Patna High Court
Mohd. Kaleemuddin vs The Union Of India (Uoi) And Ors. on 15 April, 1989
Equivalent citations: 1990(1)BLJR176
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This writ petition is directed against an order dated 30.10.1986 as contained in Annexure 8 to the writ petition issued by home (Special) Department, Government of Bihar whereby and where under the petitioner has been directed to be deported to Pakistan on the plea that he is a Pakistani national.
2. According to the petitioner, he is a citizen of India having born in village Bansgaraha, Poliee Station Rupauli in the District Purnea. The petitioner has appended with the writ petition various documents for the purpose of showing that he has been educated in the district of Purnea and he also used to carry on business in books and medicines. The petitioner has further asserted that also married one Alam Ara who was a resideat of village Paina, P.S. Chausa, District Madhepura. According to the petitioner his name has also been recorded as a voter in the Voter list of Rupauli Assembly Constituency and Dhamdaha Parliament Constituency.
3. The petitioner has also made assertions that there had been various litigations also by and between him and other persons of the locality. The petitioner has further contended that he has all along been a citizen of India and have never become a Pakistani national.
4. The petitioner has further asserted that he was deported to Pakistan. Pursuant to the aforementioned order of deportion dated 30.10.1986 wherein his name has been shown as Kalimuddin @ Mokhtarul Hassan Kalim son of Md. Aziz @ Rahman @ Qamruddin but the same does not contain any address. According to the petitioner neither he nor his father had any alias names.
5. According to the petitioner his deportion to Pakistan was wholly illegal as he was not given an opportunity of hearing in the matter nor the Central Government declared the petitioner as foreigner in terms of the provisions contained in Section 9 of the Citizenship Act, 1955. According to the petitioner had such an opportunity being given to the petitioner and had any enquiry been initiated by the Central Government in terms of the aforementioned provisions, he could have shown that he is a citizen of India and not a Pakistani national. In this writ petition the petitioner has impleaded Shri Dinesh Kumar Singh, an Ex-Minister of Government of Bihar. The said Shri Dinesh Kumar Singh has filed a counter-affidavit stating inter alia therein that he has nothing to do with the subject-matter of writ petition.
6. In this case, no counter-affidavit has been Held on behalf of the Union of India. However, a counter-affidavit has been filed on behalf of the respondent Nos. 2 to 5. In the said counter-affidavit it has been contended that there are large number of documentary evidences to show that the petitioner had become a citizen of Pakistan. According to the said respondents the petitioner had applied before the Embassy of India at Islamabad for a visa to visit India and in column No. 5 thereof he categorically stated that he was a citizen of Pakistan and in column No. 9 thereof he indicated that he was holder of Pakistan passport bearing No. AE-689457 issued at Karachi on 17.3.1976 and further in column 21(1) thereof it has been stated that he is "By Birth Pakistani". A copy of the said application for grant of visa is contained in Annexure A to the counter-affidavit. The said respondents have stated the facts in relation to the matter in Paragraph Nos. 7 to 9 of the counter-affidavit which are as follows:
(7) That with regard to the statement made in paragraph 7 of the writ petition it is stated and submitted that the petitioner was arrested at Pokharam District Jaisalmer on 20.7.1978 alongwith one of his associate Mansori while the petitioner had entered into India Territory from West Pakistan with the help of another West Pakistani National Shri Khidiya @ Khuda Baksh. On interogation of the petitioner it was learnt that Khuda Baksh handed him over to an Indian National Shri Nazoori, resident of Mohangarh, District Jaisalmer, Rajasthan alongwith whom he was later on arrested on 20.7.1978 us stated above. In that connection Pokharan P.S. case No. 140, dated 20.7.1978 under Section 14/13(2). Foreigners Act was registered and investigated which was later on charge-sheeted During the course of interogation by Rajasthan C.I.D. and Police it was learnt that the petitioner was a suspected Pakistani spy trained by Pakistan Intelligence Officer. The petitioner had himself admitted before the Interrogating Officer disclosing his arrest name, address, Educational qualification and had also disclosed that he had twice visited West Pakistan under the cover name of Mukhtiyar Hussain son of Kayuddin Mohammad, resident of Dinazpur, West Pakistan.
(8) That it was also admitted by the petitioner that on this name he managed to get forged passport No. AE-689457, dated 17.3.1976 froai Pakistan and on the strength of this passport he entered India in the month of March (17.3.1977) and remained in Bihar for two months after which he returned to West Pakistan on 24.5.1977 and again started living in Pakistan. After staying there in West Pakistan for more than one year he managed clandestinely to enter India again but unfortunately he was arrested on 20.7.1978 by the Rajasthan Police at Ranowtpa that is why the petitioner has knowingly maintained silence in his writ petition regarding this period.
(9) That when the above facts were reported to the Bihar Government by the Ministry of Home Affairs, New Delhi through several letters by the Joint Secretary, Government of India. Thereupon thorough verification was made. The facts regarding date of birth, educational qualification etc. given out by the petitioner were found true but on verification it was also found true that the petitioner was away from his village home after stealing Rs. 500/- (Rupees five hundred) for more than two years and visited his parents and village home only for a period of two months on fake passport as stated above.
7. A supplementary affidavit has been filed on benalf of the petitioner purporting to be in reply to the aforementioned counter-affidavit.
8. In the said supplementary affidavit inter alia it was contended that the petitioner was not holder of any Pakistan passport nor was a Pakistani by birth. The said supplementary affidavit has been sworn by one Md. Shoib Ali stated to be the full brother of the petitioner. However no reliance can be placed upon the same as the said supplementary affidavit has been verified in the following manner:
That the contents of the supplementary affidavit have been read and understood by the deponent and the same are true to his knowledge and information derived from the petition.
9. Plainly enough the verification in support of the said supplementary affidavit by the deponent is not in accordance with law and no reliance can be placed thereupon.
10. Mr. Farooque Ahmad, the learned Counsel appearing on behalf of the petitioner has raised a short question.
11. According to the learned Counsel for the petitioner, the petitioner could not have been deported to Pakistan pursuant to or in furtherance of the purported order dated 20.10.1986 and as contained in Annexure 8 to the writ petition without taking recourse to the provisions contained in Section 9 of the Citizenship Act, 1955. The learned Counsel in this connection has; placed reliance upon in Md. Ayub Khun v. Commissioner of Police : State of v. P.V. Rehlmath repotted in and Bhut Nath Melee v. State of West Bengal reported in 1974 Vol. I SCC 545.
12. Mr. N.A. Shatnsi, the learned Counsel appearing on behalf of the State, on the other hand, submitted that from a perusal of the counter-affidavit it would be evident that the petitioner had acquired Pakistan citizenship and in that view of the matter the impugned order as contained in Aunexure-8 to the writ petition cannot be assailed.
13. Learned Counsel further submitted that in view of the fact that the petitioner has himself admitted in his application for grant of visa that he was a Pakistani national the question of his continuing as an Indian citizen does not arise. Section 9 of the Citizenship Act, 1955 reads as follows:
9. Termination of citizenship.--(1) Any citizen of India who by naturalization, registration or otherwise voluntarily acquired, or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired the citizenship of another country shall, upon such acquisition or as the case may be, such commencement, cease to be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may engaged, voluntarily acquired the citizenship of another country, until the Central Government otherwise directs.
(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.
14. True it is that in terms of Sub-section (2) of Section 9 of the said Act if a question arises as to whether a person has acquired the citizenship of another country or not the same shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf. However, in this case there is nothing to show that the petitioner at any point of time, prior to his deportion raised the said contention.
15. However, in view of the application for grant of a visa, as contained in Annexure-A to the counter-affidavit, filed on behalf of the respondent Nos. 2 to 5 no purpose would have been served whatsoever by giving an opportunity of hearing to the petitioner and in view of the fact, as mentioned hereinhefore, the petitioner has not been able to show even prima facie that he did not hold any Pakistan passport or did not file an application for visa.
16. In the peculiar facts and circumstances of the case, particularly the fact that the petitioner has already been deported I gave full opportunity to the counsel of the petitioner to show before me that even prima facie he continued to be a citizen of India.
17. As noticed hereinbefore, the supplementary affidavit, which has been filed on behalf of the petitioner by way of reply to the counter-affidavit filed on behalf of the petitioner, has not been properly verified and as such no notice can be taken thereof.
18. Ih a writ petition, the importance of verification of the pleadings need not be over emphasized.
19. In Satya Narayan Prasad and Ors. v. The State of Bihar and Ors. reported in 1988 PLJR 414, it has been held as follows:
it is now well-settled principle of law that an affidavit in support of a writ petition or a counter-affidavit must be in terms of or analogous to the provisions of Order XIX, Rule 3 of the Code of Civil Procedure.
14. The deponent of the counter-affidavit was merely an assistant. Therefore, it cannot be expected that he was maintaining any record in respect of the petitioners. The importance of verification in support of the statements made in the affidavits have been emphasised in various decisions. Reference in this connection may be made to and various other decisions referred to in a recent decision of the Supreme Court in Sheojee Rao Nilangerkar Patil v. Dr. Mahesh Madhav Gosavi and Ors. .
20. In fact the deponent of the counter-affidavit being a brother of the petitioner could have stated that the application for grant of visa was not in the pen of the petitioner except on information derived from him. But the deponent could categorically say that the photograph pasted on the said application is not of the petitioner. Even this has not been stated in the supplementary affidavit.
21. In view of the position as it existing on the basis of the materials on record it has to be held that the petitioner was holder of a Pakistani passport and in fact filed an application for grant of visa for visiting India. Prima facie it appears that the contents of Annexure-A are correct.
22. Mr. Farooque Ahmed, the learned Counsel appearing for the petitioner, when questioned, admitted that Md. Zamil is a relation of the petitioner and Shanti Medical Hail belongs to the petitioner's family. As mentioned hereinbefore, in paragraph 9 of the writ petition the petitioner had also stated that he had small business in books and medicines in Line Bazar at Purnea which tally with the description of the address mentioned in the visa.
23. As indicated hereinbefore, even in the supplementary affidavit which has been filed is reply to the contents of the counter-affidavit it was not asserted that the photograph appearing in the application for grant of a visa is not that of the petitioner. Even therein the allegations made in the counter-affidavit to the effect that there petitioner has not explained his absence from India in 1976 to 1978 except for two months have not been controverted. The statements made in paragraphs 8 and 9 of the counter-affidavit have also not been specifically travelled by the deponent of the supplementary affidavit. The purported denial of the allegations made therein are absolutely vague.
24. In terms of Rule 30 of the Citizenship Rules, 1950, Rules of evidence have been formulated as contained in Schedule III appended thereto. Rule of the said Rules reads as follows:
30. Authority to determine acquisition of citizenship of another country.--(1) If any question arises as 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) by 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.
25. Clause (3) of the 3rd Schedule reads as follows:
That fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.
26. Clause 5 of Schedule III reads as follows:
Notwithstanding anything contained in para 4, a citizen of India shall be deemed to have voluntarily acquired the citizenship of Pakistan-
(a) If he has migrated to Pakistan with the intention of making it his permanent home;
(b) If he has obiained any certificate of domicile in Pakistan or declared himself to be a citizen of Pakistan or of Pakistan domicile ; or
(c) If he has applied for and obtained a right, title or interest in evacue property in Pakistan ;
(d) If he has obtained a temporary permit for entry into India from Pakistan.
27. In view of the fact that the petitioner is a holder of Pakistan passport and had applied for a visa which is a temporary for entry into India from Pakistan, the same is a conclusive proof as against the petitioner that he voluntarily acquired citizenship of Pakistan.
28. It is now well-known that a Schedule appended to an Act, becomes part thereof. Thus the Third Schedule appended to the Rules must be held to be part of the Rules.
In Ujagar Prints etc. v. Union of India and Ors. , it has been held as follows:
29. That apart, Section 4 of Amending Act VI of 1080 has amended the relevant items in the Schedule to the Additional Duties Act. The expressions 'produce' or 'manufacture' in Section 3(1) of the Additional Duties Act must be read alongwith the entries in the Schedules. In Att, Gen. v. Lamplough (1878) 3 Ex. D. 214, 229 it, is observed:
A Schedule in an Act is a mere question of drafting, a mere question of words. The schedule in as much a part of the statute, and is as much an enactment, as any other part.
Maxwell says (in Interpretation of Statutes, 11th Edn., p. 156):
...if an enactment in a schedule contradicts an earlier clause it prevails against it." Bennion (in Bennion's Statutory Interpretation pp, 568-569) referring to the place of Schedules in statutes observes:
The Schedule is an extention of the section which includes it. Material is put into a Schedule because it is too, enghty or detailed to be conveniently accomodated in a section.
A Schedule must be attached to the body of the Act by words in one of the sections (known as inducing words). It was formerly the practice for the inducing words to say that the Schedule was to be constructed and have effect as part of the Act (See, e.g., Ballot Act, 1872, Section 28). This is no longer done, being regarded as unnecessary. If by mischance the inducing words were committed, the Schedule would still form part of the Act if that was the apparent intention.
...The schedule is an much a part of the statute, and is as much an enactment, as any other part'. (See also to the like effect, Flower Freight Co. Ltd. v. Hammond (1963) 1 QB 275 ; R. v. Legal Aid Committee No. 1 (London) Legal Aid Area Ex. P. Rondel (1967) 2 QB 482 ; Metropolitan Police Commissioner v. Curran (1976) 1 WLR 7. What appears, therefore, clear is that what applies to the main levy, applies to the additional duties as well. We find no substance in contention (c) either.
Thus, there is no doubt that rules of evidence as contained in Third Schedule appended to the Citizenship Rules shall apply in this case.
29. In Izhar Ahmad Khan and Ors. v. Union of India and Ors. , it has been held as follows:
29. In deciding the question as to whether a rule about irrebuttable presumption is a rule of evidence or not, it seems to us that the proper approach to adopt would be to consider whether fact A from the proof of which a presumption is required to be drawn about the existence of fact B, is inherently relevant in the matter of proving fact B and has inherently any probative or persuasive value in that behalf or not. If fact A is inherently relevant in proving the existence of fact B and to any rational mind it would bear a probative or persuasive value in the matter of proving the existence of fact B, then a rule prescribing either a rebuttable presumption or an irrebuttable presumption that behalf would be a rule of evidence. On the other hand, it fact A is inherently not relevant in proving the existence of fact B or has no probative value in that behalf and yet a role is made prescribing for a rebuttable or an irrebuttable presumption in that connection, that rule would be a rule of substantive law and not a rule of evidence. Therefore, in dealing with the question as to whether a given rule prescribing a conclusive presumption is a rule of evidence or not, we cannot adopt the view that all rules prescribing rebuttable presumption are rules of substantive law. We, can answer the question only after examining the rule and its impact on the proof of facts A and B. If this is the proper test, it would become necessary to enquire whether obtaining a passport from a foreign Government is or is not inherently relevant in proving the voluntary acquisition of the citizenship of that foreign State.
30. Tn 1979 Vol. 2 The All England Law Reports at page 377, it has been held by Lord Diplock as follows:
So if the definitive map shows a footpath and if Parliament has decreed that in such event the map must be regarded as 'conclusive evidence'. It follows in my view that Parliament has said that no one must be heard to attack the truth of that which is 'conclusive'. It was a necessary and invitable consequence of what Parliament enacted and in my view it must have been the policy and intention of Parliament that any unknown or undiscovered right of way, which had it existed, might destroy the status of a footpath, should be regarded as being non-existent unless or until some opportunity for revision later arose. In so enacting Parliament with its ample powers was, in my view, adopting a most rational line. To add some further provision would have been superflous-Finality is reached when something is unreservedly conclusive.
31. There are a large number of decisions on the aforementioned point. Reference in this connection may be made to Smt. Sonawanii and Ors. v. The State of Punjab and Ors. ; Addan Tirvenkata Thatha Vesika Charyuly v. State of Andhra Pradesh and Smt. Lila Vati Bai v. State of Bombay .
32. In Sodhi Transport Co. and Anr. v. State of U.P. and Ors. reported in AIR 1987 SC 1099, it has been held in paragraphs 13 and 14 as follows:
13. The history of the rules regarding presumption is succinctly given in W.S. Holdsworth's A History of English Law '(Vol IX at page 140) thus:
From time to time the ordinary process of reasoning have suggested various inferences, which have been treated by the courts in different ways. Sometimes they are treated as more or less proable inferences of fact; and it is possible, though by no means certain, that in the remote past most presumptions originated as mere presumptions of fact. Just as in the case of Judicial notice the courts, as a matter of common sense, assumed the existence of matters of common knowledge without further proof, ho they easily drew an obvious inference from facts proved or admitted and thus created a presumption, as common sense dictated. And just as the truisms which elementary experience teaches same to be embodied in maxims which illustrate the origins of the doctrine of judicial notice, so other maxims arose which illustrate the origins, in that same elementary experience, of some of the commonest of the presumption known to the law. But it was inevitable that as the law developed, some of these presumptions should be so frequently drawn that they took upon themselves the character of rules of law ; and we shall see that, owing to the exigencies of primitive methods of trial, the Legislature and the Courts were made or became only Prima facie rules-rules, that is, which were rebuttable by further evidence. Others were made or became irrebuttable, and therefore, in effect, rules of law. Others howered uncertainly on the border line of rebuttable and irrebuttable presumption....
14. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlughtened human knowledge and experience and are drawn from the connection, relation and concidence of facts and circumstances.
33. In Izhar Ahmad Khan and Ors. v. Union of India and Ors. , it has been held that the Citizenship Rules, 1956 framed by the Central Government under Section 9(2) of the said Act as valid as thereby the Central Government has been authorised to prescribe rules of evidence. The rules of evidence as mentioned in 3rd Schedule appended to the Citizenship Rules, bear rules of evidence. It was thus open to make a provision with regard to the conclusive proof.
33A. As mentioned hereinbefore, the petitioner has not been able to show by a proper affidavit that the said passport did not belong to him or the same has been obtained under cumpulsion or mis-representation and not voluntarily.
34. Thus exception to the rules of conclusive proof as laid down in Gangadhar v. Erasmo Kesus and Mohd. Ayub Khan etc. v. Commissioner of Police Madras are not applicable to the petitioner in the instant case.
35. In this view of the matter, in my opinion, it would be absolutely futile to issue a writ, as prayed for by the petitioner as there are conclusive evidence as against the petitioner that he has ceased to be a citizen of India and has acquired Pakistani citizenship.
36. In view of my findings aforementioned it is not necessary to deal with the decisions cited by the learned Counsel for the petitioner.
37. It is now well-known that grant of writ of certiorari is discretionary, and in view of what has been found hereinbefore, in my opinion, this Court cannot exercise its discretion in favour of the petitioner.
38. In the result, this petition is dismissed. However, the facts and in the circumstances of the case there will foe no order as to costs.