Katakey, J.
1. This appeal is directed against the judgment and order dated 31.01.2014 passed in WP(C) No.7036/2005, whereby and whereunder the learned Single Judge while dismissing the writ petition filed by the appellant Nos.1 and 2, directed the State Government as well as the Superintendent of Police, City, Guwahati, to apprehend them along with their children (appellant Nos.3 and 4) and keep them in detention camp till they are deported to Bangladesh. The learned Single Judge has also directed the respondents to deport them to Bangladesh immediately by observing that the criminal proceeding launched under Section 14 of the Foreigners Act, 1946 (in short the 1946 Act) against them will be of no consequence after lapse of many years of institution.
2. The appellant Nos.1 and 2 filed a writ petition, registered and numbered as WP(C) No.7036/2005, praying for a direction to the respondents to consider their applications filed under Section 5(1)(a) of the Citizenship Act, 1955 (in short the 1955 Act) and to pass appropriate orders thereon, in accordance with law, contending inter alia that both the petitioners were born in Guwahati and the petitioner No.1s father was also initially citizen of India born in undivided India. It has further been contended that after partition, the father of the petitioner No.1 permanently settled in Shylet district of the then East Pakistan (now Bangladesh) and due to his old aged ailments, the petitioners along with their first child (Shah Mohammad Aminul Islam, who is the appellant No.3 but was not the writ petitioner) went to Bangladesh in the month of September, 1991 and stayed in Bangladesh up to the month of March, 1992, during which period the second child, namely, Jakia (appellant No.4, who was also not the writ petitioner) was born in Bangladesh on 30.12.1991. The further contention of the writ petitioners was that they again went to Bangladesh in the month of November, 1996 to attend to the ailing father of the appellant No.1 with the intention to return to India as early as possible, but unfortunately as the father of the petitioner No.1 fell seriously ill, for which they have to stay back in Bangladesh and thereafter though they wanted to return to India, they could not do so and under compelling circumstances they had to obtain the passports from the Government of Bangladesh and entered India on 10.05.1997 under Bangladeshi passport and as Bangladeshi national. It has also been pleaded that after expiry of the initial period of Visa, they filed an application for extension from time to time and accordingly the Visa was extended and though their application for further extension of Visa dated 21.03.1998 was under active consideration of the Government, they were arrested along with their minor children (appellant Nos.3 and 4) in connection with Panbazar P.S. Case No.213/1998 (G.R. Case No.2649/1998) registered under Section 14 of the 1946 Act, on the ground that they overstayed in India beyond the period for which Visa was granted. The appellant Nos.1 and 2 further contended in the writ petition that after they were granted bail by the learned Judicial Magistrate, Kamrup, Guwahati, on 04.07.1998, they on 31.08.1998 filed an application under Section 5(1)(a) of the 1955 Act, in the prescribed form, before the Collector, Kamrup at Guwahati, with a copy to the Secretary to the Govt. of India, Ministry of Home Affairs, sent by registered post with the covering letter dated 27.09.1999, which applications having not been considered in accordance with law, the writ petition with the prayer, as noticed above, has been filed.
3. The Union of India filed the affidavit-in-opposition contending that no application for grant of citizenship has ever been received by the Ministry of Home Affairs either directly from the petitioners or from the Govt. of Assam with their necessary recommendation, while contending that the writ petitioners having voluntarily acquired the citizenship of another country ceased to be Indian citizen. The State of Assam in the affidavit filed has contended that the writ petitioners after obtaining the Bangladeshi passports entered India via Karimganj on 11.05.1997, with the Visa for 10 days, which was initially extended for a period of 1(one) month w.e.f. 11.06.1997 to 11.07.1997, which was also extended subsequently for a period of 2(two) months w.e.f. 05.07.1997 to 04.09.1997, then again till 21.09.1997 and thereafter though they prayed for further extension, the same was rejected as they have already completed the maximum period permissible of their stay in India i.e. 3(three) months. It has also been pleaded that despite the repeated direction to the writ petitioners, they did not leave India, for which the criminal proceeding under Section 14 of the 1946 Act has been initiated. The Superintendent of Police, City, Guwahati, has also filed the affidavit taking the same stand as has been taken by the State of Assam in its affidavit.
4. The learned Single Judge, upon appreciation of the pleadings of the parties and also hearing the learned counsel, passed the judgment and order as aforesaid. Hence the present appeal.
5. We have heard Mr. A.B. Choudhury, learned Sr. counsel for the appellants; Mr. D. Saikia, learned Addl. Advocate General appearing for the State of Assam and its officials and Mr. M. Bhagabati, learned Central Govt. counsel appearing for the Union of India and its officials.
6. Mr. Choudhury, learned Sr. counsel appearing for the appellants has submitted that the learned Single Judge ought not to have dismissed the writ petition and directed deportation of the appellants to Bangladesh, when the appellants legal right to get their applications, filed under Section 5(1)(a) of the 1955 Act, considered by the Govt. of India has been violated, by non-consideration, for which the writ petition was filed. The learned Sr. counsel further submits that since a legal duty is cast on the Collector to forward the applications filed by the appellants for grant of citizenship under Section 5(1)(a) of the 1955 Act, with his recommendation and consideration of such applications by the Govt. of India, in accordance with law, the learned Single Judge ought to have allowed the writ petition by directing the Collector to forward the said applications to the Govt. of India for its consideration, as required under the provisions of 1955 Act. Referring to the provisions contained in Section 9 of the 1955 Act, more particularly sub-section (2) thereof, it has also been submitted that when the question as to whether, when and how any citizen of India has acquired the citizenship of another country arises, it has to be determined by the Govt. of India and in the instant case the appellants in the writ petition having pleaded the circumstances under which they have acquired the Bangladeshi passports and came to India on such passports, though they were initially Indian national, they cannot be deported from India to Bangladesh without determination of their citizenship by the Govt. of India as required under the said provision of law and as such the direction issued by the learned Single Judge for their deportation, without such determination, is contrary to law.
7. The learned Sr. counsel further submits that the question as to whether when or how the appellants, who were initially Indian citizen acquired the citizenship of Bangladesh has to be determined by the Govt. of India in accordance with the rules framed thereunder and by no other authority including the writ Court has the jurisdiction to consider such application and hence the writ Court even cannot refused to issue a writ for determination of such question as well as consideration of their applications filed under Section 5(1)(a) of 1955 Act, on the ground that the appellants have not fulfilled the requirement of such provisions of law. Mr. Choudhury further submits that a criminal proceeding instituted against the appellants under Section 14 of the 1946 Act having admittedly been pending, wherein the appellants have been granted bail by the competent criminal Court, the learned Single Judge, in any case, ought not to have held that such criminal proceeding will be of no consequence after so many years of institution and directed deportation, without determination of the said proceeding, where the appellants are at liberty to take any defence, including the defence that they are Indian citizen, having not acquired the citizenship of Bangladesh voluntarily. The learned Sr. counsel, therefore, submits that the judgment passed by the learned Single Judge needs to be interfered with in this intra Court appeal.
8. Mr. Choudhury, in support of his contention has placed reliance on the decisions of the Apex Court in State of Andhra Pradesh Vs. Abdul Khader reported in AIR 1961 SC 1467; in The Government of Andhra Pradesh Vs. Syed Mohd. Khan reported in AIR 1962 SC 1778; in Mohd. Ayub Khan Vs. Commissioner of Police, Madras and anr. reported in AIR 1965 SC 1623; in State of U.P. Vs. Rehmatulla reported in AIR 1971 SC 1382; in National Human Rights Commission Vs. State of Arunachal Pradesh and anr. reported in (1996)1 SCC 742; in Bhanwaroo Khan and ors. Vs. Union of India and ors. reported in (2002)4 SCC 346; in Union of India and anr. Vs. S.B. Vohra and ors. reported in (2004)2 SCC 150 and of Allahabad High Court in Mukhtar Ahmed Vs. State of U.P. and ors. reported in AIR 1965 Allahabad 191.
9. Mr. Saikia, learned Addl. Advocate General, Assam, supporting the judgment and order passed by the learned Single Judge and referring to Section 5 of the 1955 Act, has submitted that the application for registration of a citizen of India can be filed by a person, as stipulated in clauses (a) to (g), who is not an illegal migrant and in the instant case as the appellants are illegal migrants, as defined in Section 2(b)(ii) of the said Act, they admittedly having valid Bangladeshi passports and other travel documents including the Visa and remained in India beyond the permitted period of time, they are not entitled to get their names registered and hence the learned Single Judge has rightly dismissed the writ petition with a direction for deportation of the appellants from India. It has also been submitted that even assuming that the provisions of sub-section (1) of Section 5, as amended by Act 6 of 2004, w.e.f. 03.12.2004, is not applicable in the instant case, the appellants having applied for their registration as citizens of India prior to such amendment, the appellants on their own admission having not resided in India for 5 years immediately before making applications for registration, as required under the un-amended provisions of Section 5(1)(a), they are also not entitled to get their names registered, which aspect of the matter has rightly been taken note of by the learned Single Judge while dismissing the writ petition and directing deportation.
10. The learned Addl. Advocate General also submits that the question of determination by the Govt. of India as to whether when and how the appellants have acquired the citizenship of Bangladesh, having not arisen in the instant case, the appellants cannot contend that they cannot be deported from India to Bangladesh without such determination by the Govt. of India. The learned Addl. Advocate General further submits that the appellants having approached the writ Court for a direction to the respondent authorities to consider their applications filed under Section 5(1)(a) of the 1955 Act, they must demonstrate that they have fulfilled the requirement of the said provisions of law for getting their names registered, which they having failed to do, the writ Court has rightly refused to issue direction, which if issued, would be a futile writ, when the appellants on their own admission have accepted that they have not fulfilled the requirement of Section 5(1)(a) of the said Act. Relating to the criminal proceeding instituted against the appellants, the learned Addl. Advocate General submits that the observation of the learned Single Judge that the criminal proceeding launched against the appellants will be of no consequence after so many years, goes in favour of the appellants as by such observation the criminal proceeding has in fact been quashed by the learned Single Judge. It has, however, been submitted that in case the writ appellate Court finds that the criminal proceeding cannot be quashed only on the ground of delay in disposal, the learned Magistrate may be directed to hear and dispose of the said criminal proceeding within a fixed period of time, so that the appellants, who are admittedly Bangladeshi national, could be deported to Bangladesh without any further delay.
11. The learned Addl. Advocate General referring to the conduct of the appellants has also submitted that though admittedly they are Bangladeshi nationals, they having obtained Bangladeshi passport and came to India with Visa, they got their names registered as electors in the electoral roll of 2005 declaring them as Indian national, apart from getting their names registered in the 2013 electoral roll, which, however, has subsequently been rectified by the Election Commission by deleting their names from such rolls, in view of the order passed by the writ Court. The learned Addl. Advocate General, therefore, submits that the appellants having not disclosed these facts are in fact not entitled to the equitable relief under Article 226 of the Constitution of India, and the writ petition filed by them deserves to be dismissed for suppression of material facts.
12. The learned Addl. Advocate General in support of his contention has placed reliance on the decision of the Apex Court in Bhagwati Prasad Dixit âGhorewala Vs. Rajeev Gandhi reported in (1986)4 SCC 78.
13. Mr. Bhagabati, learned Central Govt. counsel, supporting the arguments advanced by the learned Addl. Advocate General, has also submitted that the learned Single Judge has rightly dismissed the writ petition and directed deportation of the appellants from India to Bangladesh, the appellants on their own admission having not fulfilled the requirement of Section 5(1)(a) of the 1955 Act, for getting their applications considered by the Govt. of India and the question required to be determined by the Govt. of India under Section 9(2) of the said Act having not arisen in the instant case.
14. Mr. Choudhury, learned Sr. counsel, in reply to the arguments advanced by the learned Addl. Advocate General as well as by the learned Central Govt. counsel, submits that the provisions of sub-section (1) of Section 5 of the 1955 Act, as amended by Act 6 of 2004, which came into effect from 03.12.2004, is not applicable in the instant case, the appellant having filed their applications prior to such amendment and their right to get the applications considered having arose under the un-amended provisions of Section 5(1) of 1955 Act and hence the definition of âillegal migrant under Section 2(b) is also not applicable, the same having been amended w.e.f. 03.12.2004. The learned Sr. counsel also submits that as the appellants have filed the applications for registration under Section 5(1)(a), they have a right to get their applications considered by the Govt. of India, which right has been violated.
15. We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the materials made available on record apart from the impugned judgment and order under challenge.
16. Section 5 of the 1955 Act provides for acquisition of citizenship by registration. Sub-section (1), as stood prior to 2004 amendment, provides that any person, who is not already a citizen of India by virtue of the Constitution or by virtue of any other provisions of the Act and belongs to any of the categories mentioned in clauses (a) to (e), may make an application for registration as a citizen of India. Clause (a) stipulates that persons of Indian origin who are ordinarily resident in India and have been resident for 5 years immediately before making an application for registration is eligible for consideration for registration as Indian citizen.
17. Sub-section (1) of Section 5 has been substituted by Act 6 of 2004, which came into effect from 03.12.2004. Clause (a) of sub-section (1) of Section 5, after such amendment, makes a person of Indian origin, who is ordinarily resident in India for 7 years before making an application for registration but who is not an illegal migrant, eligible to file application for registration of his name as a citizen of India. The term âillegal migrant has been defined in clause (b) of sub-section (1) of Section 2 of the said Act as a foreigner, who has entered into India â (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.
18. The appellants filed their applications under Section 5(1)(a) of the 1955 Act for registration of their names as Indian citizen on 31.08.1998, i.e. prior to coming into force 2004 amendment and when the unamended provisions of Section 5(1)(a) was in force. Since the appellants have claimed their right of registration based on the eligibility criteria under the unamended provisions, the provisions of Section 5(1)(a), as amended by 2004 amendment, cannot be applied in the case in hand, as by such amendment new eligibility criteria has been stipulated. The submission of the learned Addl. Advocate General that the appellants being illegal migrants within the meaning of Section 2(1)(b)(ii), they having entered into India with a valid Bangladeshi passport and remain beyond the permitted period of time, they are not entitled to apply for registration of their names as Indian citizen, cannot, therefore, be accepted.
19. The appellants in the writ petition have pleaded that they filed the applications for registration of their names under Section 5(1)(a) of the 1955 Act, prior to the 2004 amendment, which having not disputed by the State of Assam or by the District Collector, such statements of facts have to be accepted. The learned Addl. Advocate General has also submitted that in the absence of the affidavit controverting such statement, the Court has to accept the averments relating to filing of such applications. The appellants in the writ petition have claimed that though they filed the applications, under Section 5(1)(a) of the Act, claiming registration of their names as Indian citizen, those having not been considered, the writ petition was filed by the appellant Nos.1 and 2 claiming a direction to the respondents for consideration of such applications.
20. In National Human Rights Commission (supra), while dealing with the rights of the Chakma refugees migrated from the then East Pakistan (now Bangladesh) in 1964 and settled in the State of Arunachal Pradesh for about 2½ decades, the Apex Court has held that the State is bound to protect the life and liberty of every human, be he is a citizen of India or otherwise. In the said case, the Chakma refugees were threatened by a particular organisation to leave the State of Arunachal Pradesh. The facts and circumstances involved in the said case is completely different from the facts and circumstances of the case in hand, as in this case the appellants have not fulfilled the pre-requisits to get their names registered as Indian citizen and that apart they have never, at any point of time, prior to filing of the writ petition in the year 2005, raised any contention that they have acquired the Bangladeshi citizenship under compulsion. The appellants, for the first time to make out a case in the writ petition, have indicated so. They have, in fact, after acquisition of the Bangladeshi citizenship filed the applications under Section 5(1)(a) of the 1955 Act for registering themselves as Indian citizen.
21. The writ Court, before issuance of a writ of mandamus or a writ in the nature of mandamus or any other direction, based on the prayer made by the appellants, can scrutinize as to whether the appellants could prima facie establish that they have fulfilled the requirement of Section 5(1)(a) of 1955 Act to get their applications considered by the appropriate authority. The appellants in the writ petition have admitted that they entered into India under Bangladeshi passports on 10.05.1997 with the Visa initially for a limited period, which was subsequently extended up to 31.03.1998 and are residing in India thereafter despite expiry of the period for which Visa was granted. It is also the case of the appellants that the applications under Section 5(1)(a) of the 1955 Act were filed on 31.08.1998. It is, therefore, evident that they have not resided in India for a period of 5 years on the date of filing the applications and hence on the face of the appellants own case, they have not fulfilled the eligibility criteria as laid down in clause (a) of sub-section (1) of Section 5 of the 1955 Act to get their applications considered by the appropriate authority for registration as citizen of India. The appellants, to get an order, have to prima facie show to the writ Court that they have fulfilled the eligibility criteria, so that the Court is not asked to issue a futile writ. In the instant case had a writ been issued to the respondents to consider the applications filed by the appellants for registration, the same would have been a futile writ, the appellants, on their own admission, having not fulfilled the eligibility criteria as laid down in clause (a) of sub-section (1) of Section 5 of the 1955 Act.
22. The next question, which requires consideration, is whether the learned Single Judge was justified in directing deportation of the appellants from India, having refused to issue a direction for consideration of their applications for registration as Indian citizen. Section 9 of the 1955 Act provides for termination of citizenship. Sub-section (1) provides that any person of India who by naturalization, registration otherwise voluntarily acquires, 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. Proviso to sub-section (1) curves out an exception to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs. Sub-section (2) provides that if any question arises as to whether, when or how any citizen of India 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.
23. Sub-section (2) of Section 9 of 1955 Act, therefore, empowers the Central Government to determine the question as to whether, when or how any citizen of India has acquired the citizenship of another country, if such question arise for consideration. It is, therefore, the Central Government and no other authority, who can determine such question. The writ Court would also, ordinarily, not enter into such determination unless of course the determination made by the Central Government is put to challenge by the aggrieved party. Reference in this regard may be made to the judgments of the Apex Court in Abdul Khader (supra), Syed Mohd. Khan (supra), Mohd. Ayub Khan (supra), Rehmatulla (supra), S.B. Vohra (supra), Bhagwati Prasad Dixit âGhorewala (supra) and of the Allahabad High Court in Mukhtar Ahmed (supra).
24. The Apex Court in S.B. Vohra (supra) has held that ordinarily the Court will not exercise the power of statutory authorities and it will at the first instance allow the statutory authority to perform their own functions and would not usher the said jurisdiction itself. It has further been observed that it is not possible to lay down the standard exhaustively as to in what situation a writ of mandamus will issue and in what situation it will not. The exercise of its discretion by the Court also depends upon the law which governs the field, namely, whether it is a fundamental law or an ordinary law. In the instant case, the appellants never at any point of time, prior to filing of the writ petition in the year 2005, claimed that they have under compulsion and not voluntarily acquired the citizenship of Bangladesh. On the other hand, the appellants have filed the applications under Section 5(1)(a) of 1955 Act seeking registration of their names as Indian citizen, upon accepting that they have voluntarily acquired the citizenship of Bangladesh. Since the question as to whether, when or how the appellants, who were earlier citizens of India, have acquired the citizenship of Bangladesh, did not arise at all, there is no question of determination of such question by the Central Government, before passing an order of deportation, when admittedly the appellants have overstayed the period for which the Visa was granted.
25. This leads to the determination of the next question, as to whether, during pendency of the criminal proceeding being Case No.213/1998 (G.R. Case No.2649/1998) instituted by the State of Assam against the appellants under Section 14 of the 1946 Act, the appellants could directed to be deported from India? The appellants neither in the writ petition nor in the present appeal have disputed the fact that they have overstayed the period of Visa. They have even, after expiry of the period of Visa, managed to get their names registered as the voters in the electoral roll, whose names, however, were subsequently deleted from the electoral roll, pursuant to the order passed by the learned Singe Judge. It is also an admitted fact that the said criminal proceeding has been stayed at the instance of the appellants, because of filing of the writ petition, in 2005. The maximum punishment provided under Section 14 of the 1946 Act is imprisonment up to the period of 5 years and also of fine. The appellants could manage to stay in India, after rejection of their prayer for extension of the period of Visa on 21.03.1998, for long 16 years till now, even without any valid document. If the criminal proceeding is allowed to proceed, the appellants taking advantage of such pendency will continue to be in India unauthorisedly, though they are not entitled to stay in this country, they having no valid document for such stay. That apart, the direction issued by the learned Single Judge not to pursue the criminal proceeding instituted under Section 14 of the 1946 Act goes in favour of the appellants, the effect of the same being quashing of the criminal proceeding against them.
26. In view of the aforesaid discussion, we do not find any infirmity in the judgment and order passed by the learned Single Judge requiring our interference in an intra Court appeal.
27. The writ appeal is, therefore, dismissed.