Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Writ Petition (civil) 737 of 1995
PETITIONER:
BHANWAROO KHAN & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 02/04/2002
BENCH:
Doraiswamy Raju & Ashok Bhan
JUDGMENT:
With
C.A. No. 10224 of 1995
J U D G M E N T
Bhan, J.
This judgment shall dispose of Civil Appeal No. 10224 of 1995
directed against the Division Bench Judgment of the Rajasthan High
Court arising from Civil Writ Petition No. 837 of 1987 decided on
17th May, 1994 and Writ Petition (C) No. 737 of 1995 filed in this
Court challenging the order made by the Government of India
(Annexure D in the writ petition) dated 21st July, 1995 determining
the national status of the petitioners under Section 9 (2) of the
Citizenship Act, 1955 (for Short "the Act").
The parties would be referred by their original status in the
appeal as Appellant Nos. 1 and 2 (who are the writ petitioners Nos. 1
and 2) and the respondent as the Government of India.
The appellant No. 1, Bhanwaroo Khan and the appellant No. 2 -
wife of the appellant No. 1, are said to be residents of Village
Hammoosar, Tehsil Ratangarh, in the State of Rajasthan and at
present residing at Sardar Sahar, District Churu, Rajasthan. They had
left India after partition of the country and became citizens of
Pakistan. After obtaining passports from the Pakistan as
nationals/citizens of Pakistan and after obtaining visas from Indian
High Commission in the year 1955, the appellants entered India via
Atari Check Post, Border of Punjab on 12th February, 1955.
According to the procedure a foreigner coming from Pakistan is
required to attend the office of the Registration authority of the
District in which they have to stay. The appellants reported to the
District Superintendent of Police, Churu on 14th February, 1955 about
their arrival to India and an entry was made in the Register of
Foreigners visit on Serial No. 31. The appellants thereafter reported
at the Police Station, Ratangarh on the same day. Again on 7th May,
1955 the appellants attended the Police Station, Ratangarh and
informed that they were leaving India for Pakistan by night train and
accordingly an entry was made in the Register at Serial No. 6.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Instead of returning back to Pakistan the appellants kept
themselves underground. In 1984 a Pakistani national was arrested at
Sardarsahar. Being afraid of arrest and after consultation the
appellants applied to the State Government for registration as citizens
of India. On this, Home Department sent a message No. F.1(4)
Home/Gr.IV/84 dated 13.3.1984 (Annexure R-6) to the
Superintendent of Police, Churu, State of Rajasthan, mentioning that
Bhanwroo Khan was a national of Pakistan. At that time no case was
pending with the Superintendent of Police, Churu. Superintendent of
Police, Churu by his wireless message dated 15th March, 1984 gave
his reply. On the receipt of the reply, the Home Department
demanded a detailed note in the matter. On receipt of instructions
S.H.O. Police Station Ratangarh and Sardarsahar conducted a detailed
enquiry, report of which was sent to the Home Department through
Superintendent of Police, Churu. On receipt of the enquiry report the
Home Department wrote to the Superintendent of Police, Churu to
keep a close watch on the appellants till decision is taken by the
Government. Superintendent of Police, Churu on 29th January, 1987
issued notices and sent to S.H.O. Police Station Sardarsahar for
service. The service of these notices were effected on 22nd February,
1987. Immediately after the service of notices by the Superintendent
of Police, Churu the appellants filed the Writ Petition No. 837 of 1987
dated 10th July, 1987 in the High Court of Rajasthan alleging therein
that they had acquired the citizenship of India and they were being
unnecessarily harassed by the Police. The two prayers made by the
appellants in the writ petition were as follows:
"(a) by an appropriate, writ, direction or order the
respondents may be prohibited from arresting and
deporting the petitioners to Pakistan forcibly.
(b) the petitioners may be ordered to be treated as
Indian citizens, or such relief which may be just
and proper under the circumstances may be
granted."
The writ petition was taken up for hearing by a Single Judge
and dismissed. Aggrieved by the order of the Single Judge Civil
Special Appeal No. 164 of 1992 was filed in the High Court along
with an application under Section 5 of the Limitation Act to condone
the delay of 98 days in filing the appeal.
The Division Bench condoned the delay of 98 days in filing the
appeal. The appeal was dismissed by the impugned judgment dated
17th May, 1994. Civil Appeal is directed against this judgment.
On 16th September, 1994 on a representation made by the
counsel for the appellants, this Court directed that the appellants
would individually or collectively make an application before the
authorities under the Citizenship Act and the concerned authorities
would decide the same as soon as possible and the Court be
communicated the result thereon. On 25th September, 1995 the
Government of India placed on record the order dated 21st July, 1995
passed under Section 9 (2) of the Citizenship Act rejecting their claim
to be Indian citizens. Thereafter, the appellants filed the Writ Petition
No. 737 of 1995 challenging the order passed by the authorities under
Section 9 (2) of the Citizenship Act.
Counsel for the appellants addressed arguments in the civil
appeal as well as the writ petition simultaneously. According to him
the facts were over-lapping and the point decided in the civil appeal
would have a bearing on the result of the writ petition as well.
Counsel for the appellants contended that the appellants were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
born in India to Indian parents. Their brothers and sisters are living in
India. All their children were born in India and are living in India.
That the appellants being more than 70 years of age required support
in their old age from their children and they should not be deported
from the country. Simply obtaining of passports from a foreign
country is not sufficient to prove that the appellants had abandoned
their natural citizenship of India. That the authorities erred in
rejecting their applications under Section 9 (2) of the Citizenship Act.
Counsel appearing for the State of Rajasthan and the Union of
India have refuted these submission and argued that the act of the
appellants in migrating to Pakistan after partition of the country and
obtaining passports from the Government of Pakistan declaring
themselves to be citizens of Pakistan raises a presumption against the
appellants that they are citizens of India. That the appellants obtained
visas from Government of India after declaring themselves to be a
citizens of Pakistan. Instead of returning back to Pakistan after the
expiry of the visa period or getting the visa extended the appellants
remained underground. On being detected they are liable to be
deported to Pakistan. That a passport obtained by a person from a
foreign country is relevant in an enquiry as to the citizenship of the
person holding the passport. That a conclusive presumption could be
raised that the appellants were the citizenship of Pakistan.
Counsel for the parties have been heard. Sub-section (2) of
Section 9 of the Citizenship Act provides that 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 3 of Schedule III of the Citizenship
Rules, 1956 (for short ’the Rules’) provides:
"3. The fact that a citizen of India has obtained on
any date a passport from the Government of any
other country shall be conclusive proof of his
having voluntarily acquired the citizenship of that
country before that date."
Relying upon this Rule the Union of India in its order passed under
Section 9 (2) of the Citizenship Act dated 21st July, 1995 determined
the national status of the appellants to be that of Pakistani.
A constitution Bench of this Court in Izhar Ahmad Khan &
Ors. Vs. Union of India & Ors., AIR 1962 SC 1052, considered the
validity of Rule 3 of Schedule III of the Citizenship Rules and the
order passed under Section 9 (2) of the Citizenship Act where the
person concerned had obtained a Pakistan passport and observed in
para 34 as under:
"In dealing with this question, it may also be
relevant to consider the practical aspect of the rule;
and that takes us to the procedure which has to be
followed in Pakistan in obtaining a passport from
the Government of that country for travel to India.
One of the objects which the Act was incidentally
intended to achieve was to meet the emergency
which arose as a result of the partition of the
country into India and Pakistan, and the relevant
rules are also primarily applicable to Indian
nationals who on going to Pakistan obtained
passport from the Government of that country.
Now; it is not disputed that according to the laws
prevailing in Pakistan, a person is not entitled to
apply for or obtain a passport unless he is a citizen
of Pakistan under its Citizenship Act. Besides, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
prescribed form of the application requires that the
applicant should make a declaration to the effect
that he is a citizen of Pakistan and the said
declaration has to be accepted by the Pakistan
authorities before a passport is issued. In the
course of the enquiry as to the citizenship of the
applicant, declaration by officials of Pakistan
about the truth of the statement of the applicant are
also required to be filed. Thus, the procedure
prescribed by the relevant Pakistan laws makes it
abundantly clear that the application for the
passport has to be made by a citizen of Pakistan, it
has to contain a declaration to that effect and the
truth of the declaration has to be established to the
satisfaction of the Pakistan officials before a
passport is granted. When a passport is obtained
under these circumstances, so far as the Pakistan
Government is concerned, there can be no doubt
that it would be entitled to claim the applicant as
its own citizen. The citizen would be estopped
from claiming against the Pakistan Government
that the statement made by him about his status
was untrue. In such a case, if the impugned rule
prescribes that the obtaining of a passport from the
Pakistan Government by an Indian national,
(which normally would be the result of the
prescribed application voluntarily made by him)
conclusively proves the voluntary acquisition of
Pakistani citizenship, it would be difficult to hold
that the rule is not a rule of evidence. In our
opinion, it would be pedantic and wholly
unrealistic to contend that the rule in question does
not purport to assess the probative value of fact A
in the matter of proving fact B but imports
considerations which are relevant to substantive
law. Our conclusion, therefore, is that the
impugned rule is a rule of evidence and falls
within the scope prescribed by S. 9 (2). The
challenge to its validity on the ground that it is a
rule of substantive law must therefore, fail."
The Supreme Court held that the conclusive presumption could be
raised of the fact that a citizen of India who has obtained on any date a
passport from the Government of another country of having
voluntarily acquired the citizenship of that country before that date.
In the present case, the Government of India in its order dated
21st July, 1995 passed under Section 9 (2) of the Citizenship Act
(which has been impugned in the writ petition) held:
". . . There is no dispute in this case that the
applicants went to Pakistan and acquired the
Pakistani passport voluntarily. They stayed there
for three years which is not a short period. They
obtained Pakistani passport after applying for it
and after declaring themselves as Pakistani
nationals. Further, the applicants have failed to
adduce any documentary evidence to show that the
Pakistani passport was obtained in fraud or under
compelling circumstances, there may not be any
hesitation whatsoever in declaring them Pakistani
nationals.
NOW, THEREFORE the Central
Government in exercise of the powers conferred
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
on it under Section 9 (2) of the Citizenship Act,
1955 and Rules made thereunder and consideration
of all the facts and circumstances of the case and
relevant material on records, has come to a
conclusion that the acquisition of a Pakistani
passport and visa for visit to India by the
applicants were voluntary acts and there was no
compulsion on them. The applicants acquired the
Pakistan citizenship voluntarily and therefore their
claim to be Indian citizens deserves to be rejected
and is hereby rejected."
We do not find any infirmity in the order dated 21st July, 1995
determining the national status of the appellants under Section 9 (2) of
the Citizenship Act. Before us as well, the appellants failed to prove
by any evidence whatsoever that they had not voluntarily migrated to
Pakistan and had obtained the Pakistani passports under compelling
circumstances. Rather their conduct after coming to India also shows
that they had voluntarily migrated to Pakistan and obtained the
passports from then Government of Pakistan after declaring
themselves to be citizens of Pakistan. Soon after coming to India as
per rules they got themselves registered with the concerned
registration authority. On 7th May, 1955 on the expiry of the visa
period they again went to the Police Station, Ratangarh and declared
that they would be going back to Pakistan by the evening train.
Instead of returning back to Pakistan they illegally stayed in India.
Had the intention of the appellants been that they had not acquired the
citizenship of Pakistan and the passport from that country voluntarily
as has been projected before us then they would not have declared
their intention of returning to Pakistan on the expiry of the visa period
on 7th May, 1955. Further, they would not have gone underground.
Efforts would have been made by them way back in the year 1955, to
acquire the citizenship of India afresh. The order passed by the Union
of India is factually correct and in accordance with law.
We agree with the High Court that a case for interference with
the order of deportation is not made out. Long stay in the country and
enrolment in the voters’ list would not confer any right to an alien to
continue to stay in the country. We do not find any infirmity either
with the reasoning adopted or the conclusion arrived at by the High
Court, or even by the Government of India in its order dated 21st July,
1995 passed under Section 9 (2) of the Citizenship Act, 1955.
After the conclusion of the cases, counsel for the appellants
contended that the application of the appellants under Section 5 of the
Citizenship Act is pending with the concerned authorities and the
observations made in this case might prejudice the claim made by the
appellants under Section 5 of the Citizenship Act. We have decided
the civil appeal against the order passed by the High Court of
Rajasthan arising from the civil writ petition filed by the appellants in
the said Court and the claim made thereunder. Similarly, we have
decided the writ petition filed in this Court directed against the order
passed by the Government of India under Section 9 (2) of the
Citizenship Act. No opinion on the merits or demerits of the
application filed by the appellants under Section 5 of the Citizenship
Act has been expressed. It would be open to the authorities to proceed
and decide the application, if any, filed by the appellants under
Section 5 of the Citizenship Act and decide the same (if not already
decided) in accordance with law.
For the reasons stated above, we do not find any merit either in
the appeal or in the writ petition and dismiss the same. The
authorities are hereinafter put at liberty to act in accordance with law.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
J.
( Doraiswamy Raju )
.J.
( Ashok Bhan)
April 2, 2002