# U ttar Pradesh Sarkar ]. April 5. • Akbar l(han Alam f(han v. Union of India

- **Citation:** [1962] 1 S.C.R. 779
- **Court:** Supreme Court of India
- **Decided:** 1960-01-23
- **Case number:** Civil Appeal No. 18 of 1961
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-ttar-pradesh-sarkar-april-5-akbar-l-han-alam-f-han-v-union-of-india-2088
- **Pages:** 6

## Headnote

Citizenship-Suit for declaration of rights as Indian Citizens-
]urisdiction of Civil Court-Citizenship Act, r955 (57 of r955),
s. 9(2).
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.
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 Citizens, and the courts below dismissed the suit in its entirety,
Held, that the courts below were in error in holding that
the suit was barred in its entirety bys. 9(2) of the Act.
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 Central Governrnent had decided whether such citizenship was
renounced and if the finding was against the appellants dismissed the suit.
Fida Hussain
v.
State of
U ttar Pradesh
Sarkar ].
April 5.
•
Akbar l(han
Alam f(han
v.
Union of India
780
SUPREME COURT REPORTS
[1962]

## Text

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1 S.C.R. SUPREME COURT REPORTS
779
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.
Appeal allowed.
AKBAR KHAN ALAM KHAN AND ANOTHER
v.
THE UNION OF INDIA AND OTHERS
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)
Citizenship-Suit for declaration of rights as Indian Citizens-
]urisdiction of Civil Court-Citizenship Act, r955 (57 of r955),
s. 9(2).
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.
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 Citizens, and the courts below dismissed the suit in its entirety,
Held, that the courts below were in error in holding that
the suit was barred in its entirety bys. 9(2) of the Act.
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 Central Governrnent had decided whether such citizenship was
renounced and if the finding was against the appellants dismissed the suit.
Fida Hussain
v.
State of
U ttar Pradesh
Sarkar ].
April 5.
•
Akbar l(han
Alam f(han
v.
Union of India
780
SUPREME COURT REPORTS
[1962]
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
18 of 1961.
Appeal by special leave from the judgment and
order dated January 23, 1960, of the Madhya Pradesh
High Court at Indore in Second Appeal No. 473 of
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, for the respondents Nos. 2, 3.
1961.
April 5. The Judgment of the Court was
delivered by
Sarkar J.
SARKAR, J.-This appeal raises the question whether the suit filed by the appellants was properly dismissed on the ground that a civil court had no jurisdiction to entertain it. The Courts below held that a
civil court's jurisdiction to entertain the suit was barred by s. 9 of the Citizenship Act, 1955.
The appellants had filed the suit for a declaration
that they were citizens of India and for an injunction
restraining the defendants from removing them from
India. The defendants were the Union of India, the
State of Madhya Pradesh and the District Magistrate,
Jhabua, in Madhya Pradesh. The appellants stated
in the plaint that they were citizens of India and had
not ceased to be such citizens. They said that in the
beginning of 1953 they went to Pakistan for a temporary visit without a passport but when they wanted
to return they were compelled to obtain Pakistani
passports. They stated that they obtained these passports only as a device for securing their return to
India and had really been compelled to obtain the
passports against their will. They further stated that,
therefore, they could not be said to have acquired
citizenship of Pakistan. They also stated that they
had made all efforts for the cancellation of the passports and to obtain permission to stay in India permanently but were unsuccessful. They said that the
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1 S.C.R. SUPREME COURT REPORTS
781
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.
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.
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:
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."
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.
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
z96I
Akbar Khan
Alani l<han
v.
Union of India
Sarkar ].
r961
Akbar J{han
Alam Khan
v.
Union of India
Sarkar ].
782
SUPREME COURT REPORTS
(1962]
civil courts are not prevented by this provision from
determining other questions concerning nationality of
a person. There is no doubt that the suit by the appeJ.
!ants raised the question whether they had lost their
Indian citizenship by acquiring the citizenship of
Pakistan. The appellants themselves had raised that
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.
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
783
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.
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.
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.
1961
Allbar f{han
Alam Khan
v.
Union of lndi!l
Akbar I( hun
Alant J<han
v.
LTninn of fudia
Sarkar ].
April 5.
784
SUPREME COURT REPORTS
(l962J
and thereafter dispose it of by such order as the decision of the Central Government may justify. There
will be no ordrr as to costs.
Appeal allowed.
Case Remitted.
B. SUBBARAMA NAIDU
v.
B. SlDDAMMA NAIDU & OTHERS
(K. 8UBBA RAO, RAGHUBAR DAYAL and
J.B.. MuDHOLKAR, JJ.)
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.
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.
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.
Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar
(1891) L.I<. 18 I.A. 55, referred lo.
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.