Partly allowed

Akbar Khan Alam Khan and Another v. the Union of India and Others

Supreme Court5 Apr 19611961 INSC 137 · [1962] 1 S.C.R. 7791961 INSC 137

Case brief

AI extract

What is this about?

The Supreme Court held that s. 9(2) of the Citizenship Act bars civil courts only on questions of acquiring foreign citizenship, not on whether a person was ever an Indian citizen. The suit was remitted to determine original citizenship status first, then stay proceedings for Central Government's decision on renunciation if needed. A separate arbitration case was also adjudicated regarding award v

What did the court decide?

Orders and judgments of Courts below set aside; suit remitted to decide if appellants were ever Indian citizens; if yes, stay suit till Central Government decides on renunciation/acquisition; if no, d

Akbar Khan Alam Khan and Another versus the Union of India… — Arbitration | Supreme Court (1962)

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1 S.C.R. SUPREME COURT REPORTS 779

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appellant. No question as to the effect of the amended definition on the appellant's status fell for our decision in this case for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under s. 3(2)(c) and we are not to be understood as deciding auy question as to whether such an order could or could not have been made against the appellant.

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Appeal allowed.

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AKBAR KHAN ALAM KHAN AND ANOTHER v.

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THE UNION OF INDIA AND OTHERS

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(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)

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Citizenship-Suit for declaration of rights as Indian Citizens]urisdiction of Civil Court-Citizenship Act, r955 (57 of r955), s. 9(2).

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The only question that a civil court is precluded from determining under s. 9(2) of the Citizenship Act, 1955, read with r. 30 of the Rules framed under the Act is the question as to whether, \Vhen or how any person has acquired the citizenship of another country. They are not prevented from determining other questions concerning the nationality of a person.

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Where, therefore, a suit brought for a declaration that the appellants were Indian Citizens, where they the1nselves had raised the question of acquisition of foreign citizenship, \Vas resisted on the ground that they had never been Indian Citi- zens, and the courts below dismissed the suit in its entirety,

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Held, that the courts below were in error in holding that the suit was barred in its entirety bys. 9(2) of the Act.

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They should have decided the question as to whether the appellants had ever been citizens ot India and, if the finding was in their favour, should have stayed the suit till the Cen- tral Governrnent had decided whether such citizenship was renounced and if the finding was against the appellants dismissed the suit.

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Fida Hussain v. State of U ttar Pradesh

Sarkar ].

April 5.

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Akbarl(han	780 SUPREMECOURT REPORTS [1962] CIVILAPPELLATEJURISDICTION: Civil Appeal No. 18of1961.
Alamf(han v. UnionofIndia	Appeal by special leave from the judgmentand order datedJanuary23,1960,ofthe MadhyaPradesh HighCourtatIndore in Second AppealNo.473of 1959.
	z.F. Bootwala, E. Udayarathnam_and_S. S. Shulcla, for the appellants. JJ!.C.Setalvad, Attorney-General of India, B. Sen and_T.M. Sen,_for respondent No.1. _H. L. Khaslcalam_and_I.N.Shroff,_fortherespon- dents Nos.2,3.
	1961. April5.TheJudgmentoftheCourt was deliveredby
SarkarJ.	SARKAR,J.-Thisappeal raisesthequestion whe- therthesuit filedbythe appellants was properly dis- missed onthegroundthata civil courthadno juris- dictiontoentertain it. The Courts below heldthata civil court's jurisdiction to entertain thesuitwas bar- red bys.9oftheCitizenship Act, 1955. The appellantshadfiledthesuit for a declaration thattheywere citizensofIndiaandfor an injunction restraining the defendants from removing them from India.The defendants were the UnionofIndia,the StateofMadhya Pradesh andtheDistrict Magistrate, Jhabua,in Madhya Pradesh. The appellantsstated intheplaintthattheywere citizensofIndiaandhad not ceasedtobe such citizens. They saidthatinthe beginningof1953 they went to Pakistan for a tem- poraryvisit without a passportbutwhentheywanted toreturntheywere compelled to obtainPakistani passports. Theystatedthatthey obtained these pass- ports only as a device for securing theirreturnto Indiaandhadreally been compelledtoobtain the passports againsttheirwill. Theyfurtherstatedthat, therefore,theycould not be said to have acquired citizenshipofPakistan. They alsostatedthatthey hadmade all efforts forthecancellationofthepass- portsandto obtain permission to stay inIndiaper- manentlybutwere unsuccessful.Theysaidthatthe

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1 S.C.R. SUPREME COURT REPORTS

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781

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State of Madhya Pradesh served on them an order dated November 11, 1955, under s. 3(2) of the Foreigners Act, 1946, asking them to leave the country. They contend that this order was illegal and without justification as they were not foreigners.

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In the written statement filed by the defendants it was stated that the appellants had left India between March and May, 1948, and they returned for the first time on a temporary Pakistani passport sometime in the early part of 1955. It was also stated that the permits granted to them to remain in India were extended from time to time and ultimately up to about October, 1955, and thereafter they were served with orders to quit India. The defendants further stated that the appellants were not citizens of India as they had voluntarily acquired Pakistani citizenship by obtaining passports from that country.

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z96I

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Akbar Khan Alani l<han

Union of India

Sarkar ].

The suit was dismissed as it was held not to be maintainable in view of the provisions of sub-sec. (2) of s. 9 of the Citizenship Act. That sub-section is in these terms:

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Section 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."

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Rule 30 of the Rules framed under this Act provides that such a question shall be determined by the Central Government, who for that purpose shall have regard to the rules of evidence specified in Schedule III to the Rules.

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It seems to us clear that sub-sec. (2) of s. 9 of tho Citizenship Act bars the jurisdiction of the ci vii court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by anyone else. The only question, . however, which a civil court is prevented by s. 9(2) of the Citizenship Act from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The

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782 SUPREME COURT REPORTS (1962]

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r961 civil courts are not prevented by this provision from Akbar J{han determining other questions concerning nationality of Alam Khan a person. There is no doubt that the suit by the appeJ. v. !ants raised the question whether they had lost their

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Union of India Indian citizenship by acquiring the citizenship of Pakistan. The appellants themselves had raised that Sarkar ]. question by pleading in their plaint that they had not voluntarily acquired the citizenship of Pakistan. To that extent, it has to be held that the appellants' snit was barred. It seems to us however that the suit raised other questions also. The appellants' claim to the citizenship of India was resisted on the ground that having migrated to Pakistan in 1948, they had never acquired Indian citizenship. That might follow from Art. 7 of the Constitution. The jurisdiction of a civil court to decide that question is not in any way affected by s. 9(2) of the Citizenship Act. Therefore it seems to us that the entire suit should not have been dismissed. The Courts below should have decided the question whether the appellants had never been Indian citizens. If that question was answered in the affirmative, then no further question would arise and the suit would have to be dismissed. If it was found that the appellants had been on January 26, 1950, Indian citizens, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government, may justify. The learned Attor. ney -General appearing for the respondents, the defendants in the suit, conceded this position. He did not contend that there was any other bar to the suit excepting that created by s. 9 of the Citizenship Act.

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What we have said disposes of this case but we think we should express our views on some of the arguments of the learned counsel for the appellants.

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l 8.C.R. SUPREME COUW1' REPOR1'8

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783

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1961

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He first contended that it is only wh;m a right is created by a statuta and a Tribunal is set. up for the determination of that right by that statute that the jurisdiction of a civil court as to a qm·stion concerning that right is taken away and thtit, tlrnrefon•, the jurisdiction of a civil courL to entertain the appellants' suit was not taken away. We are unable tu accept this contention. A cumpetent legiHlature may take away a civil court's jurisdiction to try other questions also. No authority has been shown that this cannot be done.

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Allbar f{han Alam Khan v.

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Union of lndi!l

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Another argument advanced by him was that the appellants had no right to approach the Central Government to decide the question whethE'r they had lost their Indian citizenship and therefore the appellants' right to resort to a civil court tu decide that question cannot be deemed to have been barred. Reliance was placed in oupport of t.hi~ contention on Slwrafat Ali Khan v. State of U.P. {'). Thi8 question really does not arise because the learned AttorueyGeneral appearing for the respondents ha8 co::ceded the appellants' right to apply to the Central Uovcrn. ment for a decision of the question. Even apart from this concession the view expre8sed in Shamf at Ali Khan v. State of U. P. (¹ ) would seem to be open to grave doubt. But in the circumslances uf this case we do not feel called upon to say more on that matter.

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For the reasons earlier stated, we set aside the orders and the judgments of the Courts below and direct that the snit be heMrl. ;ind decided on all questions raised in it excepting the question whether the appellants having been lndian citizens fol' 8ometime have renounced that l'iti~enship and acquired a foreign citizenship. If the Court, finds that the appellants had never been Imlian citizeus, then the suit would be dismissed by it. Jf on the other hand, the court finds that they were lndicm eitizens earlier, then the court would stlty the furthel' hcarL1g of the suit till the Central Covcrumcut decirles whether the appdlants had acquired subsequ1'ntly :i foreign 1mtimmlil y (1) A.I.R. 191>0 All. 637.

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784

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SUPREME COURT REPORTS (l962J

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and thereafter dispose it of by such order as the decision of the Central Government may justify. There Akbar I( hun will be no ordrr as to costs. Alant J<han

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LTninn of fudia

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Sarkar ].

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Appeal allowed. Case Remitted.

B. SUBBARAMA NAIDU

April 5.

B. SlDDAMMA NAIDU & OTHERS

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(K. 8UBBA RAO, RAGHUBAR DAYAL and J.B.. MuDHOLKAR, JJ.)

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Arbitration--Order of reference-If must specify date within which the award is to be made--Award-Validity-W hen can be set aside--Arbitration Act, I940 (10 of I940), ss. 23(I), 30.

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The questions for determination in the appeal were whetqer the award in question was invalid, (1) by reason of the court failing to comply with the mandatory requirement of s. 23(1) of the Arbitration Act, 1940, that the time within which the award is to be made, must be specified in the order, and (2) whether the arbitrator was in error in allotting to the appellant less than half share in the properties.

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Held, that under s. 23(1) of the Arbitration Act, 1940, it is imperative that the time lor making the award must be fixed; but that does not mean that where the court omits to specify the time in the order of reference and does so elsewhere in the proceedings, the reference is invalid. Consequently, in a case where the order sheet of the court read with the order of reference made it clear that the arbitrator was to file his award by the date to which the suit was adjourned, it could not be said that the section had not been complied with.

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Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar (1891) L.I<. 18 I.A. 55, referred lo.

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Held, further, that the award could not be said to be bad on the face of it and "otherwise invalid" merely because the appellant had 1eceived less than his due share. The court cannot interfere with the findings of an arbitrator based on the best of his judgment unless it is shown that he has acted dishonestly.

Akbar Khan Alam Khan and Another v. the Union of India and Others

Case brief

What is this about?

What did the court decide?

Akbar Khan Alam Khan and Another v. the Union of India and Others

Case brief

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What did the court decide?

What the court decided

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