Case: State Of Uttar Pradesh &amp; Ors Vs. Shah Mohammad &amp; Anr

3. The suit was contested and on the pleadings of the parties the appropriate issues were framed. The learned Munsif held that respondent No. 1 had gone to Pakistan for settling there permanently and had ceased to be an Indian citizen. The suit was dismissed. Respondent No. 1 appealed to the First Additional Civil Judge, Kanpur. The learned Judge was of the view that respondent No. 1 had gone to Pakistan when he was a minor and when his father, who was his guardian, was in India. By his departure to Pakistan, respondent No. 1 could not change his nationality. Even on a consideration of the evidence it could not be held that he had shifted to Pakistan with the Intention of settling there permanently. His appeal was allowed and a permanent injunction as prayed was issued. The Union of India and other appellants preferred an appeal to the High Court. Before the High Court a preliminary objection was taken that the Civil Court had no jurisdiction to try the question whether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government,under Rule 30 of the Citizenship Rules framed under the Act. This objection was repelled in view of another decision of the High Court according to which Section 9 of the Act and Rule 30 could not operate retrospectively and affect pending litigation. Before the High Court the finding that respondent No.1 did not go to Pakistan with the intention of settling there permanently was not challenged by the appellants. The High Court was inclined to agree with the lower appellate Court that so long as respondent No. 1 was a minor he could not change his Indian domicile because his parents were domiciled in this country. The High Court proceeded to say that since respondent No, 1 had spent one year in Pakistan after he had obtained majority it was necessary to investigate whether he had acquired , during that period, the citizenship of Pakistan. An appropriate issue was framed and remitted to the lower Appellate Court for its determination. The appellate court held that respondent No. 1 had not acquired the citizenship of Pakistan since it was not legally possible for him to do so for the reason that according to laws of Pakistan he could become a major only on attaining the age of twenty-one. On December 11, 1963, the High Court disposed of the appeal of the present appellants by dismissing it in view of the findings which were in favour of respondent No. 1.Respondent No, 1 was born on July 3, 1934. He went to Pakistan in October 1950. In March 1958 he obtained a visa from the Indian High Commission in Pakistan for coming to India. He came to India on July 22, 1953. On July 20, 1954 the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India. He, however, filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on February 10, 1955 and respondent No. 1 was directed to file a suit. He instituted a suit on May 6, 1955. He claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by two Muslim youths to accompany them on a trip to Pakistan. He went there without any intention to settle there permanently. Later on he made efforts to return but due to certain restrictions he was unsuccessful. He had no alternative but to obtain a passport from the Pakistan authorities in order to come to India. He had thus never changed his nationality and continued to remain a citizen of India. He sought a permanent injunction restraining the Union of India, the State of U. P., District Magistrate, Kanpur and the Superintendent of Police, Kanpur, who were impleaded as defendants from deporting him.

Reasoning: The validity of the provisions of the Act and the Rules is no longer open to challenge. It has not been disputed by learned counsel for respondent No. 1 that after the enforcement of the Act and promulgation of Rule 30 the only authority which is competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government. But it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined by the Courts and not by the Central Government. In other words Section 9 of the Act cannot be given retrospective operation so as to be made applicable to pending proceedings. Thus the first point which as to be decided is whether Section 9 either expressly or by necessary implication has been made applicable to or would govern pending proceedings.The language of sub-s. (1) is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after its commencement.The words "or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country" would become almost redundant if only prospective operation is given to S. 9 (1) of the Act. This according to the settled rules of interpretation cannot beis somewhat difficult to appreciate the argument, much less to accede to it.If the Parliament was competent under Article 11, which is a constitutional provision read with the relevant Entry in List I to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before. The new procedure would itself become the "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying Section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Section 9 (2) have to be determined to the extent indicated therein by the Central Government and not by the Courts.Such matters as are not covered by that provision have, however, to be determined by the Courts; (see Akbar Khan Alam Khan v. Union of India, 1962 (1) SCR 779  = (AIR 1962 SC 70  ) and (1962) Supp (3) SCR 235=(AIR 1962 SC 1052  ) and Government of Andhra Pradesh v. Syed Mohd. Khan, (1962) Supp (3) SCR 288= (AIR 1962 SC 1778  )).9. In the present case the High Court ought not to have called for a decision of the lower appellate Court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India.