Akbar Khan Alam Khan & ANR Vs. The
Union of India & Ors  INSC 139 (5 April 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1962 AIR 70 1962 SCR (1) 779
CITATOR INFO :
R 1969 SC1234 (8) F 1974 SC 645 (8)
Citizenship -Suit for declaration of rights
as Indian Citizens jurisdiction of Civil Court-Citizenship Act, 1955 (57 of
1955), S. 9(2).
The only question that a civil court is
precluded from determining under s. 9(2) of the Citizenship Act, 1955, read
with r. 30 Of the Rules framed under the Act is the question as to whether,
when or how any person has acquired the citizenship of another country. They
are not prevented from determining other questions concerning the nationality
of a person.
Where, therefore, a suit brought for a
declaration that the appellants were Indian Citizens, where they themselves had
raised the question of acquisition of foreign citizenship, was resisted on the
ground that they had never been Indian Citizens, and the courts below dismissed
the suit in its entirety, Held, that the courts below were in error in holding
that the suit was barred in its entirety by s. 9(2) Of the Act.
They should have decided the question as to
whether the appellants had ever been citizens of India and, if the finding was
in their favour, should have stayed the suit till the Central Government had
decided whether such citizenship was renounced and if the finding was against
the appellants dismissed the suit.
CIVIL, APPELLATE, JURISDICTION: Civil Appeal
No.18 of 1961.
Appeal by special leave from the judgment and
order dated January 23, 1960, of the Madhya Pradesh High Court at Indore in
Second Appeal No. 473 of 1959.
Z. F. Bootwala, E. Udayarathanam and S. S.
Shukla, for the appellants.
M. C. Setalvad, Attorney-General of India, B.
Sen and T. M. Sen, for respondent No. 1.
H. L. Khaskalam and 1. N. Shroff, for the
respondents Nos. 2, 3.
1961. April 5. The Judgment of the Court was
delivered by SARKAR, J.-This appeal raises the question whether the suit filed
by the appellants was property dismissed on the ground that a civil court had
no jurisdiction to entertain it. The Courts below held that a civil court's
jurisdiction to entertain the suit was barred by s. 9 of the Citizenship Act,
The appellants had filed the suit for a
declaration that they were citizens of India and for an injunction restraining
the defendants from removing them from India.
The defendants were the Union of India, the
State of Madhya Pradesh and the District Magistrate, Jhabua, in Madhya Pradesh.
The appellants stated in the plaint that they were citizens of India and had
not ceased to be such citizens.
They said that in the beginning of 1953 they
went to Pakistan for a temporary visit without a passport but when they wanted
to return they were compelled to obtain Pakistani passports. They stated that
they obtained these passports only as a device for securing their return to
India and had really been compelled to obtain the passports against their will.
They further stated that, therefore, they could not be said to have acquired
citizenship of Pakistan. They also stated that they had made all efforts for
the cancellation of the passports and to obtain permission to stay in India
permanently but were unsuccessful. They said that the 781 State of Madhya
Pradesh served on them an order dated November 11, 1955, under s. 3(2) of the Foreigners
Act, 1946, asking them to leave the country. They contend that this order was
illegal and without justification as they were not foreigners.
In the written statement filed by the
defendants it was stated that the appellants had left India between March and
May, 1948, and they returned for the first time on a temporary Pakistani
passport sometime in the early part of 1955. It was also stated that the
permits granted to them to remain in India were extended from time to time and
ultimately up to about October, 1955, and thereafter they were served with
orders to quit India. The defendants further stated that the appellants were
not citizens of India as they had voluntarily acquired Pakistani citizenship by
obtaining passports from that country .
The suit was dismissed as it was held not to
be maintainable in view of the provisions of sub-see. (2) of a. 9 of the Citizenship
Act. That sub-section is in these terms:
Section 9 (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 rule-% of evidence, as may be prescribed in this behalf." Rule
30 of the Rules framed under this Act provides that such a question shall be
determined by the Central Government, who for that purpose shall have regard to
the rules of evidence specified in Schedule III to the Rules.
It seems to us clear that sub-see. (2) of B.
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 anyone else. The only question, however, which a civil court is
prevented by s. 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 782 civil courts are not prevented by this provision
from determining other questions concerning nationality of a person. There is
no doubt that the suit by the appellants raised the question whether they had
lost their Indian citizenship by acquiring the citizenship of Pakistan. The
appellants themselves had raised that question by pleading in their -plaint
that they had not voluntarily acquired the citizenship of Pakistan. To that
extent, it has to be held that the appellants' suit was barred. It seems to us
however that the suit raised other questions also. The appellants' claim to the
citizenship of India was resisted on the ground that having migrated to
Pakistan in 1948, they had never acquired Indian citizenship. That might follow
from Art. 7 of the Constitution. The jurisdiction of a civil court to decide
that question is not in any way affected by s. 9(2) of the Citizenship Act.
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 appellants had
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. The learned Attorney-General appearing for the
respondents, the defendants in the suit, conceded this position. He did not
contend that there was any other bar to the suit excepting that created by s. 9
of the Citizenship Act.
What we have said disposes of this case but
we think we should express our views on some of the arguments of the learned
counsel for the appellants.
783 He first contended that it is only when a
right is created by a statute and a Tribunal is set up for the determination of
that right by that statute that the jurisdiction of a civil court as to a
question concerning that right is taken away and that,, therefore, the
jurisdiction of a civil court to entertain the appellants suit was not taken
away. We are unable to accept this contention. A competent legislature may take
away a civil court's jurisdiction to try other questions also. No authority has
been shown that this cannot be done.
Another argument advanced by him was that the
appellants had no right to approach the Central Government to decide the
question whether they had lost their Indian citizenship and therefore the
appellants' right to resort to a civil court to decide that, question cannot be
deemed to have been barred. Reliance was placed in support of this contention
on Sharafat Ali Khan v. State of U.P. (1). This question really does not arise
because the learned Attorney General appearing for the respondents has conceded
the appellants' right to apply to the Central Government for a decision of the
question. Even apart from this concession the view expressed in Sharafat Ali
Khan v. State of U. P. (1) would seem to be open to grave doubt. But in the
circumstances of this case we do not feel called upon to say more on that
For the reasons earlier stated, we set aside
the orders and the judgments of the Courts below and direct that the suit be
heard and decided on all questions raised in it excepting the question whether
the appellants having been Indian citizens for sometime have renounced that
citizenship and acquired a foreign citizenship. If' the Court finds that the
appellants had never been Indian citizens, then the suit, would be dismissed by
it. If on the other hand, the court finds that they were Indian citizens
earlier, then the court would stay the further hearing of the suit till the
Central Government decides whether the appellants had acquired subsequently a
foreign nationality (1) A.I.R. i96o All. 637.
784 and thereafter dispose, it of by such
order as the decision of the Central Government may justify. There will be no
order as to costs.