JUDGMENT
Jagdish Bhalla, J.
1. This writ Petition is directed against the order of appointment of opposite party No. 5 as Ditrict Government Counsel (Criminal), Gorakhpur (to be hereinafter referred as DGC), vide order dated 22-11-1999 and the order dated 24-11-1999 passed by the District Judge, Gorakhpur, in compliance of the aforesaid Government order. The petitioner has further prayed for issuance of a writ, order or direction in the nature of mandamus restraining oppoisite party No. 5 from functioning as DGC (Criminal), Gorakhpur, and further prayed for a direction for appointment of the petitioner as DGC (Criminal), Gorakhpur. The petitioner has also made a prayer for a writ in the nature of mandamus directing the oppoiste parties 1 to 4 to do the needful in the interest of the country and the State in the matter of opposite party No. 5, misrepresenting himself to be an Indian citizen by birth. In totality the appointment of opposite party No. 5 has been challenged on the ground of his Nationality.
2. Heard Sri Umesh Chandra, Senior Advocate, appearing on behalf of the petitioner, Sri K.B. Sinha, Senior Advocate, appearing on behalf of opposite party No. 5, Sri A.K. Verma, Additional Chief Standing Counsel for opposite party Nos. 2 and 3, and Sri H.B. Singh Additional Standing Counsel for the Union of India.
3. Sri Umesh Chandra, learned counsel for the petitioner contended that opposite party No. 5 is a Nepalese citizen by birth. In support he has relied upon the certificate contained in Annexure No. 1 indicating that opposite party No. 5 Avanendra Nath Shukla was born in Nepal and is a citizen of Nepal. According to him the certificate has been issued by the Nepal’s Government authority concerned. It has also been pointed out that the certificate bears the photograph and signature of opposite party No. 5. It has been emphatically argued by the learned counsel for the petitioner that opposite party No. 5 misrepresented before the U.P. Bar Council to get himself registered as an Advocate by declaring himself as an Indian citizen. In this connection, he has referred to internal page No. 3 of the application for registration contained in Annexure No. 3 i.e. Certificate of Nationality or declaration to this effect, it has been contended on behalf of the petitioner that with the application for registration the opposite party No. 5 has given only the declaration to the effect that he is a citizen of India by birth. However, the Certificate of Nationality has not been brought on record by him. Accordingly he misled the authorities of the U.P. Bar council to get his registration as an Advocate in the year 1976. The petitioner has also objected that the place of birth has not been mentioned by opposite party No. 5 in the application form addressed to the U.P. Bar Council. It has been submitted on behalf of the petitioner that the contents of the affidavit accompanying the application for registration of opposite party No. 5 are vague. Further, it has been contended on behalf of the petitioner that in view of the provisions of the Advocates Act only a citizen of India can apply for registration with the Bar Council and since opposite party No. 5 is not a citizen of India, he misrepresented and fraudulently got himself enrolled as an Advocate with the U.P. Bar Council.
4. It has been contended on behalf of the petitioner that in light of the provisions of the Constitution of Nepal since opposite party No. 5 owns property in Nepal, he is a citizen of the country of Nepal.
5. Learned counsel for the petitioner relies upon Articles 5, 8, 10 and 11 of the Constitution of India and he reiterated his contention that oppoiste party No. 5 is a citizen of Nepal. It has also been asserted that the father of opposite party No. 5 died when opposite party No. 5 was only a child and opposite party No. 5 was under the guardianship of his brother who is a Nepalese citizen.
6. It has also been indicated that the petitioner has filed a complaint against opposite party No. 5 before the U.P. Bar Council, interalia on the aforesaid ground that opposite party No. 5 is not a citizen of India and the U.P. Bar Council has issued notice to oppoiste party No. 5 on the subject. An application dated 6-7-2000 was moved on behalf of the petitioner with the prayer that this Court be pleased to defer the hearing of the writ petition till the Bar Council of U.P. Allahabad takes a decision in the mater pertaining to the cancellation of enrolment of opposite party No. 5 as an Advocate. However, while arguing the matter, learned counsel for the petitioner submitted that a direction be issued to the Bar Council to expedite the matter.
7. Learned counsel for the petitioner has not addressed the Court as far as any demerit of opposite party No. 5 for his appointment as DGC (Criminal), Gorakhpur except on the ground that he is a citizen of Nepal. Although in paragraph 24 of the writ petition it has been alleged that the petitioner has come to know that the appointment of opposite party No. 5 as DGC (Criminal), Gorakhpur, has been made on account of his intimacy with the Law Minister of U.P. who was given that port folio on 20-11-1999 and the opposite party No. 5 assumed the charge on 22-11-1999. However, no such argument was advanced on behalf of the petitioner.
8. Lastly, it was contended on behalf of the petitioner that the U.P. Government has committed contempt of the interim order dated 18-1-2000 and in his support he has filed a supplementary affidavit after the argunments made on behalf of the petitioner was over and before the learned counsel for opposite party No. 5 started addressing the Court that despite the interim order dated 18-1-2000 restraining opposite party No. 5 from functioning as DGC (Criminal) the State Government has issued an order of engagement of opposite party No. 5 as a Special Counsel. In this connection, the petitioner relies upon the decision in Dr. Madan Gopal Gupta v. Agra University reported in AIR 1974 All. 39 and submits that such an issuance of engagements order amounts to contempt. In the aforesaid decision it has been held by a learned Single Judge of this Court as under :
6. Under the Contempt of Courts Act, there is no provision for striking off the defence of a party in contempt. There is, however, a well established principle that a party in contempt should not be heard in the same cause until that party has purged the contempt. This rule has been followed by Courts in England as well as in India, but rule is not an absolute one. The striking out of defence and denial of hearing to a party is a serious matter which entails serious consequence to a litigant. The Courts have, therefore, applied this rule rarely against a party in contempt. The extreme penalty of striking out of defence or denial of hearing is applied only in those cases in which a party is found in contempt for disobeying the orders of the Court as a result of which the course of justice is impeded. The Court may, in its discretion, refuse to allow the party in contempt to take active proceedings in the same suit or a cause until the impediment caused by the contemptuous act is removed. This rule is based on the sound principle that no party to a cause or proceeding should be allowed to flout the orders of the Court or impede the course of justice in order to take advantage of his mis-deeds before the Court of law….
9. As far as the aforesaid case is concerned, we find that there is no dispute between the parties that stay vacation application has been moved. Further, this is not a fit case in which any interference can be shown in light of the ratio of the judgment relied upon by the petitioner. Hon’ble the Apex Court in State of Jammu & Kashmir v. Mohd. Yaqoob Khan reported in (1992) 5 JT (SC) 278 has taken the view that the contempt matter, if any, be deferred if the application for stay vacation is pending. Further Hon’ble the Supreme Court in Modern Food Industries v. Sachidanand Dass reported in 1994 AIR SCW 460, has held that in case special Appeal has been preferred against the judgment of a learned Single Judge and the stay vacation application is still pending, the contempt proceedings should be deferred and in the present case we do not find that any contempt has been committed as the order of engagement as Special Counsel does not violate the interim order. The interim order passed by this court reads as under:
… We are of the view that, as the controversy involved in the present case is of a wider amplitude and the questions raised in the writ petition are arguable one, hence, we admit this writ petition, and direct that till the controversy is decided, the respondent No. 5 will be restrained from functioning as District Government Counsel (Criminal). However, the State Government shall be free to make any alternative arrangement.
10. from the perusal of the interim order passed by this Court it is evident that this Court has provided an alternative arrangement to be made and in case opposite party No. 5 has been engaged as a Special Counsel, irrespective of the fact that work has been assigned to him or not, it will not constitute contempt of the orders passed by this Court.
11. On behalf of opposite party No. 5 Sri K.B. Sinha, Senior Advocate, submitted that opposite party No. 5 is a citizen of India by birth and right from the primary school education up to his Law Degree the opposite party No. 5 has studied in India and thereafter he was enrolled as an Advocate by the U.P. Bar Council. It has also been submitted on behalf of opposite party No. 5 that in fact he has inherited from his forefathers some property in Nepal and in case the Constitution of Nepal does not permit any foreign national to own property in Nepal, then such property is vested with the State. Further, it has also submitted that the name of opposite party. No. 5 figures in the voters list of Gorakhpur and he is exercising his fundamental right of franchise way back from the year 1975. It has also been contended on behalf of opposite party No. 5 that parents of opposite party No. 5 were through out Indian Citizens and in his support he has relied upon nine documents including certain judicial pronouncements, revenue records etc.
12. It has also been indicated that opposite party No. 5 was appointed as a Panel Lawyer in 1984 and since then up to the date of his appointment as DGC (Criminal), opposite party No. 5 worked in the said capacity continuously with dedication and honesty to the satisfaction of the authority and the administration and his appointment as DGC (Criminal) speaks volumes about his merit and performance. It has been denied on behalf of opposite party No. 5 that he is a citizen of Nepal and a resident of village Bangeri Kurota, District Rapaidhi. It has been indicated that in fact the brother of opposite party No. 5 Sri Rang Nath Shukla is a resident of Nepal and his name has also been struck off from the Parivar Register of village Dehnsa Nankar District Siddharth Nagar. The Kutumb Register was placed before this Court and the name of opposite party No. 5 is still on the record. It has been categorically denied on behalf of opposite Party No. 5 in the counter affidavit that he is a citizen of Nepal. It has been asserted that opposite party No. 5 has neither applied nor acquired the Nepalese citizenship. It has been submitted by opposite party No. 5 that Annexure No. 1 to the writ petition is a forged document.
13. It has also been indicated on behalf of opposite party No. 5 that the petitioner has alleged that there is no requirement of the thumb impression of the applicant in the certificate contained in Annexure No. 1 However, from a perusal of Annexure No. 1 it is evident that the thumb impression of left right hands both are required to be affixed.
14. It has been further submitted on behalf of opposite party No. 5 that after the appointment of opposite party No. 5 in the year 1984 as a Panel Lawyer a few years later even the petitioner was appointed as a Panel Lawyer.
15. The list sent by the District authorities for the appointment on the post of DGC (Criminal) contains the names of petitioner, opposite party No. 5 and certain other person and since the petitioner could not be appointed and opposite party No. 5 has been appointed, this controversy has unnecessarily been raised to displace opposite party No. 5 from his post of DGC (Criminal)
16. While replying on behalf of opposite party No. 5 Sri K.B. Sinha, learned counsel for opposite party No. 5 submitted that although no argument has been advanced with regard to the malice on part of the then Law Minister but since the allegations contain in the writ petition he found it to be his duty to inform the Court that neither the name of the Minister has been disclosed in the petition nor he is a party to the petition, by name. It has been specifically stated that Shiv Pratap Shukla, the then Law Minister has never been the classmate of opposite party No. 5 Opposite party No. 5 went to the extent stating in affidavit that the Minister concerned has not even sudied ever in the Institution where opposite party No. 5 got his education. Sri K.B. Sinha further submitted that if the petitioner is aggrieved by the citizenship matter of opposite party No. 5, then he has remedy under Section 9(2) of the Indian Citizenship Act, 1955.
17. It has been emphatically asserted on behalf of opposite party No. 5 that he is a citizen of India by birth and he has neither changed his Nationality nor he has ever applied to any authority for any change.
18. Sri K.B. Sinha has further submitted that although the interim order is granted almost after one month of the joining of opposite party No. 5 but the balance of convenience is in favour of opposite party No. 5 and the petitioner will not suffer any irreparable injury if opposite party No. 5 continues as DGC (Criminal), Gorakhpur as one of the final prayers in the petition is to restrain opposite party No. 5 from working as DGC (Criminal), Gorakhpur. It has been pointed out that from the restraint order, the petitioner cannot be directed to be appointed or in any case the petitioner will have no authority to function as DGC (Criminal). In his support, he relies upon a Division Bench decision of this Court in Jagdish Chandra v. Municipal Board reported in 1983 (1) LCD 370 wherein it has been observed as under :
…it is settled law that a temporary injunction can be granted in favour of a party only if it succeeds in not only making out a prima facie case in its favour but also establishing that the balance of convenience lies in its favour and that in the event of the temporary injunction not being granted it will suffer an irreparable injury. As such, merely making out a prima facie case will not suffice.
It has been submitted that the two ingredients laid down in the above decision were not established. Therefore, the interim or der is also liable to be vacated.
19. Sri H.B. Singh, learned counsel for the Union of India has also emphatically argued that the petitioner has wrongly approached this Court as in fact he has the remedy under Section 9(2) of the Citizenship Act. Section 9(2) of the Citizenship Act reads as follows :
9(2) If any question arises as to whether when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
20. It has been contended by the learned Counsel for the Union of India and opposite party No. 5 that the petition is not maintainable before this Court.
21. Sri A.K. Verma, Additional Chief Standing Counsel arguing on behalf of the State has submitted that opposite party No. 5 was appointed as DGC (Criminal), Gorakhpur, purely on merit and there is sufficient material available on the record, on the basis of which his appointment was made. However, he also indicates that the only ground taken by the petitioner is that opposite party No. 5 is not a citizen of India and in fact a citizen of Nepal and this matter is to be determined under Section 9(2) of the Citizenship Act. He has further reiterated the arguments advanced by the learned counsel appeared on behalf of the Union of India and opposite party No. 5. It has also been indicated by Sri Verma that the petitioner has failed to make out the case of balance of convenience in his favour. Learned Additional Chief Standing Counsel further submits that the certificate contained in Annexure No. 1 is an incomplete certificate and the petitioner be put to prove that opposite party No. 5 is a citizen of Nepal. On the other hand, it is submitted that there is sufficient material on the record in favour of opposite party No. 5. It has been also indicated that on one hand the petitioner has filed this petition and on the other he has made representation to the Bar Council of U.P. under the provisions of the Advocate Act for cancellation of registration of opposite party No. 5 on the ground of his citizenship, although first the petitioner has to move under Section 9(2) of the Citizenship Act and only then he can avail the remedy elsewhere. Lastly and not the least, it has been submitted that on the ground of the Citizenship, this writ petition is not maintainable and in this connection he relies upon the decision of the Hon’ble Apex Court in Union of India v. Ghaus Mohammad reported in AIR 1961 SC 1526.
22. Learned counsel for the petitioner has not touched the merit of opposite party No. 5 with respect to his appointment on the post of D.G.C. (Criminal). On the other hand, the learned Additional Chief Standing Counsel has indicated that there is sufficient material and recommendation on which basis opposite party No. 5 has been rightly appointed as D.G.C. (Criminal). Therefore, as far as the merit of opposite party No. 5 is concerned, there is no attack and no interference can be shown as far as the merit of the petitioner is concerned. Further, we find that since no argument was advanced with regard to the malice on the part of the Law Minister, the ground for showing interference on the basis of malice alleged in the writ petition also goes.
23. With respect to the argument that the certificate of nationality and place of birth has not been mentioned by opposite party No. 5 before the U.P. Bar Council, we find that an affidavit has been filed mentioning that opposite party No. 5 is a citizen of India by birth. The requirement is either to file nationality certificate or to give a declaration to this effect. Respondent No. 5 chose to give the declaration by way of an affidavit and according to him he is a citizen of India by birth.
24. Now we proceed to deal with the main argument advanced on behalf of the petitioner that opposite party No. 5 is not a citizen of India. In support the petitioner has primarily relied upon the certificate contained in Annexure No. 1 indiciating that opposite party No. 5 is a citizen of Nepal and he has acquired certain property as well in Nepal. Therefore, he is Nepalese citizen, on a perusal of Section 9(2) of the Citizenship Act, it is crystal clear that whenever a question arises whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf. Since there is an authority prescribed under the Citizenship Act, 1955 and whenever the matter falls within Section 9(2) of the Citizenship Act, the authority concerned alone can decided the question arising under Section 9(2) of the Citizenship Act.
25. We are of the opinion that Section 9(2) of the Citizenship Act applies to the present case and the onus to prove that opposite party No. 5 is not a citizen of India lies on the petitioner, however, since the matter needs detailed scrutiny, it has to be done by the authority provided under the Citizenship Act.
26. In our support, we find two pronouncements of Hon’ble the Supreme Court in Union of India v. Ghaus Mohammad (AIR 1961 SC 1526) (supra) and Bhagawati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi AIR 1986 SC 1534.
27. In Union of India v. Ghaus Mohammad (AIR 1961 SC 1526) (supra), Honble the Supreme Court has held as under :
(7) The question whether the respondent is a foreigner is a question of fact and on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question….
28. In Bhagwati Prasad Dixit ‘Ghorewala’ (AIR 1986 SC 1534) (Supra) it has been held as under :
7. In exercise of the powers conferred by Clause (h) of Sub-section (2) of Section 18 of the Citizenship Act, 1995 and Sub-Section (2) of Section 9 of that Act the Central Government has framed rules to decide the question of voluntary acquisition of citizenship of a foreign country and the consequent determination of the citizenship of India. By Rule 30 of the Citizenship Rules, 1956, the Central Government is appointed as the authority to decide such question. Schedule III of the Citizenship rules, 1956 contains the rules of evidence applicable to a case arising under Section 9(2) of the Citizenship Act, 1955. No other Court or authority has the power to decide the question as to whether, when or how and Indian citizen has acquired the citizenship of another country….
It has been further held in paragraph 11 as under :
11. These cases clearly lay down that when the matter falls within Section (2) of the Citizenship Act, 1955, all other provisions of law are excluded. The authority prescribed under the Citizenship Act, 1955 alone can decide the question arising under Section 9(2) and the rules of evidence which should govern that decision shall be those prescribed for the purpose under that Act….
29. In light of the aforesaid judgments and the provision in the Citizenship Act, we are of the view that the matter of citizenship is to be determined by the Central Government. We are further of the view that the issue of citizenship cannot be adjudicated upon under Article 226 of the Constitution of India as various question of facts are involved to decide the dispute of citizenship and it would require a detailed examination of evidence and the appropriate forum is provided under Section 9(2) of the Citizenship Act. Further, we are of the opinion that no direction, as prayed on behalf of the petitioner, can be issued to the U.P. Bar Council.
30. In the circumstance, we restrain ourselves from making any observation on the merit of relating to Citizenship of opposite party No. 5. However, it would be open for the petitioner to agitate the matter before the appropriate forum and any observations made hereinabove shall not come in the way of the petitioner before the appropriate forum.
31. In view of the above discussions, the writ petition fails and is accordingly dismissed. The interim order is dischardged.
