TMI Blog1967 (4) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... an extensive loss of life; that these disturbances created a sense of insecurity in the mind of the minority community; that because of the activities or communal elements in India and the State of Indo-Pakistan relations, a situation was created in which law and order were at a discount; that faced with this situation, the plaintiff decided to take temporary asylum till the situation in India became normal, and he went to Pakistan in May 1950 without the least intention of migrating to that country on a permanent basis; that with the return of normal conditions in India, the plaintiff along with other Muslims who had sought asylum in Pakistan under similar circumstances expressed their desire to return to India; that the circumstances which compelled the plaintiff to leave his native home and the justice of his claim to return to India were recognised in the agreement between the Prime Minister of India and Pakistan, popularly known as the Nehru Liaqat Pact wherein it was mutually agreed that Indian Muslims who had left Uttar Pradesh for Pakistan because of the disturbances between February and May 1950 should be repatriated, that availing of this opportunity the plaintiff tried t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was a citizen of India. On the question of jurisdiction it held that Section 9(2) of the Citizenship Act provided that when a question arises as to whether a person has acquired the citizenship of another country, it shall be decided by the Central Government and therefore the jurisdiction of the Civil Court was barred in every case in which the question of the acquisition of the citizenship of another country arises; the Court held that this question had arisen in the present suit and the Court had no jurisdiction to try it, and dismissed the suit. On appeal the learned Civil Judge affirmed the view of the trial Court that the jurisdiction of the Civil Court was barred under Section 9(2) of the Act. He dismissed the appeal without considering the merits of the case. The appellant Abdul Salam has come here in second appeal. 6. During the pendency of this appeal, the respondent Governments filed an application alleging that the question whether the appellant had acquired the citizenship of Pakistan had been decided by the Central Government by its order dated 8-7-1963, and asking this Court to take this document into consideration in the decision of this appeal. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with that decision. 8. If these were the only facts, I would have allowed this appeal and remanded the case to the Court below with a direction that it should remit to the Central Government for its decision, the question whether the appellant had obtained the citizenship of Pakistan. But during the pendency of this appeal the Government of Uttar Pradesh remitted this very question for the decision of the Central Government. The latter decided it by its order dated 8th July 1963 in which it was held that the appellant had left India for Pakistan with an intention to settle down in that country permanently, that he stayed there for 5 years which showed that he wanted to make Pakistan his permanent home, that he returned to India apparently because the conditions there did not suit him, and he had obtained a Pakistani passport, and that the inescapable conclusion was that he had voluntarily acquired the citizenship of Pakistan. These findings were arrived at by Shri Fateh Singh, Joint Secretary to the Government of India, Ministry of Home Affairs. On the basis of these findings a formal order dated 8th July 1963 was drawn up. It runs as follows:-- No. 13/417/82-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should have given him an opportunity to discharge it. He contended that he was entitled to what he called a maximum hearing , and that the question of citizenship could not be made on a mere consideration of the contents of his representation. He also contended that Mr. R. P. Sharma, Under-Secretary to the Government of India, Ministry of Home Affairs, who had signed the formal order of 8-7-1963 had no jurisdiction to pass an order under Section 9(2) of the Citizenship Act, because the power to make a decision under this sub-section had not been assigned to an officer of the rank of Under-Secretary. He also contended that Rule 30 of the Citizenship Rules which nominates the Central Government as the prescribed authority for deciding the question of citizenship under Section 9 of the Citizenship Act is ultra vires because that Government could not appoint itself as the prescribed authority. During arguments, all the pleas raised in the appellant's counter-affidavit were not pressed, and Mr. S. J. Hyder, learned counsel for the appellant, advanced only one argument, namely, that the order of the Central Government was invalid because that Government had not given the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r probe for the purpose of ascertaining whether the comments of the State Government had influenced the decision of the Central Government. Accordingly I directed that the Central Government should file an affidavit sworn by Mr. Fateh Singh, Joint Secretary, Government of India, Ministry of Home Affairs, who had considered the appellant's case and held that the petitioner had acquired the citizenship of Pakistan. The Government filed an affidavit duly sworn by Mr. Fateh Singh. In it this official admitted that the appellant had asked for an opportunity of being heard in person and to produce evidence in his case, but the Central Government decided that it was not necessary or feasible to give him a personal hearing, but he was given a further opportunity to produce any evidence in his defence in the form of an affidavit. It was also admitted by Mr. Fateh Singh that the Central Government had asked the State Government to forward any material submitted by the appellant together with their own views. It was further stated by him that in their reply the State Government had merely forwarded an affidavit sworn by the appellant without any comments and had written that the State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. But Mr. Hyder advanced two arguments in support of his attack on the validity of the findings arrived at by this officer. First, he contended that the order was vitiated by the denial of a personal hearing; secondly, he argued that the order was invalid as there was no finding that the appellant had voluntarily acquired a Pakistani passport. 14. I shall consider the last argument first. Mr. Hyder contended that the appellant had clearly stated in his affidavit before the Central Government that he was compelled to obtain a Pakistani passport only when he received news that his father was seriously ill and was almost on his death bed, and as there was no material before the Central Government to rebut this statement it must be accepted as correct. Therefore, (Mr. Hyder argued) it had been established that the appellant had not voluntarily obtained a Pakistani passport but had been compelled by force of circumstance to do so. Learned counsel relied on an English decision in support of his argument. In In re, Wilkinson; Page v. Public Trustee, 1926 Ch. 842 it was held that the word voluntarily means the doing of something as the result of the free exercise of the will, but n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s obtain a false passport and a visa by fraud for the purpose of satisfying his strong urge to see a parent who is seriously ill. In my opinion the word Voluntarily' means that the person obtaining the passport acted of his own volition and knew the nature of his act and did not act in performance of a legal duty, nor due to coercion, or fraud, or misrepresentation, or mistake. The reasons and temptations which induced him to obtain the passport do not render his act other than voluntary. 15. Mr, Hyder cited two decisions of the Supreme Court Mohd. Ayub Khan v. Commissioner of Police, Madras, AIR 1965 SC 1623; and Government of Andhra Pradesh v. Syd. Mohd. Khan, AIR 1962 SC 1778. In Mohd. Ayub Khan's case, AIR 1965 SC 1623 the Supreme Court held that for the purpose of Clause (3) of Schedule III of Rule 30 of the Citizenship Rules, the obtaining of a passport of a foreign country cannot in all cases be regarded as conclusive proof of acquisition of voluntary acquisition of foreign citizenship, and that if he raises a plea that he had not voluntarily obtained the passport, he must be afforded an opportunity to prove that fact. This case is not of any help to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Mr. Hyder. He contended that the Central Government's finding is illegal because the appellant was denied the opportunity of being heard in person. He also argued that the finding of Mr. Fateh Singh is illegal because he relied upon the opinion and remarks and notes of his brother officers while deciding the question of the appellant's citizenship. Now it is manifest that the power to decide the question whether a person has acquired the citizenship of a foreign country is quasi-judicial in nature. This means that the authority must act judicially and must give a reasonable opportunity to the person affected by its decision to rebut the presumption which may arise against him under Clause (i) of Schedule III of Rule 30 of the Citizenship Rules. What is a reasonable opportunity ? It is neither possible nor desirable to lay down any rigid test. As observed by the Supreme Court in Mohd. Ayub Khan's case, AIR 1965 SC 1623: What the scope and the extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of each case. 17. In my opinion, a person who receives notice under Clause (i) of Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntarily acquired the citizenship of Pakistan. On these facts, any Other findings would have been in violation of the conclusive presumption imposed by law under Clause (3). The comments of Other officials were superfluous and unnecessary, and the failure of the Central Government's refusal to give the appellant a personal hearing could not, and did not, prejudice him. Therefore, I am compelled to hold that though there has been a violation of the principles of natural justice and irregularities have been committed in the decision of this case, the result could not have been different even if there had been, no such violation or irregularities. 20. If the petitioner's case in his affidavit filed before the Central Government had been that he had been compelled to obtain a Pakistani passport, not voluntarily, but due to fraud or mis-representation or coercion or the like, and he had been denied a personal hearing to prove his case by evidence. I would have held that he had been materially prejudiced. But the petitioner's own case is that he obtained a Pakistani passport because he desired to see his ailing father. But, as explained above, a strong desire to see an aili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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