indrajit Vallavbhai Patel Vs. Collector of Kaira and anr. - Court Judgment

P.R. Gokulakrishnan, C.J.

1. Rule. Mr. G.D. Bhatt, Additional Government Pleader appears and waives service of the rule on behalf of respondents Nos. 1 and 3. Mr. Hemant Munsha appears for respondent No. 2 and waives service of the rule, with consent of parties, the matter is taken up for hearing today itself.

2. The petitioner was an elected member of the Anand Nagar Palika. It was declared by the Collector, Kheda, by his order dated July 8, 1988 under Section 38 that the petitioner is disqualified under Section 11(2) of the Gujarat Municipalities Act, 1963. The said decision was upheld by the Director of Municipalities in appeal. Aggrieved by these orders the petitioner, who is a Councillor elected from Ward No. 10 of the Anand Nagar Palika, has filed this Special Civil Application for quashing the orders passed by the Collector, Kheda, and the Director of Municipalities which are Annexures 'A' and 'B' respectively to the petition. No doubt the petitioner has also prayed for a declaration that the provisions of Section 11(1)(d) read with Section 38(1) of the Gujarat Municipalities Act, 1963 are ultra vires the provisions of Articles 245 and 246 of the Constitution of India read with Schedule VI, List V, Entry 17 thereof and Section 9 of the Citizenship Act, 1955.

3. It is an admitted fact that the petitioner herein uas born outside India i.e. in Campala in Africa, that the petitioner holds British Passport, that the petitioner came to India on tourist visa and that the petitioner had made an application for acquiring Indian citizenship On these facts the authorities concerned invoked the provisions of Section 3S( ] )(a) of the Gujarat Municipalities Act for disqualifying the petitioner and for passing orders impugned in this Special Civil Application. Section 38(1)(a) reads as under:

38(1) If any councillor during the term for which he has been elected or nominated.

(a) becomes subject to any disqualification specified in Section 11. or he shall subject to the provisions of Sub-section (2) be disabled from continuing to be a councillor and his office shall become vacant.

Sub-section (2) of Section 38 reads as under:

(2) In every case, the authority competent to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision either on an application made to him by any person or on his own motion after giving the councillor a reasonable opportunity of being heard.

Sub-section (3) of Section 38 and Sub-section (4) of Section 38 read as follows:

(3) Until the Collector decides under Sub-section (2) that the vacancy has arisen, the councillor shall not be disabled under Sub-section (1) from continuing to be a councillor.

(4) Any person aggrieved by the decision of the Collector may, within a period of fifteen days from date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final.

Section 11 of the Gujarat Municipalities Act deals with general disqualification for becoming a Councillor. As per Section 11(1)(d) it is clear that 'No person may be a Councillor who is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgement of allegiance or adherence to a foreign State'. The say of the respondents is that from the admitted facts stated above it is clear that the petitioner has acquired disqualification under Section 11(1)(d) and as such he is disqualified from continuing as a Councillor and as such his office shall become vacant.

4. In this connection we can usefully refer to Article 5 of the Constitution of India. Article 5 reads as under:

5. Citizenship at the commencement of the Constitution: At the commencement of this Constitution every person who has his domicile in the territory of India and:

(a) who has bom in the territory of India; or

(b) either of whose parents was bom in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement.

shall be a citizen of India.

The Citizenship Act, 1955 deals with citizenship by birth in Section 3 and citizenship by descent in Section 4. Section 4 which deals with citizenship by descent reads as follows:

4. Citizenship by descenl: (1) A person born outside India on or after the 26th January. 1950. shall be a citizen of India by descent if his father is a citizen of India at the time of his birth;

Provided that if the father of such a person was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless:

(a) his birth is registered at an Indian consulate within one year of its occurrance or the commencement of this Act. which evet is later, or. with the permission of the Central Government, after the expiry of the said period: or

(b) his father is, at the time of his birth, in service under a Government in India,

(2) If the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration

(3) For the purposes of the proviso to Sub-section (1). any male person born outside undivided India who was, or was deemed to be. a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.

5. Mr. G.N. Desai, learned Counsel appearing for the petitioner, firstly submitted that the question as to whether the petitioner is a citizen of India cannot be decided by the authorities below in the manner they have decided in the present case and that the matter has to be decided only by the Central Government as provided under Section 9(2) of the Citizenship Act, 1955. Section 9(2) of the Citizenship Act reads:

9. Termination of citizenship:

(1) xxx xxx xxx

(2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it sball 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 reads:

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 purposes 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.

6. Reading the provisions and also citing decisions reported in AIR 196S SC 1623 (Ayub Khan v. Commissioner of Police, Madras) 0065/1969 : [1969]3SCR1006 (State of U.P. v. Shah Mohammed) : 1974CriLJ597 (State of Gujarat v. Yakub Ibrahim) and : [1986]2SCR823 (Bhagwati Prasad v. Rajiv Gandhi), Mr. G.N. Desai submitted that the matter has to be referred to the Central Government as the decision as to whether the petitioner is a citizen of India or not has to be taken only by such authority constituted under the Citizenship Act. Nevertheless Mr. Desai, distinguishing the case cited by Mr. G.D. Bhatt, appearing for respondents Nos 1 and 3, which is reported in : AIR1965Cal1 (Ali Ahmad v. E.R. Officer) contended that there is absolutely no discussion or decision by the authorities below on the given facts as to whether the petitioner is a citizen by descent as provided under Section 4 of the Citizenship Act. In (Ali Ahmad v. L.R. Officer) : AIR1965Cal1 , the Calcutta High Court has no doubt decided that Section 9(2) of the Citizenship Act does not preclude the Tribunal from recording a finding that the appellant had migrated to Pakistan in 1947 and. therefore, has never become a citizen of India. This view, according 10 Mr Desai for the petitioner, runs counter to the Supreme Court decision referred to above and Section 9 of the Citizenship Act Keeping the said question open, Mr. G.N. Desai submitted that the decision as 10 whether the petitioner has acquired citizenship by descent will definitely solve the problem one way or the other. The learned Counsel pointed out that the petitioner had submitted before the Collector and the Director, the agricultural lands particulars mentioned in the records of City Survey, father's marriage certificate, father's birth certificate before partition of India and also declaration by the persons who participated in the marriage of his father. He had also submitted the record indicating the name of his father appearing in the voter's list. Inspite of all these documents, the authorities below, according to Mr. Desai. have failed to consider as to whether the petitioner has acquired citizenship by descent. If these factual aspects are considered, it can be ascertained as to whether the petitioner is a citizen of India by descent which will entitle him to continue as Councillor of the Anand Nagarpalika. Such factual aspect can be decided only after calling for proper evidence, documentary and oral, by the Collector who, under the Gujarat Municipalities Act, 1963 has the power to enter into the question of disqualification of a Councillor.

7. In the judgments referred to by Mr. G.N. Desai, learned Counsel for the petitioner, the Supreme Court was concerned with the interpretation of Section 9 and implication of Sub-section (2) of Section 9 of the Citizenship Act. Sub-section (1) of Section 9 contemplates the citizenship of India and the voluntary acquisition of the citizenship of another country by the citizen of India. Sub-section (2) read with Rule 30 of the Citizenship Rules specifically confer the jurisdiction in the Central Government to decide the question as to whether, when or how any person has acquired the citizenship of another country. The judgments referred to by the learned Counsel for the petitioner are not relating to the acquisition of citizenship by descent under Section 4 of the Citizenship Act. The said judgments are, therefore, not much relevant so far as the question of acquisition of citizenship by descent under Section 4 is concerned. In Akbar Khan v. Union of India : [1962]1SCR779 while considering the provisions of Sub-section (2) of Section 9, Citizenship Act, the Supreme Court observed:

It seems to us clear that Sub-section (2) of Section 9 of the Citizenship Act bars the jurisdiction of the Civil Court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by any one else. The only question, however, which a Civil Court is prevented by Section 9(2) of the Citizenship Act from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The Civil Courts are not prevented from determining other question concerning nationality of a person,... The appellants, claim 10 the citizenship of India was registered on the ground that having migrated to Pakistan in 1948. they had never acquired Indian citizenship. That might follow from Art of the Constitution of India. The jurisdiction of a Civil Court to decide that question is not in any way affected by Section 9(2) of the Citizenship Aci Therefore, it seems to us that the entire suit should not have been dismissed The Courts below should have decided the question whether the appellants had never been Indian citizens. If that question was answered in the affirmative, then no further question would arise and the suit would have to be dismissed If it was found that the appellants had been on January 26, 1950. Indian citizens, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the Court would then have been to stay the suit till the Central Government decided the question whether the appeallants bad renounced their Indian Citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify.

8. If the Collector decides in favour of the petitioner that he has acquired citizenship by descent, then the matter would rest there, except any other contention is raised. It is not the contention that the petitioner being a citizen of India has voluntarily acquired the citizenship of another country. In case it may be necessary to consider the aspect that the petitioner has acquired citizenship of another country, the procedure as indicated by the Supreme Court in the case of Akbar Khan (supra) viz. that the proceedings should be stayed and the issue as to whether the petitioner has renounced the Indian citizenship and acquired the citizenship of another country, should be referred to the Central Government for decision and after the decision of the Central Government, should take appropriate decision.

9. Mr. G.D. Bhatt, learned Counsel appearing for respondents Nos. 1 and 3, is not able to support the orders of the authorities below, when especially it is contended by the learned Counsel appearing for the petitioner that there is no finding by the lower authorities as to whether the petitioner has got citizenship by descent. This factual question has to be decided by the Collector. In these circumstances the order of the authorities below are set aside and the matter is remanded to the file of the Collector for the purpose of giving decision as to whether the petitioner has got citizenship by descent. The Collector has to give finding and dispose of the matter afresh keeping in view the above observations, with these directions this matter is remanded to the file of the Collector for appropriate orders. This Special Civil Application is disposed of accordingly. Rule is discharged. There will be no order as to costs.