Ghaurul Hasan And Others vs The State Of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Writ Petition No. 60 of 1958

Decision Date: 5 April, 1961

Coram: A.K. Sarkar, Bhuvneshwar P. Sinha, S.K. Das, K.C. Das Gupta, N. Rajagopala Ayyangar

In the matter of Ghaurul Hasan and others versus the State of Rajasthan, decided on 5 April 1961, the Supreme Court of India delivered its judgment. The opinion was authored by Justice A K Sarkar, with Justices Bhuvneshwar P Sinha, S K Das, K C Das Gupta and N Rajagopala Ayyangar forming the bench. The case is reported at 1967 AIR 107 and 1962 SCR (1) 772. The petition arose under the Citizenship Act of 1955, specifically under sections 5(1)(a) and 10(2)(a), and also invoked section 21 of the General Clauses Act of 1897. The petitioners had earlier been issued certificates of registration as Indian citizens under section 5(1)(a) by the Collector of Nagaur. Subsequently the Collector cancelled those certificates, invoking the power contained in section 10(2)(a) of the Citizenship Act and section 21 of the General Clauses Act. The Court examined whether those provisions authorized the Collector to set aside the registration. It held that section 10(2)(a) could be invoked only where the registration was obtained through fraud, false representation or concealment of a material fact, and that no such circumstance had been established. The Court further held that section 21 of the General Clauses Act did not empower the Collector to cancel his own order of registration, because the types of orders contemplated by that section were not those contemplated by section 5 of the Citizenship Act. Accordingly, the orders cancelling the registration were set aside.

The writ petition, numbered 60 of 1958, was filed under Article 32 of the Constitution for enforcement of fundamental rights. Counsel for the petitioners and respondents were engaged, and the Union of India was later intervened. The petitioners were born in India before the Constitution came into force. In 1947 they migrated to the area that became Pakistan, but they returned intermittently to India, the last return being in April 1956, each time entering on passports issued by the Government of Pakistan. In December 1956 the petitioners applied to the Collector of Nagaur, Rajasthan, where they were residing, for registration as Indian citizens. The Collector issued certificates of registration on 19 December 1956 under section 5(1)(a) of the Citizenship Act. On 5 February 1957 two of the petitioners filed applications for citizenship certificates for their minor children under section 5(1)(d). The following day, 6 February 1957, an officer of the Nagaur Collectorate retrieved the registration certificates of petitioners numbered two and three, stating that the certificates needed to be amended to include the names of the minor children for whose registration applications had been made. The subsequent events leading to the cancellation notice and the petition for a writ of certiorari are set out in the following portion of the judgment.

The Collector of Nagaur, on February 8 1957, issued notices that cancelled the registration certificates previously granted to the petitioners and ordered them to leave India and return to Pakistan within three days. In response, the petitioners filed a writ petition challenging the Collector’s order that both cancelled their citizenship registrations and mandated their departure from India. The original respondents in the petition were the State of Rajasthan and the Collector of Nagaur; subsequently, by order of this Court, notice of the petition was also served on the Union of India, which then entered appearance. The sole issue for determination was whether the cancellation of the petitioners’ registration as citizens of India was legally valid.

The respondents argued that the Collector possessed the authority to cancel the registrations under section 10(2)(a) of the Citizenship Act. That subsection, they contended, provides that the Central Government may, by order, deprive a citizen of Indian citizenship if it is satisfied that the registration was obtained by fraud, false representation, or concealment of any material fact. The petitioners countered that the cancellation was effected not by the Central Government but by the Collector himself, and therefore could not rely on that provision. They further maintained that their citizenship could not be withdrawn under subsection (2) of section 10 because that subsection begins with the words “Subject to the provisions of this section,” implying that its powers must be exercised consistent with the other provisions of section 10. The petitioners also referred to subsection (l) of section 10, which states that a citizen who obtained citizenship by registration other than under clause (a) of subsection (1) of section 5 shall cease to be a citizen only if the Central Government, by order under this section, deprives him of citizenship. Since the petitioners had become citizens through registration under section 5(l)(a), they argued that subsection (2) of section 10 could not be used to strip them of citizenship.

The Court observed that, given the facts, it was unnecessary to opine on the parties’ contentions about the interpretation of the statutory language. Nonetheless, the Court noted that subsection (2)(a) of section 10 allows deprivation of citizenship only when it is proved that the registration was obtained by fraud, false representation, or concealment of a material fact. Consequently, the power to cancel cannot be exercised absent such a fraud or concealment. The respondents further alleged that the petitioners had concealed the fact that they had previously applied to the Government of India for long‑term visas for permanent settlement, applications which had been rejected. The respondents claimed that this concealment of the rejected visa applications constituted the material fact whose suppression justified cancellation of the petitioners’ citizenship registrations.

In the matter before the Court, it was acknowledged that the rejection of the petitioners’ earlier applications for permanent settlement in India constituted material facts. The allegation that the petitioners had concealed these facts was found to be unfounded. The Court was satisfied, having examined the original registration applications produced by the petitioners, that the petitioners had expressly mentioned in those applications that their requests for permission to settle permanently had been denied by the Government. According to the Court’s understanding, the counsel representing the respondents also concurred with this finding. The respondents advanced another argument, contending that the Collector, who possesses the authority to issue registration certificates under the Citizenship Act, also derives a power to cancel such certificates by virtue of Section 21 of the General Clauses Act, a power that they claimed exists independently of the provisions of Section 10(2) of the Citizenship Act. The Court rejected this contention, observing that Section 21 does not confer upon the Collector any authority to cancel a registration certificate. Furthermore, the orders referenced in Section 21 are not the kind of orders contemplated by Section 5 of the Citizenship Act. Accordingly, the Court concluded that the orders that had cancelled the petitioners’ registration as citizens were wholly illegal and could not be sustained. Consequently, those cancellation orders were set aside. The Court further ordered that the petitioners be awarded the costs of the present application and that the petition be allowed.