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PETITIONER: STATE OF UTTAR PRADESH & ORS.

       Vs.

RESPONDENT: SHAH MOHAMMAD & ANR.

DATE OF JUDGMENT: 13/03/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C.

CITATION:  1969 AIR 1234            1969 SCR  (3)1006  1969 SCC  (1) 771  CITATOR INFO :  F          1984 SC1714  (2,7,8)  R          1986 SC1534  (9)

ACT: Indian  Citizenship  Act 57 of 1955, s.  9  and  Citizenship Rules,  1956,  r.  30-Applicability of  provisions  to  suit pending when Act came into force.

HEADNOTE: Respondent  No.  1 was born in undivided India  on  July  3, 1934.   He  went to Pakistan in October 1950.   In  1953  he obtained a visa from the Indian High Commission in  Pakistan and came to India on July 22, 1953.  After the expiry of his period of stay he sought permanent settlement in India.   On May  6,  1955 he filed a suit claiming that he was  a  minor when he went on a trip to Pakistan and had not ceased to  be an  Indian  citizen.   He  sought  a  permanent   injunction restraining  the Union of India and other  authorities  from deporting  him.   The Munsif who tried the  suit  held  that respondent  No.  1 had ceased to be an Indian  citizen,  and dismissed the suit.  The District Judge in first appeal held that being a minor whose father was in India respondent no.1 could   not  by  leaving  for  Pakistan,  lose  his   Indian nationality.   In second appeal the High Court of  Allahabad remanded the case to the first appellate court to  determine the  question whether by having spent one year  in  Pakistan after  attaining majority respondent no. 1 had acquired  the citizenship  of  Pakistan.   The  High  Court  rejected  the contention  on behalf of the State that in view  of s.  9(2) of the Indian Citizenship Act 1955 which came into force  on December 30, 1955 and Rule 30 of the Citizenship Rules  made under  the Act, the question whether respondent no. 1 was  a citizen of India or not could only be decided by the Central Government.   In taking this view the High Court  relied  on the decision in Abida Khatoon’s case in which a single Judge of that court had held that s. 9 of the Citizenship Act 1955 was  not  retrospective and could not take away  the  vested right of a citizen who had already filed a suit to have  his claim  for  citizenship  decided by  a  court.   ’the  first appellate  court gave after remand a finding  favourable  to respondent  no.  1 and on receipt of this finding  the  High

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Court dismissed the State’s appeal.  The State then appealed to  this Court.  The questions that fell  for  consideration were  :  (i) whether s. 9 of the Act would apply to  a  suit pending  on  the  date when the Act came  into  force;  (ii) whether  in view of the fact that the procedure  established by  law  before  the commencement of  the  Act  allowed  the question as to the acquisition of the citizenship of another country  to  be determined by courts, there  was  by  giving retrospective  operation  to  s.  9,  a  violation  of   the guarantee of personal liberty under Art. 21. HELD  : (i) The language of sub-s. (1) of s. 9 is clear  and unequivocal and leaves no room for doubt that it would cover all  cases  where  an Indian citizen  has  acquired  foreign nationality between January 26, 1950 and its commencement or where  he acquires such nationality after its  commencement. The words "or has at any time between the 26th January  1950 and  the commencement of the Act, voluntarily  acquired  the citizenship   of  another  country"  would   become   almost redundant if only prespective operation is given to s.  9(1) of  the  Act.   This  according  to  the  settled  rules  of interpretation cannot be done, [1010 F-G] 1007 (ii) The  Act  has  been enacted under  the  powers  of  the Parliament  preserved by Art. 11 in express terms and a  law made  by Parliament cannot, as. held in lzhar Ahmed’s case be impeached on the ground that it is inconsistent with  the provisions  contained  in other Articles in Part II  of  the Constitution.    The   Parliament   had   also   legislative competence  under Entry 17, List I of Seventh Schedule.   It could  thus  make  a provision, about the  forum  where  the question as do whether a person had acquired citizenship  of another  country  could be determined and this is  what  has been done by r. 30. [1011 B-D] The  cases that would ordinarily arise about loss of  Indian citizenship  by acquisition of foreign citizenship would  be of  three  kinds  :  (1)  Indian  citizens  who  voluntarily acquired  citizenship  of  a foreign, State  perior  to  the commencement  of the Constitution; (2) Indian  citizens  who voluntarily  acquired  the 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 Citizens 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 Art. 9 of the  Constitution. The second and third categories would  be covered by the provisions of S. 9 of the Act.. Therefore, if a  question  arises  as to whether when and  how  an  Indian citizen has acquired citizenship of another country that has to be determined by the central Government by virtue of  the provisions  of  sub-s. (2) of s. 9 read with r.  30  of  the Citizenship Rules.  In view of the amplitude of the language employed  in  s.  9  which takes  in  persons  mentioned  in category  (2)  mentioned above, the  entire  argument  which prevailed  with the Allahabad High Court in Abida  Khatoon’s case can have no substance. [1011 D-H, 1012 C] lzhar  Ahmad Khan v. Union of India, [1962] Supp.  3  S.C.R. 235,  244,  245., Akbar Khan Alam Khan & Anr.  v.  Union  of India,  [1962]  1 S.C.R. 779 and The  Government  of  Andhra Pradesh  v.  Syed Mohd.  Khan, [1962] Supp.  3  S.C.R.  288, referred to.     Abida  Khatoon & Anr. v. State of.  U.P. & Ors.   A.I.R. 1963 All 260, disapproved. (iii)     The contention that retrospective operation of  s. 9 would contravene Art. 21 of the Constitution could not  be accepted.   If  the Parliament was competent under  Art.  11

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which  is a constitutional provision read with the  relevant entry  in  List  I  to legislate  about’  cases  of  persons belonging to categories 2 and 3 referred to earlier it could certainly  enact a legislation in exercise of its  sovereign power  which  laid down a procedure different from  the  one which  obtained  before.   The new  procedure  would  ltself become the "procedure established by law" within the meaning of Art.’ 21 of the Constitution. [101 2 E-G] The  High Court was therefore wrong in the present  case  in calling  for a decision of the lower appellate court on  the issue   of  the  plaintiff  having  acquired  or   not   the citizenship of Pakistan between July 3, 1952 and the date of his  return  to India. [High Court accordingly  directed  to have   question   determined  by  Central   Government   and thereafter dispose of appeal finally]. [1013 B-C]

JUDGMENT: CIVILL APPPLLATE JURISDICTION: Civil Appeal No. 347 of 1966. Appeal  by special leave from the judgment and  order  dated December  11,  1963 of the Allahabad High  Court  in  second Appeal No, 3809 of 1958. 1008 C.   B.  Agarwala,  O. P. Rana and Ravindra  Rana,  for  the appellants. Denial Latifi and M. 1. Khowaja, for respondent No. 1. The Judgment of the Court was delivered by Grover,  J. This is an appeal by special leave from a  judg- ment  of  the Allahabad High Court in  which  the  principal question  for  determination is whether s. 9 of  the  Indian Citizenship  Act. 1955, hereinafter called the "Act",  which came into force on December 30, 1955, would be applicable to a suit which was pending on that date. Respondent  No.  1  was born on July 3, 1934.   He  went  to Pakistan in October 1950.  In March 1953 he obtained a  visa from  the Indian High Commission in Pakistan for  coming  to India.  He came to India on July 22, 1953.  On July 20, 1954 the  period of authorised stay expired and respondent No.  1 applied  for  permanent settlement in India.   He,  however. filed a writ petition in the High Court on July 15, 1954 but the  same was dismissed on February 10, 1955 and  respondent No. 1 was directed to file a suit.  He instituted a suit  on May  6,  1955.   He claimed that he was  born  in  India  of parents who were residing here and that he was a minor  when he was persuaded by two muslim youths to accompany them on a trip  to Pakistan.  He went there without any  intention  to settle  there  permanently.   Later on he  made  efforts  to return but due to certain restrictions he was  unsuccessful. He  had  no alternative but to obtain a  passport  from  the Pakistan authorities in order to come to India.  He had thus never  changed  his nationality and continued  to  remain  a citizen  of  India.  He sought a permanent  injunction  res- training  the  Union of India, the State of  U.P.,  District Magistrate,   Kanpur  and  the  Superintendent  of   Police. Kanpur. who were impleaded as defendants from deporting him. The suit was contested and on the, pleadings of the  parties the appropriate issues were framed.  The learned Munsif held that  respondent  No. 1 had gone to  Pakistan  for  settling there  permanently and had ceased to be an  Indian  citizen. The  suit was dismissed.  Respondent No. 1 appealed  to  the First Additional Civil Judge, Kanpur.  The Teamed Judge  was of the view that respondent No. 1 had gone to Pakistan  when he  was a minor and when his father, who was  his  guardian, was in India.  By his departure to Pakistan, respondent  No.

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1 could not change his nationality.  Even on a consideration of the evidence it could not be held that he had shifted  to Pakistan  with the intention of settling there  permanently. His appeal was allowed and a permanent injunction as  prayed was  issued.   The  Union  of  India  and  other  appellants preferred an appeal to the High 1009 Court.   Before the High Court a preliminary  objection  was taken  that the civil court had no jurisdiction to  try  the question   whether  respondent  No.  1  had   acquired   the citizenship  of Pakistan which matter had to be referred  to the  Central  Government under Rule 30  of  the  Citizenship Rules framed under the Act.  This objection was repelled in view  of  another decision of the High  Court  according  to which  s.  9  of  the Act and  Rule  30  could  not  operate retrospectively  and affect pending litigation.  Before  the High  Court the finding that respondent No. 1 did not go  to Pakistan  with the intention of settling  there  permanently was  not challenged by the appellants.  The High  Court  was inclined  to  agree with the lower appellate court  that  so long as respondent No. 1 was a minor he could not change his Indian  domicile because his parents were domiciled in  this country.   The  High  Court  proceeded  to  say  that  since respondent  No.  1 had spent one year in Pakistan  after  he had’  obtained  majority  it was  necessary  to  investigate whether he had acquired, during that period, the citizenship of  Pakistan.  An appropriate issue was framed and  remitted to  the  lower appellate court for its  determination.   The appellate court held that respondent No. 1 had not  acquired the  citizenship  of  Pakistan  since  it  was  not  legally possible  for him to do so for the reason that according  to laws  of Pakistan he could become a major only on  attaining the age of twenty one.  On December 11, 1963 the High  Court disposed  of  the  appeal  of  the  present  appellants   by dismissing  it in view of the findings which were in  favour of respondent No. 1. Learned  counsel for the appellants had contended before  us that  the  civil  court had no jurisdiction  to  decide  the question  of  citizenship after the enforcement of  the  Act towards the end of the year 1955 in view of the provisions of  Rule  30 of the Citizenship Rules  1956  promulgated  in exercise  of  the Dower conferred by s. 1 8 (2) (h)  of  the Act.  Section 9 is in the following terms               "S.   9(1)  Any  citizen  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.               1010               (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."               Rule 30 provides:

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             "Authority   to   determine   acquisition   of               citizenship  of  another country.-(1)  If  any               question arises as to whether, when or how any               person has acquired the citizenship of another               country,  the  authority  to  determine   such               question shall, for the purpose of s. 9(2)  by               the Central Government.               (2).  The   Central   Government   shall    in               determining any such question have due  regard               to   the  rules  of  evidence.  specified   in               Schedule III."    The  validity of the provisions of the Act and the  Rules is  no longer open to challenge.  ’It has not been  disputed by  learned  counsel  for respondent No. 1  that  after  the enforcement of the Act and promulgation of Rule 30 the  only authority   which   is  competent   to   determine   whether citizenship  of  Pakistan has been acquired by  him  is  the Central Government.  But it has been strenuously urged  that the  suit in the present case had been instituted  prior  to the date of enforcement of the Act and therefore  respondent No.  1 was entitled to get this question determined  by  the Courts and not by the Central Government.  In other words s. 9 of the Act cannot be given ’retrospective operation so  as to  be  made applicable to pending  proceedings.   Thus  the first  point which has to be decided is whether s. 9  either expressly   or  by  necessary  implication  has  been   made applicable  to  or would govern  pending  proceedings.   The language  of sub-s. (1) is clear and unequivocal and  leaves no  room  for doubt that it would cover all cases  where  an Indian  citizen  has acquired  foreign  nationality  between January  26, 1950 and its commencement or where he  acquires such nationality after it-; commencement.  The words "or has at  any  time  between  the  26th  January  1950  and   the, commencement   of   this  Act.  voluntarily   acquired   the citizenship of another country" would become almost redundant if  only prospective operation, is given to  s.  9 (1) of the Act.     This  according to the settled rules  of intepretation cannot be  done. It  must  be remembered that Article 9 of  the  Constitution provides  that  no  person shall be a Citizen  of  India  by virtue  of Art. 5 or be-deemed to be a citizen of  India  by virtue  of Art. 6 or Art. 8 if he has  voluntarily  acquired the citizenship of any foreign State. , This. means that  if prior to the commencement of the Constitution a person’  had voluntarily acquired the citizenship of any foreign State he was not entitled’ to’ ’claim the citi- 1011 zenship  of  India  by virtue of Arts. 5 and 6  or  8.  This article  thus  deals with cases where the citizenship  of  a foreign  State had been acquired by an Indian citizen  prior to  the commencement of the Constitution (vide  Izhar  Ahmed Khan v. Union of India) (1).  Article 11, however, makes  it clear  that Parliament has the power to make  any  provision with   respect  to  the  acquisition  and   termination   of citizenship  and all other matters relating to  citizenship. The Parliament could thus regulate the right of  citizenship by law.  As pointed out in the above decision of this  Court it  would be open to the Parliament to affect the rights  of citizens  and  the  provisions  made  by  the  Parliamentary statute  cannot  be impeached on the ground  that  they  are inconsistent   with  the  provisions  contained   in   other Articles, in Part II of the Constitution.  The Act has  been enacted under the powers of the Parliament preserved by Art. 11  in express terms.  The Parliament had  also  legislative competence  under Entry 17, List I of Seventh Schedule.   It

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could  thus  make  a provision about  the  forum  where  the question as to whether a person had acquired citizenship  of another  country  could be determined and this is  what  has been done by Rule 30.  The cases that would ordinarily arise about  loss of Indian citizenship by acquisition of  foreign citizenship  would be of three kinds: (1)  Indian  citizens who  voluntarily  acquired citizenship of  a  foreign  State prior  to the commencement of the Constitution;  (2)  Indian citizens who voluntarily acquired the 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 citizens 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 Art. 9 of  the Constitution.  The second and the  third  categories would be covered by the provisions of s. 9 of the Act.  If a 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-s. (2) of s. 9 read with Rule 30  of  the Citizenship Rules. Counsel  for respondent No. 1 has relied on a decision of  a learned  Single Judge of the Allahabad High Court  in  Abida Khatoon  &  Another v. State of U.P. & Ors.  (2)  which  was followed in the present case.  There it was observed that  a litigant,  after filing a suit, acquired a vested  right  to have all questions determined by the court in which the suit was filed and that the institution of the suit carried  with it all the rights of appeal then in force.  Referring to the normal   principle   that   an   Act   is   ordinarily   not retrospective, that vested rights are not disturb- (1) [1962] Supp 3 S. R. 235, 244, 245, (2) A.I.R. 1963  All. 260. 1012 ed and that the jurisdiction of the civil courts in  pending cases  is not taken away by the creation of a  new  tribunal for the determination of a particular question, the  learned judge  held  that there was nothing in the language  or  the scheme  of  the  Act to suggest that  Parliament  wanted  to depart  from these principles.  We are unable to agree.   In our judgment from the amplitude of the language employed  in s. 9 which takes in persons in category (2) mentioned  above the intention has been made clear that all cases which  come up for determination where an Indian citizen has voluntarily acquired  the  citizenship of a foreign  country  after  the commencement  of the Constitution have to be dealt with  and decided in accordance with its provisions.  In this view  of the  matter  the entire argument which  prevailed  with  the Allahabad court can have no substance. It  has  next been contended  that  retrospective  operation should  not  be  given to s. 9 of the Act  because  loss  of Citizenship  is a serious and grave matter and  it  involves loss  of personal liberty.  Under Art. 21 no person  can  be deprived of his life or personal liberty except according to procedure established by law.  The procedure established  by law  before  the commencement of the Act  was  the  ordinary procedure  of  determination  by  civil  courts  whenever  a question   arose  about  loss  of  Indian   citizenship   by acquisition  of citizenship of a foreign country  or  State. It is suggested by learned counsel for respondent No. 1 that by  giving retrospective operation to s. 9 so as to make  it applicable to pending proceedings the provisions of Art.  21 win  be contravened or violated.  This would render s. 9  of the  Act  unconstitutional.   It is  somewhat  difficult  to appreciate  the argument much less to accede to it.  If  the

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Parliament   was  competent  under  Art.  11,  which  is   a constitutional  provision  read with the relevant  Entry  in List  1,  to legislate about cases of persons  belonging  to categories 2 and 3 referred to at a previous stage it  could certainly  enact a legislation in exercise of its  sovereign power which laid down procedure different from the one which obtained before.  The new procedure would itself become  the "procedure established by law" within the meaning of Art. 21 of the Constitution.  Therefore even on the assumption  that loss  of Indian citizenship with consequent deportation  may involve loss of personal liberty within the meaning of  Art. 21, it is not possible to hold that by applying s. 9 of  the Act  and Rule 30 of the Rules to a case in which a suit  had been  instituted prior to the commencement of the Act  there would be any contravention or violation of that Article. In  conclusion  it  may be mentioned  that  this  could,  in several cases, has consistently held that questions  falling within s. 9(2) have to be determined to the extent indicated therein by the 1013 Central  Government and not by the courts.  Such matters  as are  not  covered  by that provision have,  however,  to  be determined  by the courts; (see Akbar Khan Alam Khan &  Anr. v.  The  Union of India & Ors. (1) and lzhar Ahmed  Khan  v. Union of India) (2) and The Government of Andhra Pradesh  v. Syed Mohd. Khan) (3). 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   having  acquired  or  not   acquired   the citizenship 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.  Costs will abide the result. G.C.                             Appeal allowed. (1)  [1962] 1 S.C.R.779. (2)  [1962] Supp. 3 S.C.R. 235. (3)  (1962] Supp. 3 S.C.R. 288. LlISup-C.1/69-2,500-31-3-70-GIPF.