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2016 Supreme(Bom) 1393
IN THE HIGH COURT OF BOMBAY AT GOA
C.V. BHADANG, J.
Shri Caetano R. Silva, Son of Shri Joao Roque - Petitioner
V/s
Prescribed Authority, Minister of Home Affairs, New Delhi – Respondent
WRIT PETITION NO.110 of 2014
Decided on : 20-10-2016
For the Petitioner:Mr. Valmiki Menezes and Mr. Aksay Shirodkar, Advocates
For the Respondent:Mr. M. Amonkar, Central Government Standing Counsel, Mr. S. S. Kantak, Senior Advocate with Mr. P. Talaulikar and Mr. Ryan Menezes, Advocates, Mr. Amir Jamdar, Additional Government Advocate
The Competent Authority must ensure proper hearing and consider evidence in accordance with the law, and the burden of proof lies with the petitioner to establish non-voluntary acquisition of foreign citizenship.
Headnote:
Citizenship - Voluntary Registration of Birth - Citizenship Act, 1955, Section 9(2) - Summary
Fact of the Case:
The petitioner's citizenship was challenged based on his voluntary registration of birth in Portugal. The petitioner contested the challenge, claiming he did not voluntarily acquire Portuguese citizenship and was not afforded due process.
Finding of the Court:
The court found that the Competent Authority did not hear the petitioner as required by law and considered new evidence after the petitioner's hearing, violating principles of natural justice.
Issues: 1. Competent Authority's hearing and decision-making process. 2. Violation of principles of natural justice. 3. Bias and malafides. 4. Voluntary acquisition of Portuguese citizenship. 5. Final decision.
Ratio Decidendi: The Competent Authority's decision was vitiated due to improper hearing and consideration of new evidence after the petitioner's hearing. The court emphasized the need for the Competent Authority to determine the voluntary acquisition of foreign citizenship and the burden of proof on the petitioner.
Final Decision: The impugned order was set aside, and the matter was remanded to the Competent Authority for a fresh decision in accordance with the law.
Whether the petitioner has ceased to be a citizen of India, on account of the petitioner voluntarily getting his birth registered in the Central Registry of Births at Lisbon, Portugal (Central Registry at Lisbon), is the question which falls for determination in this petition.
2. Brief facts necessary for the disposal of the petition may be stated thus : That the petitioner was born in Benaulim village, Salcete, Goa on 21/10/1959 and his birth is registered under entry no.3125 of the Registrar of Births maintained under “Codigo Registro Civil”, which was then in force in Goa, which was under a Portuguese Colonial Rule. The petitioner is a registered voter from Benaulim constituency at Serial No.445 of part 21 of electoral roll of 32, Benaulim constituency for the Legislative Assembly of State of Goa. The petitioner had contested the election to the Goa Legislative Assembly as a candidate of Goa Vikas Party (GVP) on 06/03/2012 and has been declared elected and is presently a member of the Legislative Assembly (MLA) from the said constituency.
3. Ms. Valanca Alemao, one of the contesting candidates from the said constituency, has filed Election Petition No.1/2012 against the petitioner for setting aside the election of the petitioner, which is pending before this Court. The challenge in the said petition is on a similar ground, namely the petitioner having ceased to be a citizen of India, on account of the petitioner voluntarily getting his birth registered in the Central Registry at Lisbon, Portugal and thereby being disqualified from contesting the election and being elected as a MLA.
4. On 09/01/2013, third respondent Mr. John Fernandes filed a petition before the Prescribed Authority of the Government of India under Section 9(2) of the Citizenship Act, 1955 (the Act of 1955, for short) read with Rule 30 and Schedule III of the Citizenship Rules, 1956 (the Citizenship Rules, 1956, for short) against the petitioner for the following reliefs :
“(a) It be declared that the respondent is a Portuguese national;
(b) It be declared that the respondent has voluntarily given up the citizenship of India in terms of Article 9 of the Constitution of India;
(c) The name of the respondent be ordered to be deleted from the electoral rolls and from all other records wherein he has been entered as citizen of India;
(d) Any other order as deemed fit and proper.”
5. It was contended that the petitioner voluntarily got his birth registered in the Central Registry at Lisbon at registration No.977517 of the year 2010 on 21/07/2010 and as a result of the same, has ceased to be a citizen of India. A notorised copy of the birth certificate (Exh.D) was produced before the Prescribed Authority. Reliance was placed on Article 9 of the Constitution of India which provides that no person shall be citizen of India by virtue of Article 5 or be deemed to be citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State. It was contended that the petitioner, suppressing this fact, had contested the election to the Goa Legislative Assembly and got elected.
6. It was contended that as per the citizenship certificate and the annotation thereon, Portuguese nationality has been conferred on the petitioner under Article 1 of the Decree Law 37/81 of 3rd October.
7. The Prescribed Authority issued a show cause notice dated 17/05/2013 to the petitioner along with the copy of the petition filed by the third respondent Mr. John Fernandes. On 29/05/2013, the petitioner filed a reply to the said petition and produced certain documents. Indisputably, the petitioner was heard by the Joint Secretary, Ministry of Home Affairs on 04/10/2013 and 24/10/2013.
8. From 28/10/2013 to 11/11/2013, there was exchange of certain correspondence between Ministry of Home Affairs, Government of India and Indian Embassy in Portugal. Copies of these communications were not supplied to the petitioner. Ultimately, the Prescribed Authorit
