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PETITIONER: AKBAR KHAN ALAM KHAN AND ANOTHER

       Vs.

RESPONDENT: THE UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 05/04/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR   70            1962 SCR  (1) 779  CITATOR INFO :  R          1969 SC1234  (8)  F          1974 SC 645  (8)

ACT: Citizenship  -Suit  for  declaration  of  rights  as  Indian Citizens  jurisdiction of Civil Court-Citizenship Act,  1955 (57 of 1955), S. 9(2).

HEADNOTE: The  only  question  that a civil court  is  precluded  from determining under s. 9(2) of the Citizenship Act, 1955, read with r. 30 Of the Rules framed under the Act is the question as  to  whether,  when or how any person  has  acquired  the citizenship of another country.  They are not prevented from determining other questions concerning the nationality of  a person. Where, therefore, a suit brought for a declaration that  the appellants  were Indian Citizens, where they themselves  had raised  the question of acquisition of foreign  citizenship, was  resisted on the ground that they had never been  Indian Citizens,  and  the courts below dismissed the suit  in  its entirety, Held,  that the courts below were in error in  holding  that the suit was barred in its entirety by s. 9(2) Of the Act. They  should  have decided the question as  to  whether  the appellants  had  ever  been citizens of India  and,  if  the finding  was  in their favour, should have stayed  the  suit till  the  Central  Government  had  decided  whether   such citizenship was renounced and if the finding was against the appellants dismissed the suit. 780

JUDGMENT: CIVIL,  APPELLATE,    JURISDICTION: Civil  Appeal  No.18  of 1961. Appeal  by special leave from the judgment and  order  dated January 23, 1960, of the Madhya Pradesh High Court at Indore

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in Second Appeal No. 473 of 1959. Z.   F.  Bootwala, E. Udayarathanam and S.  S.  Shukla,  for the appellants. M.   C.  Setalvad, Attorney-General of India, B. Sen and  T. M. Sen, for respondent No. 1. H.   L. Khaskalam and 1. N. Shroff, for the respondents Nos. 2, 3. 1961.  April 5. The Judgment of the Court was delivered by SARKAR, J.-This appeal raises the question whether the  suit filed by the appellants was property dismissed on the ground that a civil court had no jurisdiction to entertain it.  The Courts  below  held  that a civil  court’s  jurisdiction  to entertain  the  suit was barred by s. 9 of  the  Citizenship Act, 1955. The  appellants  had filed the suit for a  declaration  that they   were  citizens  of  India  and  for   an   injunction restraining  the defendants from removing them  from  India. The defendants were the Union of India, the State of  Madhya Pradesh  and  the  District Magistrate,  Jhabua,  in  Madhya Pradesh.  The appellants stated in the plaint that they were citizens  of India and had not ceased to be  such  citizens. They  said  that  in  the beginning of  1953  they  went  to Pakistan  for a temporary visit without a passport but  when they  wanted  to  return  they  were  compelled  to   obtain Pakistani  passports.  They stated that they obtained  these passports  only  as a device for securing  their  return  to India and had really been compelled to obtain the  passports against  their will.  They further stated  that,  therefore, they  could  not  be said to have  acquired  citizenship  of Pakistan.   They also stated that they had made all  efforts for  the  cancellation  of  the  passports  and  to   obtain permission   to   stay  in  India   permanently   but   were unsuccessful.  They said that the 781 State  of  Madhya  Pradesh served on  them  an  order  dated November  11,  1955, under s. 3(2) of  the  Foreigners  Act, 1946,  asking them to leave the country.  They contend  that this  order  was illegal and without justification  as  they were not foreigners. In  the  written statement filed by the  defendants  it  was stated that the appellants had left India between March  and May,  1948,  and  they  returned for the  first  time  on  a temporary  Pakistani passport sometime in the early part  of 1955.   It was also stated that the permits granted to  them to  remain  in  India were extended from time  to  time  and ultimately  up to about October, 1955, and  thereafter  they were  served  with  orders to quit  India.   The  defendants further  stated  that the appellants were  not  citizens  of India as they had voluntarily acquired Pakistani citizenship by obtaining passports from that country . The suit was dismissed as it was held not to be maintainable in  view  of the provisions of sub-see. (2) of a. 9  of  the Citizenship Act.  That sub-section is in these terms:               Section 9 (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  rule-%  of               evidence,   as  may  be  prescribed  in   this               behalf." Rule  30  of the Rules framed under this Act  provides  that such   a  question  shall  be  determined  by  the   Central Government,  who for that purpose shall have regard  to  the rules of evidence specified in Schedule III to the Rules. It  seems  to  us clear that sub-see. (2) of  B.  9  of  the

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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  a  civil court  is prevented by s. 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 782 civil  courts  are  not prevented  by  this  provision  from determining  other  questions concerning  nationality  of  a person.   There is no doubt that the suit by the  appellants raised  the  question  whether they had  lost  their  Indian citizenship  by acquiring the citizenship of Pakistan.   The appellants  themselves had raised that question by  pleading in their -plaint that they had not voluntarily acquired  the citizenship of Pakistan.  To that extent, it has to be  held that  the  appellants’  suit was barred.   It  seems  to  us however  that  the suit raised other  questions  also.   The appellants’  claim to the citizenship of India was  resisted on the ground that having migrated to Pakistan in 1948, they had  never acquired Indian citizenship.  That  might  follow from  Art.  7 of the Constitution.  The  jurisdiction  of  a civil  court  to  decide that question is  not  in  any  way affected  by s. 9(2) of the Citizenship Act.   Therefore  it seems  to  us  that the entire suit  should  not  have  been dismissed.   The  Courts  below  should  have  decided   the question  whether  the  appellants  had  never  been  Indian citizens.  If that question was answered in the affirmative, then no further question would arise and the suit would have to  be dismissed.  If it was found that the  appellants  had been  on  January 26, 1950, Indian citizens, then  only  the question  whether  they had renounced that  citizenship  and acquired  a foreign citizenship would arise.  That  question the  Courts cannot decide.  The proper thing for  the  court would  then  have  been to stay the suit  till  the  Central Government  decided the question whether the appellants  had renounced  their Indian citizenship and acquired  a  foreign citizenship and then dispose of the rest of the suit in such manner  as  the  decision  of  the  Central  Government  may justify.   The  learned Attorney-General appearing  for  the respondents,  the  defendants  in the  suit,  conceded  this position.   He did not contend that there was any other  bar to  the  suit  excepting  that  created  by  s.  9  of   the Citizenship Act. What  we  have said disposes of this case but  we  think  we should  express  our views on some of the arguments  of  the learned counsel for the appellants. 783 He  first contended that it is only when a right is  created by a statute and a Tribunal is set up for the  determination of  that  right by that statute that the jurisdiction  of  a civil court as to a question concerning that right is  taken away and that,, therefore, the jurisdiction of a civil court to entertain the appellants suit was not taken away.  We are unable  to accept this contention.  A competent  legislature may  take  away a civil court’s jurisdiction  to  try  other questions  also.   No  authority has been  shown  that  this cannot be done. Another argument advanced by him was that the appellants had no  right to approach the Central Government to  decide  the question whether they had lost their Indian citizenship  and therefore  the appellants’ right to resort to a civil  court to  decide  that,  question cannot be deemed  to  have  been

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barred.   Reliance was placed in support of this  contention on  Sharafat Ali Khan v. State of U.P. (1).   This  question really  does not arise because the learned Attorney  General appearing  for the respondents has conceded the  appellants’ right  to apply to the Central Government for a decision  of the  question.   Even apart from this  concession  the  view expressed  in Sharafat Ali Khan v. State of U. P. (1)  would seem to be open to grave doubt.  But in the circumstances of this  case  we do not feel called upon to say more  on  that matter. For the reasons earlier stated, we set aside the orders  and the  judgments of the Courts below and direct that the  suit be heard and decided on all questions raised in it excepting the  question  whether  the appellants  having  been  Indian citizens  for sometime have renounced that  citizenship  and acquired  a foreign citizenship.  If’ the Court  finds  that the  appellants  had never been Indian  citizens,  then  the suit,  would be dismissed by it.  If on the other hand,  the court finds that they were Indian citizens earlier, then the court  would stay the further hearing of the suit  till  the Central  Government  decides  whether  the  appellants   had acquired subsequently a foreign nationality (1)  A.I.R. i96o All. 637. 784 and thereafter dispose, it of by such order as the  decision of  the  Central Government may justify.  There will  be  no order as to costs.                       Appeal allowed.                        Case Remitted.