V.Bhargava, J. - (1.) The appellant, Aslam Khan, respondents Fazal Haque Khan, Abdul Hadi Khan and Sita Ram and one Tribeni Sahai Misra were candidates for election to the U. P. Legislative Assembly in the general elections held in February and March, 1957, from No, 60, Rampur constituency. All the live candidates filed nomination papers on 31-1-1957, and, after scrutiny, they were declared duly nominated on 1-2-1957. Tribeni Sahai Misra, who is not a party to this appeal, withdrew his candidature within the time permitted by law. The polling in the constituency took place on 22-2-1957, and the counting on 1-3-1957. The same day the result was announced and Aslam Khan appellant was declared duly elected. Thereupon Fazal Huque Khan respondent No. 1 filed an election petition before the Election Commission challenging the election of Aslam Khan appellant. The election petition was sent for trial to the Election Tribunal, Rampur. The main ground, on which the election was challenged, was that Aslam Khan appellant was not a citizen of India and, consequently, under Article 173 of the Constitution he was not qualified to be chosen to fill a seat in the Legislature of Uttar Pradesh and, further, for the same reason, he was disqualified for being chosen as, and for being, a member of U. P. Legislative Assembly under Article 191(1)(d) of the Constitution. The election was also challenged on various other grounds, including commission of corrupt practices, falling under various Sub-sections of Section 123 of the Representation of the People Act, 1951, as amended upto-date. The Election Tribunal held on all points in favour of the appellant except on the question of the appellant being a citizen of India. The finding recorded by the Election Tribunal was that the appellant was not a citizen of India, so that both Articles 173 and 191 applied and the election of the appellant was liable to be set aside. It is against this decision that the appellant has come up in appeal to this Court.
(2.) The principal point we have to deal with in this appeal, consequently, is whether the appellant was or was not a citizen of India on the relevant dates when the election took place and he was declared duly elected to the U. P. legislature. In considering the question of citizenship, we have to take into account the provisions contained in the Constitution and the provisions of the Citizenship Act, 1955. Prior to the commencement of the Constitution, persons residing in the territory of India were British subjects. The citizenship of India came into existence, for the first time, under the Constitution when India became a republic. Article 5 of the Constitution recognised as a citizen of India every person who had his domicile in the territory of Indian and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who had been ordinary resident in the territory of India for not less than five years immediately preceding such commencement. Aslam Khan appellant had his original domicile in the territory of India and he was also born in the territory of India; both his parents were also born in the territory of India. Consequently, if Article 5 of the Constitution could have been applied to him, he would have been a citizen of India under this provision. The Constitution in Article 7, however, made an exception and laid down that "notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory new included in Pakistan shall not be deemed to be a citizen of India." It is the admitted case of the parties that the appellant had left India after the first day of March 1947. It appears that the appellant in the year 1947, was in Government service. He had the choice of option of India or Pakistan and he opted for Pakistan. In pursuance of this option exercised by him, he actually went to Pakistan and served under the Government of Pakistan. Later, however, be resigned and came back to India in February 1948. The contention of the appellant was that, even though he had opted for Pakistan, he had never renounced nor he has been deprived of his India citizenship nor had his Indian citizenship terminated under the Citizenship Act, 1955. It was further his case that he had not migrated from India to Pakistan, so that Article 5 of the Constitution applied to him and he became an Indian citizen at the time of the commencement of the Constitution, This contention on behalf of the appellant cannot be accepted. When the appellant opted for Pakistan, he clearly did so with the object of residing in Pakistan and continuing his service under the Government of Pakistan, it was, according to his own admission, a final exercise of his option. At that time, persons opting were given the choice either to opt finally or to opt provisionally and give their final decision within six months. The appellant chose to make a final option for Pakistan. The mere fact, therefore, that he later decided to come back in February, 1948, cannot be construed as showing that his option for Pakistan was only temporary or provisional and that he had intended to continue to be a citizen of India and to come back to India. The final exercise of option in favour of Pakistan was thus clear proof of the fact that he had migrated to Pakistan and this migration took place after the first day of March 1947. As a result, his case is covered by Article 7 of the Constitution and the consequence is that Article 5 of the Constitution did not apply to his case at all. It is to be noticed that the provision in Article 7 of the Constitution does not lay down that a person, who became a citizen of India under Article 5, would lose his Indian citizenship or would cease to be a citizen of India if he migrated to Pakistan. The language used in Article 7 is that a person, who migrated to Pakistan after the first day of March, 1947, was not to be deemed to be a citizen of India notwithstanding anything in Article 5. The use of the expression notwithstanding anything in Article 5 means that, in such a case, Article 5 does not enure ro the benefit of the person at all and he never becomes a citizen of India. In the case of the appellant, therefore, the provisions of the Constitution would show that he never became a citizen of India in accordance with the principles laid down in the Constitution. When the appellant came back to India in February, 1948, he was, therefore, not a citizen of India and had never before that date been a citizen of India.
(3.) It is in these circumstances that we have to see how and when the appellant acquired Indian citizenship, if at all. For this purpose we have to examine the provision of the Citizenship Act 1955. Sections 3 and 4 of the Act confer citizenship on certain persons but both these provisions apply to persons born on or after 26-1-1950. Admittedly, the appellant was born long before that date and, consequently, Sections 3 and 4 of the Citizenship Act, 1955, cannot possibly apply to him. The appellant could in these circumstances, acquire citizenship only by registration under Section 5 of the Citizenship Act, 1955, or by naturalisation under Section 6 of that Act. The case of the appellant is that he acquired Indian citizenship by registration under Section 5(1)(a) of the Citizenship Act, 1955. The contention on behalf of the contesting respondent No. 1 was that the appellant was not entitled to registration under Section 5(1)(a) of the Citizenship Act, 1955, but that his case fell under Section 5(1)(e) of the Act. It was further pleaded that, even if the case of the appellant fell under Section 5(1)(a) of the Citizenship Act, 1955, Section 5(3) of that Act applied to him. The reason for these contentions by the two parties is that a person covered by the provisions of Section 5(l)(a) of the Act can obtain registration from the Collector of a district, whereas the persons, whose cases fall under Section 5(l)(c) or Section 5(3) of the Citizenship Act, 1955, can obtain registration only from the Central Government. The appellant has filed a certificate of his registration as an Indian citizen granted by the Collector of Rampur dated 31-8-1956. The certificate purports to register the appellant as a citizen of India under Section 5(1)(a) of the Citizenship Act 1955. It is the validity of this certificate that has been the main subject-matter of controversy between the parties in this case.;