MP 1 Appln9_11inEP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO. 9 OF 2011 IN ELECTION PETITION NO.9 OF 2009 Sau. Supriya Sadanand Sule ... Applicant/ Orig. Respondent Versus Sau. Mrunalini Jasiraj Kakade ... Respondent/ Orig. Petitioner Mr. Mohan M. Jayakar a/w. Mr. Ashwin Shete and Ms Komal Joshi, Advocates i/b. M/s. Khaitan and Jayakar, for the Applicant (Orig. Respondent). Mr.V.M.Parashuramji a/w. Mr. Manoj Kadam i/b. Mr. Atul Damle, Advocates for the Respondent (Orig. Petitioner). CORAM : J. H. BHATIA, J. DATE : 9TH DECEMBER 2011 P. C. : This application is moved by the original respondent in the Election Petition with a prayer to dismiss the Election Petition under Section 86(1) of the Representation of Peoples Act, 1951. For the sake of convenience, the original petitioner will be addressed to as 'petitioner' and the original respondent shall be addressed to as 'respondent' in this order. 2. The petitioner is a defeated candidate and the respondent was elected for Loksabha. The petitioner filed the Election Petition contending that the respondent Supriya Sule had not disclosed or had suppressed complete information about her and her husband's holding movable and immovable property and shares in different companies in India as well as MP 2 Appln9_11inEP in the foreign countries in the affidavit submitted along with the nomination papers. It was contended that the respondent was a permanent resident of Singapore and also a Director and holding shares in a foreign company at Singapore. She is also holding a foreign insurance policy. It is alleged that because of these reasons, under certain laws of Singapore, she is under acknowledgment of allegiance or adherence to that country, and therefore, as per the provisions of Article 102 of the Constitution of India, she is disqualified from being elected as a Member of either Houses of Parliament. 3. In view of the pleadings, issues have been framed. Issue Nos. 1 to 3 are as follows: “1. Whether the petitioner proves that the respondent is holding movable and immovable properties in Singapore? 2. Whether by holding movable and / or immovable property in Singapore, she is under acknowledgment of allegiance or adherence to the foreign State and thereby she is disqualified for being chosen and for being Member of the Parliament in view of the Article 102 of the Constitution of India? 3. Whether the petitioner proves that the respondent had suppressed or failed to give complete information about her and her husband's holding movable and immovable property as well as shares in different companies in India as well as in foreign countries in her affidavit submitted along with her nomination papers before the Returning Officer?” Issue No.2 deals with the allegations that she is under acknowledgment of allegiance or adherence to the Foreign State, and thus, she is disqualified for being elected as a Member of either House of Parliament. Issue No.3 deals about the suppression of information about holding of property by herself and her husband. MP 3 Appln9_11inEP 4. The respondent contended that the petitioner had also made a representation or application before the Central Government for declaration that the respondent had renounced the citizenship of India or had acquired citizenship of a foreign country. The petitioner had also filed a writ petition before the Division Bench of this Court seeking direction to the Central Government to decide her application pertaining to the renunciation of citizenship of India by the respondent. The Division Bench had given direction to the Central Government to take decision within three months. Therefore, by order dated 16.07.2010, this Court had, with consent of the parties, given a longer date so that the application could be decided by the Central Government within that time. Admittedly, by order dated 24.09.2010, the Government of India, Ministry of Home Affairs has disposed of that application holding that there is no material to show that the respondent had renounced her citizenship of India or had acquired a foreign citizenship. Para 6 of the order specifically states that, nowhere in the Singapore Residential Property Act, it is stated that mere purchasing or acquiring a property in Singapore will confer her citizenship status of that country, and therefore, it can be inferred that acquiring a flat in Singapore in itself automatically does not make her a citizen of Singapore. In view of this finding, the respondent moved the present application contending that there is no ground to file Election Petition challenging the election of the respondent. 5. Heard the learned Counsel for the parties. Article 102 of the Constitution of India reads thus: “(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament- (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; MP 4 Appln9_11inEP (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation: For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.” 6. Clauses (a), (b), (c) and (e) are not relevant for the present matter. In view of clause (d), a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament if he (i) is not a citizen of India or (ii) has voluntarily acquired the citizenship of a foreign State or (iii) is under any acknowledgment of allegiance or adherence to the foreign State. There is no dispute that the respondent is a citizen of India by birth. A citizen may renounce the citizenship by making a declaration under Section 8 or the citizenship may be terminated if such person voluntarily acquires citizenship of another country as per the provisions of Section 9 of the Citizenship Act. Section 9(2) of the Citizenship Act clearly 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. Thus, a person, who is a citizen of India, ceases to be a citizen of this country either by renunciation of citizenship or by termination due to acquisition of citizenship of some other country. The order passed by the Central Government, on the application of the petitioner, deals with the question of renunciation of the citizenship as well as acquisition of MP 5 Appln9_11inEP citizenship of a foreign country by the respondent. The said order has become final, and therefore, it can be said that the respondent has neither renounced the citizenship of India nor her citizenship of India has been terminated by acquisition of citizenship of any foreign country. 7. However, as per clause (d) of Article 102(1) of the Constitution of India, besides the above two circumstances in which a person is disqualified for being chosen to be a Member of Parliament, there is also third situation in which also a person is also disqualified, and that is, if a person is under the acknowledgment of allegiance or adherence to the foreign State. The order passed by the Central Government does not deal with that question. The issue No.2 before this Court pertains to that aspect of the matter. According to the petitioner, by holding movable and immovable property, shares, insurance policy, etc. in a foreign country, the respondent is under acknowledgment of allegiance or adherence to the foreign country i.e. Singapore. For this purpose, the petitioner relies on three different laws of Singapore namely, Immigration Act, National Registration Act and Residential Property Act. In the affidavit of examination-in-chief, the petitioner has also placed reliance on National Registration Regulations 1966 of Singapore, under which permanent citizens are issued identity card and it is alleged that the respondent has been issued such identity card as permanent citizen of that country under the said Regulations. It is admitted fact that there is no law in India whereby a citizen of India ceases to be a citizen merely by holding any movable or immovable property or having any business interests in any Foreign country. However, the petitioner relies on the above-referred laws and regulations of Singapore which, according to him, require the person acquiring such immovable property or other business interests to be under allegiance to that country. It is settled position of law that the foreign laws MP 6 Appln9_11inEP are to be treated just like any other fact and need to be proved, and that will be the subject matter of issue No.2 in the petition. As the question of being under acknowledgment of allegiance or adherence to the foreign country was not a question decided by the Central Government on representation or application of the petitioner, it cannot be said that the said issue has been finally decided and concluded. 8. Section 86(1) of the Representation of Peoples Act provides that the High Court shall dismiss the Election Petition which does not comply with the provisions of Sections 81, 82 or 117. It is not the contention of the respondent that the provisions of Sections 82 and 117 are not complied with. Section 81(1) provides that the Election Petition calling in question any election may be presented on one or more grounds specified in sub-section (1) of Section 100 and Section 101. Under Section 100 (1) (a), the ground for filing the petition may be that, on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution. As noted earlier, under Article 102(1)(d) of the Constitution of India, a person is disqualified for being chosen as, and for being, a Member of the either House of Parliament, if he is under the acknowledgment of allegiance or adherence to the foreign State. This is one of the grounds in present election petition and issue No.2 has been framed. Besides that another ground is suppression of information about holding of property in the declaration filed with Nomination papers and Issue No.3 is about that ground. Therefore, it cannot be said that there is no ground to challenge the election and to present the election petition. In view of this , the election petition cannot be dismissed under Section 86(1) of the Representation of Peoples Act. MP 7 Appln9_11inEP 9. Issue Nos.2 and 3 deal with the two different aspects and the burden of proof is on the petitioner. Naturally, whether the burden is discharged or not, will have to be considered at the time of deciding the issues. Merely because, the Central Government has decided that the respondent has not renounced the citizenship of India or has not acquired the citizenship of foreign country, the petition cannot be dismissed. 10. Therefore, this application stands rejected. (J. H. BHATIA, J)