MOHAMMED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was born to Indian parents in the year 1932 and was a citizen of India by birth. He left for Karachi , Pakistan, sometime in 1970. He first acquired a passport issued by the Government of pakistan on 7th December, 1973 bearing No. AD 567213 and Indian Visa No. 448/ 77, dated 5th January, 1977. He entered India several times on the strength of Pakistani passports and Indian visa and left India before the expiry of the visa period. He stayed abroad on the basis of the foreign travel documents. He appears to have travelled to Pakistan without valid travel document issued by the Government of India. He holds currently a passport issued by the Government of Pakistan, which is valid upto the year 2005. It is the case of the petitioner that he has settled down at kannur and he is staying there with his wife and children.

(2.) SINCE the petitioner had overstayed the period of his residence in India, permitted under the visa, proceedings were initiated against him under S. 9 (2)of the Citizenship Act, 1955 (hereinafter referred to as 'the Act' ). A detailed order has been made against him in Ext. P1 by the Central Government, in which a finding has been made that the travel documents from the Government of pakistan were acquired by him of his free volition and there was no compulsion on him whatsoever. By reason of the provisions of the Act, the Central government found him to have voluntarily acquired the citizenship of another country. Consequently, he had ceased to be a citizen of India from that date. The Central Government in its order also found that under para. 4a of Schedule III of the Citizenship Rules, since the petitioner has left India without a travel document issued by the Central Government and resided outside India for a period exceeding three years, he shall be deemed to have voluntarily acquired the citizenship of Pakistan . By reason of Para. 3 of Schedule III to the Citizenship Rules, the fact that a citizen of India has obtained on any date a passport from the Government of any country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date. In these circumstances, by the order at Ext. P1, the Central Government determined that petitioner had ceased to be a citizen of India for the Act of acquiring a passport of Government of Pakistan.

(3.) THE petitioner's Counsel, however, strenuously contended that with effect from 20th April 2000, R. 32 has been added to the citizenship Rules and confers a right of revision. R. 32 reads as under: "32. Authority for Revision of an order made under the Act by the prescribed authority.- If an application is made by a person aggrieved by an order made under the provisions of the Act, the application shall be disposed off after giving a reasonable opportunity to the person affected to present his case, by an authority one rank higher than the authority prescribed for disposal of application against the order of which revision is sought". In our view, the contention urged by the learned counsel for the petitioner is not correct. If we are to construe that the order passed by the Central Government is revisable in view of the provisions under R. 32, it would run directly counter to the intendment of S. 15 of the Act. It is trite that a rule cannot be so read as to be contrary to or inconsistent with the provisions of the main Act. Apart therefrom, we are also of the view that R. 32 would be applicable only where the order complained of has been made by the "prescribed authority". It is possible that the Central Government may prescribe different officers as 'prescribed authority' for disposal of different applications under the Act. In such a contingency, if an application is disposed of by an officer at a particular level, R. 32 contemplates a revision by higher authority. R. 32, in our judgment, cannot come into operation where the Central Government itself has passed an order, as in this case. THE contention must, therefore, fail.