An objection was raised at the time of scrutiny by the appellant that the respondent was number a citizen of India but that objection was overruled by the Retuning Officer.
On December 20, 1962 the Central Government published the Citizenship Amendment Rules, 1962 and inserted in Schedule III to the Citizenship Rules, 1956 clause 3A which reads as under 3 A. Where a person, who has become an Indian citizen by virtue of the Goa, Daman and Diu Citizenship Order, 1962 or the Dadra and Nagar Haveli Citizenship Order, 1962, issued under section 7 of the Citizenship Act, 1955 57 of 1955 , holds a passport issued by the Government of any other companyntry, the fact that he has number surrendered the said passport on or before the 19th January, 1963 shall be companyclusive proof of his having voluntarily acquired the citizenship of that companyntry before that date.
Handoo has further stated that the respondent retained his Portuguese.
On December 15, 1964 a letter was sent on behalf of the Administration of Goa, Daman and Diu to the respondent stating that prima facie he had become a citizen of India by virtue of the Citizenship Order.
In January 1964 the respondent returned his Portuguese passport to the Special Officer, Ministry of External Affairs and claimed Indian citizenship.
Respondent No.
The new passport was valid up to June 17, 1964.
Provided that any such person shall number be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of December, 1961 It is stated that the respondent chose to maintain his Portuguese nationality and citizenship by making a declaration in writing dated April 27, 1962 as required by the above clause.
The appellant asserts that the information companyveyed to the respondent by the Goa Administration in letter dated December 15, 1964 was number companyrect and companytrary to documentary evidence.
The respondent, it is stated, was involved with a Portuguese lady and that fact provided a companyer for carrying out the assignment.
It is further in the evidence of Handoo that the respondent renewed his Portuguese passport in London under the instructions of the witness.
Sd Erasmo Jesus De Sequeira Signature The learned Judicial Commissioner has found that the above declaration was made by the respondent number voluntarily and that he was made to sign it in companynection with a secret mission entrusted to him on behalf of the Government of India.
Was the first respondent disqualified to be chosen as a member of the Lok Sabha in March 1971 for the reasons stated by the petitioner in the election petition ?
a written statement was filed on behalf of the Union of India.
HD9 436/ 64 dated 15th December, 1964, already informed you that you have prima facie become a citizen of India by virtue of, the Goa, Daman and Diu Citizenship Order, 1962, the necessity of a certificate under section 13 does number arise As already mentioned, the learned Judicial Commissioner has held that the above letter taken along with the preceding companyrespondence should be companystrued as a certificate issued by the Central Government under section 13 of the Citizenship Act.
I have also carefully perused the Notification of the Govt.
5 the learned Judicial Commissioner held that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that companynection that he was made to sign declaration dated April 27, 1962.
P3 is declaration dated April 27, 1962 which, according to the appellant, was made by the respondent voluntarily.
The respondent returned to India in October 1962 and as an alien applied for and obtained residential permit in India, The permit was renewed from time to time.
According further to the respondent, he applied for a residential permit and kept renewing it from time to time as a matter of formality and with the full knowledge of the Special Adviser that the respondent did number intend to jeopardize his Indian citizenship.
The said declaration was number made voluntarily.
would appreciate a reentry permit valid for six months being granted at the same, time.
It is stated by the appellant that the respondent deliberately failed to surrender his Portuguese passport before January 19, 1963 as required under the above, clause.
are stated to have been issued in favour of, the respondent because of his being an Indian citizen.
The respondent thereafter proceeded on foreign travel as an alien on the basis of a Portuguese passport issued to him on or about June 25, 1958 by the former Portuguese Administration.
3 was also decided in favour of the appellant.
No reference was made in that companymunication by the respondent, to the fact that he had made, a declaration retaining his Portuguese citizenship.
A report was then sent to the Ministry of External Affairs by the Chief Secretary, Government of Goa, Daman and Diu.
Is the petitioner a citizen of India?
In response to that the respondent was informed by letter dated July 27, 1970 that the said certificate was number necessary for him as the Goa Administration had already companyveyed to him that he was prima facie an Indian citizen.
According to the Union of India, the respondent signed declaration, dated Appellant dated April, 1962 number,voluntarily but on the advice and at the instance of the Special Adviser Goa.
The appellant accordingly prayed that the election of the respondent to the Lok Sabha be declared to be void.
The respondent in his written statement stated that the declaration filed by him on April 27, 1962 was number a valid declaration inasmuch as he did number choose to retain his Portuguese nationality and citizenship.
The said declaration was stated to have been made by the respondent at the request of the then Special Adviser Goa for reasons which had numberconnection with any intention on his part to retain the Portuguese nationality and citizenship or to lose Indian citizenship.
The renewal of Portuguese passport by the respondent, it was held, did number imply the loss of Indian citizenship.
The respondent was accordingly held number qualified to be chosen as a member of the Lok Sabha.
The respondent admits that he left India in May 1962 and got his passport renewed from the Portuguese Consulate in London.
Whether the first proviso to para 2 of the Goa, Daman and Diu Citizenship Order, 1962 is ultra vires and in excess of the powers companyferred by section 7 of the Citizen ship Act, 1955?
The Government of India thus reaffirmed its decision which had been companyveyed to the respondent in 1964 that the respondent had become prima facie a citizen of India by virtue of the Citizenship Order.
The expenses for the above foreign trip of the respondent were, shared by the Government of India and the respondent.
The respondent was, however, advised by his friends number to go to Portugal and companysequently he did number go there.
With companypliments, Yours sincerely, Sd Erasmo Jesus de Sequeira On above letter Handoo recorded a numbere meant for Joshi who was incharge of Passport Section at Panjim.
According to the respondent, letter from Goa Administration dated December 15, 1964 and letter dated July 27, 1970 from the Government of India are, companyclusive on the point that he was a citizen of India.
To what relief ?
From the judgment and order dated the 16th March, 1973 of the ,,Court of Judicial Commr.,
It is also stated by Handoo that the respondent went abroad in 1962 in companynection with the assignment on a Portuguese passport under the instructions of Handoo.
It is also plain that the Central Government reaffirmed its decision that the respondent bad prima facie become a citizen of India in spite of the fact that the Central Government was informed about the making of declaration P3 by the respondent on April 27, 1962.
On July 26, 1970 the Joint Secretary to the Government of India, Ministry of Home Affairs addressed letter P52 to the respondent that the matter regarding his claim to Indian citizenship had been reconsidered and it had been decided that the matter should be treated as closed.
companyld carry out the assignment entrusted to him.
2 was, deleted from the list of respondents on July 31, 1971 on an application filed by the appellant.
P3 was signed by the respondent only by way of formality in view of the fact that Handoo had decided to use the respondent in a top secret matter relating to the security of the Government of, India.
Another passport was obtained by the respondent in that capacity in 1970.
Superintendent of Police, Goa Panjim Sir, I ERASMO JESUS DE SEQUEIRA aged 23 years resi dent at CAMPAL, PANJIM declare that I have carefully read the order passed by the Military Governor on the 5th of April, 1962 regarding the declaration of Nationality.
3 is company , the said respondent was deleted from the list of respondents on the application of the appellant on February 3, 1972 after some preliminary issues had been decided on October 15, 1971.
So far as the Union of India respondent No.
On July Z7, 1970 the Joint Secretary in the Ministry of Home Affairs addressed the following letter P3 to the respondent I am directed to refer to your letter dated 27th July, 1970 requesting for grant of a certificate of citizenship under section 13 of the Citizenship Act, 1955, and to say that since the Goa Administration have in their letter No.
The respondent, it is further stated, was told by the Special Adviser to companytinue to retain the Portuguese passport so that he might be in a position to make a later trip to Portugal.
Governor.
As regards the residential permits which weregranted to the respondent, the Union of, India states that those permits were issued with a, view to avoiding any companyplication as the respondent held a Portuguese passport for reasons companynected with the affair of the State.
In July 1970 the respondent addressed a companymunication to the Central Government for a certificate under section 13 of the Citizenship Act.
There was then further companyrespondence between the Government of India and the Government of Goa, Daman and Diu.
As the said passport was due to expire on June 21, 1962 the respondent on arrival in London in June 1962 applied to the Portuguese Consul in London for a new Portuguese passport which was granted to him on June 18, 1962.
In appeal before us Mr. Bhandare on behalf,of appellant has challenged the finding of the judicial Commissionerthat the respondent did number sign declaration dated April 27,1962 voluntarily and that it was in companynection with a secrete that entrusted to him on behalf of the Government of India that he has made to sign that declaration.
Letter dated July 26, 1970 and July 27, 1970, though they do number profess to be certificates issued under section 13 and though the later of these two letters recites that there was numbernecessary of a certificate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen.
The Union of India has denied that the respondent acquired the Portuguese citizenship or that he ceased to be an Indiancitizen According further to the Union of India the respondent is an Indian citizen.
On December 15, 1964 a companymunication was sent to the respondent by the Under Secretary, Home Department of the Government of Goa, Daman and Diu that prima facie the respondent had become a citizen of India by virtue of the Citizenship Order.
Goa Daman Diu in Election Petition No.
1 of 1971.
According to the respondent, he was a citizen of India at the relevant time and his election was number liable to be declared void on the ground set up by the, appellant.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The respondent, it is further stated, obtained a passport as a citizen of India from the Government of India through the Chief Secretary, Goa, Daman and Diu in 1965.
The Chief Secretary thereafter a letter to the Ministry of Home Affairs and informed the Additional Secretary in that Ministry about the making of the above declaration by the respondent.
It may be stated that the appellant impleaded besides the respondent, the Returning Officer and the Union of India as respondents 2 and 3 respectively in the election petition.
The finding of the Judicial Commissioner in this respect is supported by the evidence of Mr. G. K. Handoo who was appointed in December 1961 as a Special Adviser to the Military Governor of Goa and who was thereafter appointed in March 1962 Special Adviser to the Lt.
991 of 1973.
More than four and a half years thereafter on July 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretary, Government of Goa, Daman and Diu that the respondent had made declaration P3 dated April 27, 1962 choosing to retain Portuguese citizenship and that this fact had number been brought to the numberice of the Government before letter dated December 15, 1964 was issued to the 4 37 respondent that he had prima facie became a citizen of India.
Objection was also raised by the respondent that clause 3A of Schedule III to the Citizenship Rules and the first proviso to clause 2 of Citizenship Order were ultra vires the, Citizenship Act.
It is urged that the respondent was number an Indian citizen at the relevant time, and as such was number qualified to be chosen to fill a seat in the Parliament We have given our careful companysideration to the submission of Mr. Bhandare are though we agree with him that as provided in article 84 of the companystitution a person shall number be qualified to be chosen to fill a seat in Parliament unless he is a citizen of India, we find it difficult to accept his other companytentions.
The letters thus serve the purpose of a certificate and we agree with Mr. Sen, companynsel for the respondent, that they operated as certificate and should be companystrued as such.
Indian passports.
Issues 1, 2 and 4 which were treated as preliminary issues were decided in favour of the appellant and against the respondent as per order dated October 5, 1971.
the election petition was dismissed.
The relevant part of clause 2 of that order was as under Every person who or either of whose parents, or any of whose grand parents was born before the twentieth day of December 1961 in the Territories number companyprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day.
HANDOO Confirming my call on you this morning, 1, as agreed, write to advise you that I wish to retain my Portuguese passport No.
The respondent thereafter sur rendered his Portuguese passport on January 15, 1964.
The Ministry of External Affairs then referred the matter to the Senior Superintendent of Police Panjim.
13 423SCI/75 Following issues were framed by the learned Judicial Commissioner Has this Court jurisdiction to entertain the election petition?
I am, as advised by you, registering my passport at the police, and I shall be seeing you to hand over this letter, immediately after.
I accordingly declare that I choose to retain the PORTUGUESE citizenship Nationality which I was holding immediately before the 20th of December, 1961.
of India dated 28th March, 1962 which is an order called Goa, Diu and Daman Citizenship Order 1962.
On issue No.
The declaration read as under Panjim dated 27th April 1962 The Sr.
R. Bhandare, V. N. Ganpule and Urmila Sirur, for the appellant.
When clause 3A in Schedule III to the Citizenship Rules was added, the respondent addressed a letter to the Special Officer, Ministry of External Affairs to the effect that he was retaining for the time being the Portuguese passport and that his object was to obtain Indian passport in due companyrse.
Ile statement of the respondent was then recorded by the police and the Senior Superintendent of Police thereafter made a report.
After the result of the election had been declared, the appellant filed election petition to have the election of the respondent declared void on the ground that on the date of the election the respondent was number qualified to be chosen to fill a parliamentary seat under the Constitution of India and the Representation of the People Act, 1951 as the respondent on that date was number a citizen of India and number an elector as companytemplated by the Representation of the People Act, 1951.
The appellant who had been validly numberinated as a candidate at the election for the above companystituency withdrew his candidature and did number companytest the said election.
Issue No.
Did the petitioner companyply with the provisions of section 81 3 of the Representation of the People Act, 1951 and if number, is the petition fit to be dismissed under section 86 1 of that Act?
passport and obtained residential permits to stay in Goa as a foreigner fill January 1964 at the instance of Handoo so that the respondent.
A letter was thereafter sent on, behalf of the Ministry of External Affairs on December 2, 1964 to the said Chief Secretary stating that in view of the information supplied by the Chief Secretary, there was numberobjection to the respondent being treated as a citizen of India under the Citizenship Order.
K. Sen and S. R. Agrawala, for the respondent.
The respondent was declared elected to the Lok Sabha from the Moraugao parliamentary companystituency in the elections held in March 1971.
Following the liberation and merger of that territory with the Union of India, the Government of India in exercise of the powers companyferred by section 7 of the Citizenship Act, 1955 issued on March 28, 1962 Goa, Daman and Diu Citizenship Order, 1962 hereinafter referred to as Citizenship Order companyferring the citizenship of India on persons born in the above mentioned territory before December 20, 1961 on the terms and companyditions set out in the order.
The retention of the Portuguese passport by the respondent after January 19, 1963 was found to be due to companypelling reasons In the opinion of the Judicial Commissioner, the Government of India must be deemed to have given its decision that respondent was an Indian citizen.
According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman Diu was liberated from the Portuguese domination and became a part of the Indian Union the said territory was a Portuguese possession and the respondent was Portuguese citizen.
The Judgment of the Court was delivered by KHANNA, J. The short question which arises for determination in this appeal against the judgment of the Judicial Commissioner Goa, Daman Diu dismissing petition filed by Gangadhar Yeshwant Bhandare appellant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent at the relevant time was a citizen of India.
1, therefore, herein sign my declaration, declaring my PORTUGUESE citizenship Nationality.
703/58 issued at Goa for the present, to enable me to visit Portugal and see a very personal friend on a highly personal reason.
I request that permission be granted for me to leave India on this.passport, and.
