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Abdul Halim Mia Vs. the Sub-divisional Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 414 of 1962 (Mandamus Appeal)
Judge
Reported inAIR1965Cal160
ActsCitizenship Act, 1955 - Section 5(1); ;Citizenship Rules, 1956 - Rules 7 and 9; ;Constitution of India - Article 226
AppellantAbdul Halim Mia
RespondentThe Sub-divisional Officer and ors.
Appellant AdvocateC.F. Ali, ;Rafiqul Islam and ;Hafizur Rahman, Advs.
Respondent AdvocateN.C. Chakravarty, Govt. Pleader and ;S.K. Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredWrit Jurisdiction See Union of India v. Ghaus Mohammad
Excerpt:
- .....officer, katwa, summarily rejected the appellant's application for registration of his name as an indian citizen under section 5(1)(a) of the citizenship act 1955. mr. ali contends that the officer acted illegally and in excess of his jurisdiction in dismissing the application summarily without making an enquiry. in support of this contention mr. ali relies upon thedecision in the case of sk. hakimuddin v. dy. secy. govt. of west bengal, : air1961cal299 . 2. now section 5(1)(a) of the citizenship act 1955 read with rule 7 of the citizenship rules 1956 empowers the collector to register as a citizen of india, on application made in this behalf, any person who is ordinarily resident in india and who has been so resident for six months immediately before making the application. section.....
Judgment:

Bachawat, J.

1. The Sub-Divisional Officer, Katwa, summarily rejected the appellant's application for registration of his name as an Indian citizen under Section 5(1)(a) of the Citizenship Act 1955. Mr. Ali contends that the officer acted illegally and in excess of his jurisdiction in dismissing the application summarily without making an enquiry. In support of this contention Mr. Ali relies upon thedecision in the case of Sk. Hakimuddin v. Dy. Secy. Govt. of West Bengal, : AIR1961Cal299 .

2. Now Section 5(1)(a) of the Citizenship Act 1955 read with Rule 7 of the Citizenship Rules 1956 empowers the collector to register as a citizen of India, on application made in this behalf, any person who is ordinarily resident in India and who has been so resident for six months immediately before making the application. Section 14(1) provides that the collector may in his discretion grant or refuse the application and shall not be required to assign any reasons for such grant or refusal. Section 14(2) provides that subject to the provisions of Section 15, the decision of the collector shall be final and shall not be called in question in any court. Under Section 15 any person aggrieved by his order may apply to the Central Government for a revision of the order, and on such application the Central Government may pass such order as it deems fit after considering the application and any report thereon which the collectormay submit, and its decision in this behalf is final. Section 18 empowers the Central Government to make rules. Rule 9 of the Citizenship Rules 1956 opens with the note 'collector to make inquiries before registration.' The rule provides that the collector shall before registering a person under Section 5(1)(a) satisfy himself that the person is of Indian Origin and has been actually residentin India for six months Immediately preceding the date of the application, has close connections in India, has an intention to make India Ms permanent home, has signed the prescribed oath of allegiance, is of good character and is otherwise a fit person to be registered as a citizen of India. Now in : AIR1961Cal299 Sinha, J. held that the summary dismissal of the application under Section 5(1)(a) without making any enquiry was in contravention of Rule 9 and he issued a writ in the nature of certiorari quashing the order and directed the collector to proceed to satisfy himself upon proper enquiry. He said,

'So far as the application itself is concerned, the intention is apparent that the petitioner wishes to be an Indian citizen, but as to whether he intends to make India his permanent home, cannot be decided without an enquiry. In his application the applicant has said on oath that he intends to do so. The Collector must, therefore, either accept it or reject it and this he cannot do summarily but must make some enquiry.'

With respect we are unable to agree with this decision. Rule 9 requires the collector to satisfy himself on the several points mentioned in the rule 'before registering a person under Section 5(1)(a).' Before registering the applicant as a citizen, the collector must satisfy himself on those points and for that purpose he may make inquiries. He may inform himself in such manner as he thinks fit. He may make confidential enquiries. He may act on his own personal knowledge. If on a perusal of the application he decides to reject it, he need not make further enquiries. He is required to follow the procedure prescribed by the Act and the rules and to do no more. Neither the Act nor the rules require him to make an enquiry in case he rejects the application under Section 5(1)(a). Even if he is satisfied that all the conditions mentioned in Rule 9 have been fulfilled, he has ample power to refuse the certificate of citizenship under Section 5. He is no way bound to register the applicant as a citizen even though all the conditions mentioned in Rule 9 are fulfilled. The action of the Collector under Section 5 is an executive and a political act. The collector is not bound to assign any reasons for the grant or refusal of the application, Subject to any orders which may be passed by the Central Government on a revision application under Section 5(1)(a), the decision of the collector is final and is not liable to be questioned in any court. The executive order of the collector is not amenable to a writ of certiorari. The foreigner has no fundamental right to become a citizen of this country. The Court has no power to interfere with the impugned order of the collector summarily rejecting the application under Section 5(1)(a).

3. The appellant as also his parents were born in Burdwan. He was in the police service. He opted for Pakistan in 1947, and remained there for six years. He came back to India under a Pakistani passport He also applied for grant of Indian citizenship under Section 5(1)(a) of the Citizenship Act, 1955. That application was dismissed in due course. All these facts show prima facie that the appellant is not citizen of India and, is therefore, a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1940. The Superintendent of Police, Burdwan, served upon the appel.lant a notice stating that the appellant is a foreigner and directing that he should not remain in India after the expiry of three days from the date of service of the order. Presumably this order was passed under Section 3(2) of the Foreigners Act. By Section 9 of the Foreigners Act, the onus of showing that he is not a foreigner is on the appellant. In the face of all the facts mentioned above, the appellant still claims that he is an Indian citizen and not a foreigner. Plainly he raises a disputed question of fact which cannot be decided conveniently in the Writ Jurisdiction See Union of India v. Ghaus Mohammad, : 1961CriLJ703 . If the appellant claims even now that he is not a foreigner, his remedy is to file a suit.

4. Banerjee, J. therefore, rightly refused to issue a rule against the orders of the Sub-Divisional Officer, Katwa, and the Superintendent of Police, Burdwan, and rightly rejected the application summarily.

5. We pass the following order:

The appeal be and is hereby dismissed with costs hearing fee assessed at three gold mohurs.

6. The oral application for stay is refused.

Arun K. Mukherjea, J.

7. I concur with the judgment and order of my Lord Mr. Justice Bachawat. Considering that the points for decision are of some importance, I would add a few words of mine.

8. I have no doubt at all that the order of the Sub-Divisional Officer, Katwa, under Section 5(1)(a) of the Citizenship Act as well as the order of the Superintendent of Police, Burdwan, under the Foreigners Act were executive acts. The whole scheme of the Citizenship Act as well as of the Citizenship Rules leaves no scope for doubt about the administrative nature of the act done by the prescribed authority or the Central Government when they consider an application under Section 5(1)(a) of the Citizenship Act, 1955. Section 14 of the Act does not require the Collector or the Central Government to assign any reason for grant or refusal of registration. The word 'discretion' used in Section 14 Sub-section (1) is significant. The relevant authorities may apparently pass any order whatsoever in their discretion. Such order under Sub-section (2) of Section 14 is final and cannot be called in question in any court. Section 15 provides for revision of this order only by the Central Government and the order of the Central Government is also final. I do not see how, therefore, we can interfere with the order of the Sub-Divisional Officer, Katwa, passed under Section 5(1)(a) of the Act. With great respect to Sinha, J. I find it impossible to agree with his Lordship's judgment in : AIR1961Cal299 . Rule 9 merely requires the Collector to satisfy himself on certain points before registering a person under Section 5(1)(a) of the Act. There is nothing in the Act or in the Rules which makes it incumbent on the Collector to register a person as an Indian citizen if that person satisfies the several conditions set out in Rule 9 of the Citizenship Rules, 1956. All that Rule 9 requires is that before registering a person the Collector has to make sure that the person concerned satisfies all the conditions enumerated there. It is clear from the Citizenship Act and the Rules that a person even though he satisfies all thoseconditions is not entitled as a matter of right to the grant of a certificate under Section 5(1)(a) of the Citizenship Act. Under the circumstances, I do not see why Rule 9 would require the Collector to give any hearing to the petitioner. It is enough if he only satisfies himself. No procedure is prescribed as to the manner in which he will satisfy himself. He may just satisfy himself by confidential enquiry or on the basis of such information as is available India ordinary course to the executive authorities including the Collector himself. The act under Section 5(1)(a) is essentially an executive and a political act and the legislators have thought it fit to leave the discretion in such matters entirely with the Government or with such Officers as may be prescribed by the Citizenship Rules, 1956. In this view of the matter Mr. Justice Banerjee was perfectly justified in rejecting the instant application of the appellant.


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