STATE OF GUJARAT v. KAYAMALI HASIMBHAI ELECTRICWALA
2013-01-23
C.L.SONI
body2013
DigiLaw.ai
JUDGMENT 1. This appeal is filed by original defendant No.1 State of Gujarat against whom as well as against respondent No.2, respondent no.1 herein original plaintiff filed Regular Civil Suit No. 67 of 1995 for declaration that the plaintiff is the Indian Citizen and continued to be the Indian Citizen until the defendants get decision against the plaintiff under section 9(2) of the Indian Citizenship Act (herein after referred to as the Act ) and also praying for permanent injunction restraining the defendants from deporting the plaintiff till the defendants get such decision from the Central Government under section 9(2) of the Act. 2. It is the case of the plaintiff that the plaintiff was born in Godhra, District Panchmahals on 25.4.1945 and his parents were also born in Godhra. It is averred that on 24.4.1950, the plaintiff was admitted in Saifiya Madaresa and studied there till 5th standard and thereafter, was admitted in Iqbal Union High School on 20.6.1956 and passed SSC Examination in the month of October, 1963. It is the further case of the plaintiff that thereafter, the plaintiff had undergone electrician course from Paresh Technical Institute, Palace Road, Vadodara and got certificate from the Director of Technical Education, Gujarat State of having passed out in the said course. The plaintiff also got merit certificate from the Principal, Iqbal Union High School on 26.1.1963. It is the further case of the plaintiff that the plaintiff got married with Jenab, daughter of Khurshidhushen Kadwalwala in October, 1970 and stated that he is having the Nikah Certificate with him. Out of the wedlock, one daughter Sakina born on 31.10.1977 at Dr.Jivanlal Shah Hospital in Godhra and her birth was registered in the birth register of Godhra Municipality. The plaintiff has further averred that another daughter named Kaushar was also born out of the wedlock on 13.12.1982 in the said hospital. Her birth was registered with the Municipality and thereafter, on 28.7.1988, son Abbas was born out of the wedlock at Surat. Thus, the plaintiff, his wife and their children are the Indian Citizen. It is the further case of the plaintiff that in 1965, the plaintiff and family members were harassed and, therefore, Regular Civil Suit No. 120 of 1965 was required to be filed by all the family members including the plaintiff not to deport the plaintiff and his family members.
It is the further case of the plaintiff that in 1965, the plaintiff and family members were harassed and, therefore, Regular Civil Suit No. 120 of 1965 was required to be filed by all the family members including the plaintiff not to deport the plaintiff and his family members. Said suit was decided in favour of the plaintiff by judgment and decree dated 19.1.1966 against which the defendants had preferred Civil Appeal No.32 of 1966 which came to be dismissed by the appellate court by judgment and decree dated 8.11.1966. It is further averred by the plaintiff that if the defendants are saying that the plaintiff has lost the citizenship of India and acquired citizenship of another country, it is the duty of the defendants to get such issue decided by the Central Government under section 9(2) of the Act and in these circumstances, even if the plaintiff had gone to Pakistan on 26.1.1950, unless it is decided that the plaintiff has ceased to be the Indian Citizen, the plaintiff continues to be the citizen of India. 3. The suit of the plaintiff was resisted by the defendants by filing the written statement stating that the civil court has no jurisdiction to entertain and decide the suit and the suit was barred in absence of notice under section 80 of the Code of Civil Procedure. It is also stated that the parents of the appellant had already left for Pakistan and acquired Pakistani citizenship. It is further stated that the plaintiff had migrated to Pakistan voluntarily in the year 1966 and since then, he has been in Pakistan and residing there at Karachi and doing the business of electrical goods supplier and, therefore, no question under section 9(2) of the Act arises for determination. It is also stated that the plaintiff holds Pakistani Passport No. A233553 dated 21.9.1994 and on the basis of this passport, the plaintiff got Visa from the Indian Consulate General at Karachi on 6.12.1994 for a period of 90 days for Mumbai and Godhra and came to Godhra on 23.12.1994. It is also stated that the plaintiff was required to get himself registered at Mumbai but he did not do so and made application on 23.12.1994 to get himself registered at Godhra.
It is also stated that the plaintiff was required to get himself registered at Mumbai but he did not do so and made application on 23.12.1994 to get himself registered at Godhra. It is also stated that from the application, message of CID, IB, xerox copy of residential premises, Visa Application Bombay TRP and extract of registration, it appears that the plaintiff is not the Indian Citizen but he is Pakistani Citizen. It is further stated that the plaintiff has been residing at Pakistan with family members and has come to India to meet his relatives and his stay was limited upto 20.3.1995 before which he was required to leave India he did not do so and for staying illegally, he has filed the suit with a view to see that he is not deported. 4. On the basis of the pleadings of the parties, the learned trial Judge framed issues at Exh. 94 in Gujarati language which translated read as under in English: (1) Whether the plaintiff proves that the plaintiff is the citizen of India? (2) Whether the suit of the plaintiff is liable to be dismissed for want of notice under section 80 of the Code of Civil Procedure? (3) Whether this Court has no jurisdiction to try the present suit? (4) Whether the plaintiff is entitled to claim and get the relief as prayed for in para 9(1)(2) of the plaint? (5) What order and decree? 5. On the basis of the evidence available on record, the learned trial Judge came to the conclusion that the documents produced by the plaintiff with the judgment of the appeal No.32 of 1966 dated 8.11.1966 establish that the plaintiff was in India but since the plaintiff came to India on Pakistani Passport with Visa for 90 days, the plaintiff has to be deported from India or to get further permission from the concerned authority. Learned trial Judge also came to the conclusion that since the plaintiff got passport from Pakistan, plaintiff could be said to have acquired Pakistani Citizenship. Learned trial Judge further recorded that though the plaintiff has stated that the plaintiff was born in India and he was citizen of India but the plaintiff has not proved by oral or documentary evidence that he was born in India and, therefore, he is not citizen of India.
Learned trial Judge further recorded that though the plaintiff has stated that the plaintiff was born in India and he was citizen of India but the plaintiff has not proved by oral or documentary evidence that he was born in India and, therefore, he is not citizen of India. Learned trial Judge then further recorded that from the judgment of the appeal No.32 of 1966, it can be said that the plaintiff was in India till 8.11.1966 but the plaintiff has to prove that he was residing in India after 8.11.1966 till the date of filing of the suit but the plaintiff has not produced any evidence to show that he was residing in India from his birth or from 8.11.1966 till the date of filing of the suit. The learned trial Judge thus came to the conclusion that the plaintiff has not proved that he was born in India and was citizen of India and on such finding and conclusion, the learned trial Judge dismissed the suit of the plaintiff. 6. Being aggrieved by the judgment and decree of the learned trial Judge, the plaintiff filed Regular Civil Appeal No. 40 of 1997. The learned appellate Judge from the document Exh. 100 and 101, found that the plaintiff and his family members were declared citizen of India by the competent court and the learned trial Judge was not justified to declare otherwise in the present suit. The learned appellate Judge further came to the conclusion that whether the plaintiff ceased to be the citizen of India and acquired foreign citizenship could be decided only by the Central Government under sec. 9(2) of the Act and the Civil Court has no jurisdiction to decide such issue. The learned appellate Judge has observed that it is either for the State Government or for the party to move before the Central Government and in absence of any decision under section 9(2) of the Act, order for deportation of the plaintiff was illegal. Learned appellate Judge also observed that merely because the plaintiff has obtained Pakistani passport, the same was not amounting to acquiring citizenship of another country. The learned appellate Judge also observed that the plaintiff had also prayed for waiver of notice under section 80 of the Code of Civil Procedure and the Court had permitted.
Learned appellate Judge also observed that merely because the plaintiff has obtained Pakistani passport, the same was not amounting to acquiring citizenship of another country. The learned appellate Judge also observed that the plaintiff had also prayed for waiver of notice under section 80 of the Code of Civil Procedure and the Court had permitted. On such conclusion reached by the learned appellate Judge, the learned appellate Judge ultimately allowed the appeal and set aside the judgment and decree passed by the learned trial Judge and decreed the suit of the plaintiff and restrained the defendants from deporting the plaintiff till the decision of the Central Government under section 9(2) of the Act and declared that the defendants, their servants, agents have no right to deport the plaintiff till the decision of the Central Government. It is this judgment and decree dated 2nd April, 1998 which is under challenge before this Court in this appeal. 7. This appeal was admitted by order dated 19.1.1999 on the following substantial questions of law: (1) Whether the Lower Appellate Court could have allowed the appeal in view of the admitted fact that the suit was without service of notice u/s. 80 of C.P.C. ? (2) Whether the plaintiff could claim and assert Indian Citizenship although he had voluntarily applied for and obtained a Pakistan Passport on the assertion that he is a National of Pakistan? (3) Whether the Union of India is entitled to deport the plaintiff irrespective of the question of citizenship on the ground that the plaintiff has over stayed in India beyond validity of the Visa Period? 8. I have heard the learned advocates for the parties. Learned AGP Mr. Rahul Dave for the appellant submitted that when it was the case of the plaintiff himself that he had entered India on Pakistani Passport, he was not entitled to seek declaration that he is Indian Citizen and continues to be the Indian citizen till the Central Government decides about his acquiring citizenship of another country. Mr. Dave submitted that the plaintiff has not come to the Court with clean hands because the plaintiff has deliberately not made application under sec. 9(2) of the Act to get the issue of acquiring citizenship of foreign country decided especially when the plaintiff in his Visa Application has shown himself to be the Pakistani Citizen. Mr.
Mr. Dave submitted that the plaintiff has not come to the Court with clean hands because the plaintiff has deliberately not made application under sec. 9(2) of the Act to get the issue of acquiring citizenship of foreign country decided especially when the plaintiff in his Visa Application has shown himself to be the Pakistani Citizen. Mr. Dave submitted that the judgment in favour of the plaintiff in earlier round of litigation would not be of any help to the plaintiff because after the said judgment, the plaintiff had migrated to Pakistan in the year 1966 and had made city of Karachi in Pakistan as his permanent residence as citizen of Pakistan and he has been earning his livelihood by doing business as electrical goods supplier. He submitted that for the first time in the year 1994, the plaintiff came to India and that too for a limited period of 90 days and since the period of 90 days was already over, the plaintiff was not entitled to continue to stay in India on the basis of his passport and visa. Mr. Dave submitted that the long duration of stay of the plaintiff in Pakistan from 1966 to 1994 itself is strong ground to believe that the plaintiff has acquired Pakistani Citizenship voluntarily and there was no question of taking any decision under section 9(2) of the Act. Mr. Dave submitted that once the Visa of the plaintiff was for a limited period, over-stay of visa by the plaintiff was illegal and the defendant No.1 State Government was therefore justified in taking the steps to deport the plaintiff to Pakistan. Mr. Dave submitted that the trial Court has therefore rightly held that the plaintiff is not the citizen of India and, therefore, not entitled to any relief in the suit. He submitted that the learned appellate Judge has misdirected himself by coming to the conclusion that till the decision is taken under section 9(2) of the Act, the civil court is not competent to hold against the plaintiff and since the plaintiff had already succeeded in the earlier round of litigation, the plaintiff cannot be deported till the Central Government takes decision under section 9(2) of the Act. Mr.
Mr. Dave submitted that the learned appellate Judge has seriously erred in not considering the vital fact that right from 1966, the plaintiff has been residing in Pakistan till 1994 and because of such long duration, the plaintiff for all purposes had become citizen of Pakistan and, therefore, learned appellate Judge was not justified in interfering with the judgment and decree passed by the learned trial Judge. He, thus, urged to allow the appeal on the substantial questions of law formulated by this court while admitting the appeal. 9. As against the above arguments, learned advocate Mr. D.F.Amin appearing for respondent original plaintiff submitted that the plaintiff and his family members were already held to be the citizen of India by judgment of competent court and confirmed in appeal in the year 1966. He submitted that once the plaintiff was held to be the Citizen of India, it was not open to the trial court to give decision contrary to the judgment delivered by the competent court in the earlier round of litigation in the year 1966. Mr. Amin submitted that once it was established that the plaintiff and his family members were citizen of India even if the plaintiff had gone to Pakistan and stayed there for long time, the plaintiff once entered India and claimed to be the citizen of India, it would be necessary to decide as to whether the plaintiff voluntarily acquired citizenship of Pakistan or not and such decision could be taken only by the Central Government under section 9(2) of the Act. Mr. Amin submitted that there is no dispute about the fact that there is no decision as on today by the Central Government under sec. 9(2) of the Act that the plaintiff had voluntarily acquired citizenship of Pakistan and, therefore, till such decision is taken by the Central Government, the plaintiff cannot be deported from India. Mr. Amin pointed out that the provisions of section 9(2) nowhere provides that it was only the plaintiff who was required to make application under section 9(2) of the Act but the State Government also could have made such application if at all the State Government was serious about the issue of acquisition of citizenship of Pakistan by the plaintiff. Mr. Amin submitted that the learned appellate Judge has correctly considered the issue about taking decision by the Central Government under sec.
Mr. Amin submitted that the learned appellate Judge has correctly considered the issue about taking decision by the Central Government under sec. 9(2) of the Act and has rightly held that since the plaintiff was held to be citizen of India in the year 1966, unless the plaintiff is declared to have acquired citizenship of Pakistan voluntarily, by decision under sec. 9(2) of the Act, the plaintiff cannot be deported from India. Mr. Amin has pointed out that the learned appellate Judge has not granted absolute decree declaring the plaintiff to be the citizen of India but has provided in the final order that the defendants shall not deport the plaintiff till the decision of the Central Government under section 9(2) of the Act. He, therefore, submitted that it was always open to the defendants to get such question decided under sec. 9(2) of the Act. He, therefore, submitted that the appellate court has since passed the judgment and decree in accordance with the provisions of law, no interference is required by this court in exercise of the power under sec.100 of the Code of Civil Procedure. 10. Having heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the Records and Proceedings of the matter, it appears that the plaintiff has based his suit on the facts that he was citizen of India by birth and there was decree in his favour by the competent court in the year 1966 declaring him and his family members to be the citizen of India and on such basis, the plaintiff claimed that he continues to be the Citizen of India till the Central Government takes decision under sec. 9(2) of the Act. The plaintiff has produced on record certificate of admission in the school, school leaving certificate, extract of the register of birth of his children etc. All the above documents were marked on the record of the trial Court. However, most important is the judgment dated 8th November, 1966 at Exh. 101 rendered by the Assistant Judge, Panchmahals at Godhra in Regular Civil Appeal NO.32 of 1966 whereby the appeal filed by the Union of India and State Government came to be dismissed holding that the plaintiff and his family members had not lost the citizenship of India. 11.
However, most important is the judgment dated 8th November, 1966 at Exh. 101 rendered by the Assistant Judge, Panchmahals at Godhra in Regular Civil Appeal NO.32 of 1966 whereby the appeal filed by the Union of India and State Government came to be dismissed holding that the plaintiff and his family members had not lost the citizenship of India. 11. Both the Courts below have in fact found as a matter of fact that such decision was rendered in the judgment of Appeal No.32 of 1966. Therefore, there is no any dispute that the plaintiff was already declared citizen of India in the earlier round of litigation. 12. However, as found from the record, the plaintiff had left India in the year 1966 and came back in the year 1994 on Pakistani Passport. After coming to India, if the plaintiff claims to continue as citizen of India in absence of any decision under section 9(2) of the Act, the defendants could have got the question decided under sec. 9(2) of the Act from the Central Government. Once the plaintiff was believed tobe the citizen of India by virtue of the judgment in the earlier round of litigation, even if the plaintiff was to be deported on the ground that the plaintiff had migrated to Pakistan and stayed there for long time and, therefore, become Pakistani citizen, the plaintiff was required to be declared to have acquired Pakistani citizenship voluntarily and such declaration could have been only by the Central Government, either at the instance of the plaintiff or at the instance of the defendants. 13. It is required to be noted that though the State Government had taken decision to deport the plaintiff and though had opposed the suit of the plaintiff, still, the State Government has not chosen to take any action till today to get the issue decided under section 9(2) of the Act by the Central Government as to whether the plaintiff has acquired Pakistani Citizenship voluntarily or not. 14.
14. Therefore, in the above said facts situation, in my view, the learned appellate Judge has rightly passed the conditional judgment and decree so as to say that while allowing the appeal, the learned appellate Judge has not given absolute declaration that the plaintiff is the citizen of India but has restrained the defendants from deporting the plaintiff till the decision by the Central Government under section 9(2) of the Act. Though in the operative portion of the judgment of the learned appellate Judge, it is stated that Regular Civil Suit NO. 67 of 1995 filed by the plaintiff is ordered to be decreed, however while decreeing the suit, learned appellate Judge has passed conjoint order restraining the defendants from deporting the plaintiff till the decision by the Central Government under section 9(2) of the Act and declared that the defendants have got no such right until the decision by the Central Government. Thus, by the judgment and decree of the learned appellate Judge, it was always open to get the decision of the Central Government at any point of time after disposal of the appeal by the first appellate court. In fact, the judgment and decree passed by the learned appellate Judge restraining the defendants from deporting the plaintiff till the decision of the Central Government under section 9(2) of the Act is in consonance with the law declared by the Hon ble Supreme Court. 15. In the case of Md. Ayub Khan v. Commissioner of Police, Madras and others, reported in A.I.R. 1965 Supreme Court 1623. Hon ble Supreme Court has observed in para 9 as under: 9. Section 9 (1) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso which is not material) by naturalisation, registration, or otherwise, voluntarily acquired citizenship of another country. Subject to the exception in the proviso, therefore, naturalisation, registration or acquisition of citizenship of another country operates to terminate their citizenship of India. Acquisition of citizenship of another country to determine Indian citizenship must, however, be voluntary. By subs.
Subject to the exception in the proviso, therefore, naturalisation, registration or acquisition of citizenship of another country operates to terminate their citizenship of India. Acquisition of citizenship of another country to determine Indian citizenship must, however, be voluntary. By subs. (2) provision is made for setting up an authority to determine the question where, when and how citizenship of another country has been acquired, and by R. 30 the Central Government is designated as the authority which is invested with power to determine the question in such manner, and having regard to such rules of evidence as may be prescribed. Provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a pass port of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and 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. 16. In the case of Bhagwati Prasad Dixit Ghorewala versus Rajeev Gandhi, reported in (1996) SCC 78, Hon ble the Supreme Court has held and observed as under in para 7 and 11: 7. In exercise of the powers conferred by Cl. (h) of sub-see. (2) of S. 18 of the Citizenship Act, 1955 and sub-sec. (2) of S. 9 of that Act the Central Government has framed rules to decide the question of voluntary acquisition of citizenship of a foreign country and the consequent determination of the citizenship of India.
In exercise of the powers conferred by Cl. (h) of sub-see. (2) of S. 18 of the Citizenship Act, 1955 and sub-sec. (2) of S. 9 of that Act the Central Government has framed rules to decide the question of voluntary acquisition of citizenship of a foreign country and the consequent determination of the citizenship of India. By Rule 30 of the Citizenship Rules, 1956, the Central Government is appointed as the authority to decide such question. Schedule III of the Citizenship Rules, 1956 contains the rules of evidence applicable to a case arising under S. 9(2) of the Citizenship Act, 1955. No other Court or authority has the power to decide the question as to whether, when or how an Indian citizen has acquired the citizenship of another country. Even where the question whether a person is qualified to be chosen as a member of the Lok Sabha arises in an election petition filed under the Representation of the People Act, 1951, the High Court cannot proceed to decide the question of loss of citizenship of the candidate concerned. It cannot be held that the Citizenship Act, 1955 should yield in favour of the Representation of the People Act, 1951 only because the latter Act is enacted pursuant to Art. 327 of the Constitution. As mentioned earlier the Citizenship Act, 1955 is also a law made by Parliament by virtue of Art. 11 of the Constitution read with Entry 17 of List I of the Seventh Schedule to the Constitution. 11. These cases clearly lay down that when the matter falls within S. 9(2) of the Citizenship Act, 1955, all other provisions of law are excluded. The authority prescribed under the Citizenship Act, 1955 alone can decide the questions arising under S. 9(2) and the rules of evidence which should govern that decision shall be those prescribed for the purpose under that Act. The High Court however relied on two decisions of this Court in Arun Kumar Bose v. Mohd Furuhan Ansari, (1984) 1 SCR 118 : ( AIR 1983 SC 1311 ) and the decision in Surinder Singh v. Hardial Singh, (1985) 1 SCR 1059 : ( AIR 1985 SC 89 ) to reach the conclusion that by virtue of Article 329 of the Constitution all questions arising in an election petition were exclusively triable in an election petition and by no other authority.
In those decisions the Supreme Court was generally concerned with the power of the High Court to try all issues arising in an election petition in accordance with the provisions of the Representation of the People Act, 1951. It is no doubt true that Article 329(b) of the Constitution provides that notwithstanding anything in the Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the Legislature. It is also true that one of the grounds on which an election of a candidate can be set aside in the course of an election petition under the Representation of the People Act, 1951 is that the candidate was not a citizen of India at the relevant time. A man may not be a citizen of India because he has not acquired the citizenship of India at all or having acquired he may have lost it by voluntarily acquiring the citizenship of another country as provided in Section 9(1) of the Citizenship Act, 1955. For purposes of deciding the question arising under S. 9(1) of that Act, the Central Government by virtue of the power conferred on it by S. 9(2) has been given an exclusive power to determine in accordance with the rules of evidence provided for the purpose whether a person has acquired the citizenship of another country. It follows that when once a person is admitted or held to be a citizen of India, unless there is a decision of the Central Government under S. 9(2) of the Citizenship Act, 1955 that he has acquired the citizenship of a foreign country, he should be presumed to be an Indian citizen. Section 9 of the Citizenship Act, 1955 is a complete code as regards the termination of Indian citizenship on the acquisition of the citizenship of a foreign country. Sub-clause (d) of Cl.
Section 9 of the Citizenship Act, 1955 is a complete code as regards the termination of Indian citizenship on the acquisition of the citizenship of a foreign country. Sub-clause (d) of Cl. (1) of Art. 102 of the Constitution provides that a person shall be disqualified for being chosen as and for being a member of either House of Parliament (i) if he is not a citizen of India, (ii) or has voluntarily acquired the citizenship of a foreign State or (iii) is under any acknowledgement of allegiance or adherence to a foreign State. We are concerned here with a case falling under Cl. (ii) and that question has to be decided by virtue of Art. 11 of the Constitution and S. 9(2) of the Citizenship Act, 1955 by the Central Government only. The policy behind S. 9(2) appears to be that the right of citizenship of the person who is admittedly an Indian citizen should not be exposed to attack in all forums in the country, but should be decided by one authority in accordance with the prescribed rules and that every other Court or authority would have to act only on the basis of the decision of the prescribed authority. in that behalf and on no other basis. That being the mandate of the law, even the High Court trying an election petition can declare an Indian citizen as having acquired the citizenship of a foreign State only on the basis of a declaration made by the Central Government. If such a declaration made by the Central Government is produced before a High Court trying an election petition the High Court has to give effect to it. If such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned has not ceased to be an Indian citizen. It cannot independently hold an enquiry into that question on its own. This is also the view of the Calcutta High Court in Birendranath Chatterjee v. State of West Bengal, AIR 1969 Cal 386 though the question there did not involve Art. 329 of the Constitution. What we have said now may not apply to the other two types of disqualifications referred to in sub-clause (d) of Clause (1) of Article 102 of the Constitution and we express no opinion on those issues.
What we have said now may not apply to the other two types of disqualifications referred to in sub-clause (d) of Clause (1) of Article 102 of the Constitution and we express no opinion on those issues. The view we have taken on the primacy of S. 9(2) of the Citizenship Act, 1955 does not derogate from the plenary powers of the High Court in trying an election petition under the Representation of the People Act, 1951 but only leads to a harmonious way in which the two types of issues, namely, the issues relating to the validity of an election to either House of Parliament or of a State Legislature and the issues relating to loss of Indian citizenship on the acquisition of the citizenship of a foreign country which are both vital can be resolved. 17. In the case of State of Uttar Pradesh and others versus Shah Mohammed and another, reported in 1969(1) SCC 771 , Hon’ble the Supreme Court has held and observed as under in para 7 and 8: 7. It has next been contended that retrospective operation should not be given to Section 9 of the Act because loss of citizenship is a serious and grave matter and it involves loss of personal liberty. Under Article 21 no person can be deprived of his life or personal liberty except according to procedure established by law. The procedure established by law before the commencement of the Act was the ordinary procedure of determination by Civil Courts whenever a question arose about loss of Indian citizenship by acquisition of citizenship of a foreign country or State. It is suggested by learned Counsel for respondent No. 1 that by giving retrospective operation to Section 9 so as to make it applicable to pending proceedings the provisions of Article 21 will be contravened or violated. This would render Section 9 of the Act unconstitutional. It is somewhat difficult to appreciate the argument, much less to accede to it. If the Parliament was competent under Article 11, which is a constitutional provision read with the relevant Entry in List I to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before.
The new procedure would itself become the "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying Section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article. 8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Section 9 (2) have to be determined to the extent indicated therein by the Central Government and not by the Courts. Such matters as are not covered by that provision have, however, to be determined by the Courts. 18. In light of the above, the substantial questions of law are answered accordingly. Learned Appellate Judge cannot be said to have committed any error in passing the ultimate order to restrain the defendants from deporting the plaintiff till the decision of the Central Government under section 9(2) of the Act. Therefore, this appeal is required to be dismissed. 19. In result, this appeal is dismissed. Judgment and decree passed by the learned appellate Judge is confirmed.