Kerala High Court
Mohammed vs Union Of India (Uoi) on 28 June, 2002
Author: B.N. Srikrishna
Bench: B.N. Srikrishna, G. Sivarajan
JUDGMENT B.N. Srikrishna, C.J.
1. The petitioner was born to Indian parents in the year 1932 and was a citizen of India by birth. He left for Karachi, Pakistan, sometime in 1970. He first acquired a passport issued by the Government of Pakistan on 7th December, 1973 bearing No. AD 567213 and Indian Visa No. 448/77, dated 5th January, 1977. He entered India several times on the strength of Pakistani passports and Indian visa and left India before the expiry of the visa period. He stayed abroad on the basis of the foreign travel documents. He appears to have travelled to Pakistan without valid travel document issued by the Government of India. He holds currently a passport issued by the Government of Pakistan, which is valid upto the year 2005. It is the case of the petitioner that he has settled down at Kannur and he is staying there with his wife and children.
2. Since the petitioner had overstayed the period of his residence in India, permitted under the visa, proceedings were initiated against him under Section 9(2) of the Citizenship Act, 1955 (hereinafter referred to as 'the Act'). A detailed order has been made against him in Ext. P1 by the Central Government, in which a finding has been made that the travel documents from the Government of Pakistan were acquired by him of his free volition and there was no compulsion on him whatsoever. By reason of the provisions of the Act, the Central Government found him to have voluntarily acquired the citizenship of another country. Consequently, he had ceased to be a citizen of India from that date. The Central Government in its order also found that under Para. 4A of Schedule III of the Citizenship Rules, since the petitioner has left India without a travel dbcument issued by the Central Government and resided outside India for a period exceeding three years, he shall be deemed to have voluntarily acquired the citizenship of Pakistan. By reason of Para. 3 of Schedule III to the Citizenship Rules, the fact that a citizen of India has obtained on any date a passport from the Government of any country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date. In these circumstances, by the order at Ext. PI, the Central Government determined that petitioner had ceased to be a citizen of India for the Act of acquiring a passport of Government of Pakistan.
3. Learned Counsel for the petitioner raised two contentions. First, that an application, Ext. P2, has been made for the revision of the order at Ext: PI by an appropriate higher authority and, therefore, till his application is heard and disposed of he should be permitted to stay in India. Secondly, he also challenged the order at Ext. P4 issued by the Superintendent of Police, Kannur, directing deportation of the petitioner. When the petition was heard by the learned Single Judge, the petitioner contended that he was entitled to remain in India during the hearing of his revision application submitted to the Central Government. He also relied on a decision of a Division Bench of this Court in O.P. No. 2236 of 2002 (Ext. P3) in support of his contentions. The learned Single Judge was of the view that this decision was not free from doubt and referred the matter to this Division Bench.
4. We have heard the learned counsel at length. The order made against the petitioner is under Section 9(2) of the Act which deals with the termination of citizenship. Section 9(2) of the Act reads as under:
"9(2). 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'.
Under the Citizenship Rules, 1956, Rule 30 prescribes the authority to determine acquisition of citizenship of another country and reads as under:
"30. Authority to determine acquisition of citizenship of another country.- (I) If any question arises to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purpose of Section 9(2), be the Central Government.
(2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule III."
A combined reading of Section 9(2) of the Act and Rule 30 of the rules thereunder makes it clear that in the matter of determination of the circumstances under which a person acquired the citizenship of another country, the only prescribed authority is the Central Government. The contention urged that the order at Ext. P1 is passed by the Under Secretary and that it is revisable by a higher authority is incorrect. Section 15 of the Act provides that any person aggrieved by an order made under this Act by the prescribed authority or any officer or other authority (other than the Central Government) may, within a period of thirty days from the date of the order, make an application to the Central Government, for revision of that order. In other words, when an order is made by authorities prescribed other than the Central Government, it can be challenged by a revision application before the Central Government., In the instant case, the only competent authority to make an order under Section 9(2) of the Act read with Rule 30 is the Central Government. Ext. P1 order has been passed by the Central Government, though it was issued through the Under Secretary of the Government. There cannot be a revisional power against the order of the Central Government and there is no provision under Section 15 of the Act for revision of such an order. The application of the petitioner at Ext. P2 is wholly misconceived.
5. The petitioner's Counsel, however, strenuously contended that with effect from 20th April 2000, Rule 32 has been added to the Citizenship Rules and confers a right of revision. Rule 32 reads as under:
"32. Authority for Re vision of an order made under the Act by the prescribed authority.-
If an application is made by a person aggrieved by an order made under the provisions of the Act, the application shall be disposed off after giving a reasonable opportunity to the person affected to present his case, by an authority one rank higher than the authority prescribed for disposal of application against the order of which revision is sought".
In our view, the contention urged by the learned counsel for the petitioner is not correct. If we are to construe that the order passed by the Central Government is revisable in view of the provisions under Rule 32, it would run directly counter to the intendment of Section 15 of the Act. It is trite that a rule cannot be so read as to be contrary to or inconsistent with the provisions of the main Act. Apart therefrom, we are also of the view that Rule 32 would be applicable only where the order complained of has been made by the "prescribed authority". It is possible that the Central Government may prescribe different officers as 'prescribed authority' for disposal of different applications under the Act. In such a contingency, if an application is disposed of by an officer at a particular level, Rule 32 contemplates a revision by higher authority. Rule 32, in our judgment, cannot come into operation where the Central Government itself has passed an order, as in this case. The contention must, therefore, fail.
6. Lastly, we are in agreement with the view of the learned Single Judge that the Judgment in O.P. No. 2236/2002, at Ext. P3, was per incuriam, without noticing the provisions of Section 15 of the Act, and perhaps, without noticing that the order under challenge was issued by the Central Government.
7. The last contention urged is that the order at Ext. PI is in any case bad, as sufficient opportunity was not given to the petitioner to establish that he had not voluntarily acquired the citizenship of another country. This contention has no substance and cannot be accepted. Para. 3 of Schedule III appended to the Citizenship Rules raises a conclusive "rule of presumption that a person who acquires a passport of another country must be deemed to have voluntarily acquired the citizenship of that country. We have perused the order at Ext. P1 and we see nothing wrong in it. Nor, is there any reason to interfere therewith.
In the result, we dismiss the Original Petition.