The Goverment of Andhra Pradesh v. Syed Mohd. Khan

OajmdraraJlaw J. justified tho notices served on the respondents call.

ing upon them to )pq.ve India. . The rrspon<lents, on thn other hand, eontc11<l-ed that s.9 of thP Citizcn8hip Act, 1955 (57 of 1955) and r. :J in Sch. III of the Citizenship Rules were 1dtra virc.~ aml they urged that they had not acquiH·d the citizenship of Pakistan ancl continued to be th" citizen8 of India. These writ petitions were tried by Bhimas:mkaran J. The h•arned Judge held tlrn.t the impugned section and tho l:tulc were intra .,,-irM and ho ca.me to the conelusion that as a result of s.9 read with r,3 in Sch. III of the Citizenship Rnles, as soon as it is shown that a person hn,s acquir-ed a passport from the Pakistan Government, there is an automatic statutory ccFser of his citizemhip of India. In the result, the learned ,Judge upheld the validity of tho orders of deportation passed by the appellant agains~ the respondents and dismi~secl the writ, petitions without costs.

This decision was challenged by the respond. en ts by preferring :!2 appeals before a Division bench of tho Andhra High Court. The Uivision Bench which heard these appeals held thats. 9 was inf><• 1;ires, but found that. r. 3 of Sch. 3 of tlie Citizcmhip Rul~s was ·ultra vires. In its opinion, the said Huie was outside the authority conferred on the Central Government by H. 9 (Ii and it also contravened Art.19 of th<' Conetitution. The consequence of these findings inevitably '1.as that the orders of depo1ta-tfon passed by th<· aprcllant against the rcspcnd-ente were held to be invalid. That is why the app-eals preferred by the respondents were allowed and & writ of mandamus was issued directing thf' ,,,; . ~

3 S.C.R. SUPREME COURT REPORTS· 291

appellant to forbear from enforcing the said orders 1961 of deportation. The Goue.rnment of Andhra l'rodesh The Court of Appea.l has also observed that v. under the Citizenship Act and the Rules framed Syed Mohd. Kkao thereunder, the Central Government has been con-Go.jtn.dt'agadkar J, stituted as a Special Tribunal for deciding the qnes· tion as to whether a person has acquired the citi-zenship of a foreign country or not, and so, before issuing the orders of deportation, it was necessary that. the appellant should have obtained a decisi0n of the Central Government on the point about the status of the respondents. The High Court accord· ingly made it clear that its decision in the appeals in question would not preclude thff Central Govern-ment from determining the question whether the respondents have voluntarily acquired the citizen-ship 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 u.ltra "vires. It is· against this decision of the Division Bench about the in· validity of the impugned Rule that the appellant has come to this Court.

The question about the validity of ~ection 9 of the Citizenship Aet and of r. 3 in Sch. III of the Citizenship Rules has been recently considerPd by this Court in petitions Nos. 101 and 136of1959 and 88 of 1961, and this Court has held that both s. 9(2) and r. 3 in t:lch. 3 are intra i·ires. The point raised by the appellant in thfse appeals iP, 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 our decision in the case of Izhar Ahmad Khan is that as soon as it is shown:

292 SUPREM:I<: COURT REPORTS [1962) SUPP.

1952 that a person has acquired a passport from a forciizn hf Gor1YnT1Ut1I of Government, his citiwnship of India automatically nt!hra PrD'ksh comes to an end, and he contends that in such a

•• S:1td Mo/Hi Khan case. it is not necessarv thrtt the Central Government Gajnidrogadk4r J. should hold any enqui~y an<l make a finding against

the p"rson before the appelhnt. can issue an order of deportation against him. In om· opinion, this contention is clearly misconceived. In dealing with tho question a.bout t.hc validity of tho impugned section and the Rule, this Court has, no doubt, stated that "the proof of the fact that a passport from a foreign count.ry has been obtained on a certain dat-0 CDnclusivdy <loterrnines the other fact that beforo that date he has 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 tho 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 tho Central Government had recorded a finding against the petitioners t.hat they had acquired the citizenship of Pakistan that the sai<l writ petitions came before this Court for final disposal and it is in the light of these facts that this Court proceeded t-0 consider tho contention about the validity of the impugned section am! the impugned rule. It is plain, thercforo, that the observations on which ~Ir. Tatachari relied wero not intended to moan that as soon as it is alleged tha,t a. passport has been obtained by a person from a foreign Government, the State Government can immediately proceed to deport him without tho ncccssa ry enquiry by the Central Government.. Indeed, it is clear that in the cour~o of the judgment, this Court has empha· sised the fact that the question as to whether a person has lost his citizenship of this country and has acquirc1! the citizenship of a foreign country has to be tried by the Central Government and it is only after the Centrul Government has decided the 1962 point the. St1tte Government can deal with the The Government of person as a foreigner. It may be that if a passport Andhra PradeSh v. from a foreign Government is obtained by a citizen, Syed Mohd. Khm and the case falls under the impugned Rule, the Gajendrag·1dtar J. conclusion may follow that he has acquired the citizenship of the foreign country ; . but that con-clusion 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 utldoubtedly be entitled to give effect to the impugned r. 3 in Sch. III and deal with the matter ir:t accordance with the other rf'levant Rules framed under the Act. The decision of the Central Govern-ment 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 re~pondents should be sustained even without an enquiry by the Central Government about their status. That is why w~ think, in sub-stance, the direction of tha 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 pomt of law and the decision of the High Court that the impugned r. 3 in Sch. !If i~ 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 hol.d that the ciuestion about tl\e statqs of the respondent~

196Z bas to ho tried by the Central Government and it ·Tift Ca~mnnunt of is only after the Central Goyernment has reached A..dAta Prodtsh the conclusion that the rcspondentH have acquired

v. the citizcnHhip of Pakistan that the appellnnt can Sy1d Mohd. KA.Jn issue orders of deportation against. them. That Gajt.ndragadkar J, . being our view, we confirm the writs issued by the High Court restraining the <ippdlant from giving effect to the impuc:ncd orders of deportation until the question about tho respcmdents' status is deter· mined by the Central Government. There wou hi be no order aR to costs.

Appe-1ls allowed.

MRS. HEM NOLIN! JUDAH (SINCE Dl~CEASEDJ

AXD AFTER HER LEU AL ltEPRESE!'\TATIVE

MR. ?llARLEA!'\ WlLKIN::iON t'.

MH.S. ISOLYNJ<; SAltO.J BASHINI BO~t<;

AND OTHEHS

(P. B. GA.JE:>DHAGAJJI<AH, A. K. SAHKAit and K. N. 'WAXL'llOO, JJ.) lrilt-J>rnlirrfe-Leff ers of A rlmin isf7 a! inn -Est alili-'i h nunt of right-l..t:galrr.-Other 111'.rson.~· cla,·niinq under leyrllt:c-JJar of cl11i1ns-l'r0Uate procr.t?rli ngs-Titlr--.\T ot dr.f crniin£d-Rcs-jud-i-caJa·-Estopp(/-l n<tir1n S"ccl!S-~inn Act, !92:i(3.fl of J.92;)), s. 21.) (1)-Co<ie of Cid/ l'roce.fore., 1rws (Acl, .-; nf JflflS) s. 11- .A Jnrlilln Etirl,,nce .1ct, 1872 (I of 1872), ·'· JJ.-;_ Onr-Dr. Mi~ Mitter \\'ho owncrl a house died leaving her mother and three sisters. The plaintiff re~pondent filed a ~uit for a declaration that she \\'as the OYnier of the house. Her case \\.'as that the dect:asr.d gave the hou:::c to ~frs. ~Ion1in (another sister) by a will and Mrs. ~fo;nin in turn gifted the house to the plaintiff. The cas.-· of Mrs. Judah, the defcndant-appellant was that Dr. Miss Miller had bequeathed the house by a will in favour of h~r 1noth('r who in turn bequeathed the house to her by a will. !\dmiucdly no probate . of either of the wills alleged to luvc bl'cn made by Dr. Miss i'fit1er was taken out. The mother died and it was allegec!