IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.577 of 2009 PRABHAT VIKRAM SAH son of Surya Vikram Sah, resident of village Dagraul, P.S.Gaunaha, District West Champaran (Betiah)--------------------petitioner Versus 1.THE STATE OF BIHAR, through Chief Secretary, Govt. Of Bihar, Patna 2.The Union of India, through Secretary, Ministry of Home, North Block, New Delhi 3.The Chief Election Commissioner, State Election Commission, Govt. of Bihar, Patna 4.District Magistrate cum Chief Election Officer (Panchayat), West Champaran (Betiah) 5.Sri Pramod Kumar, Block Development Officer, Gounaha, Dist. West Champaran 6.Rajeshwar Kumar, son of late S.Kumar, resident of Village Cherihani, P.S.Matiarca, Dist.West Champaran 7.Baliram Yadav, son of late Ram Krishna Yadav, Resident of village Hardia, P.S.Matiarea, Dist. West Champaran--------------------respondents ----------- For the petitioner :M/S Jitendra Singh,Sr.Advocate Rakesh Kr.Singh,Advocate Shankar Kumar Thakur,Advocate Kamal Kishore Singh,Advocate For State Election Commission :M/S R.S.Pradhan,Sr.Advocate Rajeev Lochan,Advocate For the State :Mr.P.K.Shahi,Advocate General Mr.Nirmal Kumar,G.P.4 Mr.Vishambhar Prasad & Mr.Rajiv Ranjan,A.Cs.to G.P.4 For respondents 6 & 7:M/S S.N.P.Sharma,Sr.Advocate K.K.Mishra,Advocate Md.Abu Haidar,Advocate Smt.Janan Ara,Advocate. ------ 8. 18.01.2010 Heard learned counsels for the parties. The petitioner seeks setting aside of the order dated 22.12.2008 passed in Case No.25/2008 by the State Election Commission, Bihar (respondent no.3) in exercise of power under Section 136(1) & (2) of the Bihar Panchayat Raj Act, 2006 holding that the 2 petitioner is a citizen of Nepal and therefore he is not eligible to continue on the elected post of Mukhiya of Bihar and accordingly disqualified him and held that the post of Mukhiya had become vacant from the date of order and to be filled up in accordance with law. The short facts are that the petitioner was elected as Mukhiya of Gram Panchayat Dangraul, Block Gaunaha, District West Champaran in the election held in the year 2006 and thereafter assumed the office. It appears that a complaint was filed by respondent no.7 Baliram Yadav before the State Election Commission with a prayer to declare that the petitioner is not eligible to hold the post of Mukhiya of Gram Panchayat Dangraul alleging that he is a citizen of Nepal and suppressing the said fact has declared himself as a citizen of India and contested the election for the post of Mukhiya of the said Gram Panchayat and was elected to the same. It is further alleged enclosing photo copy of the electoral roll of Nepal that the name of his entire family finds place in the same. Further document regarding registration of land is also alleged in which 3 citizenship number of the petitioner was stated. In addition photo copy of the certificate of citizenship giving the citizenship number of the petitioner was also enclosed. The petitioner was duly noticed by letter dated 23.9.2008 issued by the Deputy Secretary of the Commission and on receipt of the same filed his show cause stating that the petitioner was born in undivided India and thus he became a citizen of India by birth under Articles 5 to 9 of the Constitution of India. It was further submitted that he has never renounced his citizenship as provided under Section 8 of the Citizenship Act in order to acquire citizenship of a foreign country under Section 9 of the said Act. It is further stated that the petitioner did not hold passport of any country and was married to citizen of India and is ordinarily/permanently resident in India since birth. It was further claimed that the father of the petitioner was also a citizen of India and had been getting privy purse from the Government of India and it was alleged that due to political rivalry between the complainant and the petitioner and due to dispute with his 4 brother living in Nepal who is also well known to the complainant, he was trying to deprive him of his elected post. It was admitted that the petitioner is a descendant of Nepalese grandparents belonging to royal family of Nepal from whom he has got some property as a bequest. The identity card and other documents were alleged to be fabricated, manipulated and forged by the complainant in collusion with his enemies. Subsequently another show cause was filed by the petitioner in which apart from repeating the aforesaid facts it was stated that citizenship of the uncle of the petitioner Sri Narayan Vikram Sah was challenged by Sri Kedar Pandey and in the judgment reported in AIR 1966 SC 160 the Supreme Court has held that his uncle was a citizen of India. It was further submitted that under the provisions of Section 9 (2) of the Citizenship Act the Central Government alone is empowered to decide the matter. It is also stated that a certificate has been issued by the District Administration, Bara, Kaleya, Nepal stating that the petitioner was not a citizen of Nepal. In view of the aforesaid conflicting stand of the parties the State Election 5 Commission directed the District Magistrate to send a report in the matter. The District Magistrate, West Champaran, Bettiah by his letter dated 3.12.2008 submitted his report before the Commission stating that a report had been sent from the District Administration, Bara (Kalaiya), Nepal and the said District Administration of Nepal has reported that the petitioner had filed an application on 2065/5/18 (September,2008) for renouncing his Nepali citizenship which has not been accepted till then; the original report of the authorities of Nepal was enclosed with the D.M.‟s letter. The petitioner filed another show cause on 22.12.2008 on which the matter was fixed for final hearing by the State Election Commissioner in which it is stated that the report sent by the District Magistrate, West Champaran, Bettiah appears to be manufactured and collusive at the behest of the complainant. It was further alleged that the complainant had filed a report of the Nepal District Administration on 28.11.2008 whereas the same was received in the office of District Magistrate on 1.12.2008 and thus the same was manufactured by the complainant who collusively 6 managed to send the report through the District Magistrate, West Champaran, Bettiah which should not be relied upon. It was further submitted that the petitioner after his birth studied up to Class VIII in the Rajkiya Middle School, Harinagar, West Champaran, Bettiah till 30.12.1973 for which school leaving certificate issued by the District Superintendent of Education, Rajkiya Madhya Vidhalaya, Nepali Tola, Ramnagar was enclosed. It was further stated that the petitioner was issued a family ration card showing him as a resident of village Dagraul, Gram Panchayat Raj Darol, District West Champaran. It was also stated that the own uncle of the petitioner, namely, Arjun Vikram Shah was twice Minister of State (Sports & Exercise), Government of Bihar. The other facts stated earlier were also reiterated. As against the aforesaid stand of the petitioner the complainant respondent had taken the stand, apart from the allegations made in the complaint, that the petitioner had filed an explanation before the Block Development Officer, Gounaha, District West Champaran, copy of which was before the State Election 7 Commission in which he had admitted that till 1998 he was a citizen of Nepal and subsequently became a citizen of India. It was the further stand on behalf of the complainant respondent that the registration certificate was sent by the Nepalese authorities on 17.11.2008 and the same was received in the District Magistrate‟s office but the petitioner managed to get the same suppressed and on learning about the same the respondent obtained a copy of the same from the office and also alerted the District Administration about the said fact, as a result of which the said letter was belatedly received in the Panchayat Section of the D.M‟s office on 1.12.2008 and the same was sent by the District Magistrate along with his letter dated 3.12.2008 to the State Election Commission. It was the further stand that the petitioner has failed to produce anything to show that his father has received privy purse. It was thus submitted that the petitioner had failed to produce any document to show that he was born in India and his father had received privy purse. In view of the allegations and counter allegations made by the parties the State 8 Election Commission issued direction to contact the Collector telephonically as to how the letter of the Nepal District Administration was received in his office, on which it was informed that the letter was received lawfully by registered post and the same was not forged. On a consideration of the aforesaid facts and the materials on the record the State Election Commission came to the conclusion that neither the school leaving certificate nor the other documents produced by the petitioner were able to show that he was a citizen of India by birth. It also took into account the fact that the petitioner had some property in Nepal and some in West Champaran and thus the petitioner was unable to satisfy the Commission that he was citizen of India by birth on the basis of the said documents. The Commission came to the conclusion on the basis of the materials that the petitioner is a citizen of Nepal and accordingly declared him disqualified to hold the elected post of Mukhiya in India and declared the post to be vacant and to be filled up in accordance with law by the impugned order dated 22.12.2008. 9 Learned counsel for the petitioner has assailed the impugned order of the State Election Commission by making three broad submissions. The first submission of learned counsel is that in view of Section 9(2) of the Citizenship Act, 1955 read with Rule 30 of the Citizenship Rules and Schedule III thereof as also Entry 17 of the Union List read with Article 11 of the Constitution of India it is the prescribed authority under the said Act and Rules which alone is competent to decide whether a person has acquired citizenship of another country and a decision on the said point is beyond the authority of the State Election Commission under Section 136 of the Bihar Panchayat Raj Act, 2006. The second submission of learned counsel is that in any view of the matter the disability of the petitioner being prior to election on the post of Mukhiya cannot be questioned by way of complaint before the State Election Commission under Section 136 of the Act in view of Sections 137, 138 and 139 of the Bihar Panchayat Raj Act read with Article 243-O of the Constitution and the same could only be 10 challenged by filing an election petition under the Bihar Panchayat Raj Act. The third submission of learned counsel is that even if it is assumed that the State Election Commission was within the authority to adjudicate and decide the matter, on the facts of the case no proper enquiry has been held and thus the order passed is illegal and non est. With regard to the first submission learned counsel refers to Article 11 of the Constitution which provides that nothing in the provisions of the Constitution relating to citizenship would derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. It is submitted that pursuant to the said provisions and Entry 17 of the Union List, Parliament has enacted the Citizenship Act, 1955. It is submitted that under Section 3(1)(a) of the Act every person born in India is a citizen by birth and the petitioner having been born in India and there being no finding to the contrary is accordingly a citizen by birth. Learned counsel further refers to Section 8 of the Act relating to renunciation 11 of citizenship which provides that if any citizen of India of full age and capacity makes in the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by the prescribed authority and upon such registration that person shall cease to be a citizen of India. Learned counsel submits that there is no renouncing of Indian citizenship by the petitioner. The main thrust of submission of learned counsel however is regarding Section 9 of the Citizenship Act which lays down that any citizen of India who by naturalization, registration or otherwise voluntarily acquires the citizenship of another country shall upon such acquisition or as the case may be such commencement cease to be a citizen of India. Learned counsel submits that any question as to whether, when or how any person has acquired citizenship of another country can only be determined by the prescribed authority. Learned counsel urges that under Rule 30 of the Citizenship Rules, 1956 the Central Government has been prescribed as the competent authority to determine any question for the purpose of Section 9(2) of the Act. It is also submitted 12 that under Schedule III paragraphs 1, 2 & 3 of the Rules the procedure has been laid down in accordance with which the said question has to be determined. It is thus contended by learned counsel that the Central Government alone is competent to decide the question of citizenship of the petitioner and it was not open to the State Election Commission to decide the said issue. According to learned counsel if at all the said matter was to be decided then the same ought to have been referred to the Central Government by the State Election Commission and only on receipt of order from the Central Government it ought to have proceeded further in the matter; until there was adjudication by the Central Government under Section 9(2) the presumption in favour of the petitioner that he was citizen of India would continue and on this score alone the impugned order is wholly without jurisdiction. In support of the same learned counsel relies upon a Constitution Bench decision of the Supreme Court in the case of Md.Ayub Khan vs. Commissioner of Police, Madras and others :AIR 1965 SC 1623, in paragraph 9 of which it has been held as follows : 13 “9. Section 9(1) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso which is not material) by naturalization, registration or otherwise, voluntarily acquired citizenship of another country. Subject to the exception in the proviso, therefore, naturalization, registration or acquisition of citizenship of another country operates to terminate the citizenship of India. Acquisition of citizenship of another country to determine Indian citizenship must, however, be voluntary. By sub-s. (2) provision is made for setting up an authority to determine the question where, when and how citizenship of another country has been acquired, and by R.30 the Central Government is designated as the authority which is invested with power to determine the question in such manner, and having regard to such rules of evidence as may be prescribed. Provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a passport of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable 14 opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of each case.” In this regard learned counsel also relies upon a decision of the Apex Court in the case of Bhagwati Prasad Dixit „Ghorewala‟ vs. Rajeev Gandhi : AIR 1986 SC 1534, in paragraph 11 of which it has been held as follows : “11. These cases clearly lay down that when the matter falls within S.9(2) of the Citizenship Act, 1955, all other provisions of law are excluded. The authority prescribed under the Citizenship Act, 1955 alone can decide the questions arising under S.9(2) and the rules of evidence which should govern that decision shall be those prescribed for the purpose under that Act.----- ----------For the purpose of deciding the question arising under S.9(1) of that Act, the Central Government by virtue of the power conferred on it by S.9(2) has been given an exclusive power to determine in accordance with the rules of evidence provided for the purpose whether a person has acquired the citizenship of another country. It follows that when once a person is admitted or held to be a citizen of India, unless there is a decision of the Central Government under S.9(2) of the Citizenship Act, 1955 that he has acquired the citizenship of a foreign country, he should be presumed to be an Indian citizen. Section 9 of the Citizenship Act, 1955 is a complete code as regards the termination of Indian citizenship on the 15 acquisition of the citizenship of a foreign country.-----------------The policy behind S.9(2) appears to be that the right of citizenship of the person who is admittedly an Indian citizen should not be exposed to attack in all forums in the country, but should be decided by one authority in accordance with the prescribed rules and that every other Court or authority would have to act only on the basis of the decision of the prescribed authority in that behalf and on no other basis. That being the mandate of the law, even the High Court trying an election petition can declare an Indian citizen as having acquired the citizenship of a foreign State only on the basis of a declaration made by the Central Government. If such a declaration made by the Central Government is produced before a High Court trying an election petition the High Court has to give effect to it. If such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned has not ceased to be an Indian citizen. It cannot independently hold an enquiry into that question on its own.--------“ Regarding the second submission that the disability being prior to date of election could only have been challenged by filing an election petition and not by complaining before the State Election Commission, learned counsel relies upon a decision of a Division Bench of this Court in the case of Sri Bhagwan Singh vs. The State of Bihar and others : 2004(4) PLJR 16 482, paragraphs 16 (relevant part), 18 and 19 of which are quoted below : “16. So far as the post election disqualification is concerned, Rule 139(2) provides that such question shall be referred for decision to such authority and in such manner the Government may by law provides under Rule 122 for dealing with such matters. 18. Thus, it is clear that those candidates, who have incurred disqualification prior to election, their cases cannot be considered in terms of section 139(2) and only mode of challenging their election is by filing an election petition. The provision as contained in Rule 122, which authorizes the State Election Commission to decide even the matter of disqualification prior to the election, is, thus, ultra vires the provisions contained in Article 243-O of the Constitution and sections 140 and 143 of the Act and to that extent, it is declared ultra vires. 19. So far as the provision of Rule 122, which authorizes the State Election Commission to decide the question of disqualification, which was incurred by a member of the Panchayat after election, is concerned, it is valid one and consistent with the provision of section 139(2) of the Act and this view is fully supported by the aforesaid Constitution Bench judgment where similar provision under Article 192(1) was under consideration.” It is thus submitted by learned counsel that the similar provision of Rule 122 of the Bihar Panchayat Election Rules, 1995 framed under the 17 Bihar Panchayat Raj Act, 1995 having been declared ultra vires the provision contained under Article 243-O of the Constitution and Sections 140 and 143 of that Act, the said powers could not have been exercised by the State Election Commission in the present matter and admittedly the disqualification being a pre-election disqualification the same could only have been challenged by filing an election petition and the order of the Election Commission is without jurisdiction for the said reason also. On the third submission learned counsel submits that the State Election Commission has failed in the task of making an enquiry as is expected of a quasi-judicial authority. It is submitted that although under Section 9 of the Foreigners Act burden of proof is upon the foreigner but once the basic details are provided by the person concerned, then the State has to lead evidence to rebut the same whereas in the present matter the onus was thrown upon the petitioner to show that he is an Indian citizen without the State leading evidence in rebuttal of the facts provided by the petitioner. In support of the said 18 proposition learned counsel relies upon a decision of the Supreme Court in the case of Sarbananda Sonowal vs. Union of India & another : (2005) 5 SCC 665, paragraphs 21 and 26 of which are quoted below : “21. The legislature then enacted the Foreigners Act, 1946 which repeated the 1940 Act. Section 2(a) of this Act defines a “foreigner” and it means a person who is not a citizen of India.-------Section 9 of this Act is important and it reads as under : “9. Burden of proof.- If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” 26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one‟s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person 19 concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” It is further contended by learned counsel that the Commission did not advert to the materials placed by the petitioner regarding his being citizen by birth of India. It is further argued