Khanna, J. - (1.) The short question which arises for determination in this appeal against the judgment of the Judicial Commissioner Goa, Daman and 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.
(2.) The respondent was declared elected to the Lok Sabha from the Mormugao parliamentary constituency in the elections held in March 1971. The appellant who had been validly nominated as a candidate at the election for the above constituency withdrew his candidature and did not contest the said election. 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 not 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 not a citizen of India and not an elector as contemplated by the Representation of the People Act, 1951. According to the appellant, prior to December 20, 1961 when the Union Territory of Goa, Daman and 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 a Portuguese citizen. Following the liberation and merger of that territory with the Union of India, the Government of India in exercise of the powers conferred 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) conferring the citizenship of India on persons born in the above mentioned territory before December 20, 1961 on the terms and conditions set out in the order. 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 now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day: Provided that any such person shall not 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 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. 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. The new passport was valid up to June 17, 1964. 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.
(3.) 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 country, the fact that he has not surrendered the said passport on or before the 19th January, 1963 shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date." It is stated by the appellant that the respondent deliberately failed to surrender his Portuguese passport before January 19, l963 as required under the above clause. In January 1964 the respondent returned his Portuguese passport to the Special Officer Ministry of External Affairs and claimed Indian citizenship. No reference was made in that communication by the respondent to the fact that he had made a declaration retaining his Portuguese citizenship. 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 July 1970 the respondent addressed a communication to the Central Government for a certificate under Sec. 13 of the Citizenship Act. In response to that the respondent was informed by letter dated July 27, 1970 that the said certificate was not necessary for him as the Goa Administration had already conveyed to him that he was prima facie an Indian citizen. The appellant asserts that the information conveyed to the respondent by the Goa Administration in letter dated December 15, 1964 was not correct and contrary to documentary evidence. An objection was raised at the time or scrutiny by the appellant that the respondent was not a citizen of India but that objection was overruled by the Returning Officer. The appellant accordingly prayed that the election of the respondent to the Lok Sabha be declared to be void.;