ASLAM KHAN Vs. FAZAL HAQUE KHAN

JUDGEMENT

(1.) The appellant, Aslam Khan, respondents Fazal Haque Khan, Abdul Hadi Khan and Sita Ram and one Tribeni Sahai Misra were candidates for election to the U. P. Legislative Assembly in the general elections held in February and March, 1957, from No, 60, Rampur constituency. All the live candidates filed nomination papers on 31-1-1957, and, after scrutiny, they were declared duly nominated on 1-2-1957. Tribeni Sahai Misra, who is not a party to this appeal, withdrew his candidature within the time permitted by law. The polling in the constituency took place on 22-2-1957, and the counting on 1-3-1957. The same day the result was announced and Aslam Khan appellant was declared duly elected. Thereupon Fazal Huque Khan respondent No. 1 filed an election petition before the Election Commission challenging the election of Aslam Khan appellant. The election petition was sent for trial to the Election Tribunal, Rampur. The main ground, on which the election was challenged, was that Aslam Khan appellant was not a citizen of India and, consequently, under Article 173 of the Constitution he was not qualified to be chosen to fill a seat in the Legislature of Uttar Pradesh and, further, for the same reason, he was disqualified for being chosen as, and for being, a member of U. P. Legislative Assembly under Article 191(1)(d) of the Constitution. The election was also challenged on various other grounds, including commission of corrupt practices, falling under various Sub-sections of Section 123 of the Representation of the People Act, 1951, as amended upto-date. The Election Tribunal held on all points in favour of the appellant except on the question of the appellant being a citizen of India. The finding recorded by the Election Tribunal was that the appellant was not a citizen of India, so that both Articles 173 and 191 applied and the election of the appellant was liable to be set aside. It is against this decision that the appellant has come up in appeal to this Court.

(2.) The principal point we have to deal with in this appeal, consequently, is whether the appellant was or was not a citizen of India on the relevant dates when the election took place and he was declared duly elected to the U. P. legislature. In considering the question of citizenship, we have to take into account the provisions contained in the Constitution and the provisions of the Citizenship Act, 1955. Prior to the commencement of the Constitution, persons residing in the territory of India were British subjects. The citizenship of India came into existence, for the first time, under the Constitution when India became a republic. Article 5 of the Constitution recognised as a citizen of India every person who had his domicile in the territory of Indian and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who had been ordinary resident in the territory of India for not less than five years immediately preceding such commencement. Aslam Khan appellant had his original domicile in the territory of India and he was also born in the territory of India; both his parents were also born in the territory of India. Consequently, if Article 5 of the Constitution could have been applied to him, he would have been a citizen of India under this provision. The Constitution in Article 7, however, made an exception and laid down that

(3.) It is in these circumstances that we have to see how and when the appellant acquired Indian citizenship, if at all. For this purpose we have to examine the provision of the Citizenship Act 1955. Sections 3 and 4 of the Act confer citizenship on certain persons but both these provisions apply to persons born on or after 26-1-1950. Admittedly, the appellant was born long before that date and, consequently, Sections 3 and 4 of the Citizenship Act, 1955, cannot possibly apply to him. The appellant could in these circumstances, acquire citizenship only by registration under Section 5 of the Citizenship Act, 1955, or by naturalisation under Section 6 of that Act. The case of the appellant is that he acquired Indian citizenship by registration under Section 5(1)(a) of the Citizenship Act, 1955. The contention on behalf of the contesting respondent No. 1 was that the appellant was not entitled to registration under Section 5(1)(a) of the Citizenship Act, 1955, but that his case fell under Section 5(1)(e) of the Act. It was further pleaded that, even if the case of the appellant fell under Section 5(1)(a) of the Citizenship Act, 1955, Section 5(3) of that Act applied to him. The reason for these contentions by the two parties is that a person covered by the provisions of Section 5(l)(a) of the Act can obtain registration from the Collector of a district, whereas the persons, whose cases fall under Section 5(l)(c) or Section 5(3) of the Citizenship Act, 1955, can obtain registration only from the Central Government. The appellant has filed a certificate of his registration as an Indian citizen granted by the Collector of Rampur dated 31-8-1956. The certificate purports to register the appellant as a citizen of India under Section 5(1)(a) of the Citizenship Act 1955. It is the validity of this certificate that has been the main subject-matter of controversy between the parties in this case.