Judgment:
ORDER
M. N. Rao, J.
1. This application for issue of a writ of habeas corpus concerns the obligation of the Central Government under S. 9(2) of the Citizenship Act, 1955 to determine the question as to whether the detenu-Syed Amrullah Qadri -- has voluntarily acquired the citizenship of Pakistan and consequently ceased to be a citizen of India?
2. In the affidavit filed in support of the writ petition by one Syed Safiullah Qadri, the brother of the detenu, it was averred that the detenu was arrested on 20-6-1996 by the Inspector of Police, Special Branch, Hyderabad, the second respondent, on a complaint given by some of his (detenu's) enemies to the effect that he is not a citizen of India and although an interim injunction was obtained by the detenu by filing a suit -- O. S. No. 211 of 1991 -- on the file of the V Assistant Judge, City Civil Court for a declaration that he is a citizen of India and when the suit is still pending adjudication, attempts are being made for the deportation of the detenu to Pakistan.
3. An interim direction was issued by a Division Bench of this Court, to which one of us (M. N. Rao, J.,) was a party, having beensatisfied that the petitioner has made out a prima facie case especially when he claimed that in spite of the subsistence of the interim injunction, the police have made attempts for the deportation of the detenu from the country, that pending further orders, the detenu shall not be deported from the country. By then, already, !he detenu was taken to Banner Checkpost (Rajasthan) of the Indo-Pakistan border and in compliance of the above directions, the detenu was brought back to Hyderabad.
4. The Union of India, represented by the Secretary, Ministry of Home Affairs, New Delhi, was subsequently impleaded as the third respondent on 8-7-1996.
5. The Commissioner of Police, Hyderabad City, filed a counter-affidavit deposing to the facts on the basis of the available records that the real name of the detenu is Syed Arif Amrullah Qadri, who was born in India on 23-6-1947 but went to Pakistan on 5-8-1963 on an Indian Passport for higher studies. He was admitted to the National Engineering College, Karachi in the year 1965 and when the Indo-Pak war broke out in 1965, he opted to become a Pakistani citizen. After completing the course of B. E., in Metallurgy in 1969 from the National Engineering College, Karachi, the detenu went to the United States of America and obtained the degree of B. S., in Engineering and Technology and thereafter, went to Canada for employment and became a Canadian immigrant in 1977. The father of the detenu -- Sri Syed Kallemullah Qadri -- was a Member of the Board of Revenue in the Andhra State and consequent upon the reorganisation of the States, he was transferred io the State of Maharashtra, from where he retired and died subsequently on 8-3-1981. The detenu, in the year 1980, voluntarily obtained a Pakistani passport No. AJ 006615 showing his name as Syed Arif Qadri valid up to 22-7-1985 and thus, he lost his Indian citizenship. He entered India on 23-7-1980 on the strength of the above Pakistani passport and for over-staying in India, an order of deportation was passed on 30-6-1982 in Proceedings No. 1354/PPTS/ 81 in File No. SB/619/83/80 and accordingly,he was deported to Pakistan on 5-7-1982 vide Exit No. 58/82 through Barmer Checkpost in Rajasthan. It is also averred in the counter-affidavit by the Commissioner of Police that the detenu, while in Karachi, obtained Pakistani Driving Licence No. 445719 in 1980 showing his name as Syed Amrullah Qadri. He came to India again in 1983 on the strength of the above Pakistani passport and stayed at House No. 16-2-27, Akbar Bagh, Hyderabad, unauthorisedly without reporting about his arrival in the office of the Commissioner of Police. In 1991, when attempts were made by the police to apprehend the detenu, he escaped and filed the suit -- O. S.No. 211 of 1991 -- for a declaration that he is a citizen of India and obtained an injunction on 13-2-1991. Subsequently, Me injunction was vacated on 16-8-I99I and the suit itself was dismissed on 18-10-1991. On a complaint by the Commissioner of Police that the detenu, by furnishing false information obtained an Indian Passport No. A 2613339 on 18-7-1986 valid up to 17-7-1991, the Regional Passport Officer, Hyderabad, impounded the passport on 7-10-1994 under S. 10(3)(a)(b) of the Passports Act, 1967. The Government passed an order on 17-6-1996 in No. 24221/PPTS.A1/96 deporting the detenu from India and as the detenu refused to receive the above order, he was taken into custody on 20-6-1996 and he was brought back from Barmer Checkpost, Rajasthan, in compliance of the order passed by this Court (interim order). It is further averred in the counter-affidavit by the Commissioner of Police that on 29-4-1983, the detenu made on application to the Secretary, Home Department, Foreign Affairs, Government of India, disclosing his name as Syed Arif Amrullah Qadri and requested for grant of Indian citizenship.
6. The Regional Passport Officer, Hyderabad, in his counter-affidavit filed on behalf of the third respondent, has averred, inter alia, that on a complaint received in his office that the detenu by furnishing false information, obtained an International Passport on 18-7-1986 and after verification of the records, a show-cause notice was issued to the detenu on 19-3-1991 to his address -- H. No.16-2-27, Akbar Hugh. Hyderabad - calling upon him to show cause why action should not be taken against him for falsely obtaining the Passport. However, there was no response to the show-cause notice and, therefore, the Passport was impounded on 21-2-1991 under S. 10(3)(a)(b) of the Passports Act, 1967.
7. A miscellaneous petition -- W. P. M. P. No. 15547 of 1996 -- was filed by the petitioner for a direction to set at liberty, the detenu. In the affidavit filed by the brother of the detenu in support of the above miscellaneous petition, it is stated, among other things, that the detenu is a citizen of India, He studied in Government Model High School, Aliya at Hyderabad during the years 1952-55 and in Asalia High School, he studied during the academic years 1955-57. He studied at the Zilla Parishad High School, Chitapura, Aurangabad in the year 1961-62 and at that time, his father was employed at Aurangabad. The detenu obtained a Passport on 18th July, 1986 from the Regional Passport Office, Hyderabad and in June. 1988, he visited Pakistan for a month to attend the marriage of one of his relatives. Although he obtained visa in April, 1991 to visit the United States of America, he did not go there. The name of the detenu is entered in the voters' list of Malak-pet Assembly constituency. One of his brothers -- Syed Abdul Qadri - who is managing the family property of Ac. 40-00 of land in Borancha village of Muzvid Mandal of Krishna District has not been rendering account and was not giving the shares to other members of the family and as there were disputes on this account, the said Abdul Qadri sent false complaints fabricating a false Pakistani Passport in the name of the detenu. In paragraph 7 of the affidavit, it is ad milted that the suit was dismissed for default on 18-10-1995 Slating that the detenu is a bona fide citizen of India, it is asserted that the order of deportation dated 17-6-1996 was not served upon the detenu.
8. A lengthy reply-affidavit was also filed by the detenu, in which he among other things, denied the allegation that he studied in Pakistan and that he went to Pakistan in 1963 for higher studies on the strength of an Indianpassport. He admitted : 'In the year 1963 on the basis of an Indian Passport obtained from the Nagpur Passport Office,' he proceeded to Middle East to stay with his sister and other relatives and from there to the United States to pursue further studies, and obtained a Degree in Engineering. He claimed that after obtaining the Degree from the United States, he worked there for some time and returned to India. Except for a short visit to Pakistan in 1988 on the basis of the Indian Passport obtained in 1986, he did not go to Pakistan and that he has been staying only in India. He specifically pleaded that he has been advised that under S. 9(2) of the Citizenship Act, the Courts Civil or Criminal -- cannot decide the issue as to whether, when or how a person has acquired the citizenship of another country and, therefore, his case should be determined by the Central Government as provided for in R. 30 of the Citizenship Rules.
9. Even though the suit was dismissed as far back as 18-10-1995 and not with standing the alleged pendency of an application for restoration of the suit, Sri Ravinder Rao, learned counsel for the petitioner, has urged that having regard to the particular fact situation, the Central Government alone is eompetenl to decide the question whether the detenu has voluntarily acquired the citizenship of Pakistan and consequently lost the Indian citizenship and that this question cannot be adjudicated by courts - - civil or criminal. He has also laid considerable stress on the aspect that whatever be the contents of the record placed before the court by the State Government and the Central Government in support of their case that there was no need to conduct any enquiry since the delenu is a foreigner, the same cannot be accepted unless the question of acquisition of Pakistani citizenship voluntarily by the detenu is determined by the Central Government.
10. Contravening these contcnlions, Sri Innayya Reddy, learned Senior Standing Counsel for the Union of India, has submitted that there is no need for the Central Government to conduct an enquiry as demanded by the delenu since the detenu ceased to be anIndian citizen long ago. He came to India on the strength of a Pakistani passport in 1980 and as he over-stayed, he was deported but again, suppressing that fact, he re-entered India stealthily and obtained, by furnishing false information, an Indian passport from the Regional Passport Office, Hyderabad. He not being a citizen of India and answering the description of a 'foreigner' under clause (a) of S. 2 of the Foreigners Act, 1946, the Government was competent to pass an order under S. 3(2)(c) thereof, deporting him from the country. In respect of a foreigner, there is no obligation for the Central Government to conduct an enquiry under S.9(2) of the Citizenship Act to determine the question whether he has voluntarily acquired the citizenship of any other country and consequently lost the Indian citizenship.
11. Smt. Vijayalakshmi, the learned Government Pleader, representing the learned Additional Advocate-General, has placed the entire record before us to show that on an earlier occasion, the detenu entered India stealthily, and when he was sought to be deported, he submitted a representation to the Government of India disclosing his name as Syed Arif Amrullah Qadri for grant of Indian citizenship on 29-4-1983.
12. As per clause (a) of Sec. 2 of the Foreigners Act, a 'foreigner' is a person who is not a citizen of India. In respect of any foreigner, the Central Government is empowered, by S. 3, to pass orders restricting his movements and also directing him to leave the country. If a foreigner is recognised as a national by the law of more than one foreign country or where there is uncertainty as to a foreigner's nationality, how his nationality should be determined is dealt with in S. 8. The Central Government is the competent authority to decide this. The burden of proof, by S. 9, in such an enquiry is on the person who claims that he is not a foreigner.
13. In this case, the question of any enquiry under S. 8 of the Foreigners Act would not arise; it had never arisen and on this aspect, there is no controversy. It is, therefore, unnecessary for us to discuss the question whether the Central Government,under S. 8, should have decided about the nationality of the detenu. Section 9(1) of the Citizenship Act, 1955 lays down that if a citizen of India has voluntarily acquired the citizenship of any other country by naturalisation, registration or otherwise, he shall cease to be an Indian citizen. Sub-section (2) says that 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.' Rule 30 of the Citizenship Rules, 1956 specifies the Central Government as the authority to decide the question under S. 9(2) of the Citizenship Act. While determining the question, the Central Government is obliged to have regard to the rules of evidence specified in Schedule III. It is now well settled by decisional law that conns have no jurisdiction to decide the question whether the acquisition of foreign citizenship by an Indian was done voluntarily or otherwise.
14. In State of A.P. v. Abdul Khader, : 1961CriLJ573a , a Constitution Bench of the Supreme Court ruled that under S. 9(2) of the Citizenship Act read with Rule 30 of the Rules framed under that Act, 'the question whether an Indian citizen had acquired the citizenship of another country shall be determined by the Central Government and that question cannot be decided by courts'. The Constitution Bench also held that whether a person is an Indian citizen or a foreigner can be adjudicated by the courts but not the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality. Although, at first sight, it may appear that the case of a denial by a foreigner about his nationality and the case of a person denying that he has not voluntarily acquired the citizenship of a foreign country to be on the same footing with the same legal consequences, the distinction between the two is clear. In the case of a foreigner governed by the Foreigners Act, the question whether he is a foreigner has to be decided with reference to S. 8(1) of the Foreigners Act which deals with a case of a foreigner recognised as its nationalby more than one foreign country or when it is uncertain what his nationality is. In such a case, the Government of India is empowered to decide the question under sub-sec. (2) of S. 8 of the Foreigners Act and its decision thereon is final. Cases in which a person claims that he has not voluntarily acquired the citizenship of a foreign country must be decided by the Central Government under S. 9(2) of the Citizenship Act. The detenu in question has not been recognised as a national of more than one foreign country and there was no uncertainty about his nationality. Therefore, S. 8 of the Foreigners Act has no application to him.
15. We have to now consider whether the Central Government is enjoined to conduct an enquiry under S.9(2) of the Citizenship Act to decide the question whether the detenu has voluntarily acquired the citizenship of Pakistan and consequently lost the Indian citizenship?
16. Sri Ravinder Rao's contention is that the Central Government must decide this question and in support of his contention, he relies upon the rulings of the Supreme Court in Govt. of Andhra Pradesh v. Mohd. Khan, : AIR1962SC1778 ; Izhar Ahmad v. Union of India, : AIR1962SC1052 and Md. Ayub Khan v. Commr. of Police, : [1965]2SCR884 . We arc not inclined to agree.
17. In Izhar Ahmad : AIR1962SC1052 (supra), by a majority of 3 against 2, it was held by the Supreme Court that paragraph 3 of Schedule III of the Citizenship Rules, incorporating an irrebuttable presumption, is a rule of evidence but not a rule of substantive law and, therefore, it did not suffer from any legal infirmity. The Central Government decided the question as to whether the petitioners in the three writ petitions decided in Izhar Ahmed (supra) had voluntarily acquired the citizenship of Pakistan and the decision was arrived at by the Central Government relying upon paragraphs of Schedule III of the Citizenship Rules which says that 'the fact that a citizen of India has obtained on any date a Passport from the Government of another country shall be conclusive proof of his having voluntarilyacquired the citizenship of that country before that date'. The challenge in Izhar Ahmed (supra) was mainly centered around the constitutionality of the aforesaid paragraph 3 of Schedule III. Speaking for the majority, Gajendragadkar, J. (as he then was) held that paragraph 3 of Schedule III is not a substantive rule but only a rule of evidence properly so called and, therefore, it would be within the scope of the Central Government under S.9(2) of the Citizenship Act to act upon the presumption incorporated therein. The learned Judge also took note of the fact that according to the laws prevailing in Pakistan, 'a person is not entitled to have or obtain a passport unless he is a citizen of Pakistan under its Citizenship Act.' He further held:
'..... the procedure prescribed by the relevant Pakistan laws makes it abundantly clear that the application for the passport has to be made by a citizen of Pakistan, it has to contain a declaration to that effect and the truth of the declaration has to be established to the satisfaction of the Pakistan officials before a passport is granted. When a passport is obtained under these circumstances, so far as the Pakistan Government is concerned, there can be no doubt that it would be entitled to claim the applicant as its own citizen. The citizen would be estopped from claiming against the Pakistan Government that the statement made by him about his status was untrue. In such a case, if the impugned rule prescribes that the obtaining of a passport from Pakistan Government by an Indian national (which normally would be the result of the prescribed application voluntarily made by him) conclusively proves the voluntary acquisition of Pakistani citizenship, it would be difficult to hold that the rule is not a 'rule of evidence.'
18. Explaining the scope of the aforesaid observations, the same learned Judge in Mohd. Khan : AIR1962SC1778 (supra) held that the question as to whether a person has lost the citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and 'it is only after the Central Governmenthas decided the question, that the State Government can deal with the person as a foreigner'. He also held :
'The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him.'
19. Reliance upon Mohd, Ayub Khan : [1965]2SCR884 (supra) is of no assistance, in any manner, to the detenu. It lays down that enquiry should be made by the Central Government only to decide whether a person has acquired voluntarily a passport of a foreign country and courts are not empowered to adjudicate that question.
20. The precedents cited by Sri Ravinder Rao, learned counsel for the petitioner, concern with situations where the persons sought to be deported claimed that although they were in possession of Pakistani passports, they did not obtain them voluntarily. Necessarily, such ccscs had to be decided by the Central Government under S. 9(2) of the Citizenship Act, acting as a quasi-judicial authority. In the case on hand, the facts are entirely different in that the detenu has totally denied that he had at any time obtained a Pakistani passport. His case, therefore, cannot be decided by the Central Government under S. 9(2) of the Citizenship Act.
21. Sri Ravinder Rao's argument is that in the absence of the determination of the question by the Central Government under S. 9(2) of the Citizenship Act, the person concerned cannot be deported. In the fact situation of the present case, as already stated, we think it is unnecessary for the Central Government to go into the question whether the detenu has voluntarily acquired the citizenship of Pakistan and consequently lost the Indian citizenship. That stage was over in i 982 when he was deported from this country on the ground that having entered the country on the strength of a Pakistani passport, he over-stayed here. Although the earlier deportation of the delenu in 1982 was denied by the learned counsel for the petitioner, the overwhelming evidence produced before us leaves no trace of doubt about the fact thatin 1982, the detenu was deported. The record shows that he obtained a Pakistani passport on 23-7-1980 bearing No. AJ 006615 and for over-stayal in this country an order of deportation was passed on 30-6-1982 in proceedings No. I354/PPTS/8I. The radio message sent to the Superintendent of Police, Barmer (Rajasthan) by the Commissioner of Police, Hyderabad city, to confirm the actual factum of deportation clearly discloses that in 1982, the detenue was deported to Pakistan through the check-post at Barmer in Rajasthan. Without raising any dispute as to whether he had acquired voluntarily the citizenship of Pakistan and thus lost his Indian citizenship, the detenu submitted to the order of deportation and suffered, accordingly, deportation. In 1979 also, the detenu was in India on a Pakistani passport and his request for stay in India for three months beyond 1-3-1979 was rejected by the Central Government as per their order No. 12012/10/79-F.VI on 21st July, 1979, as can be seen from the record. On the previous occasions, the detenu's stay in India was only as a foreigner but not as a citizen of India.
22. The record further shows that the detenu came to India from Karachi on 7th March, 1983 on a return air ticket but he did not go back to Karachi. The unused return ticket is part of the record produced before us. This visit to India was on the strength of the Pakistani passport referred to above. He made an application to the Secretary to Government, Home Department, Foreign Affairs, Government of India on 29-4-1983 requesting for grant of Indian citizenship disclosing his name as Syed Arif Amrullah Qadri. In this application, which is also part of the record, he has narrated the circumstances leading to his becoming a citizen of Pakistan his going to Pakistan in the year 1963 on the strength of an Indian passport and because of the out-break of the war, his opting for Pakistani citizenship, his obtaining B.E. degree from the National Engineering College, Karachi in 1969, his going to the United States of America and obtaining B.S. degree in Engineering and Technology in 1973 and his becoming a Canadian immigrantin 1977. In paragraph 4 of this representation, he had stated:
'In 1965, unfortunately, war broke out between India and Pakistan. The Pakistan Government 'offered me two alternatives - either to leave Pakistan immediately or to become a Pakistani national. To avoid ruination of my future career and to fulfill my ambition to become an Engineer, I had no other alternative but to take Pakistani citizenship'.
The record also shows that he obtained a driving licence in Pakistan in the year 1980 under the name Syed Amrullah Qadri, which was renewed up to 15-8-1985. The petitioner has conveniently suppressed the information about his going to Pakistan in 1963 on the strength of an Indian passport. By furnishingfalse information, he once again obtained an Indian passport in the year 1986 from the Regional Passport Office, Hyderabad. In the application made to the Regional Passport Officer, Hyderabad, against the column - 'whether he had earlier applied for a passport/travel documents', -- he furnished a negative answer. Surprisingly, his name he mentioned in this passport application as Syed Amrullah but not as Syed Amrullah Qadri as mentioned in his Pakistani passport and in his previous reference. But as to the other details regarding the date of birth, father's name, place of residence, there is no change between what is mentioned in his application for passport and the application for Indian citizenship made on 29-4-1983 and other correspondence.
23. The detenu has made prevaricative statements as to his status. In the suit, he sought a declaration that he is an Indian citizen, but in this writ petition, he is asking for determination of his status under S. 9(2) of the Citizenship Act by the Government of India. The declaration he sought in the suit was on the basis that he is an Indian citizen and had not voluntarily acquired the Pakistani citizenship. The civil court, obviously, has no jurisdiction to go into the question as held by the Supreme Court in State of A.P. v. Abdul Khader : 1961CriLJ573a (supra). Evidently, realising this difficulty, after thesuit was dismissed, the present writ petition was filed after refusing to receive the order of deportation sought to be served upon him. The record discloses that the order of deportation dated 17-6-1996 sought to be served upon the detenu at his address H. No. 16-2-27, Akbar Bagh, Hyderabad was refused by him, and there is an endorsement of refusal on this order attested by two witnesses.
24. His claim in this writ petition, as asserted in paragraph 12 of the reply affidavit, that he never acquired a foreign citizenship disentitles him to contend that the Central Government should conduct an enquiry under S. 9(2) of the Citizenship Act. As already stated supra, such determination will be done by the Central Government only when a question arises whether a citizen of India has voluntarily acquired the citizenship of another country. When it is the specific case of the detenu that he did not acquire the citizenship of any foreign country, the question of enquiry by the Central Government under S. 9(2) of the Citizenship Act does not arise. Since he had already suffered deportation on an earlier occasion, the Government rightly treated him as a foreigner under S: 2(a) of the Foreigners Act, 1946, since he is not a citizen of India.
25. By furnishing false information and by practising fraud, he tried to circumvent the law. False information he furnished while making an application in 1986 for issue of an Indian passport to the Regional Passport Officer, Hyderabad. He suppressed the fact that earlier in 1963, he had obtained an Indian passport. Nothing is mentioned in the writ petition as to what happened to that passport. He did not even advert to the fact that in 1963, he had an Indian passport. Schedule V of the Passport Rules, by paragraph 5, obligates that the holder of a passport is personally responsible for its safe custody. It must not be wilfully lost, damaged or destroyed. In case of an unintentional loss or destruction, the fact and circumstances of such loss or destruction should be immediately reported to the nearest passport authority in India or (if the holder of the passport is abroad) to the nearest Indian mission or post and to the local police. Thisobligation cast upon the detenu was not fulfilled and he did so deliberately in order to avoid detection about his antecedents as a Pakistani citizen. The claim of the detenu for enquiry under S. 9(2) of the Citizenship Act has to be viewed, in our opinion, in the totality of the circumstances disclosed by the record, when renunciation of Indian citizenship was not the case of the detenu, he cannot ask for a direction from this court to the Central Government to decide his case under S. 9(2) of the Citizenship Act. As his case is outside the ambit of S. 9(2) of the Citizenship Act and as he is a foreigner under S. 2(a) of the Foreigners Act, the order of deportation passed against him does not suffer from any infirmity.
26. For the above reasons, we do not find any merits in the writ petition and accordingly it is dismissed.
27. Petition dismissed.