Munni v. State of U. P. — 1965 DIGILAW 526 (ALL)

JUDGMENT N. U. Beg, J. - This is a petition praying for a certificate under Article 133 (1) (c) of the Constitution of India in respect of an order passed by us on the 3rd of September, 1965, by which we summarily dismissed the writ petition of the petitioners under Article 226 of the Constitution of India. The said writ petition was based on the allegation that the petitioners were Indian nationals, that they were residents of village Chaubepur, district Kanpur, and that they were domiciled in U.P. and were not foreigners. It was further alleged in the said writ petition that the petitioners had gone to Pakistan in March, 1955, and had tried to come back through the Indian Mission but since no proper help could be available they had to obtain the travelling documents from Pakistan. Thereafter, petitioner Nos. 1 and 2 i.e. Smt. Munni and Abdul Samad entered India on the 22nd of September, 1955. It was admitted in the writ petition as well as in this petition that a civil suit was filed by petitioners Nos. 1 and 2 i.e. Smt. Munni and Abdul Samad in the court of the Munsif South, Lucknow, for a declaration that they are Indian nationals and for an injunction restraining the Union of India and the U.P. Government from deporting them from India to Pakistan. In the said suit the case of the plaintiffs was that they had gone to Pakistan for the first time in the year 1955. On the other hand, the case of the defendants was that the plaintiffs had gone to Pakistan for the first time in the year 1948 and had thereby lost their Indian nationality with the result that they were not Indian citizens on the 26th of January, 1950. This suit was dismissed by the trial court. Dissatisfied with the judgment of the trial court the plaintiffs filed an appeal which was dismissed by the Civil Judge, Malihabad on the 22nd of January, 1964. Thereafter a second appeal (Second Civil Appeal No. 91 of 1964) was filed in this Court by the plaintiffs. This appeal was dismissed by the High Court on the 10th of July, 1964. Dissatisfied with the judgment of the trial court the plaintiffs filed an appeal which was dismissed by the Civil Judge, Malihabad on the 22nd of January, 1964. Thereafter a second appeal (Second Civil Appeal No. 91 of 1964) was filed in this Court by the plaintiffs. This appeal was dismissed by the High Court on the 10th of July, 1964. It may be mentioned that in this suit the concurrent finding of fact arrived at by the lower courts as well as the finding of the High Court was that the plaintiffs had left India in 1948 and had acquired Pakistan nationality. As a result, they were not Indian citizens on the 26th of January, 1950. Having heard the learned counsel for the petitioners at length on the merits of the writ petition we were of opinion that there was no force in the Writ petition. We, accordingly, dismissed the said writ petition summarily. The petitioners thereafter filed this petition under Article 133(1) (c) of the Constitution of India. 2. Having heard the learned counsel for the petitioners we are of opinion that there is no force in this petition. 3. The contention of the learned counsel for .the petitioners before us is that the question as to whether the petitioners have lost Indian nationality or not must be decided by the Central Government. In this connection he has argued that the Civil court had no jurisdiction to decide the matter at all. The relevant section in regard .to this matter is Sec. 9 of the Citizenship Act, 1955 (Act No. 57 of 1955), sub-Sec. (2) of which runs as follows: "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." 4. Rules have been framed under this Act and the prescribed authority under the said provision of law is the Central Government. In our opinion, the crucial question to be determined in such cases is whether the person was an Indian citizen on the 26th of January, 1950. If he is found to be an Indian citizen on that date and there has been any change in his nationality thereafter, the matter would have to be decided by the Central Government. In our opinion, the crucial question to be determined in such cases is whether the person was an Indian citizen on the 26th of January, 1950. If he is found to be an Indian citizen on that date and there has been any change in his nationality thereafter, the matter would have to be decided by the Central Government. On the other hand, if it is found that the person has lost his Indian nationality prior to the 26th of January, 1950 with the result that he was never an Indian citizen on the date of the commencement of the Constitution, the nationality of the person would have to be decided by the Civil court. The law on this point has been settled by their Lordships of the Supreme Court in the case of Akbar Khan Alam Khan v. Union of India, A.I.R. 1962 S.C. 70. In that case the petitioners had filed a suit on the allegation that they had gone to Pakistan in the beginning of 1953. This suit was contested by the State on the ground that the petitioners had left India in 1948 i.e. prior to the 26th of January, 1950. The court accepted the case set up on behalf of the defendants and came to the conclusion that the plaintiffs had migrated to Pakistan in the year 1948 and had thereby lost their citizenship of India with the result that they were not Indian citizens on the 26th of January, 1950. On the above facts their Lordships of the Supreme Court observed as follows : "It seems to us clear that sub-Sec. (2) of Sec. 9 of the Citizenship Act bars the jurisdiction of the Civil court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by anyone else. The only question, however, which a civil court is prevented by Sec. 9(2) of the Citizenship Act from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The civil courts are not prevented by this provision from determining other questions concerning nationality of a person." 5. The only question, however, which a civil court is prevented by Sec. 9(2) of the Citizenship Act from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The civil courts are not prevented by this provision from determining other questions concerning nationality of a person." 5. Later on in their judgment their Lordships held as follows: "The appellant's claim to the citizenship of India was resisted on the ground that having migrated to Pakistan in 1948, they had never acquired Indian citizenship. That might follow from Article 7 of the Constitution. The jurisdiction of a civil court to decide that question is not in any way affected by S. 9(2) of the Citizenship Act. Therefore it seems to us that the entire suit should not have been dismissed. The Courts below should have decided the question whether the appellants had never been Indian citizens. If that question was answered in the affirmative, then no further question would arise and the suit would have to be dismissed. If it was found that the appellants had been on January 26, 1950, Indian citizen, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify." 6. The above passage clearly indicates that once the Civil court decides that the person had lost his Indian citizenship on January 26, 1950, the jurisdiction to decide the nationality of the person would rest in the civil court and not in the Central Government. On the other hand, the Central Government would have jurisdiction to determine nationality only in those cases where it is found that the person was a citizen of India on the 26 the of January, 1950 and had thereafter changed his nationality. 7. The learned counsel has in his argument strongly relied on a subsequent case of the Supreme Court - Govt. of Andhra Pradesh v. Syed Mohd. Khan etc A.I.R. 1962 SC 1778. 7. The learned counsel has in his argument strongly relied on a subsequent case of the Supreme Court - Govt. of Andhra Pradesh v. Syed Mohd. Khan etc A.I.R. 1962 SC 1778. In the case it was held 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 only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. 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. We have been taken through the judgment of this case by the learned counsel for the petitioner. It would appear that in this case there was no finding of the civil court to the effect that the petitioner had lost Indian citizenship prior to the 26th of January, 1950. In fact, no case was filed in the civil court determining the matter. The question that arises before us therefore never arose in that case. The result of the finding given by the civil court in the present case in that this finding has become res judicata and cannot be challenged in these proceedings. This case therefore is clearly inapplicable to the facts of the present case. 8. It is no doubt true that petitioner Nos. 3 to 5 were not parties to the suit. They are, however, children of petitioner Nos. 1 and 2 and are admittedly minors. Their nationality would therefore follow the nationality of their parents. The fact therefore that they were not parties to the suit would not make any difference to the conclusion arrived at by us. 9. In the present case, it appears to us that the question of law which arises has been settled by their Lordships of the Supreme Court in the case of Akbar Khan Alam Khan v. Union of India, A.I.R. 1962 S.C. 70 and the principles governing such matters clearly laid down there. It cannot therefore be said that this is a fit case for granting a certificate under Article 133 (1) (c) of the Constitution of India. This petition is accordingly dismissed. In the circumstances of the case we make no order as to costs.