# STATE OF UTIAR PRADESH & ORS v. SHAH MOHAMMAD & ANR

- **Citation:** [1969] 3 S.C.R. 1006
- **Court:** Supreme Court of India
- **Decided:** 1969-03-13
- **Bench:** J. C. Shah, A. N. Grovbr
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-utiar-pradesh-ors-v-shah-mohammad-anr-4832
- **Pages:** 8

## Headnote

Indian Citizenship Act 57 of )955, s. 9 and Citizenship Rules, 1956,
r. 30--ApplioabUity of provisions to suit pending when Act cc;·me into
fotce.
Respondent No. I was born in undivided India on July 3, 1934.
He
went to Pakistan in October 1950.
In 1953 he obtained a visa from the
Indian High Commission in Pakistan and came to India on July 22, 1953.
After the expiry of his pe'riod of stay he sought permanent settlement in
India. On May 6. J 955 he filed a suit claiming that he was a minor when
he went on a trip to Pakistan and had not ceased to be an Indian citizen.
He sought a permanent injunction restraining the Union of India and
other authorities from deporting him.
The Munsif who tried the suit
held that respondent No. I had ceased to _he an Indian citizen, and dismissed the suit.
The
Distric~ Judge in first appeal held that being a
minor whose fathe'.r was in Jndia respondent no. 1 could not by leaving
for Pakistan. lose ·his Indian nationality. In second appeal the High Court
of Allahabad remanded the case to the. first appellate court to determine
the question whether by having spent one year in Pakistan after attainin&
majority respondent no. I had acquired the citizenship of Pakistan. The
High Court rejected the contention on behalf of the State that in view
of s. 9(2) of the Indian Citizenship Act 1955 which came into force on
December 30, 1955 and Rule 30 of the Citizenship Rules made under the
Act. the question whether respondent no. 1 was a citizen of India or not
could only be decided by the Central Government.
In taking this view
the High Court relied on the decision in Abida Khatoon's dase in which
a single Judge of that court had held that s. 9 of the Citizenship Act 1955
was not retrospective and· could not take away the vested right of a citizen
who had already filed a suit to have his claim for citizenship decided by
a court. The first appellate court gave afte'r remand n finding favourable
to respondent no. 1 and on receipt of this finding the High Court dismissed the State's appeal.
The State then appealed to this Court. The
questions that tell for consideration were: (i) whether s. 9 of the Act
would apply to a suit pending on the date when the Act came into force:
(ii) whether in view of the fact that the procedure established bv law before the dommencement of the Act allowed the question as to the acquisition of the citizenshio of anothe'r cOuntry to be determined by courts,
there was hv giving retrospective operation to s. 9, a violation of the
guarantee of personal liberty under Art. 21.
HELD: (i) The language of sub-s. (!) of s. 9 is clear and unequivoczi.I and leaves no room for doubt that it would cover all cases where an
Indian citizen has acquired foreign nationality between. Jan~ary 26. 19~0
and its commencement or where he acquires such nationahtv
after tts
commencement. The \Vords "or ha·s at anv time b~tween t~e 26th Ja.n~ary
1950 and the commencement of the Aqt. voluntarily acqu1.red the citizenship of a.Dotber country" would become almost red~ndant if <?nly prespective operation is given to s. 9 (I ) of the Act.
Th18
accol'dmg to the
settled rules of interpretation cannot be done, [1010 F-Gl
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E
F
G
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A
B
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D
E
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G
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U.P. STATE v. SHAH MOHAMMAD
1007
(ii l. The Act has been enacted under the powers of the Parliament
preserved by Art. 11 in express terms and a law made by Parliament cannot, as held in Jzhar Ahmed's case be impeached on the ground that it is
inconsistent with the provisions contained in other Articles in Part II of
the Constitution.
The Parliament had also legislative competenoe under
Entry 17. List I of Seventh Schedule. It could thus make a provision about
the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been
done by r. 30. [1011 B-DJ
The cases that would ordinarily arise about loss of Indian citizemhip
by acquisition of forei'!ll citizenship would be of three kinds : (I) Indian

## Text

STATE OF UTIAR PRADESH & ORS.
v.
SHAH MOHAMMAD & ANR.
March 13, 1969
[J. C. SHAH AND A. N. GROVBR, JJ.J
Indian Citizenship Act 57 of )955, s. 9 and Citizenship Rules, 1956,
r. 30--ApplioabUity of provisions to suit pending when Act cc;·me into
fotce.
Respondent No. I was born in undivided India on July 3, 1934.
He
went to Pakistan in October 1950.
In 1953 he obtained a visa from the
Indian High Commission in Pakistan and came to India on July 22, 1953.
After the expiry of his pe'riod of stay he sought permanent settlement in
India. On May 6. J 955 he filed a suit claiming that he was a minor when
he went on a trip to Pakistan and had not ceased to be an Indian citizen.
He sought a permanent injunction restraining the Union of India and
other authorities from deporting him.
The Munsif who tried the suit
held that respondent No. I had ceased to _he an Indian citizen, and dismissed the suit.
The
Distric~ Judge in first appeal held that being a
minor whose fathe'.r was in Jndia respondent no. 1 could not by leaving
for Pakistan. lose ·his Indian nationality. In second appeal the High Court
of Allahabad remanded the case to the. first appellate court to determine
the question whether by having spent one year in Pakistan after attainin&
majority respondent no. I had acquired the citizenship of Pakistan. The
High Court rejected the contention on behalf of the State that in view
of s. 9(2) of the Indian Citizenship Act 1955 which came into force on
December 30, 1955 and Rule 30 of the Citizenship Rules made under the
Act. the question whether respondent no. 1 was a citizen of India or not
could only be decided by the Central Government.
In taking this view
the High Court relied on the decision in Abida Khatoon's dase in which
a single Judge of that court had held that s. 9 of the Citizenship Act 1955
was not retrospective and· could not take away the vested right of a citizen
who had already filed a suit to have his claim for citizenship decided by
a court. The first appellate court gave afte'r remand n finding favourable
to respondent no. 1 and on receipt of this finding the High Court dismissed the State's appeal.
The State then appealed to this Court. The
questions that tell for consideration were: (i) whether s. 9 of the Act
would apply to a suit pending on the date when the Act came into force:
(ii) whether in view of the fact that the procedure established bv law before the dommencement of the Act allowed the question as to the acquisition of the citizenshio of anothe'r cOuntry to be determined by courts,
there was hv giving retrospective operation to s. 9, a violation of the
guarantee of personal liberty under Art. 21.
HELD: (i) The language of sub-s. (!) of s. 9 is clear and unequivoczi.I and leaves no room for doubt that it would cover all cases where an
Indian citizen has acquired foreign nationality between. Jan~ary 26. 19~0
and its commencement or where he acquires such nationahtv
after tts
commencement. The \Vords "or ha·s at anv time b~tween t~e 26th Ja.n~ary
1950 and the commencement of the Aqt. voluntarily acqu1.red the citizenship of a.Dotber country" would become almost red~ndant if <?nly prespective operation is given to s. 9 (I ) of the Act.
Th18
accol'dmg to the
settled rules of interpretation cannot be done, [1010 F-Gl
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
U.P. STATE v. SHAH MOHAMMAD
1007
(ii l. The Act has been enacted under the powers of the Parliament
preserved by Art. 11 in express terms and a law made by Parliament cannot, as held in Jzhar Ahmed's case be impeached on the ground that it is
inconsistent with the provisions contained in other Articles in Part II of
the Constitution.
The Parliament had also legislative competenoe under
Entry 17. List I of Seventh Schedule. It could thus make a provision about
the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been
done by r. 30. [1011 B-DJ
The cases that would ordinarily arise about loss of Indian citizemhip
by acquisition of forei'!ll citizenship would be of three kinds : (I) Indian
citizem who voluntarily acquired citizenshio of a foreign State prior to
the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the ditizemhip of another State or ~ountry between January
26, 1950 and December 30, 1955 i.e. the date of commencement of the
Act, and (3) Indian Citizens who voluntai'ily acauired forei!!II citizeiuhip
after the date of commencement of the Act i.e. December 30, 1955. Id
regards the first categorv they were dealt with by Art. 9 of the Constitution. The second and third categories would be covered by the provisions
of s. 9 of the Act. Therefore, if' a question arises as to whether when and
how an Indian citizen has acquired citizenship of another country that has
to be determined bv the Central Government by virtue of the provisions
of sub-s. (2) of s. 9 read with r. 30 of the Citizenshio Rules. In view of
the amplitude of the language employed in s. 9 which takes in persons
mentioned in category (2) mentioned above,
the entire argument which
prevailed with the Allahabad Hi•h Court in Abida Khatoon's case can
have no substance. [1011 D-H. 1012 CJ
Jzhar Ahmad Khan v. Union of India, [1962) Su!Jp. 3 S.C.R. 235. 244
245,, Akbm- Khv~ Alam Khan & Anr. v. Union of India, [1962) I S.C.R
779 and The Government of Andhra Pradesh v. Syed Mohd. Khan, [1962)
Supp. 3 S.C.R. 788, referred to.
Abida Khatoon & Anr. v. State of U.l'. & Ors. A.I.R. !963 All 260,
disapproved.
(iii) The contention that retrospective operation of s. 9 would contravene Art. 21 of the Constitution could not be accepted. If the Parliament was competent under Art .. t 1 which is a constitutional orovision
read with the relevant entry in List I to legislate about cases of persons
belon~niz to categories 2 and 3 re'ferred to earlier it could certainly enact
a legislation in exercise of its sovcreii;m power which laid down a procedure different from the one which obtained before. The new o'rocedure
would itself become thl'!: "procedure establi'\hed by law'' within the mean~
ing of Art. 21 of the· Constitution. [1012 E-GJ
The Hieb Court was therefore wronJ?; in the ore'\ent case in ca1ting for
a decision of the lower appellate court on the issue of the plaintiff having
acquired or· not the citizenshin of Pakistan between July 3. 1952 and the
date of his return to India. [Hieb Court accordinglv directed to have
Question deterrninetl hy CP.ntral Government
and thereafter
dispose of
appeal finally).
[1013 B-C]
CrviL APPELLATE JURISDICTION:
Civil Appeal No. 347 of
1966.
Apoeal bv soeciol· leave from the iud!'Tllent and order datecl
December 11. 1963 of the Allahabad High C'ourt in Second
Appeal No. 3809 of 1958.
-
1008
SUPRl!ME COURT RllPORTS
(1969] 3 S.C.R.
C. B. Agarwala, 0. P. Rana and Ravindra Rana, for the
appellants.
Denial Latifi and M. l. Khowaja, for respondent No. 1.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Allahabad High Court in which the principal question for determination is whether s. 9 of the Indian Citizenship
Act, 1955, hereinafter called the "Act", which came into force
on December 30, 1955, would be applicable to a suit which was
pending on that date.
-
. Respondent No. 1 was born on July 3, 1934.
He went to
Pakistan in October 1950.
In March 1953 he obtained a visa
from the Indian High Commission in Pakistan for coming to
India. He came to India on July 22. 1953. On July 20, 1954
the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India.
He, however. filed a
writ petition in the High Court on July 15, 1954 but the same
was dismissed on Februarv 10, 1955 and respondent No. 1 was
directed to file a suit.
He instituted a suit on May 6, 1955.
He claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by
two muslim youths to accompany them on a trip to Pakistan.
He went there without any intention to settle there permanently.
Later on he made efforts to return but due to certain restrictions
he was unsuccessful.
He had no alternative but to obtain a
passoort from the Pakistan authorities in order to come to India.
He had thus never changed his nationality and continued to remain a citizen of India.
He sought a nermanent injunction restraining the Union of India, the State of U.P., District Magistrate,
Kanpur and the Suoerintendent of Police. Kanpur. who were
impleaded as defendants from deporting him.
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The suit was contested and on the oleadings of the parties
the appropriate issues were framed.
The learned Mumif held
that respondent No. 1 had gone to Pakistan for settling there
permanently and had ceased to be an Indian citizen.
The suit
was dismissed.
Resoondent No. l appealed to the First AddiG
tional Civil Judge, Kanpur.
The learned Judge was of
the
view that respondent No. 1 had gone to Pakistan when he was
a minor and when his father. who was his guardian. was in India.
By his departure to Pakistan, respondent No. 1 could not chan!!"e
his nationalitv.
Even on a
consideration of the evidence
it
could not be held that he had shifted to Pakistan with the inH
tention of settling there oermanently. His apneal was allowed
and a permanent · iniunction as prayed was issued.
The Un!on
of India and other appellants preferred an appeal to the High
...
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U.P. STATE v. SHAH MOHAMMAD (Grover, I.)
1009
Court. Before the High Court a preliminary objection
was
taken that the civil court had no jurisdiction to try the question
1J1hether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government
under Rule 30 of the Citizenship Rules framed under the Act.
This objection was repelled in view of another decision of the
Hlgh Court according to which s. 9 of the Act and Rule 30
could not operate retrospectively and affect pending litigation.
Before the High Court the finding that respondent No. 1 did
not go to Pakistan with the intention of settling there permanently was not challenged by the appellants.
The High Court
was inclined to agree with the lower appellate court that so Jong
as respondent No. 'l was a minor he could not change
his
Indian domicile because his parents were domiciled in this country.
The High Court proceeded to say that since resp0ndent
No. 1 had spent one year in Pakistan after he had obtained
majority it was necessary to investi2ate whether he had acquired, during that period, the citizenship of Pakistan. An appropriate issue was frameq and remitted to the lower appellate
D
court for its determination.
The appellate eourt held that respondent No. 1 had not acquired the citizenship of Pakistan
. since it was not legally possible for him to do so for the reason
that according to laws of Pakistan' he could become a
major
Only on attaining the age of twenty one.
On, December 11,
1963 the High Court disposed of the appeal of the present apE
-pellants by dismissing it in view of the findings which were in
favour of respondent No. 1.
Learned counsel for the appellants had contended before us
that the civil court had no jurisdiction to decide the question of
citizenship after the enforcement of the Act towards the end of
F
.the year 1955 in view of the provisions of Rule 30 of the Citizenship Rμles 1956 promulgated in exercise of the oower conferred
bys. 18(2)(h) of the Act. Section 9 is in the following terms:
G
H
"S: 9 ( 1 ) Any citizen of India who by naturalisation,
registration or otherwise
voluntarily acquires, or has
at any time between the 26th January 1950 and the
commC11cement of this Act, voluntarily · acquired the
citizenship of another country, shall upon such acquisition or, as the case max. be, such commencement,
cease to be a citizen of India :
Provided that nothing in this sub-section shall apply to a citizen of India who during any war in which
India may be engaged, voluntarily acquires the citizenship· of another country, until the Central Government oth~se directs.
1010
SWPR!!ME CO'UllT RBPOR~S
[I 969] 3 s.c.R.
(2) If any quC11tion ariies as to whether, when or
A
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 30 provides :
"Authority to determine acquisition of citizenship
B
of another country.-(1) If any question arises as to
whether, when or how any person· has acquired the
citizenship of another country, the authority to determine such question shall, for the purpose of s. 9(2) by
the Central Government.
(2) The Central Government shal! jn determining
C
any such auestion have due regard to the rules of evidence specified in Schedule ID."
The validity of the provisions of the Act and the Rules is no
longer open to challenge.
It has not been disputed by learned
counsel for respondent No. I that after the enforcement of the
Act and promulgation of Rule 30 the only authoritv which is
D
competent to determine whether citizenship of Pakistan has
been acquired by him is the Central Government.
But it has
been strenuously urged· that the suit in the present case had been
instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined bv the courts and not by the Central Government.
In other
Ji!
words s. 9 of the Act cannot be j!iven retrospective ooeration
so as to be made applicable to pendin!! proceedinj!S.
Thus the
first point which has to he decided is whether s. 9 either expressly or bv necessarv implication has been made aPP!icable to cir
would govern pendin!! proceedingS.
The lani?Ua!!e of sub-s. (1)
is clear and .uneauivocal and leaves no room for doubt that it
would cover all cases where an
Indian citi1.en has
acauired
F
foreiP,n nationalitv between Jan11arv 26. 1950 and its commencement or where he acauires such nationalitv after its commencement.
The words "or has at anv time 'between the 26th January 1950 and thP ~ommencement of this Act. voluntarilv acauired the cifr,enshin of another countrv" would become almo«
redundant if onlv nrmnectiv" operatio'l is <!iven tn s. 9 (]) of
G
the Act.
This according to the settled mles of internretation
c~nnot be done.
It must be remembered that Article 9 of the Constitution
provides that no person shall be a citizen of India by virtue of
Art. 5 or be deemed to be a citizen of India bv virtue of Art. 6
or Art. 8 if he has voh!ntarily acquired the citizenshin of ·any
foreign StRte.
This means that if prior to the commencement
H
of the Constitution a P<'rson had voluntarilv acauired the citizenship of any foreign State he was not entitled to claim the citi-
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U.P. STATE v. SHAH MOHAMMAD (Grover, J.)
1011
zcnship of India by virtue of Arts. 5 and 6 or 8.
TlllS article
thus deals with cases Where the citizenship of a foreign State had
been acquired by an Indian citizen prior to the commencement
of the Constitution (vide lzhar Ahmed Khan v. Union of
India)('). Article 11, however, makes it clear that Parliament
has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
The Parliament could thus
regulate the
right of citizenship by law.
As pointed out in the above decision of this Court it would be open to the Parliament to affect
the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are
inconsisten_t with the provisions contained in other Articles in
Part II of the Constitution. The Act has been enacted under
the powers of the Parliament preserved by Art. 11 in express
terms.
The Parliament had also legislative competence under
Entry 17, List I of Seventh Schedule. It could thus make a
provision about the forum where the question as to whether a
person had acquired citizenship of another country could be
determined and this is what has been done by Rule 30.
The
cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign
citizenship would be of . three
kinds : (1) Indian citizens who voluntarily acquired citizenship
of a foreign State prior to the commencement of the Constitution;
(2) Indian citizens who voluntarily acquired· the citizenship of another State or country between January 26, 1950 and
Decembr 30, 1955 i.e. the date of commencement of the Act
and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.
As regards the first category they were dealt
with by Art. 9 of the Constitution.
The second and the third
categories would be covered by the provisions of s. 9 of the Act.
If a question arises as to whether, when or how an Indian citizen has acquired the citizenship of al)Other country that has to
be determined by the Central Government by virtue of the provisions of sub-s. (2) of s. 9 read with Rule 30 of the Citizenship
Rules.
Counsel for respondent No. 1 has relied on a decision of a
learned Single Judge of the Allahabad High Court in Abida
Khatoon & Another v. State of U.P. & Ors.(') which was followed in the present case.
There it was observed that a litigant,
after filing a suit, acquired a vested right to have all questions
determined by the court in which the suit was filed and that
the institution of the suit carried with it all the rights of appeal
then in force.
Referring to the normal principle that an Act
is ordinarily not retrospective, that vested rights are not disturb-
(I) (1962] Supp 3 S.C.R. 235, 241, 245.
(2) A.LR. 1963 AJl.260.
1012
SUPREME COURT REPORTS
[1969] 3 s.c.!.. ·
ed and that the jurisdiction of the civil courts in pending cases
is not taken away by the creation of a new tribunal for
the
determination of a particular question, the learned judge held
that there was nothing in the language or the scheme of the
Act to suggest that Parliament wanted to depart from
these
principles.
We are unable to agree.
In our judgment from
the amplitude of the language employed in s. 9 which takes in
persons in category (2)
mentioned above, the
intention has
been made clear that all cases which
come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of
the
Constitution have to be dealt with and decided in accordance
with its provisions.
In this view of the matter the entire argument which previliled with the Allahabad court can have no
substance.
It has next been
contended that
retrospective
operation
should not be given to s. 9 of the Act because I~ of citizenship
is a serious and grave matter and it involves loss of personal
liberty.
Under Art. 21 no: person can be deprived of his life
or personal liberty except according to procedure established by
law.
The procedure established by law before the commencement of the Act was the ordinary procedure of determination
by civil courts whenever a question arOSe about loss of Indian
citizenship by acquisition of citizenship of a foreign country or
State. It is suggested by learned counsel for respondent No. 1
that by giving retrospective operation to s. 9 so as to make it
applicable to pending proceedings the provisions of Art. 21 will
be contravened or violated.
This would render s. 9 of the
Act unconstitutional.
It is somewhat difficult to appreciate the
argument, much less to accede to it. If the Parliament was
competent under Art. 11, which is a constitutional
provision
read with the relevant Entry in List I, to legislate about cases of
persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its
sovereign power which laid down procedure different from the
one which obtained before.
The new procedure would itself
become the "procedure established by law" within the meaning
of Art. 21 of the Constitufion.
Therefore even on the assumption that loss of Indian citizenship with consequent deportation
may involve loss of personal liberty within the meaning of Art.
21, it is not possible to hold that by applying s. 9 of the Act
and Rule 30 of the Rules to a case in which a suit had been
instituted prior to the c.ommencement of the Act there would
be any contravention or violation of that Article.
In conclusion it may be mentioned that this could, in several
cases, has consistently held that questions falling within s. 9(2)
have to be determined to the extent
indicated therein by the
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U.P; STATE V. SHAH MOHAMMAD (Grover,/.)
1013
A Central Government and not by the courts.
Such matters 111
are not covered by that provision have, however, to be deter-.
mined by the courts; (sec Akbar Khan Alam Khan & AM. v.
The Union of India & Ors.(l) andlzhar Ahmed Khan v:Union of
India)(') and· The Government of Andhra Pradesh v. Syed Mohd.
Khan)(')
B
In the pre6Cllt case the High Coiirt ought not to have called
for a decision of the lower appellate court Oil the issue of the
plaintiff having acquired. or not acquired the Qit,izenship . of
Pakistan between
J~ly 3, 1952 and the date of his return to
India. The appeal . is, consequently, allowed ·and the order of
the High Court is hereby set aside. It will be for the High
C
Court now to make appropriate orders for determinatioo of the
aforesaid question by the Central Government after which alone
the High Court will be in a Jl!lSitiOll to dispose of the appeal
finally.
Costs will abide the result
G.C.
, (I) [1962] I S,C.R. 779.
(2) [1962] Supp; 3 S.C.R. 235.
(3) (1962) Supp. 3 S.C.R. 288.
Appeal allowed.