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PETITIONER: THE GOVERNMENT OF ANDHRA PRADESH

       Vs.

RESPONDENT: SYED MOHD.  KHAN

DATE OF JUDGMENT: 17/04/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR 1778            1962 SCR  Supl. (3) 288  CITATOR INFO :  F          1965 SC 810  (9)  RF         1965 SC1623  (7)  R          1969 SC1234  (8)  R          1971 SC1382  (9,12)  R          1974 SC  28  (1)  R          1986 SC1534  (10)

ACT: Citizenship-Whether  a  person acquired the  Citizenship  of Foreign State-Question to be decided by Central  Government- Foreign  Passport  does not  automatically  prove  statutory cesser  of Indian Citizenship -Citizenship Act,  1955(57  of 1955) s. 9(2) -Citizenship Rules, 1956, Sch.  III, r. 3.

HEADNOTE: The  Government of Andhra Pradesh ordered  the  respondents, who  had  come to India with Pakistan  Passport,  to  remove themselves  out  of  India within  a  specified  date.   The respondents filed writ petitions in the, High Court  against the  said  orders and the single judge who heard  them  held inter  alia that as a result of s. 9 read with r. 3 in  Sch. III  of the Citizenship Rules as soon as it is shown that  a person  had  acquired a passport  from  Pakistan  Government there is an automatic statutory cesser of his citizenship of India.   This decision was challenged in appeal  before  the Division  Bench of the High Court of Andhra.   The  Division Bench held that s. 9 was intra vires -but found that r. 3 of Sch.  III of Citizenship Rules was ultra vires.  However the High Court made it clear that its decision in question would not  preclude  the  Central  Government  from  deciding  the question  whether  the  present  respondents  had   acquired citizenship  of  a foreign country or not, but  it  directed that  the Central Government must ignore r. 3 of  sch.   III which  in  its  view was ultra vires.  It  is  against  this decision  of the Division Bench that the  Andhra  Government has  come up in appeal to this Court by certificate  granted by the Andhra Pradesh High Court. Held  that the points raised in these appeals are  concluded by  the decision of this Court in Izhar Ahmad Khan v.  Union

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of India.  In all cases where action is proposed to be taken against persons residing in this country on the ground  that they  have acquired Citizenship of a foreign state and  have lost  in consequence the citizenship of this country  it  is essential  that that question should first be considered  by the  Central Government.  In dealing with the  question  the Central  Government  would undoubtedly be entitled  to  give effect  to  r. 3 in Sch.  III of the Citizenship  Rules  and deal                             289 with the matter in accordance with the other relevant  rules framed under the Act. It cannot be said that by virtue of s. 9 of the Act as  soon as  it is shown that a person has acquired a  passport  from the  Pakistan  Government, there is an  automatic  statutory cesser of his Citizenship of India.  The question about  the status  of  the respondents has to be tried by  the  Central Government  and it is only after the Central Government  has reached  the conclusion that the respondents  have  acquired the  citizenship of Pakistan that the authorities can  issue order of deportation against such person.

JUDGMENT: CIVIL APPELLATE  JURISDICTION : Civil Appeals Nos. 258  -279 of 1961. Appeals from the judgment and order dated September 4, 1957, of  the Andhra Pradesh High Courtin Writ Appeals No. 46,  66 and 73 of 1957. P.V. R. Tatachari and P. D. Menon, for the appellants. P.Ram Reddy, for respondents in Appeals Nos. 258, 265,  267, 271, 273, 275 and 279 of 1961. 1962.  April 17.  The Judgment of the Court was delivered by GAJENDRAGADKAR,  J.--This group of twenty. two  appeals  has been brought to this Court with certificates granted by  the Andhra High Court, and they challenge the correctness of the decision  of the said High Court that r. 3 in Sch.   III  of the  Citizenship  Rules,  1956 is  ultra  vires.   Twentytwo persons who are the respective respondents in these  appeals filed  twenty-two  writ petitions in the Andhra  High  Court challenging  the-  validity  of the  orders  passed  by  the appellant, Government of Andhra Pradesh, asking each one  of them  to  remove themselves out Of Inidia  before  the  date specified in the notices served on them in that behalf.   It appears  that all the said persons had come to India with  a passport  issued  in  their  favour  by  the  Government  of Pakistan, and the appellant’s case before 290 the  High Court was that as a result of the conduct  of  the respondents  in  applying for and  obtaining  the  Pakistani passport, they had lost the citizenship of this country  and had voluntarily acquired the citizenship of Pakistan.   That is  how the appellant justified the notices served  oil  the respondents calling upon them to leave India. The  respondents, on the other hand, contended that  s.9  of the  Citizenship  Act, 1955 (57 of 1955) and r. 3  in  Sell. III of the Citizenship Rules were ultra vires and they urged that  they had not acquired the citizenship of Pakistan  and continued to be the citizens of India.  These writ petitions were  tried by Bhimasankaran J. The learned Judge held  that the  impugned section and the Rule were intra vires  and  he came  to the conclusion, that as a result of s.9  read  with r.3 in Sch.  III of the Citizenship Rules, as soon as it  is shown  that  a  person  has acquired  a  passport  from  the

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Pakistan Government, there is an automatic statutory  cesser of  his citizen-,hip of India.  In the result,  the  learned Judge  upheld  the  validity of the  orders  of  deportation passed   by  the  appellant  against  the  respondents   and dismissed the writ petitions without costs.  This   decision  was  challenged  by  the  respondents   by preferring 22 appeals before a Division bench of the  Andhra High  Court.  The Division Bench which heard  these  appeals held that s. 9 was intra vires, but found that r. 3 of  Sch. 3 of the Citizenship Rules was ultra vires.  In its opinion, the  said  Rule was outside the authority conferred  on  the Central  Government  by s. 9 (1) and  it-  also  contravened Art.19  of  the  Constitution.   The  consequence  of  these findings  inevitably  was  that the  orders  of  deportation passed by the appellant against the respondents were held to be  invalid.   That  is why the  appeals  preferred  by  the respondents  were allowed and a writ of mandamus was  issued directing the  291 appellant  to  forbear  from enforcing the  said  orders  of deportation. The  Court  of  Appeal  has also  observed  that  under  the Citizenship Act and the Rules framed thereunder, the Central Government  has been constituted as a Special  Tribunal  for deciding the question as to whether a . person has  acquired the citizenship of a foreign country or not, and so,  before issuing the orders of deportation, it was necessary that the appellant  should  have obtained a decision of  the  Central Government on the point about the status of the respondents. The High Court accordingly made, it clear that its  decision in  the appeals in question would not preclude  the  Central Government   from  determining  the  question  whether   the respondents  have  voluntarily acquired the  citizenship  of another country within the meaning of s. 9 (1), but it added that  in deciding the question, the Central Government  must ignore  r. 3 of Sch.  III which, in its opinion,  was  ultra vires.   It ’is against this decision of the Division  Bench about the invalidity of the impugned Rule that the appellant has come to this Court. The  question  about  the  validity -of  section  9  of  the Citizenship Act and of r. 3 in Sch. ]III of the  Citizenship Rules  has  been  recently  considered  by  this  Court   in petitions Nos. 101 and 136 of 1959 and 88 of 1961, and  this Court  has  held that both s. 9(2) and r. 3 in  Sch.  3  are intra  vires.   The point raised by the appellant  in  these appeals  is,  therefore, concluded -in its  favour  by  this decision.  This position is not disputed by the respondents. That,  raises  the  question about the proper  order  to  be passed in the present appeals.  It has been urged before  us by  Mr. Tatachari for the appellant that the effect  of  oar decision in the case of Izhar Ahmad Khan is that as soon  as it is shown 292 that  a  person  has  acquired a  passport  from  a  foreign Government, his citizenship of India automatically comes  to an  end,  and  he contends that in such a case,  it  is  not necessary  that  the  Central  Government  should  hold  any enquiry  and  make a finding against the person  before  the appellant can issue an order of deportation against him.  In our  opinion, this contention is clearly  misconceived.   In dealing with the question about the validity of the impugned section and the Rule, this Court has, no doubt, stated  that "’the  proof  of  the fact that a passport  from  a  foreign country  has  been obtained on a certain  date  conclusively determines  the  other  fact that before that  date  he  has

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voluntarily  acquired the citizenship of that country."  But in  appreciating the effect of this observation, it must  be borne  in mind that in all the cases with which  this  Court was then dealing, the question about the citizenship of  the petitioners  had  been  expressly referred  to  the  Central Government and the Central Government had made its  findings on  that question.  It was after the Central Government  had recorded  a  finding against the petitioners that  they  had acquired  the  citizenship of Pakistan that  the  said  writ petitions  came before this Court for final disposal and  it is in the light of these facts that this Court proceeded  to consider  the contention about the validity of the  impugned section and the impugned rule.  It is plain, therefore, that the  observations  on which Mr. Tatachari  relied  were  not intended  to  mean  that as soon as it  is  alleged  that  a passport  has  been  obtained by a  person  from  a  foreign Government, the State Government can immediately proceed  to deport  him  without the necessary enquiry  by  the  Central Government.   Indeed it is clear that in the course  of  the judgment,  this  Court  has emphasised  the  fact  that  the question as to whether a person has lost his citizenship  of this  country and has acquired the citizenship of a  foreign country has to be tried by the Central Government and it is                             293 only after the Contrul Government has decided the point  the State  Government can deal with the person as  a  foreigner. It  may be that if a passport from a foreign  Government  is obtained by a citizen, and the case fall3 under the impugned Rule,  the  conclusion may follow that he has  acquired  the citizenship of the foreign country ; but that conclusion can be drawn only by the appropriate authority authorised  under the  Act to enquire into question.  Therefore, there  is  no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground  that they  have acquired the citizenship of a foreign  State  and have lost in consequence the citizenship of this country, it is  essential that that question should be first  considered by  the Central Government.  In dealing with  the  question, the Central Government would undoubtedly be entitled to give effect  to the impugned r. 3 in Sch.  III and deal with  the matter  in accordance with the other relevant  Rules  framed under the Act.  The decision of the Central Government about the  status of the person is the basis on which any  further action  can  be  taken against him.  Therefore,  we  see  no substance  in  the argument that the orders  of  deportation passed  by the appellant against the respondents  should  be sustained even without an enquiry by the Central  Government about  their status.  That is why we think,,  in  substance$ the  direction of the High Court is right, though  the  High Court  was in error in holding that the  Central  Government should hold the enquiry without reference to r. 3. In the result, the appeals succeed on the main point of  law and the decision of the High Court that the impugned r. 3 in Sch.  If is invalid is set aside.  Even so, we cannot accept the  view  of  the  learned trial Judge  that  there  is  an automatic  cesser of the respondents’ citizenship by  virtue of  s. 9. We hold that the question about the status of  the respondents 294 has  to  be tried by the Central Government and it  is  only after the Central Government has reached the conclusion that the  respondents have acquired the citizenship  of  Pakistan that  the appellant can issue orders of deportation  against them.   That being our view, we confirm the writs issued  by the High Court restraining the appellant from giving  effect

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to  the  impugned orders of deportation until  the  question about  the respondents’ status is determined by the  Central Government.  There would be no order as to costs.  Appeals allowed.