| SooperKanoon Citation | sooperkanoon.com/122172 |
| Subject | ;Civil |
| Court | Patna High Court |
| Decided On | Apr-11-2008 |
| Judge | Ajay K. Tripathi, J. |
| Appellant | Narendra Narayan Das |
| Respondent | State of Bihar and ors. |
| Disposition | Petition dismissed |
| Prior history | Ajay K. Tripathi, J. 1. By virtue of order dated 20-12-2006 contained in Annexure-4, the State Election Commissioner, while exercising power under Section 135(1) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) has disqualified the petitioner from the post of Mukhlya, Ballour Gram Panchayat in the District of Darbhanga on the ground that the petitioner was a Nepali citizen and therefore, is not entitled to occupy the elected office under question. Petitioner wants the |
Ajay K. Tripathi, J.
1. By virtue of order dated 20-12-2006 contained in Annexure-4, the State Election Commissioner, while exercising power under Section 135(1) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) has disqualified the petitioner from the post of Mukhlya, Ballour Gram Panchayat in the District of Darbhanga on the ground that the petitioner was a Nepali citizen and therefore, is not entitled to occupy the elected office under question. Petitioner wants the impugned order, therefore, to be set aside in the present writ application.
2. A complaint was filed by one Shri. Sunil Kumar Jha of Ballour Village on the ground that Shri. Narendra Narayan Das, the petitioner in the present writ application by making a false declaration had contested the election to the post of Mukhiya, even though, he is a resident of House No. 55 D.S.P. Road, Ward No. 3 of Viratnagar, Nepal and is a Nepalese citizen having citizenship No. 1177/031/32. Based on the said complaint, case No. 47/2006 was instituted by the State Election Commission. After notice to the concerned parties, the matter finally came to be adjudicated upon vide order dated 20-10-2006. The Election Commission after perusing various evidence including evidence which was supplied by the Nepalese authorities came to a conclusion that the petitioner was a Nepalese Citizen and therefore disqualified to hold the post of Mukhiya. He was accordingly ordered to be removed.
3. First contention of learned Senior Counsel appearing on behalf of the petitioner is that it is open to the State Election Commission to disqualify a person from the elected office unless a proper adjudication with regard to the citizenship of a person is made by the competent authority under the Citizenship Act. This power according to him only vested in the Central Government and the same cannot be exercised by the State Election Commission, even though, the power had been vested under Section 136 of the Act.
4. The second contention of learned Senior Counsel is that as per Section 136(1)(a) of the Act the Election Commission could only adjudicate and decide whether the per son is a citizen of India. It is not for the Election Commission to adjudicate whether a person is a citizen of yet another country. According to him strict rule of interpretation should be adopted in reading such pro vision of law as has been held by the Hon'ble Supreme Court in the case of Arun Singh v. The State of Bihar : AIR2006SC1413 .
5. The third contention of the petitioner Is that he had not acquired the citizenship of Nepal but the same was conferred upon him by descent it was not a voluntary acquisition on his part, in fact, there is sufficiency of material to show that he is an Indian citizen resident of the village and by virtue of the same he cannot incur disqualification. Learned Counsel for the petitioner has also brought on record the Nepal Citizenship Act, 2006 and he brings to my notice Section 10(1V) to show that by virtue of the said provision he is not a Nepalese citizen since there is nothing to show that the petitioner had acquired citizenship of Nepal after attaining 16 years of age. Section 10 of the Nepal Citizenship Act is reproduced hereinbelow for ready reference:
10. Termination of Nepalese Citizenship:
(i) Any citizen of Nepal who voluntarily acquires the citizenship of any foreign country shall automatically lose the citizenship of Nepal.
(ii) The designated authority shall register the notice submitted by a citizen of Nepal, who notifies in the prescribed form of renunciation of the Citizenship of Nepal and the citizenship of that person shall be terminated from the date such notice has been duly registered.
(iii) Any person who has been divested by Nepalese citizenship pursuant to Clause 14, shall be deemed to have lost his citizenship from that date.
(iv) If any person who is in a status of acquiring the citizenship of Nepal and a foreign country concurrently, such person shall have to choose the citizenship of any one country within 2 years after attaining the age of 16 years. Failure to choose the citizenship in this manner shall be deemed for that person to have lost his Nepalese citizenship on expiry of that specified period.
(v) In case any question arises as to whether a Nepalese citizen his acquired a foreign citizenship or not, the designated authority shall make his decision pursuant to the prevailing laws.
6. Mr. R.S. Pradhan, Senior Advocate appearing on behalf of the State Election Commission has made his submissions in support of the impugned order. According to him, if the legislatures have conferred power under Section 136(1) to disqualify a person on the grounds mentioned therein, then the exercise of power by the State Election Commissioner in furtherance and in consonance to the same cannot be said to be illegal. He further contends that the Indian Citizenship Act will not come in way of such decision and the same cannot be a condition precedent to an adjudication in matter of disqualification under the Act. Citizenship Act, no doubt being a central statute decides matters of grant or taking away of citizenship, but it cannot be said or urged by any person that even though prima facie there is evidence to show that the person is not a citizen of India will be permitted to occupy an elected post under the Constitution of India.
7. Learned Counsel appearing for the private respondent No. 4, on whose instance the impugned order came to be passed submits that there is overwhelming evidence to show that petitioner is a Nepalese Citizen and no amount of documents acquired by him to show that he is a resident of India and an Indian citizen can bail him out of the present situation. He has filed a detailed counter affidavit it wherein he has brought evidence on record to show that the petitioner is a Nepalese citizen and he has acquired the citizenship in the year 1975 after reaching the age of 17 years and his citizenship No. is 1177. He has brought on record Annexure-A in support of the same. He further contends that the Nepal Citizenship Act, 2006 has no application to the present case because the case of the petitioner will have to be judged in light of Nepal Citizenship Act, 1964 as the petitioner had acquired citizenship in the year 1975,. Counsel for the private respondent has also brought on record the voter list of Nepal published in the year 2004 as well as 2005 to show that the petitioner is a Nepalese voter having I.D. Card No. 2474796. In fact he also reiterates that the petitioner has himself accepted this fact before the authorities that he was a Nepalese citizen but it was not by choice. He brings to my notice Section 9(2) of the Nepal Citizenship Act, 1964, which is reproduced hereinbelow for ready reference:
9. Loose of Nepali Citizenship:
(1) The Nepali Citizenship of any Nepali citizen shall automatically lapse on his acquiring the citizenship of any foreign country of his own will.
(2) In case any person becomes a citizen of a foreign country as well as of Nepal at the same time by reason of birth and Jus sanguinis, he may chose the citizenship of either country within five years of reaching 16 years of age. In case he doesn't do so his Nepali citizenship shall automatically lapse on the expiry of this time-limit.
Provided that persons who have acquired citizenship in this manner before the commencement of this act shall choose their citizenship before Chaitra 30, 2037 (April 12, 1981) or else their citizenship shall ipso facto lapse.
(3) In case a question arises as to whether or not any citizen of Nepal has acquired the citizenship of any foreign country or when or how he has acquired such citizenship, the matter shall be decided by the prescribed authority in accordance with current Nepal law.
8. From perusal of the record and discussions made in the impugned order there seems to be force in the submissions made on behalf of the respondents that the conclusions reached by the State Election Commission that the petitioner is a citizen of Nepal is not a misplaced finding. If the petitioner had voluntarily on reaching the age of 16 years in 1975 chose the citizenship of Nepal under 1964 Act then it cannot be said that he is a valid citizen of India. It was for the petitioner to choose his loyalty to the nation and the Constitution by which he would like to be governed by. If he wants to enjoy duality of identity and existence for many a reasons then the consequences and the peril emerging due to statutes of this country will have to be faced. Any person who wants to claim the benefit of law and more so would like to occupy a public office must first satisfy the authority concerned that he is a citizen of this country and owes true faith and allegiance to this country and this country alone. Historicities or events including proximity to the international borders cannot be utilized to the advantage of a person who has no cent percent faith and commitment to this country.
9. This Court, therefore, in the above facts and circumstances as well as the legal position-taken note of does not find any legal infirmity in the impugned order dated 20-12-2006. The writ application accordingly stands dismissed.