GANGADHAR YESHWANT BHANDARE

ERASMO DE JESUS SEQUIRIA

February 4, 1975 [H. R. KHANNA;, P. N. EHAGWATI AND R. s. SARiCARIA, JJ.]

Goa, Vaman and. Diu Citizenship Order, 1%2';..c/, )A..:.....Pi; sspol't Issued by a foreign coulltry. to be surrendered liefo, re acert11in.date.,-Gqvermnent specifically asked a citizen not to surrender foreign pas8port....;..Seryics of cltl:de1.1. used In .a top secret mission:--Wllether retmtton of .foreig11 passPort deprlvt4 lu'm of Indian Citizenship ·

Clause (2) of the Go~, Daman and.Diu.(Citizcnsliip) oder, 1962 tall~ tlmt every person who or either of whose paents WLtS borR befurc the 20th <I&)' of Db; ember, 1961 in the territories now cil'ml!l'i'Sed in the' union territoii qf Ooa, Daman and Diu shall be deemedto h, iive beeom\ a. citlr.en of Iadf&:p1': that day. The proviso to that clause says .'thai,· 'any SQCh peii shall not lie. deemed to have become 11 citizen of India; as aforesaid if within one month from ihe date of publication of the order that person makes a .declaratioil'in writing that he chooses to retain the citiz.enship or nationality' '\Vl'riCh h.e Ji$4 immediately before the 20th day of December, 1961. In Decenttier. 19"62 clii!, tile

(3A) was .inserted in Schedule 3 to the CitizeQship Rules which. states that .where. a person who has beome an Indian citizen by virtue of 'the 1!162 .. CitlZensbip Order holds a passport issued by the Government of any , other. Country~ fact that he has not surrende'fed the said passport on. or befotj:I January' 19; 1963. shaU be conclusive proof' of ms having volwitarily acquired the t:itizedship of• that countrv before that date. . ~

In . his . eloction petition the appellant alleged at the resj)Gndent .C:p(lse~. io maintain his Portuguese nationality, aild citizeashii; I by making a deClaration in writing on April 27, 1962. Thereal'fer, he proceeded. on foreign travel as analie.n on the basis of the. Portuguese passport issued to him by the fm:mer Portlie8c administra:tion. which vas renewed upto July 17, 1964 in ..London: It was further alleged that the respondent obtained his alien residential• nnit in India and that he deliberately failed to surrender his Portuguese passport fore January 19,1963 as required by cl. 3A 'of the Amending Rules; 1962 .. It 'was also alleged that the communic<ttion of the. Goa administration that' the respondent bad prima facie become a citizen of I9dia byvirtue of the Cltiienship Order was not correct and contrary to the doeumentary evideote:

The Judicial Commissioner held (i) that the respondent-was entru,.5tedwilh a secret mission on behalf of . the Government of India and it was ia th8* connection that he was made to sign the declaration dated April '9J.7; 1962 aftd' that the declaration Wl\S not made voluntarily; (ii) that the renewal of tile Portuguese passport did not imply loss of Indian citiz.ensl; tip; ·(iii) tl\at the ittenc tion of the Portuguese passport .after January 19, 1963 was -due' to l::ooipeUiiig. reasons and that the Government of India must be deemed to have .glvon lts decision that llie respondent was a11. Indian .citizen. . ·

Dismissing ttl" .appeal to this Court.

HELD : (I) According to the Special Adviser to the Military Governor •lfho later became Special Adviser to the Lt. Governor, the declaration of the respondent da!.ed April. 27, 1962 that he cho, se to retain the Po_ituj\uese. citizenship and nati.onality as signd by him <?.nly by way 'Of. formahty 1n view of the fact that the SpeC1al Adviser had decided tO uso the respondent in a tep secret matter relating to the security of India ... The -respondent was involved with a J>o11ug11ese lady and that fact provided a cover fOr carrying out the' assignment.

The respondent retained his Portuguese passport and obtained residential permits to stay in Goa as a foreigner. till January, .1964

:at the instance of the Spe:ial Adviser so that he could carry out the assignment

entrusted to him. He had gone abroad in 1963 in connection With the assignment on a Portugu.ese pai; sport under the instructions of the Special Adviser.

The respondent renewed the Portuguese passport in London under instructions of the Special Adviser.

On respondent's return he was asked by the Special Adviser to retain his passport till such time as it was decided to use him again or asked him to relinquisl! it. The Special Adviser was competent to ask the re;!pondent to retain his Portugues'e passport and to proceed on top secret a.ss.1gnment.

[43 IE-H]

( 2) The words "as agreed" appearing on the letter dated April 27, 1962 addressed by the respondent to the Spedal Adviser go to show that it was in pursuance of some arrnngement between the Special Adviser and the respondent that the latter was retaining his Portuguese passport and visiting Portugal. The note made by the Special Adviser expressly refers to the fact that the respondent after returning from his foreign trip was to take over an Indian passport and renounce Portuguese nationality.

No express reference to the secret mission. in 4hc very nature of things, could be expected either in the letter or in the note. lt was obviously essential for the success of the secret mision that things should not be divulged by making them explicit. [433G-H]

(3) No question of sharing of the expenses of the respondent would arise if the respondent was not 1md<rtaking a trip for reasons conne:ted with tile affairs of the State.

[ 434A]

( 4) The evidence on re:ord proves that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign the declaration dated April 27, 1962.

Th~ D intention. of the respondent at the time he signed the declaration was not to become a Portuguese national but to acquire Indian nationality. [4340]

(5) The declaration dated April 27, 1%2 and the retention of the pa;.spo:t by the respondent after January, 1963 could not have the effect of depriving the respondent of the benefit of. Indian citizenship.

But for the declaration dated April 27. 1962 the respondent according to cl. (2) of the Citizenship Order would be deemed to have become a citizen of India on December 20. 1961.

The declaration was signed by him because of the secret mission which had E been entrusted to him in connection with the affairs of the State. It cannot. therefore, be said that the ,:hoice to retain Portuguese nationality as expressed in his declaration date.ct April 27, 1962 and January 19, 1963 represented his real choice exercised by him voluntarily.

[4350; 434H; 435A-B]

(6) The Judicial Commissioner was right in considering the declaration dated April 27, 1962 and the letter dated July 27. 1970 from the Ministry r, f Home Affairs tha.t he had become prima fade a citizen of India as a certificate issued by the O:ntral Government under S; 13 of the Citizenship Act. It is also pl.ain

II' that the Central Government reaffirmed its decision that the respondent had pri'ma facie become a citiz<m of India in spite of the fact that the O:ntral Government was informed about the making of declaratiqn dated April 27, 1962.

Lt•tters dated July 26, 1970 and July 27, 1970 though they did not profess to be certificates issued under s. 13 and though the latter of these two letters recites that there was no necessity of a certificate, clearly incorporate the vi.w nf the Government of India that the respondent wa~ an Indian citizen.

[437G;

C; 438C] G

C1v1L APPELLATE JURISDICTION : Civil Appeal No. 991 of 1973.

From the judgment and order dated the 16th March, 1973 of the Co'urt of Judicial Commr.,, Goa Daman & Diu in Election PetitiO'a No. 1 of 1971.

V. R .. Bhandare, V. N. Ganpu]e and Urmila Sirur, for the appe- II Hant.

A. K. Sen and S. R. Agrawala, for the respondent.

A The Judgment of the Court was delivered by

KHANNA, J.-The short question which arises for determinati.on in this appeal against the judgment of the Judicial Commissioner Goa, Daman & Diu dismissing petition filed by Gangadhar Yeshwant Bhantlare appe.llant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent B at the relevant time was a citizen of India.

The respondent was declared elected to the Lok Sabha from the Moraugao parliamentary constituency in the elections held in March

1971. The appelJant who had been validly nominated as a candidate at the election fur the above constituency withdrew his candidature and did not contest the said election. After the result of the election had been declared, the appellant filed election petition to have the election of the respondent de<:Iared void on the. ground that on the date ofl the election the respondent was not qualified to be chosen to fill a parliamentary seat under the Constitution of India and the Re presentation of the People Act, 1951 as the respondent on that date was not a citizen of India and not an elector as contemplated by the Representation of the People Act, 1951. According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen. Pollowing the liberation and merger of that territory with the Union of India, the Government of India in exercise of the powers conferred by section 7 (Y{ the Citizenship Act, 1955 issued on March 28, 1962 Goa, Daman and Din E (Citizenship) Order, 1962 (hereinafter referred to as Citizenship order) conferring the citizenship of India on persons born in the above mentioned territory before December 20, 1961 on the trms and conditions set out in the order. The relevant part of clause 2 of

that. order was as under :

"Every person who or either of whose parents or any of whose grand parents was born before the twentieth day of December 1961 in the Territories now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day.

Provided that any such J?Crson .shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in, the Official gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other . authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had . immediately before the twentieth day of December 1961 "' ' ,

.it is. stated ta.t the _respondent. chose to mai!ltai~ his _Portuguese nat10nahty and c1hzensh1p by makmg a declaration m wnting dated April 27, 1962 as required by the above clause. The respondent thereafter proceeded on foreign travel as an alien on the basis of a Portuguese passport issued to him on or about June 25, 1958 by the

428 SUb\..lME COURT REPORTS [197 5] :l s.c.11. •.

former Portuguese Administration. As the said passport was due to expire on June 21, 1962 the respondent on arrival in London in June 1962 applied to the Portuguese Consul in London for a new Portuguese

pasport, which was granted to him on June 18, 1962. The new passport Wall valid up to June 17, 1964. The respondent returned to India in October 1962 and as an alien applied for and obtained residential permit in India. The permit was renewed from time to time.

On December 20, 1962 the Central Government published the Citizenship (Amendment) Rules, 1962 and insered in Schedule III to the Citizenship Rules, 1956. clause 3A which reads as under:

."3-A. Where a person, who has become an.Indian citi zen by virtue ()f the Goa, Daman and Diu (Citizenship) Order, 1962 or the Dadra and Nil.gar Haveli (Citizenship) Order, 1962,. issued under section 7 o.f the Citizenship A.ct,

1955 (57 of 19:55), h'Dlds a passport issued by the Government QI' any other country, the fact that he has not .surrendered the said passport on or before the 19th January,

1963 shall be conclusive proof of his having voluntarily acquired the citizenship of that .country before that date."

It is stated by the appellant that the respondent deliberately failed to surrender his Portuguese passport before January 19, 1963 as required undel' the above clause. In January 1964 the respondent' returned his Portugueis-e passport. to the Special Officer, Ministry of External Affairs and claimed Indian citizenship. No reference~ was made in Lhat communication by the respondent to the fact that he had made a declaration retaining his Portuguese citizenship. On D~ cember 15, 1964 a letter was se.nt on behalf of the Administration_ of Goa, Daman and Diu to the respondent stating that prima facie he had become a citizen of India by virtue of the Citizenship Order. In July 1970 the respondent addressed a communication to the Central Government for a certificate under .section 13 of the Citizenship Act.

In response to that the respondent was informed by letter dated July 27, 1970. that the said certifica.te was not necessary for hm as the Goa Administration had already conveyed to him that he was prima facie an Indian citizen. The appellant asserts that the information conveyed to the respondent by the Goa Administration in letter dated December 15, 1964 was not correct and contrary to documentary evidence. An objection was raised at the time of scrutiny by the appellant that the respondecnt was not a citizen of India but that objection was overruled by the Returning Officer. The appellant accordingly prayed that the election of the respondent to the l:ok Sabha be declared to be void.

The respondent in his written statement stated that the declaratlon filed by him on April 27, 1962 was not a valid declaration iitiasmuch as he did not choose to retain his Portuguese nationality and citizenship. Thi:I said decll\I'ation was. stated to ave been made by the respondent at the request of. the then Special Adviser Goa for reasons. which had no connection with any int<mtioo on . his part. to retain the Portugues nationality and citizenship or to lose Indian

citizenship. The respondent admits that he left India in May 1962 and got his passport renewed from the Portuguese Omsulate in London. The respondent was, however, advised by his friends not to go to Portugal and consequently he did not go there. The respondent. it is further stated, was told by the Special Adviser to C'.lntinue to retain the Portuguese passpon so that he might be in a position to make a later trip to Pt>rtugal. According further to the respondent, . he applied for a residential pennit and kept renewing it from time to time as a matter of formality and with the full knowledge of the Special

Adviser that the respondent did not intend to jeopardise his Indian citizenship. When clause 3A in Schedule lU to the Citii.enship Rules was added, the respondent addressed a letter to the Special Offiecr.

Ministry. of External Affairs: to the efJ!cct that hl:l was retaining for the time being the Portuguese passport and that his object wa.q to obtain Indian passport in due course. The respondent thereafter surrendered his Portuguese passport on January 15,

1964. The rcHpondcnt, it is further stated, obtained a passport as a citizen of Tndh1 from the Government of India through the Chief Se<:retary, Goa.

Daman and Diu in 1965. Another passport was obtained by the respondent in that capacity in 1970. According to the respondent, letter from Goa Administration dated December 15, 1964 and letter dated July 27, 1970 from the Govert'lment of India are conclusive on the point that he was a citizen of India. Objection was also raised by the respondent that clause 3A of Schedule III to the Citizenship Rules and the first proviso to clause 2 of Citizenship Order were ultra .. vircs the Citii.enship Act. According to the respondent, he was a citizen of India at the relevant time and his election was not liable to he declared void on the ground set up by the appellant.

It ma; y be stated that the appellant impleaded he side;; the respondent, tho Returning Officer and the Union of India as respondents 2 and 3 respectively in the election petition. Respondent No. 2 was deleted from the list of respondents on July 31, 1971 on an application filed by the appellant. So far as the Union of India respondent No. 3 is concerned, ili6 said respondent was deleted from the list of respondents on the application of the appellant on February 3, '1972 after some preliminary issues had been decided on October .15, 1971.

Before that a written statement was filed on behalf of the Union of India.

Aceording to the Union of India, the respondent signed decltu-ation dated April 27, 1962 not voluntarily but on the advice and at the instance of the Speciai Adviser GQa.

As regards the residential permits which were granted to the respondent, the Union of India states that those permits were issued with a view to avoiding. any complication as the respondent held a , Portuguese passport for reasons connected with the affairs of the State. The Union of India has denied that the re5pondent acquired the Portuguese ciprenship or that he c6a5Cd fo be an Indian citiz.en. According further to the Union of India, the respondent is an Indian cit.ii.en. Indian passports arc stated to ha.ve bceb issued in favour .of the respondent because of his being an ladian citizen. f .1-4!3SCl'75

430 SUPREME COURT REPOiTS [1975] 3 s.c.R.

er: .

Following issues were framed by the learned Judicial Commission-

I. "Ha.s this Court jurisdiction to entertain the election petition?

2. Is the petitioner a citizen oil India?

3. Did the petitioner comply with the prov1s1ons of sfr.:--

tion 8 I ( 3) of the Representation of the People Act, 1951 and if not, is the petition fit to be dismissed under se:ction 86(1) of that Act?

4. Whether the first proviso to para 2 of the Goa, Daun:i.n

and Diu (Citizenship) Order, 1962 is ultra vires and in excess of the powers conferred by section 7 of the Citizenship Act, l 955?

5. Was the first respJndent disqualified to be chosen as a member of the Lok Sabha in March l 971 for the reasons stated by the petitioner in the election ptition ?

6. To what relief ?''

Issues l, 2 and 4 which were treated as preliminary issues were decide:d in favour of the appellant and against the respondent as per order dated October 5, 1971. Issue No. 3 was also dec:idecl in favour of the appellant. On issue No. S the learned Judicial Commisskmer held that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign declaration dated April 27, 1962. The said declaration was not made voluntarily. The renewal of Portugue:se passport by the respondent, it was held, did not imply the loss of. Indian citiz.enship. The rct1ntiJn of the Portuguese passport by the respondent after January 19, 1963 was found to be due to compcITinl:J

reasons. In the opinion of the Judicial Ccmmissioner, the Govc:rnmcnt of India must b1~ deemed to have ven its decision that respondent was an Indian c.itizen. The respondent was accordingly held not disqualified to be chosen as a member of the Lok Sabha. fn th1~ result the. election petition was dismissed.

In appca.I before us Mr. Bhandarc on behalf of the appellant has challenged the finding the Judicial Commissioner that the respondent did not sign. declaration dated April 27, 1962 voluntarilv

and that it was in connection with a secret mission entrusted to him on behalf of the Government of India that he was made to sign tha.t declaration. It is urged that the respondent was not an Indian citizen

at the relevant time ad as such wa!> 00t qualified to be chosen to fill a seat irt the Parliament. We have civen our careful consideration to the s1,1brnission of Mr. Bhandare arid though we agree with him that as provided in article 84 of the Constitution, a person shall not be qualified: to be 1chnl JJ fill a seat in Parliament unless he is a oitizen of hdia, we find it difficult to accept his other conteniions

Ex. P3 is declaration dated April 27, 1962 which, according to the appellant, was made by the respondent voluntarily. The declaration read as under :

The Sr. Superintendent of Police, Goa Panjim

Sir,

Panjim dated 27th April 1962

l ERASMO JESUS DE SEQUEIRA aged 23 years resi dent at CAMPAL, PANJIM declare that 1 have carefully read the order passed. by the Military Governor on the 5th

o~ April, 1962 regarding the declaration of Nationality. l have also carefully perused the Notification of the Govt. of fndia dated 28th March, 1962 which is an order called 'Goa, Diu and Daman Citizenship Order 1962'. I accordingly declare that I choose to retain the

PORTU- GUESE citizenship Nationality which I was holding imme diately before the 20th of December, 1961. I, therefore, herein sign my declaration, declaring my PORTUGUESE citizenship . . . . . ... Nationality.

Sd/Erasmo Jesus De Sequeira Signature

The learned Judicial Commissioner has found that the above declaration was made by the respondent not voluntarily and that he was made to sign it in connection with a secret mission entrusted to him on behalf of the Government of India. The finding of the Judicial Commissioner in this respect is supported by the evidence of Mr. G.

K. Handoo who was appoin.ted in Deceinber 1961 as a Special Adviser to the Military Governor of Goa and who was thereafter appointr<l in March 1962 Special Adviser to the. Lt. Governor. Before that Handoo was Additional Inspector General of Police, Maharashtra and Commandant of the Border Security Force of Goa, Daman and Diu. He had also been dealing with foreign intelligence and security

of Goa in the Ministry of External Affairs. According to Handoo, declaration Ex. P3 was signed by the respondent only by way of formality in view of the fact that Handoo had decided to use the respondent in a top-secret matter relating to the security of the Govern ment 0£ India. The respondent, it is stated, was involved with a Portugue~ lady and that fact provided a cover for carrying out the assignment. Handoo has further stated that the respondent retained his Portuguese passport and obtained residential permits to stay in Goa as a foreigner till January 1964 at the instance of Handoo so that the respondent could carry out the assignment entrusted to him. It is also

sta~ by Handoo that the respondent went abroad in l 962 in connection with the assignment on a Portuguese passport under the instructions of Handoo. The expenses for the above foreign trip of the respondent were shared by the Government ofl India and the respondent. It is further in the evidence of Handoo that the respondent renewed hct.!!ortuguese passport in London under the instructions of

the witness. On his return the respondent contacted Handoo. Handoo then told the respondent to retain his passport till such time as Handoo decided to use him again or asked him to relinquish' it. Handoo adds that he was competent to ask the respondent to retain his Portuguese passport and to proceed on. top-secret assignment.

It is also in the evidence of Han.doo that the respondent addressed letter

Ex. P4 to Handoo o.n April 27, 1962. The letter roads as under:

CONFIDENTIAL Mr. G. K. HANDOO

SPECIAL ADVISER

GOA

DEAR MR. HANDOO:

CAMPAL

. PANJIM 27th APRIL, 1962

Confirming my call on. you thi~ morning, I, as agreed, write to advise you that [ wish to retain my Portuguese passport No. 703/58 issued at Goa for the present, to enable me to visit Portugal and sec a very personal friend on ll

highly personal reason.

I request that pennissiou be granted fur me to leave: India on this passport, and would appreciate a re-entry permit valid for :; ix months being granted at the same time.

I am, as advised by you, registering my passport at the police, and I shall be seeing you to hand over this letter, immediately after.

With compliments.

Yours sincerely,

Sd/~ Erasmo Jesus de Sequeira"

On the above letter Handoo recorded a note meant for Joshi who was indharge of Pas&-po.rt Section at Panjim.

The note reads as under:

"Please s'ec. I had spoken to you about this.

The applicant h!IS to go back; to Portugal wi1h reference to hil; entanglement with a white Portugtiese lady and has to fina!ly settle thi~ domestic issue and return. He will then take over an Indian passport which can be isued as he will renounce Portu~:se nationality. Plea.so issuei him a , e-entry permit as desired at 'A' above."

The sttement of the resp.mdent when he came into the witnessbox iii .sitiillar to dtat of Halldoo. The learned Ju<licial Commissioner has accepted the evidence adduced on bebalf ot.,!~ respon

[).

dent in this. respect, and we see no particular reason to disbelieve the same.

Handoo was a senior officet who dealt with foreign intelligence and security of Goa.

At the relevant time he was Special Adviser to the Lt. Governor. So far as the present proceedings of the election petition are concerned, he is wholly disinterested and there appears to be no cogent ground whatsoever as to why he should give faJ5e evidence in favour of the respondent. . As regards the respondent, we. find that he was subjected to lengthy and searching ctossexamination lasting for 11 days.

The learned Judicial commis sioner , has commeuded the demeanour , of the responde.nl in the witness-box and has observel:l that'. the respondent's clear, unhesitatin~ and finn answers impressed him for the tiuthfuhis. According to the. Judicial Commissioner, the evidcntiary value of the respondent's

sl:ltemen~. instead of being weakelij)d, was fortified as a result of cress-examination.

This Court in an e!ection appeal normally does not interfere with the aru>raisement of. t}\e. evidence of the witnsses by the High Court unless stich appraisement is afflicted with some glaring infirmity. After havin~ been taken through the: evidenee of Handoo and the r-espondent, we find -no reason whatsoever . to take a .view different from that takCn'by 1he Judicial Commissioner regard ing the trustworthiness of the two witnesses.

Mr. Bhandare has drawn our attention to the suggestion which was put in cross-examination to the respondent that he was being helped. by •the ruling party at the Centre in the matter of his citizenship and the present election petition because of the support lent by him to the ruling party since 1969.

The respondent repudiated this suggestion and we find that apart from this bare suggestion in cro!\8cxamination there is no other material on the record to show that the suggestion was well-founded. We further find that . Handoo retired from Government service and did not hold any official position after November 1962. His evidence in the present proceedings was recorded on a)rnmission in Au!!llst 1972. Hilndoo being no longer in Government service at the time of the reOOrding of his evidence, it is t -clear as to how he could be influenced bv the pahv ih power "t the Centre to give evidence in favour of the respondent.

The evidence of the respondent and Handdo is also bOrne out by the letter which was addressed by the resTIOndent tf) Handoo on April 27, 1962 and the note made on that letter by Handoo. The word~ "as amed" .in the above letter (!'o to show that it Wlls in pursuance of some arrangement between Handoo and the respondent that the latter was retaining his Portuguese passport and Visiting Portucr.Ll.

The note which was made by Handlx> expresslv refers to the tac

that the. respondent after retuminl! from bis foreign trio was to take over an Indian passport aml renoun~ Portuguese nationality- No express referen.i:e to lhe secret mission in the very nature of thin~ could be expected either in the letter or in the note It was .pbviously essential. for the sm; cess of the secret mission, Jhat things should not' be divulged bv making them explicit.

The evidence of. the respondent and Handoo also shows. that the expense& for the foreign trip of the respondent were. borne partlyby

the Government and partly by the respondent.

No question of sharing of those expenses by the Governrn.ent would arise if the respondent was not undertakin_g that trip for reasons connected w:ith the a!Pilirs of the State as alleged by the respondent.

While dealing \X/ith the question as to what value should be attached to the evidence adduced by the respondent, we must also bear in mind the written statement which bas been) filed on behalf of the Union of India.

According to the stand taken by the Union ofl India, declaration dated April 27, 1962 was nut signed by the respondent voluntarillf but on the advice and at the instance of the Special Adviser Goa.

The Union of India has tµrther stated that the residential perm, its were granted to the respondent with a. view to prevent any complication as the respondent l)eld a Portuguese passport for reasons connected with the affairs of the State.

Looking to all the facts, we. agree with the learned Judicial Commissioner that the evidence on re6o.rd proves that the respondent was entrusted with a secret mission dn, behalf of,' the Government qf India 1md it was ln that connection; that he was made to sign dealaration dated April 27, 1962.

We lso agree that the intention of: the respondent at .. the titne. he sign~ the declaration was not to beccme a Portuguese

11;1tional but to acquire Indian nationality and citizenship.

The evidence of Handoo and the respondent also establishes that it was at the instance of Handoo in connection with the secret mission entrusted to him that respondent travelled on a Portugu\se passport

i!IJ 1962 and obtained on the expiry of his passport a fresh passport from Portuguese Consulate in London in June 1962. The evidence further establishes ihat it was for the same reason that the respondent did Mt surrender his Portuguese passport on or before January 19, 1963 in accordance with clause 3A inserted in Schedule III to the Citizenship Rules, 1956. The same was the reason, according to that evidence, for .the stay 0£ the respondent in Goa as a foreigner on residential !Jermits till January 1964.

It has next been argued by ~Ir. Bhandare that whatever might be the reason which mighlt have weighed with the respondent in malting declaration P3 dated April 27, 1962 regarding his Portuguese nationality and the retention of the Portuguese passport till after January 19,

I. 963 the law must tak1e its course and the court should give effect to the proviso to clause 2 of the Citizenship Order and clause 3A of Schedule III to the Citirenship Rules, 1956. In accordance with the above provisions, the respondent, it is urged, should be held to be a Portuguese citizen and not an Indian citizen.

We are unable to aCOC'!l:le to the above submission. The respondent was ad111tttedly born before the 20th day of December 1961 in the Union Territory of Goa, Daman and Diu. As such, but for declaration P3 signed by him, he would according to clause 2 of the CitiZlmship Older be deemed to have become a citizen of India on the 20th day of December 1961. Question then :!rises as to what is the effect of declaration P:I made by the respondent on April 27, 1962 and the retention of the .fl0rtugu4~ passport by him after January 19, 1963.

G. Y. BHANDARE v. ERASMO DE JE~US (Khanna, I.> 435

W,~ have found above that even though the respondent wanted to becdme an Indian citizen, he signed declaration P3 and retained the Portuguese pasport till January 1964 because of the secret mission which had been entrusted to him in connection with the affairs of th~-State.

It cannot, therefore, be said that the choice to retain Portuguv.-se nationality a~' expressed in declaration P3 as well as the choice to retain the Portuguese passport aJlter January 19, 1963 represented the real choice of he respondent exercised by him voluntarily and of his free volition. </>n the contrary it was because of the necessity and the compulsive ro'a, on of ensuring the success of the secret mission entrusted to him in connection with the affairs of the State that the respondent signed declaration P3 and retained the Portuguese passport till after January 19, 1963. The evidence on record establishes that declaration P3 was a sham declaration which did not embody the real intention or choice of the person signing it. It was not intended to be acted upon and was signed at the instance 0£ a senior officer acting on behalf of the Government of India because it was considered to be a necessary camouflage and cover to facilitate the carrying out of the secret mission entrusted to hirh in connection with the affairs oE the State.

The same was reason for the retention of the Portuguese passport by the respondent after January 1963. As such, declaration P3 and the retention of the passport by the respondent af, ter January 1963 cannot have the effect of depriving the respondent of the benefit of Indian citizenship. It would indeed look anomalous if a declaration signed in the above circumstances were to result in the evil consequence of tbe respondent being denied the right to become an Indian citizen. We may observe that once a declarati'on like P3 is signed by

a person and he retains a Portuguese passport after the due date the onus would be very heavy upon him to prove that the declaration' was not signed by im voluntarily and that the retention of the Portuguese passport by him was also not a voluntary act. Unless he discharges that onus by clear and cogent evidence, the law would takes its course and he would not be regarded an Indian citizen. Where, however, as in the pi:esent case the person concerned discharges th;; it onus and it is estabhshed by clear and cogent evidence that the real choice and intention of the person concerned was to become an Indian national and that--he __ sied the declaration and retained the passport because of the comoul~1on of a secret assignment entmsted to him in connection with the affairs of. the State, he cannot be deprived of his entitlement to Indian citizenship.

We may in the above context refer to the case of Mohd. Ayub Khan v. Commissioner of Police, Madras & Anr.(') This Court in -that case was dealing with pa, ragraph 3 of Schedule III to the Citizenship Rules, 1956 which raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date 'Voluntarily acquired citizenship of that other country. Referring to that paragraph this Court observed :

"By the application of the rule in Para.graph 3 the authori- __ :Y must ragard obtaining of a foreign passport on a parti-

(l) (196S) 2 S.C.R. 884.

cular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of fureign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he bad not voluntarily o!lr tained the passport, the citizen must be afforded an opportunity to prove that fact. c.ascs may be visualized in which on account of force a person may be compelled or on ai:- courit of fraud or inisreprcsentatfon he may be induced, without , any intention of renuciati\O)Jl of liis Indian citizenship, to obtain a passpol/1 from a fureign oountry. It would be difficult tQ .say that s'tlch a passport is one which bas be(:n 'obtained' within the meaning of Paragraph 3 of Sch. IU

and that a conclusive presumption must arise that he h<1s acquired. voluntarily citizenship of that country:"

The learned Judkial C.Onunissioner has held that letter R3 dated July 27, 1970 taken along with other documents should be construed as a certificate issued by the Government under section 13 of the Citizenship Act. The above finding has hee1, t assailed by Mr. Bhandare.

In this connection we find that according to section 13 of the Citizensb, ip Act, the Central Government may, in S\!Ch cases as it thinks fit, cerdfY that a persOIJ, h mpect t9 whose,..citizenship of India a oovbt exists, is a citizep of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a

cilizen at am earlier date. The respondent, as mentioned earlier, surrendered his Portuguese passport on January 15, 1964. While surrendering bis passport, the respondent wrote letter dated January

t5; 1964 to the Special Officer, Ministrv of External Affairs daiming Indian citizenship. The Ministry 9f Extelhal Affairs then referred the matter to the Senior Superintendent of Police Panjim. The statem!!nt of 1he respondent Wai then recorded by the police and the Senior Superintende11't of Police thereafter made a report.

A ieport was then sent to the Mittistry of External Affairs by the Chief Secre-

~. Government of Ooa, l)aman and Diu.

A letter was therc- r sent on behalf of the Ministry of EJ1ternal Affairs on Th:cembe11 2, 1964 to the said Chief Secretary stating that in view oB . the inf<mnation suoJ>lied .bv the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. 011 December lS, 1964 a communication was sent fo the resoondent .as, the Under Secretary. Home Deoartment of the Go'rcrnment of Goa, Daman and Diu that prima facie die resnondent had become a citizen of India bv virtue of the Citizenshin Order. M:ore than f!Our and a half -years thereafter on Julv 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretarv Go'•emment of Goa, Daman and Diu that the respondent had mad~ decl!aration P3 dated April 27. 1962 choosing to retain Portmruese citi:r.enrJUp and that this fact had not been broul!:ht to the notice of the Government before lettir dated December 15, 1964 was issued to the

respondent that he had prima facie become a citizen of In<li.a. The Chief Secretary thereafter addresed a letter to the Ministry of Home Affairs and informed the Additional. Secretary in that Ministry about the making of the above declaration by the respondent. There was then further correspclJ.dence between the Government of India and the Government of Goa, Daman and Diu. On July 26, 1970 the Joint Secretary to the Government of India, Ministry of Home Affain addressed letter P52 to the respondent that the mattei regarding his clai..."11 tQ. Indian citizenship had been reconsidered and it bad been decided that the matter should be treated as closeJC!. The Governn1ent of India thus reaffirmed its decision which bad been conveyed to the respondent in 1964 that the respondent bad become prima facie a citiun of India by virtue of the Citizcnship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citiun of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962. On July 27, 1970 the faint Secretary in the Ministry of Home Affairs addressed the following Jetter P3 to the respondent :

"i am directed to refer to your Jetter dated 27th July, 1970

requesting for grant of a certificate of citiunship under section 13 of the Citizenship Act, 1955, and to say that since the Goa Administration have in their letter No. HD-9-436/ 64 dated 15th December, 1964, already informed you that you have prirna facie become a citizen of India by virtue of. the Goa, Daman and Diu (Citizenship) Order, 1962, the necessity of a certificate under section 13 does not arise."

1As already mentioned, the learned Judicial Commissioner ha3 held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under section 13 of the Citizcnship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no, doubt mentioned in the letter that the necessity of a certificate unit' . '.; ectron

13 docs not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citiun of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as

a certificate under section 13 of the Citiunship Act.

' To put it differently, section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizeR of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman

anc.I Diu on the point as to whether he was a citizen of India. The Govemment of, Goa, Daman and Diu in this context r.eferred to the fact that the respondent while prayin11: on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed

declaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent the:reafter asked for certificate under section 13 the Central Government said that no such certificate was necessary in view of the earlier official co1.J111unication which had been sent to him that he had prima facic become a citizen of India.

These facts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiteratd its view that the respondent was an Indian citizen and shm1ld be ( "nsidered as such. Letter dated July 26, 1970 and July 27, 1970, : k Jgh they d<J not profcs> to be certificates issued under section 13

a~· ... : though the later of these two letters recites that there was no necessary of a certifkate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letter~ thus serve the purpose of a ce1tificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be constrned as such.

We may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha ir! 1971 was al:'io 1t member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in 1965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of r1mdering him stateless.

As a result of the: above, we find that there is no merit in the appeal. ft accordingly fails and is dismissed with costs.

Appeal dismissed.

P.B.R.