Shah Mohammed Anwar Ali & Ors vs. The State of Assam & Ors. AIR 2014 Gauhati 156
The appellant Nos. 1 and 2 filed a writ petition, praying for a direction to the respondents to consider their applications filed u/s. 5(1)(a) of the Citizenship Act, 1955 and to pass appropriate orders thereon, in accordance with law, contending inter alia that both the petitioners were born in Gauhati and the petitioner no. 1’s father was also initially a citizen of India born in undivided India. It has further been contended that after partition, the father of the petitioner no. 1 permanently settled in Shylet district of the then East Pakistan (now Bangladesh) and due to his old age ailments, the petitioners along with their first child Shah Mohammad Aminul Islam, who is the appellant no. 3 went to Bangladesh in the month of September, 1991 and stayed in Bangladesh up to the month of March, 1992, during which period the second child, namely, Jakia (appellant no. 4) was born in Bangladesh on 30-12-1991. The further contention of the writ petitioners was that they again went to Bangladesh in the month of November, 1996 to attend to the ailing father of the appellant no. 1 with the intention to return to India as early as possible, but unfortunately as the father of the petitioner no. 1 fell seriously ill, for which they had to stay back in Bangladesh.Thereafter though they wanted to return to India, they could not do so and under compelling circumstances they had to obtain the passports from the Government of Bangladesh and entered India on 10-05-1997 as Bangladeshi nationals. It has also been pleaded that after the expiry of the initial period of visa, they filed an application for extension from time to time and accordingly the visa was extended and though their application for further extension of visa dated 21-03-1998 was under active consideration of the Government, they were arrested along with their minor children on the ground that they overstayed in India beyond the period for which visa was granted.
The court observed that sub-section (2) of section 9 of 1955 Act, empowers the Central Govt. to determine the question as to whether, when or how any citizen of India has acquired the citizenship of another country, if such question arises for consideration. It is, therefore, the Central Government and no other authority, who can determine such question. The writ court would also, ordinarily, not enter into such determination unless of course the determination made by the Central Government is put to challenge by the aggrieved party.
In the instant case, the applicants never at any point of time, prior to filing of the writ petition, claimed that they had under compulsion and not voluntarily acquired the citizenship of Bangladesh. On the other hand, they had filed the application u/s. 5(1)(a) of 1955 Act seeking registration of their names as Indian citizen, upon accepting that they had voluntarily acquired the citizenship of Bangladesh.
Since the question as to whether, when or how the applicants acquired citizenship of Bangladesh, did not arise at all, there was no question of determination of such question by the Central Government, before passing an order of deportation.
The appellants having approached the writ Court for a direction to the respondent authorities to consider their applications filed u/s. 5(1)(a) of the 1955 Act, they must demonstrate that they have fulfilled the requirement of the said provisions of law for getting their names registered, which they had failed to do. The writ Court rightly refused to issue directions, which if issued, would be a futile writ, when the appellants on their own admission have accepted that they have not fulfilled the requirement of section 5(1)(a) of the said Act.
