitted that when the conditions specified in Section 4(1) were complied with, the petitioner was required to be treated as a citizen of India and in absence of any order by the Central Government, the authorities could not ignore the legislative mandate. If the authorities had any doubt, it was open to them to approach the Central Government. Having not done so, it was not open to the third respondent to ignore Section 4(1) and to treat the petitioner as a foreign citizen.

15. Mr. Desai also submitted that the concept of dual citizenship is not unknown to law. Apart from foreign countries with which I am not concerned, even in India, the concept has been judicially recognised. In Bhagvati Prasad Dixit's case (supra) according to Mr. Desai, a similar contention was raised that the respondent was holding citizenship of a foreign country and thus, he could not be said to be a citizen of India or in any case, could not have continued Indian citizenship. The contention was, however, negatived by the Supreme Court. It was held that such a question can be decided by the Central Government under Section 9(2). He also drew my attention to the Objects and Reasons of Clause 8 when the Act was enacted, wherein it was stated;

'This clause and Clause 9 are designed to avoid dual citizenship to a certain extent. Clause 8 provides for renunciation of IndianCitizenship by voluntary act in cases wherethe person is also a citizen or national ofanother country. It is possible for a person toacquire dual citizenship by birth or later andin Clauses 3 to 7 which provide for the acquisitionof Indian citizenship in various ways. It is notproposed that person should renounce hisforeign citizenship as condition for retaininghis Indian citizenship.'

Mr. Desai submitted that from Objects and Reasons also, it is clear that Parliament was conscious of the concept of dual citizenship.

16. In my opinion, the contention raised by Mr. Desai cannot be accepted. It is true that Section 4 of the Act recognises citizenship by descent. It is also true that in a given situation, a person may be holding dual citizenship. It, however, cannot be forgotten that such concept is not encouraged by the legislature. Precisely for that purpose, in Statement of Objects and Reasons, it is observed that certain provisions were designed to avoid dual citizenship to certain extent. Again, it also becomes clear if one reads Section 9 of the Act, which provides that if a citizen of India voluntarily acquires citizenship of any other country, he/she shall cease to be a citizen of India. Mr. Dave placed reliance on the decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Izhar Ahmad Khan v. Union of India reported in : AIR1962SC1052 . Considering the provisions of the Constitution as well as of the Act, the Court held that the Constitution does not favour plural or dual citizenship and, therefore, appropriate provisions have been made either in the Constitution or in the Citizenship Act. The Court, speaking through Gajendragadkar, J. (as he then was) stated;

'The basic principle on which the Act proceeds and which has been recognised by Article 9 of the Constitution itself is that no Indian citizen can claim a dual or plural citizenship.'

17. Izhar Ahmed Khan was followed in the case of Government of Andhra Pradesh v. Syed Mohd. Khan reported in : AIR1962SC1778 .

18. Mr. Desai, no doubt, submitted that the petitioner has not renounced Indian citizenship by taking recourse to Section 8 of the Act nor she had voluntarily acquired citizenship of any other country. The question however, is whether the respondent authorities have committed an error of law in relying upon certain circumstances, such as, holding of a valid foreign passport by the petitioner, putting figure (2) in column 6 of the application form etc. It is the contention of the petitioner that it was through error and/or bona fide mistake that figure (2) was written by her. But in the light of these circumstances, if the respondent authorities have prima facie formed an opinion that the petitioner has voluntarily acquired citizenship of some other country, can it be said that the formation of such an opinion is arbitrary, capricious or unreasonable?

19. As held by the Hon'ble Supreme Court in the case of State of U.P. v. Shah Mohammad, reported in 0065/1969 : [1969]3SCR1006 , the cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds;

'(1) Indian citizen who voluntarily acquired citizenship of a foreign state prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired citizenship of another State or country between January 26, 1950 and December 30, 1955, i.e., the date of commencement of the Act, and (3) Indian citizen who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955. As regards the first category they were dealt with by Article 9 of the Constitution. The second and the third categories would be covered by the provisions of Section 9 of the Act. If question arises as to whether, when or how an Indian citizen has acquired the citizenship of another country that has to be determined by the Central Government by virtue of the provisions of Sub-section (2) of Section 9 read with Rule 30 of the Citizenship Rules.'

20. The observations made by their Lordships in Shah Mohammad's case 0065/1969 : [1969]3SCR1006 (supra), came to be reiterated in Bhagwati Prasad Dixit's case : [1986]2SCR823 (supra). There is, therefore, no doubt in my mind that whether a person is or is not a citizen of India, can be decided by a Court. In fact, it is the duty of the Court to decide that question. But, when a question arises as to whether, when or how a person has acquired citizenship of some other country, neither a Court nor any other authority can decide that question since it is in the exclusive jurisdiction of the Central Government under Section 9(2) of the Act.

21. The question then remains what type of action can be taken in such cases. It is always open to a person to approach the Central Government by invoking provisions of Section 9(2) of the Act and the Central Government will pass an appropriate order in accordance with law. It is also open to the person or authority who is prima facie of the opinion that such person who was a citizen of India has acquired citizenship of some other country and, therefore, he/she is ceased to be a citizen of India. Mr. Desai submitted that it is the case of the petitioner that she is a citizen of India by descent under Section 4(1) of the Act. That question ought to have been decided by the third respondent. Said question can also be decided by this Court and the matter must end there. If the third respondent is of the opinion that the petitioner has voluntarily acquired citizenship of some other country, it is always open to him to approach the Central Government by taking appropriate proceedings under Section 9(2) of the Act. If the third respondent does not want to approach to Central Government, the petitioner cannot be penalised or punished. Mr. Desai also submitted that a similar view was taken by the Supreme Court in Bhagwati Prasad Dixit's case : [1986]2SCR823 (supra). Mr. Dave, on the other hand, submitted that the petitioner must approach the Central Government. Relying on certain circumstances including obtaining of foreign passport, filling of the admission form after attaining the age of majority, putting figure (2) in column 6 of the application form, etc., Mr. Dave submitted that if according to the petitioner, the circumstances are immaterial or irrelevant, she can obtain appropriate relief Central Government. Mr. Dave also prayed in the alternative that this Court may direct the Central Government to decide the question in accordance with law.

22. The position which emerges from the above discussion is that neither the petitioner nor respondent No. 3 is ready and willing to approach the Central Government by invoking Section 9(2) of the Act. I will have, therefore, to decide what type of order should be passed by this Court. Before making any final decision, I had put certain queries to Mr. Desai and he specifically stated as under:--

(i) The petitioner is a citizen of India.

(ii) The petitioner does not categorically deny that she is not a citizen of some other country. Mr. Desai, however, stated that that inquiry is altogether immaterial and irrelevant as regards the controversy raised in the present proceedings.

(iii) The petitioner is holding a valid foreign passport got issued by her father and signed by her father in the beginning though in last two extensions, there is a signature of the petitioner but it was also during the minority of the petitioner.

(iv) Application form for Physiotherapy Course, is filled in by the petitioner after attaining majority but immediately after attaining that age.

(v) In column of citizenship, figure (2) was written by the petitioner.

(vi) It was an error and bona fide mistake.

(vii) Neither the petitioner has gone nor she wants to approach the Central Government. Mr. Desai reiterated that the case of the petitioner is that she is and she continues to be a citizen of India.

(viii) The petitioner has not voluntarily acquired citizenship of any other country.

(ix) The fact of obtaining valid foreign passport or the fact of mention about foreign citizenship in the application form (which is due to oversight and mistake) is irrelevant.

(x) The petitioner has not renounced her Indian citizenship under Section 8 of the Act nor has voluntarily acquired citizenship of any country in accordance with the provisions of Section 9 of the Act.

(xi) The direction of the authority that the petitioner should make application for certificate of acquisition of citizenship is illegal, unreasonable dehors the Act and Rules and violative of Articles 14 and 21 of the Constitution of India.

23. A similar question arose before the Supreme Court in Shah Mohammad's case 0065/1969 : [1969]3SCR1006 (supra). In that case, the petitioner had gone to Pakistan after January 26, 1950 and before the commencement of the Act. He came back to India on Visa issued by the Indian High Commission in Pakistan. He then filed a suit in the competent Civil Court claiming that he continues to remain a citizen of India. According to him, he was inborn in India, his parents were residing in India and he was minor when he was sent to Pakistan. There was no intention on his part to settle in Pakistan permanently. He made unsuccessful efforts to return to India and when no alternative was left, he had to obtain passport from Pakistan Authorities to come back to India. Thus, he never changed his nationality and continued to remain a citizen of India. Permanent injunction was sought restraining the respondent authorities from deporting him to Pakistan. The suit came to be dismissed by the trial Court against which, an appeal was preferred which came to be allowed and injunction was granted. In Second Appeal filed by the authorities in the High Court, a preliminary objection was raised that Civil Court had no jurisdiction to try the question whether the plaintiff had acquired citizenship of Pakistan since that question could only be decided by the Central Government. The objection was, however, overruled. The High Court agreed with the appellate Court and held that so long as the petitioner was minor, he could not have changed his Indian domicile because his parents were domiciled in India. The High Court was, however, of the opinion that since the plaintiff had spent one year in Pakistan after he attained majority, it was necessary to investigate whether or not he had acquired during that period citizenship of Pakistan. Necessary issue was, therefore, framed by the High Court and it was sent to the lower appellate Court for determination. The appellate Court held that the plaintiff had not acquired citizenship of Pakistan and disposed of appeal accordingly by deciding additional issue in favour of the plaintiff. The matter was then carried to the Supreme Court. It was contended on behalf of the authorities that the Civil Court had no jurisdiction to decide the question of citizenship after the commencement of the Act of 1955 as the exclusive jurisdiction was conferred on the Central Government under Section 9 of the Act read with the Rules framed thereunder. Upholding the contention and reversing the decree passed in favouur of the plaintiff, the Supreme Court held that the question could be decided only by the Central Government in accordance with the provisions of the Act of 1955 and the Rules framed thereunder. It was contended that when the proceedings were initiated, the Act of 1955 was not enacted and as per settled law, no retrospective effect could be given. The contention was negatived by the Court. In view of that finding, the Court held that the High Court had committed an error of law in framing the issue and calling for finding from the Civil Court which had no jurisdiction to decide the question. The Court, therefore, passed the following operative order :

'In the present case, the High Court ought not to have called for a decision of the lower appellate Court on the issue of the plaintiff haying acquired or not acquired the citizen-ship of Pakistan between July 3, 1952 and the date of his return to India. The appeal is, consequently, allowed and the order of the High Court is hereby set aside. It will be for the High Court now to make appropriate orders for determination of the aforesaid question by the Central Government after which alone the High Court will be in a position to dispose of the appeal finally.'

24. Respectfully agreeing with the law laid down by the Hon'ble Supreme Court in Shah Mohammad's case 0065/1969 : [1969]3SCR1006 (supra), I am of the opinion that it is in the interest of justice to direct the Central Government to decide the question whether in the facts and circumstances of the case, the petitioner has voluntarily acquired citizenship of any other country under Section 9 of the Act read with the Rules framed thereunder. The Central Government will give reasonable opportunity of being heard to the petitioner and decide the question in accordance with law. The respondent authorities are directed to grant provisional admission to the petitioner subject to the final outcome of the decision by the Central Government under Section 9(2) of the Act. Since the question concerns academic career of a student in a medical course and the application form is submitted before more than seven months, it is expected that the Central Government will decide the question as expeditiously as possible. Since the Central Government is not before me, the office is directed to send a copy of this order to the Department concerned of the Central Government, New Delhi as also to the General Administration Department and Home Department of the State Government. I am told at the Bar that academic year of 1992-93 will be over within a very short period and new term will start from June, 1993 for the next year, that is, academic year 1993-94. I have no doubt that the Central Government will consider this aspect also and will decide the question as early as possible.

Rule is accordingly made absolute to the aforesaid extent with no order as to costs.

25. The above order will also govern the petitioner of Special Civil Application No. 6682 of 1992. There also, I had put certain queries to the learned advocate Mr. M. H. Barejia, appearing for the petitioner and the learned advocate stated as under

(i) The petitioner is a citizen of India.

(ii) The petitioner is not a citizen of any other country.

(iii) The petitioner is holding a valid foreign passport got issued by her father when the petitioner was minor.

(iv) The application form was filled in on June 25, 1992 after the petitioner attained majority.

(v) In column 6, figure (2) was written by the petitioner.

(vi) Figure (2) was written due to error and bona fide mistake.

(vii) Representation was made to the authorities which came to be rejected.

(viii) The petitioner has not gone to the Central Government and does not want to invoke the jurisdiction of the Central Government under Section 9(2) of the Act.

26. An affidavit is filed by Mr. Desai, Dean of B.J. Medical College, Civil Hospital, Ahmedabad wherein it is stated that though initially the passport was obtained by the petitioner's father, after attaining majority, the petitioner applied for fresh passport which is granted. It is stated that said act of the petitioner reflects the intention of the petitioner to hold citizenship of a foreign country. The birth date of the petitioner is February 14, 1974 and thus, she has attained the age of majority on February 14, 1992. Last passport was obtained on August 6, 1992, that is, after attaining the majority. Application form for admission was obtained by the petitioner on June 17, 1992 and was submitted to the authorities on June 25, 1992 and thus, there was sufficient time to fill in all the columns after considering them.

27. In view of the above circumstances, in my opinion, the order directing the Central Government to pass appropriate orders in accordance with the provisions of Section 9(2) of the Citizenship Act, 1955 will also cover the case of the petitioner in Special Civil Application No. 6682 of 1992. Accordingly, I direct the Central Government to decide the case of the petitioner in accordance with the provisions of Section 9(2) of the Act read with Rules framed thereunder. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.

Liberty to apply in case of difficulty to both the sides in both the petitions.


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