PETITIONER: GANGADHAR YESHWANT BHANDARE Vs. RESPONDENT: ERASMO DE JESUS SEQUIRIA DATE OF JUDGMENT04/02/1975 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ BHAGWATI, P.N. SARKARIA, RANJIT SINGH CITATION: 1975 AIR 972 1975 SCR (3) 425 1975 SCC (1) 544 ACT: Goa, Daman and Diu Citizenship Order, 1962--cl. 3A--Passport issued by, a foreign country to be surrendered before a certain date--Government specifically asked a citizen not to surrender foreign passport--Services of citizen used in a top secret mission--Whether retention of foreign passport deprived him of Indian Citizenship. HEADNOTE: Clause (2) of the Goa, Daman and Diu (Citizenship) Order, 1962 states that every person who or either of whose parents was born before the 20th 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. The proviso to that clause says that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month, from the date of publication of the order that person makes a declaration in writing that he chooses to retain the citizenship or nationality which he had: immediately before the 20th day of December, 1961. In December 1962 clause (3A) was,inserted in Schedule 3 to the Citizenship Rules which states that where a person who has become an Indian citizen by virtue of the 1962 Citizenship Order holds a passport issued by the Government of any other country the fact that he has not surrendered the said passport on or before January 19, 1963 shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date. In his election petition the appellant alleged. that the respondent chose to maintain his Portuguese nationality and citizenship by making a declaration in writing on April 27, 1962. Thereafter, he proceeded on foreign travel as an alien on the basis of the Portuguese passport issued to him by the former Portuguese administration. which was renewed upto July 17, 1964 in London. It was further alleged that the respondent obtained his alien residential permit in India and that he deliberately failed to surrender his Portuguese passport before January 19,1963 as required by cl. 3A of the Amending Rules, 1962. It was also alleged that the communication of the Goa administration that the respondent had prima facie become a citizen of India by virtue of the Citizenship, Order was not correct and contrary to the documentary evidence. The Judicial Commissioner held (i) 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 and that the declaration was not made voluntarily; (ii) that the renewal of the Portuguese passport did not imply loss of Indian citizenship; (iii) that the retention of the Portuguese passport after January 19, 1963 was due to compelling reasons and that the Government of India must be deemed to have given its decision that the respondent was an Indian citizen. Dismissing the appeal to this Court, HELD : (1) According to the Special Adviser to the Military Governor who later became Special Adviser to the Lt. Governor, the declaration of the respondent dated April 27, 1962 that he chose to retain the Portuguese citizenship and nationality was signed by him only by way of formality in view of the fact that the Special Adviser had decided to use the respondent in a top secret matter relating to the security of India. The respondent was involved with a Portuguese 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 426 at the instance of the Special 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 Portuguese passport under the instructions of the Special Adviser. The respondent renewed the Portuguese passport in London under instructions of the 'Special Adviser. On respondents 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 relinquish it. The Special Adviser was competent to ask the respondent to retain his Portuguese passport and to proceed on top secret assignment.[431 E-H] (2) The words "as agreed" appearing on the letter dated April 27, 1962 addressed by the respondent to the Special Adviser go to show that it was in pursuance of some arrangement 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 the very nature of things, could be expected either in the letter or in the note. it was obviously essential for the success of the secret mission 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 undertaking a trip for reasons connected with the affairs the State. [434A] (4) The evidence on record 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. The intention of the respondent at the time he signed the declaration was not to become a Portuguese national but to acquire Indian nationality. [434D] (5) The declaration dated April 27, 1962 and the retention of the passport 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 'been entrusted to him in connection with the affairs of the State. It cannot, therefore be said that the choice to retain Portuguese nationality as expressed ,in his declaration dated April 27, 1962 and January 19, 1963 represented his real choice exercised by him voluntarily. [435D; 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 of Home Affairs that he had become prima facie a citizen of India as a certificate issued by the Central Government under s. 13 of the Citizenship Act. It is also plain that the' Central Government reaffirmed its decision that the respondent had prima facie become a citizen of India in spite of the fact that the Central Government was informed about the making of declaration dated April 27, 1962. Letters 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 view of the Government of India that the respondent was an Indian citizen. [437G; C; 438C] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 991 of 1973.
From the judgment and order dated the 16th March, 1973 of
the ,,Court of Judicial Commr., Goa Daman & Diu in Election
Petition No. 1 of 1971.
V. R. Bhandare, V. N. Ganpule and Urmila Sirur, for the
appellant.
A. K. Sen and S. R. Agrawala, for the respondent.
427
The Judgment of the Court was delivered by
KHANNA, J.-The short question which arises for determination
in this appeal against the judgment of the Judicial
Commissioner Goa, Daman & Diu dismissing petition filed by
Gangadhar Yeshwant Bhandare appellant to question the
election of Erasmo De Jesus Sequiria respondent to the Lok
Sabha is whether the said respondent 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 appellant who had been validly
nominated as a candidate at the election for 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 declared void on the ground
that on the date of the election the respondent was not
qualified to be chosen to fill a parliamentary seat under
the Constitution of India and the Representation 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 became a part of the Indian Union
the said territory was a Portuguese possession and the
respondent was Portuguese citizen. Following 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 of the Citizenship Act, 1955 issued on March 28,
1962 Goa, Daman and Diu (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 terms
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 person 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 that the respondent chose to maintain his
Portuguese nationality and citizenship by making a
declaration in writing 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
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 passport which was granted to
him on June 18, 1962. The new passport was 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 inserted in Schedule
III to the Citizenship Rules, 1956 clause 3A which reads as
under:
“3-A. Where a person, who has become an
Indian citizen by virtue of the Goa, Daman and
Diu (Citizenship) Order, 1962 or the Dadra and
Nagar Haveli (Citizenship) Order, 1962, issued
under section 7 of the Citizenship Act, 1955
(57 of 1955), holds a passport issued by the
Government of 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 under the above, clause.
In January 1964 the respondent returned his Portuguese
passport to the Special Officer, Ministry of External
Affairs and claimed Indian citizenship. No reference was
made in that communication by the respondent, to the fact
that he had made, a declaration retaining his Portuguese
citizenship. On December 15, 1964 a letter was sent 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
certificate was not necessary for him 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
respondent was not a citizen of India but that objection was
overruled by the Retuning Officer. The appellant
accordingly prayed that the election of the respondent to
the’ Lok Sabha be declared to be void.
The respondent in his written statement stated that the
declaration filed by him on April 27, 1962 was not a valid
declaration inasmuch as he did not choose to retain his
Portuguese nationality and citizenship. The said
declaration was stated to have been made by the respondent
at the request of the then Special Adviser Goa for reasons
which had no connection with any intention on his part to
retain the Portuguese nationality and citizenship or to lose
Indian
429
citizenship. The respondent admits that he left India in
May 1962 and got his passport renewed from the Portuguese
Consulate 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 continue to retain the
Portuguese passport so that he might be in a position to’
make a later trip to Portugal. According further to the
respondent, he applied for a residential permit 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 jeopardize his Indian
citizenship. When clause 3A in Schedule III to the
Citizenship Rules was added, the respondent addressed a
letter to the Special Officer, Ministry of External Affairs
to the effect that he was retaining for the time being the
Portuguese passport and that his object was to obtain Indian
passport in due course. The respondent thereafter sur-
rendered his Portuguese passport on January 15, 1964. The
respondent, it is further stated, obtained a passport as a
citizen of India from the Government of India through the
Chief Secretary, 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 Government 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 vires the, Citizenship Act.
According to the respondent, he was a citizen of India at
the relevant time and his election was not liable to be
declared void on the ground set up by the, appellant.
It may be stated that the appellant impleaded besides the
respondent, the 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 con , the
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. a written statement was filed on behalf of the
Union of India.
According to the Union of India, the respondent signed
declaration, dated Appellant dated April, 1962
not,voluntarily but on the advice and at the instance of the
Special Adviser Goa. As regards the residential permits
which weregranted 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 affair of
the State. The Union of India has denied that the
respondent acquired the Portuguese citizenship or
that he ceased to be an Indiancitizen According further
to the Union of India’ the respondent is an Indian citizen.
Indian passports. are stated to have been issued in favour
of, the respondent because of his being an Indian citizen.
13–423SCI/75
430
Following issues were framed by the learned Judicial
Commissioner :
1. “Has this Court jurisdiction to
entertain the election petition?
2. Is the petitioner a citizen of India?
3. Did the petitioner comply with the
provisions of section 81(3) of the
Representation of the People Act, 1951 and if
not, is the petition fit to be dismissed under
section 86(1) of that Act?
4. Whether the first proviso to para 2 of
the Goa, Daman and Diu (Citizenship) Order,
1962 is ultra vires and in excess of the
powers conferred by section 7 of the Citizen-
ship Act, 1955?
5. Was the first respondent disqualified
to be chosen as a member of the Lok Sabha in
March 1971 for the reasons stated by the
petitioner in the election petition ?
6. To what relief ?”
Issues 1, 2 and 4 which were treated as preliminary issues
were decided in favour of the appellant and against the
respondent as per order dated October 5, 1971. Issue No. 3
was also decided in favour of the appellant. On issue No. 5
the learned Judicial Commissioner 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
Portuguese passport by the respondent, it was held, did not
imply the loss of Indian citizenship. The retention of the
Portuguese passport by the respondent after January 19, 1963
was found to be due to compelling reasons In the opinion of
the Judicial Commissioner, the Government of India must be
deemed to have given its decision that respondent was an
Indian citizen. The respondent was accordingly held not
qualified to be chosen as a member of the Lok Sabha. the
election petition was dismissed.
In appeal before us Mr. Bhandare on behalf,of appellant
has challenged the finding of the judicial Commissionerthat
the respondent did not sign declaration dated April 27,1962
voluntarily and that it was in connection with a secrete
that entrusted to him on behalf of the Government of
India that he has made to sign that declaration. It is
urged that the respondent was not an Indian citizen at
the relevant time, and as such was not qualified to be
chosen to fill a seat in the Parliament We have given our
careful consideration to the submission of Mr. Bhandare are
though we agree with him that as provided in article 84 of
the constitution a person shall not be qualified to be
chosen to fill a seat in Parliament unless he is a citizen
of India, we find it difficult to accept his other
contentions.
431
Ex. P3 is declaration dated April 27, 1962 which, according
to the appellant, was made by the respondent voluntarily.
The declaration read as under
Panjim
dated 27th April 1962
The Sr. Superintendent of Police, Goa
Panjim
Sir,
I ERASMO JESUS DE SEQUEIRA aged 23 years resi-
dent at CAMPAL, PANJIM declare that I have
carefully read the order passed by the
Military Governor on the 5th of April, 1962
regarding the declaration of Nationality. I
have also carefully perused the Notification
of the Govt. of India 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 PORTUGUESE
citizenship Nationality which I was holding
immediately before the 20th of December, 1961.
1, 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 appointed in December 1961 as a Special Adviser to the
Military Governor of Goa and who was thereafter appointed 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 Government
of, India. The respondent, it is stated, was involved with
a Portuguese 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
fill January 1964 at the instance of Handoo’ so that the
respondent. could carry out the assignment entrusted to him.
It is also stated by Handoo that the respondent went abroad
in 1962 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 of India and the respondent. It is further in
the evidence of Handoo that the respondent renewed his
Portuguese passport in London under the instructions of
432
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
Handoo that the respondent addressed letter Ex. P4 to Handoo
on April 27, 1962. The letter reads as under:
CAMPAL
PANJIM
27th APRIl, 1962
CONFIDENTIAL
Mr. G. K. HANDoo
SPECIAL ADVISER
GOA
DEAR MR. HANDOO:
Confirming my call on you this morning, 1, as
agreed, write to advise you that I wish to
retain my Portuguese passport No. ‘703/58
issued at Goa for the present, to enable me to
visit Portugal and see a very personal friend
on a highly personal reason.
I request that permission be granted for me to
leave India on this.passport, and. would
appreciate a reentry permit valid for six
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 above letter Handoo recorded a note meant for Joshi who
was incharge of Passport Section at Panjim. Ile note reads
as under
“Please see. I had spoken to you about this.
The applicant has to go back to Portugal with
reference to his entanglement with a white Po
lady and has to finally settle this domestic
issue and return. He- will, then take over an
Indian passport which can be issued as he
will renounce Portuguese nationality. Please
issue him a reentry permit as desired at’ A
above.”
The statement: of thedent when he came into the witness-
box is similar to that of Handoo. The learned Judicial
Commissioner has accepted the evidence adduced on behalf
‘of the respon-
433
dent in this. respect, and we see no particular reason to
disbelieve the same.
Handoo was a senior officer 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 false evidence in
favour of the respondent. As regards the respondent, we
find that he was subjected to lengthy and searching cross-
examination lasting for 11 days. The learned Judicial
commissioner has commended the demeanour of the respondent
in the witness-box and has observed that the respondent’s
clear, unhesitating and firm answers impressed him for the
truthfulness. According to the Judicial Commissioner, the
evidentiary value of the respondent’s statement, instead of
being weakened, was fortified as a result of cross-
examination. This Court in an election appeal normally does
not interfere with the appraisement of the evidence of the
witnesses by the High Court unless such appraisement is
afflicted with some glaring infirmity. After having been
taken through the evidence of Handoo and the respondent, we
find no reason whatsoever to take a view different from that
taken by the Judicial Commissioner regarding 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.
Ile respondent repudiated this suggestion and we find that
apart from this bare suggestion in cross-examination 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 commission in August
1972.. Handoo being no longer in Government service at the
time of the recording of his evidence, it is not clear as to
how he could be influenced by the party in power at the
Centre to give evidence in favour of the respondent. The
evidence of the respondent and Handoo is also borne out by
the letter which was addressed by the respondent to Handoo
on April 27, 1962 and the note made on that letter by
Handoo. The words ” as agreed” in the above letter go
to show that it was in pursuance of some arrangement between
Handoo and the respondent that the latter was retaining his
Portuguese passport and visiting Portugal.The note which was
made by Handoo 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 the very
nature of things could be expected either in the letter or
in the note. It was obviously essential for the
success of the secret mission that things should not be
divulged by making them explicit.
The evidence of the respondent and Handoo also shows, that
the expenses for the foreign trip of the respondent were
borne partly by,
434
The Government and, partly by the respondent. No question
of sharing of those expenses by the Government would arise
if the respondent was not undertaking that trip for reasons
connected with the affairs of the State as alleged by the
respondent.
While dealing with 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 has been)
filed on behalf of the Union of India. According to the
stand taken by the Union of India, declaration dated, April
27, 1962 was not signed by the respondent voluntarily but on
the advice and at the instance of the Special Adviser Goa.
The Union of India has further stated that the residential
permits were granted to the respondent with a view to
prevent any complication as the respondent held 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 record 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 declaration dated April
27, 1962. We also Wee that the intention of the respondent
at the time he signed the declaration was not to become a
Portuguese national 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 Portuguese passport in 1962 and obtained on the expiry of
his passport a fresh passport from Portuguese Consulate in
London in June 1962. The evidence further establishes that
it was’ for the same reason that the respondent did not
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 of the respondent
in Goa as a foreigner on residential permits till January
1964.
It has next been argued by Mr. Bhandare that whatever might
be the reason which might have weighed with the respondent
in making declaration P3 dated April 27, 1962 regarding his
Portuguese nationality and the retention of the Portuguese
passport till after January 19, 1963 the law must take 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 Citizenship 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 accede to the above submission. The
respondent was’ admittedly 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 Citizenship Order be deemed to
have become a citizen of India on the 20th day of December
1961. Question then arises as to what is the effect of
declaration P3 made by- the respondent on April 27, 1962 and
the retention of the Portuguese passport by him after
January 19, 1963.
435
We have found above that even though the respondent wanted
to become an Indian citizen, he signed declaration P3 and
retained the Portuguese passport till January 1964 because
of the secret mission which had been entrusted to him in
connection with the affairs of the State. it cannot,
therefore, be said that the choice to retain Portuguese na-
tionality as expressed in declaration P3 as well as the
choice to retain the Portuguese passport after January 19,
1963 represented the real choice of the respondent exercised
by him voluntarily and of his free volition. On the
contrary it was because of the necessity and the compulsive
reason 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 of 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 him in connection with the affairs of 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 pass-port by the respondent
after January 1963 cannot have the effect of depriving the
respondent of the benefit of Indian citizenship. It would
indeed look anomolous if a declaration signed in the above
circumstances were to result in the evil consequence of the
respondent being denied the right to become an Indian
citizen. wE may observe that once a declaration 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 him 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 present case the person concerned
discharges that onus and it is established by clear and
cogent evidence that the real choice and intention of the
person concerned was to become an Indian national and that
he signed the declaration and retained the passport because
of the compulsion of a secret assignment entrusted 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.(1) This in
that case was dealing with paragraph 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 Paragraph 3
the authority must regard obtaining of a
foreign passport on parti-
(1) (1965) 2 S.C.R. 884.
436
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 foreign
country cannot in all cases merely mean
receiving the passport. If a plea is raised
by the citizen that he had not voluntarily ob-
tained the passport, the citizen must be
afforded an opportunity to prove that fact.
Cases may be visualized in which on account of
force a person may be compelled or on account
of fraud or misrepresentation he may be
induced, without any intention of renunciation
of his Indian citizenship, to obtain a
passport from a foreign country. It would be
difficult to say that such a passport is one
which has been ‘obtained’ within the meaning
of Paragraph 3 of Sch. III and that a
conclusive presumption must arise that he has
acquired voluntarily citizenship of that
country:”
The learned Judicial Commissioner 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
been assailed by Mr. Bhandare. In this connection we find
that according to section 13 of the Citizenship Act, the
Central Government may, in such cases as it thinks a,
certify that a person, with respect to whose citizenship of
India a doubt exists, is a citizen 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 citizen at an earlier date. The respondent,
as mentioned earlier, surrendered his Portuguese passport on
January 15, 1964. While surrendering his passport, the
respondent wrote letter dated January 15, 1964 to the
Special Officer, Ministry of External, Affairs claiming
Indian citizenship. The Ministry of External Affairs then
referred the matter to the Senior Superintendent of Police
Panjim. Ile statement of the respondent was then recorded
by the police and the Senior Superintendent of Police
thereafter made a report. A report was then sent to the
Ministry of External Affairs by the Chief Secretary,
Government of Goa, Daman and Diu. A letter was thereafter
sent on, behalf of the Ministry of External Affairs on
December 2, 1964 to the said Chief Secretary stating that in
view of the information supplied by the Chief Secretary,
there was no objection to the respondent being treated as a
citizen of India under the Citizenship Order. On December
15, 1964 a communication was sent to the respondent by the
Under Secretary, Home Department of the Government of Goa,
Daman and Diu that prima facie the respondent had become a
citizen of India by virtue of the Citizenship Order. More
than four and a half years thereafter on July 1, 1969 the
Inspector General of Police addressed a letter to the Chief
Secretary, Government of Goa, Daman and Diu that the
respondent had made declaration P3 dated April 27, 1962
choosing to retain Portuguese citizenship and that this fact
had not been brought to the notice of the Government before
letter dated December 15, 1964 was issued to the
4 37
respondent that he had prima facie became a citizen of
India. The Chief Secretary thereafter 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
correspondence 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 Affairs addressed letter P52 to the respondent that the
matter regarding his claim to Indian citizenship had been
reconsidered and it had been decided that the matter should
be treated as closed. The Government of India thus
reaffirmed its decision which had been conveyed to the
respondent in 1964 that the respondent had become prima
facie a citizen of India by virtue of the Citizenship Order.
It is also plain that the Central Government reaffirmed its
decision that the respondent bad prima facie become a
citizen 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 Z7, 1970 the
Joint Secretary in the Ministry of Home Affairs addressed
the following letter P3 to the respondent :
“I am directed to refer to your letter dated
27th July, 1970 requesting for grant of a
certificate of citizenship under section 13 of
the Citizenship Act, 1955, and to say that
since the Goa Administration have in their
letter No. HD9-436/ 64 dated 15th December,
1964, already informed you that you have prima
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:’
As already mentioned, the learned Judicial Commissioner has
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
Citizenship 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 under section 13 does 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 citizen 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 Citizenship 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 citizen of India that he
is such a citizen. In the case of the respondent a doubt
was raised by the Government of Goa, Daman and Diu on the
point as to whether he was a citizen of India. The
Government of, Goa, Daman and Diu in this context referred
to the fact that the respondent while praying on January 15,
1964 for being declared Indian citizen had suppressed the
fact about his having signed
438
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 thereafter asked for
certificate under section 13 the Central Government said
that no such certificate was necessary in view of the
earlier official communication which had been sent to him
that he had prima facie 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 reiterated its view that the respondent was
an Indian citizen and should be considered as such. Letter
dated July 26, 1970 and July 27, 1970, though they do not
profess to be certificates issued under section 13 and
though the later of these two letters recites that there was
no necessary of a certificate, clearly incorporate the view
of the Government of India that the respondent was an Indian
citizen. The letters thus serve the purpose of a
certificate and we agree with Mr. Sen, counsel for the
respondent, that they operated as certificate and should be
construed 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 in 1971 was also a 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 Por-
tuguese citizenship. To hold at this stage that the
respondent is not an Indian citizen would have the effect of
rendering him stateless.
As a result of the above, we find that there is no merit in
the appeal. It accordingly fails and is dismissed with
costs.
P.B.R. Appeal dismissed.
439