Muslim Mia vs Union of India (UOI) and Others

J.M. Srivastava, J.—This is Plaintiff''s second appeal against the judgment and order dated 28.3.80 passed by the learned Assistant District Judge No. 1 at Guwahati.

The Plaintiff bad filed suit for declaration that he was an Indian national and for permanent injunction to restrain the Defendants from deporting the Plaintiff out of India on the allegations that the Plaintiff had been staying permanently in the State of Assam since 1942, that the Plaintiff had married at Gauhati and two children were born out of the said marriage, and they are all Indian nationals, that the Plaintiff is an Indian citizen under Article 5(c) of the Constitution of India. The Plaintiff alleged that the Defendant No. 3 the Superintendent of Police, Kamrup, Gauhati by his Order dated 22.1.73 had directed him to leave India immediately in pursuance of the provisions of Section 3 of the Foreignres Act, 1946. The Plaintiff denied that he was a foreigner or a Bangladesh national. The suit was resisted by the Defendants Respondents who pleaded that the Plaintiff was not an Indian national but was then a Pakistan national who had come to India in the year 1960 on Pakistan Passport and stayed in India, that on the expiry of the said Passport the Plaintiff bad surrendered his Passport with the authorities with a view to reside permanently in India. The prayer was rejected. Action was to be taken for his deportation but in the meantime Bangladesh trouble had started and on humanitarian considerations the Plaintiff was allowed to stay in India upto 21.1.73 and thereafter notice dated 22.1.73 was issued to him to leave India.

The learned trial court had framed the following issues:

Whether the suit is maintainable?

Whether there is any cause of action for the suit?

Whether the notice u/s 80 of CPC was served?

Whether the Plaintiff is an Indian national?

Relief.

The learned trial court by judgment dated 29.6.78 held, inter alia, that the Plaintiff was not a citizen of India. The suit was dismissed.

In appeal, the learned Assistant District Judge held that the Plaintiff was deemed to be a citizen of India under Article 5(c) of the Constitution of India. However, the learned appellate court also came to the conclusion that the facts of the case show that the case came u/s 9 of the Citizenship Act, and it could not be determined by any Court of law without referring the matter to the Central Government. Accordingly, while the appeal was allowed and the judgment and decree of the trial court was set aside, the case was remanded to the trial court with the direction that the matter be referred to the Central Government u/s 9 of the Citizenship Act to determine as to whether the citizenship of the Plaintiff under the Constitution had been terminated for his allegedly having obtained Pakistan Passport. The trial court was directed to reserve the judgment and refer the matter to the Central Government and finally dispose of the matter on the basis of the decision of the Central Government.

Aggrieved, the Plaintiff has come in appeal, and Shri A.B. Choudhury, learned Counsel appearing on his behalf, has submitted that the question of the Plaintiff having had acquired citizenship of Anr. country did not arise from the pleading of the Defendants, and the provision of Section 9 of the Citizenship Act was not attracted, and that the learned appellate Court below once having found that the Plaintiff bad been a citizen of India under Article 5(c) of the Constitution of India, as was the Plaintiff''s case, committed grave error in law in directing the trial court to refer the matter to the Central Government u/s 9 of the Citizenship Act.

The submission on behalf of the Appellant has been refuted by Shri B. Kalita, learned Counsel appearing for the State of Assam and Shri Sheikh Chand Mohammad learned Senior Central Government Standing Counsel on behalf of the Union of India. Shri B. Kalita, learned Counsel for the Respondent State of Assam has argued that the defence plea was clear that the Plaintiff was not a citizen of India but it had also been stated that the Plaintiff had come to India in the year, 1960 on Pakistan passport and had on its strength continued to stay in India for six year and on its expiry had surrendered the Passport and consequently, the question raised could only be adjudicated u/s 9 of the Citizenship Act.

I have considered the submissions for the parties and the materials on record.

The trial court had come to the conclusion that the Plaintiff had not acquired citizenship of India and had accepted the defence version that the Plaintiff had come to India in the year 1960 on Pakistan Passport No. P.S.A. 212440. The learned appellate court below reversed the finding of the trial court on acquisition of citizenship by the Plaintiff, but further held that on the facts of the case the matter required to be adjudicated u/s 9 of the Citizenship Act, for which purpose it was referred to the Central Government.

Shri A.B. Choudhury, learned Counsel for the Appellant, has strenuously argued that the Defendants bad not pleaded that the Plaintiff had lost his Indian citizenship at some stage and consequently the question does not arise. On careful consideration I have not found it possible to accept this argument, for, while it is true, that the defence plea was that the Plaintiff had not become Indian citizen at all, but the fact bad been clearly and categorically stated that the Plaintiff had come to India in the year 1960 on Pakistan Passport and had on its strength continued to stay in India, Shri Choudhury has argued that the learned appellate court has not recorded any such Adding but hat only said that "if the Defendants" story is believed, then the question arise about the termination of the Indian citizenship.." and has contended that this could not be considered the finding of the appellate Court on the question raised. While it may be said that the Court could have given expression to its views in a different and more explicit manner, yet there is no escape from the conclusion that the appellate court did consider the said fact as established and relevant, for it has further clearly held that "the facts of the instant case show that the case comes u/s 9 of the Citizenship Act.." and consequently considering the order the appellate court finally made, I am unable to accept the submission for the Appellant that the appellate Court did not record any finding on the question.

Shri Choudhury, learned Counsel for the Appellant, has cited J.K. Iron and Steel Co. Ltd. Kanpur v. The Iron and Steel Mardoor Union Kanpur AIR 1956 SC 131 , where the principle was reiterated that the dispute between the partied must arise out of the pleadings and that it was not open to Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper. In my opinion, this authority has no application in the present case, because the question did arise that whether or not the Plaintiff had come to India in the year 1960 on a Pakistan Passport, and consequently its effect had to be gone into and that jurisdiction was with the Central Government u/s 9 of the Citizenship Act read with Rule 30 of the Citizenship Rules. Shri Choudhury has also cited Messrs. Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, where also the same principle has been laid down that the decision of a cafe cannot be based on grounds outside the pleadings of the parties and that it is the case pleaded that has to be found. There can be no dispute with the principle laid down, but in the facts of the present case it cannot be said that the view taken by the learned appellate Court below docs not proceed on the pleadings of the Defendants or that it was beyond the defence pleadings.

Shri Choudhury learned Counsel for the Appellant, has also cited Akbar Khan Alam Khan and Another Vs. The Union of India (UOI) and Others, in which case also the provisions of Section 9 of the Citizenship Act, 1955 had been considered. In that case the defence plea was that the Plaintiff was not an Indian citizen and that he had come to India on temporary Pakistan Passport in the year 1955. The Plaintiff had pleaded that ho was an Indian citizen and had gone to Pakistan for a temporary visit, but when he wanted to return to India he had been compelled to obtain Pakistan Passport as a device to secure his return to India. The suit bad been dismissed on the ground that it was not maintainable in view of the provisions of Section 9(2) of the Citizenship Act.. The Supreme Court, on consideration of the matter finally bold that "for the reasons earlier stated, we set aside the orders and the judgment 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 citizenship then the suit would be dismissed by it. If on the other had the Court finds that they were (sic) 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 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". On consideration this authority is of no assistance to the Appellant, on the contrary it supports the view taken by the appellate Court below.

For the aforesaid reasons this appeal should fail. However, during the pendency of this appeal, the Citizenship Act 1955 bad been amended by Citizenship Amendment Act of 1985 which inserted Section 6A and came into force with effect from 7.12.85, According to the provisions of Section 6A any person like the Plaintiff who had migrated from the territory now known as Bangladesh to the State of Assam prior to 1.1.66 shall be deemed to be citizen of India. In this view of the matter it should not be necessary to refer the matter to the Central Government for decision u/s 9 of the Citizenship Act, 1955, as ordered by the appellate Court below.

This appeal is disposed of with the direction that in pursuance of the provisions of Section 6A of the Citizenship Act, 1955 as amended by the Amendment Act of 1985 the Plaintiff shall be deemed to be citizen of India. Parties shall bear their own costs.