# GANGADHAR YESHWANT BHANDARE v. ERASMO DE JESUS SEQUIRIA - **Citation:** [1975] 3 S.C.R. 425 - **Court:** Supreme Court of India - **Decided:** 1975-02-04 - **Bench:** H. R. Khanna, P. N. Ehagwati, R. s. SARiCARIA - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gangadhar-yeshwant-bhandare-v-erasmo-de-jesus-sequiria-6409 - **Pages:** 14 ## Headnote 425 Goa, Vaman and. Diu Citizenship Order, 1%2';..c/, )A..:.....Pi;sspol't Issued by a foreign coulltry. to be surrendered liefo,re a·cert11in.date.,-Gqvermnent specifically· asked a citizen not to surrender foreign pas8port....;..Seryic~s of cltl:de1.1. used In .a top secret mission:--Wllether retmtton of .foreig11 passPort deprlvt4· lu'm of Indian Citizenship · · Clause (2) of the Go~, Daman and.Diu.(Citizcnsliip) ·o~der, 1962 ~tall~ tlmt every person who or either of whose pa~ents · WLtS borR befurc the 20th o11ug11ese 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 SUPREME COURT REPORTS [1975] 3 s.c.R. :at the instance of the Spe:ial 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 Portugu.ese pai;s ## Text _Characters 0–39,726 of 43,902. This is a partial read: ask again with offset=39726 for what follows._ A B c D E F G H GANGADHAR YESHWANT BHANDARE v. ERASMO DE JESUS SEQUIRIA February 4, 1975 [H. R. KHANNA;, P. N. EHAGWATI AND R. s. SARiCARIA, JJ.] 425 Goa, Vaman and. Diu Citizenship Order, 1%2';..c/, )A..:.....Pi;sspol't Issued by a foreign coulltry. to be surrendered liefo,re a·cert11in.date.,-Gqvermnent specifically· asked a citizen not to surrender foreign pas8port....;..Seryic~s of cltl:de1.1. used In .a top secret mission:--Wllether retmtton of .foreig11 passPort deprlvt4· lu'm of Indian Citizenship · · Clause (2) of the Go~, Daman and.Diu.(Citizcnsliip) ·o~der, 1962 ~tall~ tlmt every person who or either of whose pa~ents · WLtS borR befurc the 20th o11ug11ese 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 SUPREME COURT REPORTS [1975] 3 s.c.R. :at the instance of the Spe:ial 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 Portugu.ese pai;sport under the instructions of the Special Adviser. The respondent renewed the Portuguese passport in London under instructions of the Special Adviser. On respondent's 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 relinquisl! it. The Special Adviser was competent to ask the re;!pondent to retain his Portugues'e passport and to proceed on top secret a.ss.1gnment. [43 IE-H] ( 2) The words "as agreed" appearing on the letter dated April 27, 1962 addressed by the respondent to the Spedal Adviser go to show that· it was in pursuance of some arrnngement 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 4hc very nature of things, could be expected either in the letter or in the note. lt was obviously essential for the success of the secret mis~ion 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 1md<~rtaking a trip for reasons conne:ted with tile affairs ·of the State. [ 434A] A B c ( 4) The evidence on re:ord 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. Th·~ D intention. of the respondent at the time he signed the declaration was not to become a Portuguese national but to acquire Indian nationality. [4340] (5) The declaration dated April 27, 1%2 and the retention of the pa;.spo:·t 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 E been entrusted to him in connection with the affairs of the State. It cannot. therefore, be said that the ,:hoice to retain Portuguese nationality as expressed in his declaration date.ct April 27, 1962 and January 19, 1963 represented his real choice exercised by him voluntarily. [4350; 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 r,f Home Affairs tha.t he had become prima fade a citizen of India as a certificate issued by the O:ntral Government under S; 13 of the Citizenship Act. It is also pl.ain II' that the Central Government reaffirmed its decision that the respondent had pri'ma facie become a citizrtugal. According further to the respondent, . he applied for a residential pennit 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 jeopardise his Indian citizenship. When clause 3A in Schedule lU to the Citii.enship Rules was added, the respondent addressed a letter to the Special Offiecr. Ministry. of External Affairs: to the efJ!cct that hl:l was retaining for the time being the Portuguese passport and that his object wa.q to obtain Indian passport in due course. The respondent thereafter surrendered his Portuguese passport on January 15, 1964. The rcHpondcnt, it is further stated, obtained a passport as a citizen of Tndh1 from the Government of India through the Chief Se<:retary, 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 Govert'lment 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 .. vircs the Citii.enship Act. According to the respondent, he was a citizen of India at the relevant time and his election was not liable to he declared void on the ground set up by the appellant. It ma;y be stated that the appellant impleaded he side;; the respondent, tho 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 concerned, ili6 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. Before that a written statement was filed on behalf of the Union of India. Aceording to the Union of India, the respondent signed decltu-ation dated April 27, 1962 not voluntarily but on the advice and at the instance of the Speciai Adviser GQa. As regards the residential permits which were granted 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 affairs of the State. The Union of India has denied that the re5pondent acquired the Portuguese ciprenship or that he c6a5Cd fo be an Indian citiz.en. According further to the Union of India, the respondent is an Indian cit.ii.en. Indian passports arc stated to ha.ve bceb issued in favour .of the respondent because of his being· an ladian citizen. f .1-4!3SCl'75 430 SUPREME COURT REPOiTS [1975] 3 s.c.R. er: . Following issues were framed by the learned Judicial CommissionI. "Ha.s this Court jurisdiction to entertain the election petition? 2. Is the petitioner a citizen oil India? 3. Did the petitioner comply with the prov1s1ons of sfr.:-- tion 8 I ( 3) of the Representation of the People Act, 1951 and if not, is the petition fit to be dismissed under se:ction 86(1) of that Act? 4. Whether the first proviso to para 2 of the Goa, Daun:i.n and Diu (Citizenship) Order, 1962 is ultra vires and in excess of the powers conferred by section 7 of the Citizenship Act, l 955? 5. Was the first respJndent disqualified to be chosen as a member of the Lok Sabha in March l 971 for the reasons stated by the petitioner in the election p~tition ? 6. To what relief ?'' Issues l, 2 and 4 · which were treated as preliminary issues were decide:d in favour of the appellant and against the respondent as per order dated October 5, 1971. Issue No. 3 was also dec:idecl in favour of the appellant. On issue No. S the learned Judicial Commisskmer 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 Portugue:se passport by the respondent, it was held, did not imply the loss of. Indian citiz.enship. The rct1~nti·Jn of the Portuguese passport by the respondent after January 19, 1963 was found to be due to compcITinl:J reasons. In the opinion of the Judicial Ccmmissioner, the Govc:rnmcnt of India must b1~ deemed to have ~ven its decision that respondent was an Indian c.itizen. The respondent was accordingly held not disqualified to be chosen as a member of the Lok Sabha. fn th1~ result the. election petition was dismissed. In appca.I before us Mr. Bhandarc on behalf of the appellant has challenged the finding ~ the Judicial Commissioner that the respondent did not sign. declaration dated April 27, 1962 voluntarilv and that it was in connection with a secret mission entrusted to him on behalf of the Government of India that he was made to sign tha.t declaration. It is urged that the respondent was not an Indian citizen at the relevant time a~d as such wa!> 00t qualified to be chosen to fill a seat irt the Parliament. We have civen our careful consideration to the s1,1brnission of Mr. Bhandare arid though we agree with him that as provided in article 84 of the Constitution, a person shall not be qualified: to be 1ch~nl JJ fill a seat in Parliament unless he is a oitizen of hdia, we find it difficult to accept his other conteniions A c D E F H A 8 c 0 E F G H G. Y. BHANDARE v. ERASMO DE JESUS (Khanna, J.) 4 31 Ex. P3 is declaration dated April 27, 1962 which, according to the appellant, was made by the respondent voluntarily. The declaration read as under : The Sr. Superintendent of Police, Goa Panjim Sir, Panjim dated 27th April 1962 l ERASMO JESUS DE SEQUEIRA aged 23 years resi· dent at CAMPAL, PANJIM declare that 1 have carefully read the order passed. by the Military Governor on the 5th o~ April, 1962 regarding the declaration of Nationality. l have also carefully perused the Notification of the Govt. of fndia 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 imme· diately before the 20th of December, 1961. I, 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 appoin.ted in Deceinber 1961 as a Special Adviser to the Military Governor of Goa and who was thereafter appointrraisement of. t}\e. evidence of the witn~sses by the High Court unless stich appraisement is afflicted with some glaring infirmity. · After havin~ been taken through the: evidenee of Handoo and the r-espondent, we find -no reason whatsoever . to take a .view different from that takCn'by 1he Judicial Commissioner regard· ing 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. The respondent repudiated this suggestion and we find that apart from this bare suggestion in cro!\8cxamination 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 a)rnmission in Au!!llst 1972. Hilndoo ·being no longer in Government service at the time of the reOOrding of his evidence, it is ~t -clear as to how he could be influenced bv the pahv ih power "t the Centre· to give evidence in favour of the respondent. The evidence of the respondent and Handdo is also bOrne out by the letter which was addressed by the resTIOndent tf) Handoo on April 27, 1962 and the note made on that letter by Handoo. The word~ "as amed" .in the above letter (!'o to show that it Wlls in pursuance of some arrangement between Handoo and the respondent that the latter was retaining his Portuguese passport and Visiting Portucr.Ll. The note which was made by Handlx> expresslv refers to the tac that the. respondent after retuminl! from bis foreign trio was to take over an Indian passport aml renoun~ Portuguese nationality- No express referen.i:e to lhe secret mission in the very nature of thin~ could be expected either in the letter or in the note It was .pbviously essential. for the sm;cess of the secret mission, Jhat things should not' be divulged bv making them explicit. The evidence of. the respondent and Handoo also shows. that the expense& for the foreign trip of the respondent were. borne partly- by 434 SUPREME COURT REPORTS (1975] 3 s.c.R. the Government and partly by the respondent. No question of sharing of those expenses by the Governrn.ent would arise if the respondent was not undertakin_g that trip for reasons connected w:ith the a!Pilirs of the State as alleged by the respondent. While dealing \X/ith 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 bas been) filed on behalf of the Union of India. According to the stand taken by the Union ofl India, declaration dated April 27, 1962 was nut signed by the respondent voluntarillf but on the advice and at the instance of the Special Adviser Goa. The Union of India has tμrther stated that the residential perm,its were granted to the respondent with a. view to prevent any complication as the respondent l)eld 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 re6o.rd proves that the respondent was entrusted with a secret mission dn, behalf of,' the Government qf India 1md it was ln that connection; that he was made to sign dealaration dated April 27, 1962. We ~lso agree that the intention of: the respondent at .. the titne. he sign~ the declaration was not to beccme a Portuguese 11;1tional 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 Portugu\se passport i!IJ 1962 and obtained on the expiry of his passport a fresh passport from Portuguese Consulate in London in June 1962. The evidence further establishes ihat it was for the same reason that the respondent did Mt 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 0£ the respondent in Goa as a foreigner on residential !Jermits till January 1964. It has next been argued by ~Ir. Bhandare that whatever might be the reason which mighlt have weighed with the respondent in malting declaration P3 dated April 27, 1962 regarding his Portuguese nationality and the retention of the Portuguese passport till after January 19, I. 963 the law must tak1e 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 Citirenship 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 aCOC'!l:le to the above submission. The respondent was ad111tttedly 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 CitiZlmship Older be deemed to have become a citizen of India on the 20th day of December 1961. Question then :!rises as to what is the effect of declaration P:I made by the respondent on April 27, 1962 and the retention of the .fl0rtugu4~ passport by him after January 19, 1963. A 8 c D E G H A c D E F 0 II G. Y. BHANDARE v. ERASMO DE JE~US (Khanna, I.> 435 W,~ have found above that even though the respondent wanted to becdme an Indian citizen, he signed declaration P3 and retained the Portuguese pas~port till January 1964 because of the secret mission which had been entrusted to him in connection with the affairs of th~-State. It cannot, therefore, be said that the choice to retain Portuguv.-se nationality a~' expressed in declaration P3 as well as the choice to retain the Portuguese passport aJlter January 19, 1963 represented the real choice of ~he respondent exercised by him voluntarily and of his free volition. n the contrary it was because of the necessity and the compulsive ro'a,on 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 0£ 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 hirh in connection with the affairs oE 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 passport by the respondent af,ter January 1963 cannot have the effect of depriving the respondent of the benefit of Indian citizenship. It would indeed look anomalous if a declaration signed in the above circumstances were to result in the evil consequence of tbe respondent being denied the right to become an Indian citizen. We may observe that once a declarati'on 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 ~im 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 pi:esent case the person concerned discharges th;;it onus and it is estabhshed by clear and cogent evidence that the real choice and intention of the person concerned was to become an Indian national and that--he __ si~ed the declaration and retained the passport because of the comoul~1on of a secret assignment entmsted 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.(') This Court in -that case was dealing with pa,ragraph 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 Para.graph 3 the authori__ :Y must ragard obtaining of a foreign passport on a parti- (l) (196S) 2 S.C.R. 884. SUPREME COURT REPORTS [1975] 3 S.C.H. 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 fureign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he bad not voluntarily o!lr tained the passport, the citizen must be afforded an opportunity to prove that fact. c.ascs may be visualized in which on account of force a person may be compelled or on ai:- courit of fraud or inisreprcsentatfon he may be induced, without ,any intention of renuciati\O)Jl of liis Indian citizenship, to obtain a passpol/1 from a fureign oountry. It would be difficult tQ .say that s'tlch a passport is one which bas be(:n 'obtained' within the meaning of Paragraph 3 of Sch. IU and that a conclusive presumption· must arise that he h<1s acquired. voluntarily citizenship of that country:" The learned Judkial C.Onunissioner 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 hee1,t assailed by Mr. Bhandare. In this connection we find that according to section 13 of the Citizensb,ip Act, the Central Government may, in S\!Ch cases as it thinks fit, cerdfY that a persOIJ, ~h mpect t9 whose,..citizenship of India a oovbt exists, is a citizep 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 cilizen at am earlier date. The respondent, as mentioned earlier, surrendered his Portuguese passport on January 15, 1964. While surrendering bis passport, the respondent wrote letter dated January t5; 1964 to the Special Officer, Ministrv of External Affairs daiming Indian citizenship. The Ministry 9f Extelhal Affairs then referred the matter to the Senior Superintendent of Police Panjim. The statem!!nt of 1he respondent Wai then recorded by the police and the Senior Superintende11't of Police thereafter made a report. A ieport was then sent to the Mittistry of External Affairs by the Chief Secre- ~. Government of Ooa, l)aman and Diu. A letter was therc- ~r sent on behalf of the Ministry of EJ1ternal Affairs on Th:cembe11 2, 1964 to the said Chief Secretary stating that in view oB . the inflied .bv the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. 011 December lS, 1964 a communication was sent fo the resoondent .as, the Under Secretary. Home Deoartment of the Go'rcrnment of Goa, Daman and Diu that prima facie die resnondent had become a citizen of India bv virtue of the Citizenshin Order. M:ore than f!Our and a half -years thereafter on Julv 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretarv Go'•emment of Goa, Daman and Diu that the respondent had mad~ decl!aration P3 dated April 27. 1962 choosing to retain Portmruese citi:r.enrJUp and that this fact had not been broul!:ht to the notice of the Government before letti~r dated December 15, 1964 was issued to the A B c D t F G H H D E F G G. Y. BHANDARE \!. ERASMO DE JESUS (Khanna, J.) 4 3 7 respondent that he had prima facie become a· citizen of In