Holding

The Supreme Court held that the order determining the appellants as Pakistani nationals under Section 9(2) of the Citizenship Act, based on the conclusive presumption arising from their Pakistani passports, is valid and cannot be set aside.

Summary

Bhanwaroo Khan and his wife, who migrated to Pakistan after Partition and obtained Pakistani passports, entered India in 1955 on a visa, later failed to return and lived underground. In 1984 they applied for Indian citizenship, but the Government of India, invoking Section 9(2) of the Citizenship Act, 1955 and Rule 3 of Schedule III of the Citizenship Rules, 1956, declared them Pakistani nationals, holding that a foreign passport is conclusive proof of voluntary acquisition of that citizenship. The appellants challenged this order through writ petitions; the High Court dismissed them and the Supreme Court upheld the order, finding no infirmity in the determination of nationality, no right to remain derived from long residence or voter‑list registration, and no ground to interfere with a deportation order. The Court affirmed that the rule is a valid rule of evidence and that the appellants had not shown any compulsion in obtaining the Pakistani passport.

Issues considered

Whether the order passed under Section 9(2) of the Citizenship Act, 1955 determining the appellants as Pakistani nationals is legally valid.
Whether Rule 3 of Schedule III of the Citizenship Rules, 1956, which makes a foreign passport conclusive proof of voluntary acquisition of foreign citizenship, is a permissible rule of evidence.
Whether long residence in India and enrolment in the voters' list confer any right to continue staying in the country.
Whether there is any ground for interference with the order of deportation of the appellants.

Legislation cited

Citizenship Act, 1955s. 5, s. 9(2)
Citizenship Rules, 1956s. Schedule III Rule 3
Limitation Act, 1963s. 5

Subjects

citizenshipnationalitypassportconclusive presumptionSection 9(2)deportationalienvoter listrule of evidence

Judgment

......
A --~
BHANWAROO KHAN AND ORS.
v.
UNION OF INDIA AND ORS.

APRIL 2, 2002
B
[DORAISWAMY RAW AND ASHOK BHAN, JJ.]
.
~ ~
Citizenship Act, 1955/Citizenship Rules, 1956-Section 9(2)/Rule 3 of
Schedule 111-National status ofpersons holding passport ofanother country-
c Determination of-Passport acquired voluntarily-1/legal stay in India for a -
~

long period-National status determined by Authorities to be alien-Held,
the determination factually correct and in accordance with /aw-Long stay in
the country and enrolment in the voter's list would not confer any right to
an alien to continue to stay in the country-Hence, person liable to be deported
D -(
Appellants, had migrated to Pakistan after partition of the country. They ..,
obtained passport from the Government of Pakistan after declaring
themselves to be citizen of Pakistan. They came to India in 1955 and got
themselves registered with the concerned authorities as per rules. On expiry
of the visa they reported to the concerned authorities about their departure
E to Pakistan, but instead of returning, they illegally stayed in India going
underground without getting the visa extended. In 1984, they applied for
registration as a citizen of India. After detailed enquiry notice was served on
them; ,.i_

They filed writ petition before High Court claiming to be Indian citizens.
F The writ petition was dismissed and the appeal against the same before
Division Bench of the High Court was also dismissed.

In appeal to this Court, this Court directed the Union of India to hear
the appellant's application. Accordingly Union of India heard and rejected
the same by its order u/s. 9(2) of Citizenship Act, 1955. It determined their -·
G national status to be Pakistani relying on Rule 3 of Schedule m of Citizenship

...
/
Rules, 1956, holding therein that they had voluntarily obtained Pakistani
passport.

Appellants filed writ petition in this Court against the order u/s 9(2) of
H 872
BHANWAROO KHAN v. U.O.l. 873

the Act. Respondents contended that appellants' voluntary migration to A
Pakistan and their voluntarily obtaining of the passport, raises conclusive
presumption that they were citizens of Pakistan, and a passport obtained by
a person from a foreign country is relevant in an enquiry as to citizenship of
the person holding the passport, and that after being detected they were liable
to be deported to Pakistan.
B
Dismissing the petition and appeal, the Court

HELD: 1. There is no infirmity in the order determining the national
status of the appeUants under Section 9(2) of the Citizenship Act. Before the
Court as well, the appellants failed to prove by any evidence whatsoever that C
they had not voluntarily migrated to Pakistan and had obtained the Pakistani
passports under compelling circumstances. Rather their conduct after coming
to India also shows that they had voluntarily migrated to Pakistan and
obtained the passports from the Government of Pakistan after declaring
themselves to be citizens of Pakistan. Had the intention of the appellants been
that they had not acquired the citizenship of Pakistan and the passport from D
that i:ountry voluntarily then they would not have declared their intentfon of
returning to Pakistan on the expiry of the visa period. Further, they would
not have gone underground. Efforts would have been made by them way back
in the year 1955, to acquire the citizenship of India afresh. The order passed
by the Union of India is factuall~ correct and in accordance with law. E
[878-H; 879-A-C-D)

2. A case fof interference with the order of deportation is not made.
Long stay in the country and enrolment in the voters' list would not confer
any right to an alien to continue to stay in the country. There is no infirmity
either with the conclusion arrived at by the High Court or even by the F
Government oflndia in its order passed under Section 9(2) of the Citizenship
Act, 1955. [879-E)

Izhar Ahmad khan and Ors. v. Union of India and Ors., AIR (1962) SC
1052, referred to.
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 737 of G
1995.
(Under Article 32 of the Constitution of India.)
WITH
C.A. No. !0224 of 1995. H
874 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Sushi! Kumar Jain and A.P. Dhamija for the petitioners/Appellants.

Rekha Pandey and Ms. Sandhya Goswami for the Respoqdents.

The Judgment of the Court was delivered by

B BH,~N, J. This judgment shall dispose of Civil Appeal No. 10224 of
1995 directed against the Division Bench Judgment of the Rajasthan High
Court arising from Civil Writ Petition No. 83 7 of 1987 decided on 17th May,
1994 and Writ Petition (C) No. 737 of 1995 filed in this Court challenging

.
the order made by the Government of India (Annexure D in the writ petition)
dated 21st July, 1995 determining the national status of the petitioners under
C Section 9 (2) of the Citizenship Act, 1955 (for Short "the Act").

The parties would be referred by their original status in the appeal as
Appellant Nos. 1 and 2 (who are the writ petitioners Nos. I and 2) and the·
respondent as the Government of India.

D The appellant No. 1, Bhanwaroo Khan and the appellant No, 2 - wife
of the appellant No. 1, are said to be residents of Village Hammoosar, Tehsil
Ratangarh, in the State of Rajasthan and at present residing at Sardar Sahar,
District Churu, Rajasthan. They had left India after partition of the country
and became citizens of Pakistan. After obtaining passports from the Pakistan
E as nationals/citizens of Pakistan and after obtaining visas from Indian High
Commission in the year 1955, the appellants entered India via Atari Check
Post, Border of Punjab on 12th February, 1955. According to the procedure
a foreigner coming from Pakistan is required to. attend the offic.e of the
Registration authority of the District in which they have to stay. The appellants
reported to the District Superintendent of Police, Churu on 14th February,
F 1955 about their arrival to India and an entry was made in the Register of
Foreigners visit on Serial No. 31. The appellants thereafter reported at the
Police Station, Ratangarh on the same day. Again on 7th May, 1955 the
appellants attended the Police Station, Ratangarh and informed that they
were leaving India for Pakistan by night train and accordingly an entry was
G made in the Register at Serial No. 6.

Instead of returning back to Pakistan the appellants kept themselves
underground. In 1984 a Pakistani national was arrested at Sardarsahar. Being
afraid of arrest and after consultation the appellants applied to the State
Government for registration as citizens of India. On this, Home Department
H sent a message No. F.1(4) Home/Gr.IV/84 dated 13.3.1984 (Annexure R-6)
BHANWAROO KHAN v. U.0.1. [BHAN, J.] 875

to the Superintendent of Police, Churu, State of Rajasthan, mentioning that A
Bhanwroo Khan was a national of Pakistan. At that time no case was pending
with the Superintendent of Police, Churu. Superintendent of Police, Churu by
his wireless message dated 15th March, 1984 gave his reply. On the receipt
of the reply, the Home Department demanded a detailed note in the matter.
On receipt of instructions S.H.O. Police Station Ratangarh and Sardarsahar B
conducted a detailed enquiry, report of which was sent to the Home Department
through Superintendent of Police, Churu. On receipt of the enquiry re~ort the
Home Department wrote to the Superintendent of Police, Churu to keep a
close watch on the appellants till decision is taken by the Government.
Superintendent of Police, Churu on 29th January, 1987 issued notices and
sent to S.H.O. Police Station Sardarsahar for service. The service of these C
notices were effected on 22nd February, 1987. Immediately after the service
of notices by the Superintendent of Police, Churu the appellants filed the
Writ Petition No. 837 of 1987 dated 10th July, 1987 in the High Court of
Rajasthan alleging therein that they had acquired the citizenship of India and
they were being unnecessarily harassed by the Police. The two prayers made D
by the appellants in the writ petition were as follows:

"(a) by an appropriate, writ, direction or order the respondents may be
prohibited from arresting and deporting the petitioners to Pakistan
forcibly.
(b) the petitioners ·may be ordered to be treated as Indian citizens, or E
such relief which may be just and proper under the circumstances
may be granted."
The writ petition was taken up for hearing by a Single Judge and
dismissed. Aggrieved by the order of the Single Judge Civil Special Appeal
No. 164 of 1992 was filed in the High Court along with an application under F
Section 5 of the Limitation Act to condone the delay of 98 days in filing the
appeal.

The Division Bench condoned the delay of 98 days in filing the appeal.
The appeal was dismissed by the impugned judgment dated 17th May, 1994.
Civil Appeal is directed against this judgment. G
On 16th September, 1994 on a representation made by the counsel for
the appellants, this Court directed that the appellants would individually or
collectively make an application before the authorities under the Citizenship
Act and the concerned authorities would decide the si)IIle as soon as possible
and the Court be communicated the result thereon. On 25th September, 1995 H ·
876 SUPREME COURT REPORTS [2002) 2 S.C.R.

A the Government of India placed on record the order dated 21st July, 1995 .(

passed under Section 9 (2) of the Citizenship Act rejecting their claim to be >--
Indian citizens. Thereafter, the appellants filed the Writ Petition No. 737 of
1995 challenging the order passed by .the authorities under Section 9 (2) of
the Citizenship Act.
B Counsel for the appellants addressed arguments in the civil appeal as
well as the writ petition simultaneously. According to him the facts were
over-lapping and the point decided in the civil appeal would have a bearing
on the result of the writ petition as well.
)
Counsel for the appellants contended that the appellants were born in
c India to Indian parents. Their brothers. and sisters are living in India. All
their children were born in India and are li_ving in India. That the appellants
being more than 70 years of age required support in their old age from their
children and they should not be deported from the country. Simply obtaining
of passports from a foreign country is not sufficient to prove that the appellants
had abandoned their natural citizenship of India. That the authorities erred in
D
rejecting their applications under Section 9 (2) of the Citizenship Act. -....(

Counsel appearing for the State of Rajasthan and the Union of India t
have refuted these submission and argued that the act of the appellants in
migrating to Pakistan after partition of the country and obtaining passports
from the. Government of Pakistan declaring themselves to be citizens of
E I
Pakistan raises a presumption against the appellants that they are citizens of \.
India. That the appellants obtained visas from Government of India after
declaring them.selves to be a citizens of Pakistan. Instead of returning back
to Pakistan after the expiry of the visa period or getting the visa extended the
appellants remained underground. On being detected they are liable to be
F deported to Pakistan. That a passport obtained by a person from a foreign
country is relevant in an enquiry as to the citizenship of the person holding
the passport. That a conclusive presumption could be raised that the appellants
were the citizen of Pakistan.
Counsel for the parties have been heard. Sub-section (2) of Section 9
G o~ the Citizenship Act provides that 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. Rule 3 of Schedule
III of the Citizenship Rules, 1956 (for short 'the Rules') provides:

H "3. The fact that a citizen of India has obtained on any date a passport
BHANWAROO KHAN v. U.0.1. [BHAN, J.] 877
from the Government of any other country shall be conclusive proof A
of his having voluntarily acquired the citizenship of that country
before that date."

Relying upon this Rule the Union of India in its order passed under Section
9 (2) of the Citizenship Act dated 21st July, 1995 determined the national
status of the appellants to be that of Pakistani. B
A constitution Bench of this Court in /zhar Ahmad Khan and Orsc v.
Union of India and Ors., AIR (1962) SC 1052, considered the validity of
Rule 3 of Schedule III of the Citizenship Rules and the order passed under
Section 9 (2) of the Citizenship Act where the person concerned had obtained
a Pakistani passport and observed in para 34 as under: C.
"In dealing with this question, it may also be relevant to consider the
practical aspect of the rule; and that takes us to the procedure which
has to be followed in Pakistan in obtaining a passport from the
Government of that country for travel to India. One of the objects
which the Act was incidentally intended to achieve was to meet the D
emergency which arose as a result of the partition of the country into
India and Pakistan, and the relevant rules are also primarily applicable
to Indian nationals who on going to Pakistan obtained passport from
the Government of that country. Now; it is not disputed that according
to the laws prevailing in Pakistan, a person is not entitled to apply for E
or obtain a passport unless he is a citizen of Pakistan under its
Citizenship Act. Besides, the prescribed form of the applicati<,m
requires that the applicant should make a declaration to the effect that
he is a citizen of Pakistan and the said declaration has to be accepted
by the Pakistan authorities before a passport is issued. In the course
of the enquiry as to the citizenship of the applicant, declaration by F
officials of Pakistan about the truth of the statement of the applicant
are also required to be filed. Thus, the procedure prescribed by the
relevant Pakistan laws makes it abundantly clear that the application
for the passport has to be made by a citizen of Pakistan, it has to
contain a declaration to that effect and the truth of the declaration has
to be established to the satisfaction of the Pakistan officials before a G
passport is granted. When a passport is obtained under these
circumstances, so far as the Pakistan Government is concerned, there
can be no doubt that it would be entitled to claim the applicant as its
own citizen. The citizen would be estopped from claiming against the
Pakistan Government that the statement made by him about his status H
878 SUPREME COURT REPORTS [2002} 2 S.C.R.

A was untrue. In such a case, if the impugned rule prescribes that the
obtaining of a passport from the Pakistan Government by an Indian
national, (which normally would be the result of the prescribed
application voluntarily made by him) conclusively proves the voluntary
acquisition of Pakistani citizenship, it would be difficult to hold that
the rule is not a rule of evidence. In our opinion, it would be pedantic
B and wholly unrealistic to contend that the rule in question does not
purport to assess the probative value of fact A in the matter of proving
fact B but imports considerations which are relevant to s11bs_tantive
Jaw. Our conclusion, therefore, is that the impugned rule is a rule of
evidence and falls within the scope prescribed by S. 9 (2). The
c challenge to its validity on the ground that it is a rule of substantive
law must therefore, fail."

The Supreme Court held that the conclusive presumption could be raised of
the fact that a citizen of India who has obtained on any date a passport from
the Government of another country of having voluntarily acquired the
D citizenship of that country before that date.

In the present case, the Government of India in its order dated 21st r
July, 1995 passed under Section 9 (2) of the Citizenship Act (which has been
impugned in the writ petition) held:

E ". . . There is no dispute in this case that the applicants went to
Pakistan and acquired the Pakistani passport voluntarily. They stayed
there for three years which is not a short period. They obtained
Pakistani passport after applying for it and after declaring themselves
as Pakistani nationals. Further, the applicants have failed to adduce
any documentary evidence to show that the Pakistani passport was
F obtained in fraud or under compelling circumstances, there may not
be any hesitation whatsoever in declaring them Pakistani nationals.

NOW, THEREFORE the Central Government in exercise of the
powers conferred on it under Section 9 (2) of the Citizenship Act,
G 1955 and Rules made thereunder and consideration of all the facts
and circumstances of the case and relevant material on records, has
come to a conclusion that the acquisition of a Pakistani passport and
visa for visit to India by the applicants were voluntary acts and there
was no compulsion on them. The applicants acquired the Pakistan
citizenship voluntarily and therefore their claim to be Indian citizens
H
BHANWAROO KHAN v. U.0.l. [BHAN, J.] 879
deserves to be rejected and is hereby rejected." A
We do not find any infirmity in the order dated 21st July, 1995
determining the national status of the appellants under Section 9 (2) of the
Citizenship Act. Before us as well, the appellants failed to prove by any
evidence whatsoever that they had not voluntarily migrated to Pakistan and
had obtained the Pakistani passports under compelling circumstances, Rather B
their conduct after coming to India also shows that they had 'voluntarily
migrated to Pakistan and obtained the passports from the Government of
Pakistan after declaring themselves to be citizens of Pakistan. Soon after
coming to India."'5'per rules they got themselves registered with the concerned
registration-authority.'On 7th May, 1955 on the expiry of the visa period they C
again went to the Police Station, Ratangarh and declared that they would be
going back to Pakistan by the evening train. Instead of returning back to
Pakistan they illegally stayed in India. Had the intention of the appellants
been that they had not acquired the citizenship of Pakistan and the passport
from that country voluntarily as has been projected before us then they would
not have declared their intention of returning to Pakistan on the expiry of the D
visa period on 7th May, 1955. Further, they would not have gone underground.
Efforts would have been made by them way back in the year 1955, to acquire
the citizenship of India afresh. The order passed by the Union of India is
factually correct and in accordance with law.

We agree with the High Court that a case for interference with the E
order of deportation is not made out.. Long stay in the country and enrolment
in the voters' list would not confer any right to an alien to continue to stay
in the country. We do not find any infirmity either with the reasoning adopted
or the conclusion arrived at by the High Court, or even by the Government
of India in its order dated 21st July, 1995 passed under Section 9 (2) of the F
Citizenship Act, 1955.

After the conclusion of the cases, counsel for the appellants contended
that the application of the appellants under Section 5 of the Citizenship Act
is pending with the concerned authorities and the observations made in this
case might prejudico the claim made by the appellants under Section 5 of the G
Citizenship Act. We have decided the civil appeal against the order passed
by the High Court of Rajasthan arising from the civil writ petition filed by
the appellants in the said Court and the claim made thereunder. Similarly, we
have decided the writ petition filed in this Court directed against the order
passed by the Government of India under Section 9 (2) of the Citizenship H
..
~·

880 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Act. No opinion on the merits or demerits of the application filed by the
appellants under Section 5 of the Citizenship Act has been expressed. It
would be open to the authorities to proceed and decide the application, if
any, filed by'the appellants under Section 5 of the Citizenship Act and decide
the same (if not already decided) in accordance with Jaw.

B For the reasons stated above, we do not find any merit either in the
appeal or in the writ petition and dismiss the ·same. The authorities are
hereinafter put at liberty to act in accordance with law.

K.K.T. Petition and Appeal dismissed.