401 -

BOMBAY HOUSING BOARD (NOW THE MAHARASHTRA

HOUSING BOARD)

' \!.

KARBHASE NAIK & CO., SHOLAPUR

January 29, 1975

[K. K. MATHEW, P. N, BHAG'YATI AND N. L. UNTWALIA, JJ.]

The Bombay Housing Board Act (69 of 1948), s. 64-'Anything done or pll.'porti11g to lwve bee11 done in pursuance of the Acl', Scope of-Breach of c1111tract if comes within_ expression.

There was a conlra1:t between the State and the respondent, which after the passing of the Bombay Housing Board Act, 1948, was deemed to have b-en entered into between the appellant and the respondent, for the construction of

buildings by the respondent.

Clause 14 of the Contract provided that where any additional or altered work is directed to be carried out and no rates are entered in the Schedu!e of Ra-tes in the Division, or agreed to, then. the contractor may, within 7 days of the order, give notice of the rate he intends to charge.

In such a case, the Engineer-in,:harge would be at liber~ to cancel the order if h.e does not agree to the rate stated by the. contractor, and get the work done by another.

Where the Engineer-in-charge has not cancelled the order and the contra.ctor ha!.i commenced work and incu.rred expenditure. the contractor shall only be entitled to be paid at su:h rate as may be fixed by the Engineer'incharge, and if the contractor is dissatisfied, he may raise a dispute about the rate and the decision of the Superintending Engineer will b~ final.

Clause 15 provided that the Engineer-in-charge has power to stop or to reduce the who'.e of the work specified in the tender or gt it done by ano!her, and the contractor has no claim to any compensation whatsoever on account of such stoppage or redudion.. But, befo:e th~ Engineer-in-charge could stop the work and get it done by another contractor, he should give the first contractor a written notice, The contrac:or sha, JJ also have no right under the clause to claim any payment or compensation on account of any profit or advantage which he might have derived from the exe:ution of the work in full but which he did not derive in consequence of the full amount of work not having been carried out, or on account of any loss due to purchase of materia's or labour recruited by him.

The clame further provides that the contractor shal! not also have any claim for compensation by reason of any alteration in the original specifi.:ation which may involve curtailment of work as originally contemplated.

The respondent filed a suit claiming a certain sum of money with respect to certain items and the. suit was decreed by the trial court except with respect to 4 items. The High Court in appeal, however decred those items also.

They were : (I) the respondent was ordered to carry out certain work with respect to the first two items and the respondent intimated his rate as required by cl. 14. The Engineer-in-charge did not cancel the order or give the_ contract for. the extra work to any other contractor, and therefore. the High Court held that the amount due to the respondent for the extra work was to be calculated on the basis of the rate specified in the notice; (2) the respondent was assured by the appellant that the work was to be completed in accordance with the "pecifications in. the agreement. and that no alteration would be made therein, but in fact an alteration was made as a result of whkh the respondent became entitled to lesser amount and the High Court held he was entitled to the difference; and (3) the appellant represented to the respondent that the appellant would entrust the respon<; lent with another item of work bu, t, contrary to the

reprcsenation, got the work done by another without giving notice in writing to the respondent and hence, the High Court held that the respondent was entitied to compensation.

In appeal. to thi" Court, it was contended; (1 l. that with respect to the first 2 items in view of cl. 14 the respondent was entitled only to the rate Js fixed .by the Engineer-in-charge;

0 ('2) with respect to the 3rd item since the Engineer-in-

.chare was entitled to ':hange the specifications, the respondent was not en:1tled

to compensation in view of Cl. 15; (3) with respect to the 4th item no notice was necessary before getting the work done by another contractor; and ( 4) the su!t was barred by limitation under s. 64 of the Bombay Housing Board Act, 1948, which provides a 6 .. month period of limitation for any suit for anything done or purporting to have been done in pursuance of the Act, because th,; a:t Of entering into a •:ontract was an act done in pursuance of the Act. and so a . claim for damages for breacl) of th~ contract would come within the pu.rview two items.

[412E-F]

HELD : ( J) The High Court was wrong in allowing the claim on the first .two items.

[412E, F]

The :fligh Court erred in holding that cl. 14 was inapplicable.

The High Court was also wrong in holding that if the clause was apr; licable it gave the C Engineer-in-char2e an absolute power to fix the rate and that it was unjust. UI'til the rates were settled by agreement the respondent was under no obligation to carry out the additional or altered work.

The respondent could legitimately have sitid that in the absen:e of scheduled rates in the division for the type of work .or an agreement in regard to the rates, it was not bound to carry out the additional or altered work.

Merely because the Engineer-in-charge did 'not exrcise his liberty to cancel the contract after receiving notice of the respondent's rate, it cou.ld not be said that there was a concluded contract D between the parties for payment at those rates.

The fact th.at an exp!"oss power was given to the Engineer-in-charge by the clause to cancel th~ order if he did not agree to the rate would not mean that the failure to cancel the order would result in an agreement as to the rate or rates. In the , absence of !; ome positive act on the part of the. Engineer-in-charge agreeing to the rate, there was no agreement as to the rate "nd the respondent was not bound to carry out the work. The provision regarding fixation of rate by the Engineer-in-charge and 'by the Se.perintending Engineer was intended to cover :ases. where the notice specifying the ra_te was not given by the contractor, or when, even though the E notice was given, the Engineer-in-charge did not cancel the order in the <•vent of his not agm:ing to . the rate specified in the notice, and the contrai:tor commences work and incurs expenditure.

[412B-E]

(2) The High Court was right in its conclusion with respect 10 the 3rJ item that cl. 15 had no application and that the claim was well-founded.

The nature of the work was such that by altering the specifkation, there was not only no curtailment of work but there was in fact an increase of work in vol vi11g F additional cost.

[413G]

( 3) The observance of the condition as regards the written notice in cl. 15 was mandatory, and since no such notice was given, the respondent 'was entitled to damages.

[414B]

( 4) The contra.:! entered into by the Board for construction of buildin:'s is :an act done in pursuance of the provisions of the Act; and it makes no diffe1:ence whether the contract was entered into with the Board or that it was deemed to be entered into with the Board. But the act complained of in this cast: bv the respondent was tne non-payment of the amount alleged to be due to the

respondnt on the basis of a breach of the contract; and that act .:ould no~ be said to have been done or purported to have been done in pursuance of the Act.

I~ cou!d not said that the breach complained of had any reasonable cor.nect10n with any duty cas: upon the appellant or its agents bv the Act. [ l 5 B

.:J7B] . . ,

The Trustees of Port of Bombay v. The Premier Automobiles Ltd . . .\.LR. 1974 s.c. 1123, followed.

The Municipal Borough of Ahmedabad v. Jarn11ti/a/ Cheeta/a/ Patel l.L.R. 194i Born. 841, approved. • '

Arhima1111il Muhammad v. The Malabar District Board, I.L.R. 58 Madrns 746 and Jalgaon Borough Municipality v. The Khandesh Spinning and Weal'ing' Mills Co. Ltd. I.LR. 1953 Bombay 590, referred to.

CIVIL APPELLATE JURISDICHON : Civil Appeal No. 13 of 1968.

From the judgment and order dated the 29th/30th January, 1963 of the Bombay High Court ir First Appeal No. 51 of 1957.

S. T. Desai, D. D. Kango, P. C Bhartari and K. J. John, for the appellant. . ·

Sharad Manohar, B. P; Maheshwari, Randhir Jain antl Suresh Sethi. for the respondent -

The Judgment of the Court was delivered by

, . MATHEW, J.~This is an appeal by the defandant on the basis of a certificate r.galnst a decree passed by the High Court of Bombay in nppcal from a dceree in a suit for recovery 'Of balance of amount due on account of extrn construetion work carried out by the plaintiff respondent. .

The State of Bombay prepared a scheme for construction of blocks in 'Sholapur and invited tenders for the same. The respondent, a firm, submitted it, s. tender on 29-7-1948.

The tender was in B-1 form. otherwise known as percentage ti:ader.

The tender was accepted on 6-12-1948 by the Labour Department on behalf of the State of Bombay. The Bombay Housing Board came into being with the passing of the Bombay Act 69 of 1948 and under s. 54 of, that Act, the above contract shall bie deemed to have been entered ir, Jto with the Board.

The order to carry out the work was issued to the respondent by the Housing Commissioner on 15-8-1948.

The construction was: to be completed within one year from the date nf the order.

The time was extended and the work was actually completed in March, 1950 F and possession was taken by the 1appel!allt some time between 5-5-1950 and 30-5-1950.

The amount paid to the respondent on 30-3-1951 under the final bill was accepted bv it under protest.

As the disputes between the parties in respect of the claims made by the resp'Ondent could not be settled by agreement, the respondent filed ·· the suit. -claiming under 4 items, namely, A to D, a Sll'm of

G Rs. 38,000-8-0. ·

. As we are concerned in this appeal only with the claims specified in A-3, A-4, C-1 and C-2, it is not necessary to refer to the contentions of the appellant in respect •of the other ite:ns.

In regard to the claims in items A-3 and A-4, the appellant contended that they were for extra works carried out by the resoondent without any agreement as to the rate to be charged and therefore the resoondent was entitled H to have the claim settled on the basis of the provision in clause 14 of the contract for rnch works and that claims in item C-1 and C-2 were not maintainable by virtne of clause 15 in the contract and that the suit was barred by limitation. ·

The trial court decreed the suit for a sum of Rs. 2,865-0-0 with proportionate cost and future interest. It dismissed the claims made under items A-3, A-4, C-1 and C-2.

The respondent filed an appeal before the High Court for the balance of its claim and the appellant filed if cross appeal.

The High Court dec:reed the claims in items A-3, A-4, C-1 and B C-2 and the sole question in this appeal is whether the claims in these items were sustainable in view of clauses 14 and 15 of the contract between the parties and whether there was evidence to establish thm.

The amount. claimed in item A-4 was Rs. 8,239 and that was mainly in respect of, the work of filling 11p of ditches, etc., which was done by the respondent under the order of the appellant.

The order C to carry out this extra work was given on 7-11-1949.

The respondent intimated by notice in writing, as required by clause 14, the' rate for carrying out th1~ work.

The Engineer-in-charge did not exercise his liberty to cancel the order, or give the contract for the edra

work to any other contractor.

The respondent's case was that the amount due to it for the extra work under item A-4 was to be calculated on the basis of the rate specified in the notice.

The appellant D contended that in view of clause 14 'Of the contract, the respondent was entitled only -to the rate as fixed by the Engineer-in-charge.

So, the quesiion for consideration in respect of item A-4 is whether, in view of clause 14 of the contract, it was open to the respondent to make the claim on the basis 0£ the rate quoted by it in the notice.

Clause 14 provides : E

Alterations in specifications and designs not to invalidate contracts--

The Engineer-in-charge shall have power to make any alterations in, or additions to, the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisable during the progress of the work, and the contractor shall be bound to carry out the work in accordance with any instructions in this connection which may be given to him in writing signed by the Engincer-incharge and such alteration shall not invalidate the contract; and any additional work which the contractor may be directed t'O do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work.

And if the additional or altered work include any class of work for which n'O rate is specified in this contract, then such class of work shall be carried out at the rates entered in the Schedule of Rates of the Division or at the rates mutually agreed upon between the Engineer-incharge and the contractor; whichever are lower. If the additional or alter1ed work, fur which no rate is entered in

1-1

BOMBAY HOUSING BOARD v. K. NAIK & co. <tiathew, J.) 411

the Schedule of Rates of the Division, is ordt.ed to be carried out before the rates are agreed upon the the contractor shall, within seven days of the date of re ipt by him of the order to carry out the work, infvPm the Engineer-in- . charge of the rate which it is his intention to charge for. such class of work, and if the Engineer-in-Charge does not agree to this rate he shall by notice in writing be at liberty to cancel his order to carry out such class of work, and arrange to carry it out in such manner as he may consider advisable, provided always that if the contractor shall commence work or incur any expenditure in regard thereto before the rates shall have been determined as lastly hereinbefore menti'oned, then in such case he shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him provide (previous ?) to the date of the determination of the rate as aforesaid according to such rate or rates as shall be fixed by the Engineer-in-charge.

In the event of a dispute, the decision of the Superintending Engineer of the Circle will be final."

It is clear from the clause that where any additional or altered work is directed to be carried out and no rates are entered in the Schedule of Rates in the Division or agreed to, then, the CO'atractor may, within seven days of the order, give notice of the rate he intends to charge.

Jn such •a case, the Engineer-in-charge would be at liberty to cancel the order if he does not •; gree to the rate stated by the contractor and get the work done by any other agency.

Where, however, the Engi- \1eer-in-charge has not cancelled the order for additional or altered work and the contractor has commenced work and incurred expenditure, the contractor shall only be entitled to be. paid at such rate or rates as may be fixed by the Engineer-in-charge.

In any such case if the contractor is dissatisfied, he may raise a dispute about the rate or rates so fixed by the Engineer-in-charge. Where such dispute is raised, the Superinteading Engineer will decide the same and his decision will be fin•al.

We do not think that the respondent was boµnd to carry out the additions' and alterations as there was no reply to the notice stating the rates it intended to charge. But it was free to commence and complete the work on the basis that .since the rates quoted by it were ~1ot accepted, it would be paid at such rates to be fixed by the Engineer-in-charge and that if it was dissatisfied with the rate or rates fixed by the Engineer-iri-charge, if could raise a dispute before the Superintending Engineer and that the time limit for completion would be extended in all cases of additions or alteratio•as as stated in the fast sub-para of clause 14.

The High Court was of the view that clause 14 had no application because it thought that the respondent was bound to carry out the work as directed by the Engineer-in-charge even when there was no •agreement as regards the rate to be charged for the extra work, as the nature of work in some cases would be such that if the work was not completed at the time when the work was to be completed, the cont-

412 SUl'REME COURT REPORTS [1975] 3 s.c.R.

ractor would have to do much extra work over and above the actual work imolved. The Court also said that clause 14 gave the Engineerin-charge oan absolute power to fix the rate and that would be unjust and therefore the Court decreed in fulrthe amount claimetl under items A-3 and A-4.

We think that until the rates were settled by agreement the respondent was under no obligation to carry out the additional or altered work. The responde',1t could legitimately have said that in the absence of scheduled rates in the division for the type of work in question or an agreement in regard to the ra_tes, it was not bound to carry out the additional or altered work.

We are not satisfied that since the Engineer-in-charge did not exercise his liberty to cancel the order, there was a concluded contract between the parties. The failure to cancel the order for additional or aHered work on receipt of the notice specifying the rate would Mt result in an agreement as to the rate to be charged. The clause only gave the Engineer-in-charge the liberti; to cancel the order and g(:t the work done by •another contractor. 'The . fact that an express power was giw.1 to the Engineer-in-charge by t, he clause to cancel the order if he did not agree to the rate would not mean that the failure to cancel the order would result in an agreement as to the rate or rates. The proviso in clause 14 was intended to cover cases where the notice specifying the rate was not given by. the contractor, or where, even though the notice was give',1, the Engineer-incharge did not cancel the order in the event of his not agreeing to the rate specified in the notice.

We are of the view that in the absence of some positive act on the part of the Engineer-in-charge agre.::ing to the rate. there i, vas no agreement as to the rate a'ad that the respondent was not bound to carry out the work.

In this view of the matter. we think that the High Court went wrong in allowing the claim in item A-4. ~

The claim under Item A-3 stands on the same footing as the claim under item A-4 and, therefore, that claim has also to berejected.

The next question is whether the High Court was justifi.::d i'.1 decreeing the claims in items C-1 and C-2.

Item C-1 was a claim for Rs. 9,0001-. The respondent's case was that there was assurance by the appellant that the work was to be completed in accordance with the specifications in the agreement and th-at

no alteration W?uld _be nade therein. According to the respondent, G as per the specificat10n. 1t was to do the work with 5" thick R.C.C. slab over B and B-1 type of blocks to cover an area of about 61,000 sq. ft. and the mte at which the respondent agreed to do the work was

J.3.s. 2-15-6 per sq. ft. The further 'case of the respondent was that it agreed to. do the construction work after estimating the cost of the entire construction as a wol~ acl after. makbg a calculation of the profit and loss on that basis 111 different items of work and it had sustained u: loss because it had to do a different type of work for which it could "" make no estimate in a•aticipation. The-order to carry out the work in the altered form was communicated to the respondent on 27-1-1949.

It protested against it saying that it will hav.:: to use extra quantity of iron and claimed 6 annas extra per sq. ft. over the rate for 4t" slab which it had given for 'A' type block. The appellant turned dowa the demand and the respondent had to do the work with 4t" R.C.C. stabs over the area of 24,000 sq. ft. According to the re~?ondent, if it were to do the work with 5" slab according to the origina specification over the area of 24,000 sq. ft., it would have used 27,00~':lbs. of iron as re.inforcement and would have got Rs. 71,250 for the work, but, because of the reduction in the size of the slab, it was required to put fa 44,000 lbs. of reinforcement and was to be paid Rs. 60,000 only .. On the other hand, the appellant contended that the Engineer-in-charge was entitled to change the specification under the contract and the respondent was not entitled to claim any damage arising from the change in the nature of the work and relied upon clause 15 for this purpose.

The High Coui't held that clause 15 had 110 application.

We do not think that the High Court was hi. error. Clause 15 empowers the Engitteer-incharge to step or to reduce the whole 0£ the work specified in the tender if he thinks it necessary to do so and the contractor has no right to claim any compensation whatsoever on account of such stoppage or reduction in the work. The clause also provides that the watractor shall have no right to claim any payment or compensation on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not derive in consequence of the full amount of the work not having been carried out or on account of any loss that he may be put to o'.1

account of materials purchased or agreeld to be purchased or for unemployment of labour recruited by him.

The clause further provides that the contractor shall not also have any claim for compensation by rcason of any alteration having been made in the original spccificatim1s, drawings, design or in8truction which may involve curtailment of work as originally contemplated.

Jn its evidence, the respondent staled that it put slabs of 41'' thick- ',1CS'> in an. area mcasi; ring 24.000 so. fl. oat of a:1 area of 61.000 sq. ft. and that it hml w put ~4,000 ivs. f rcinf,_; rcc:nc::nt instead of 27 000 lbs. and so it must be paid for the extra 17,000 lbs. a sum of Rs. 9,000/-. The High Court took the view that this involved no reduction or curt2ili;1ent in thC' wNk and as the alteration involwi a.dditional cost to the respondent. it c2nnot be said that there was reduction or curtailn1cnt.of work. h othc-l' words, the H'r:h Court was of the view that the n-ature of the work was such that there was not only no crniailment of work but an increase of work involving additional cost. We think the High Court was right in its conclusion that clause 15 h:ls no application and that the c12.im was well fouaded.

The respondent had claimed Rs. 9,097 /- from the appellant in respect of item C-2. n the plaint the respondent stated that the appel- H lant represented to 1t that the appellant would entrust the respondent with the pipeline work menti011ed therein but that the appellant, contrary to representation, got the work done by another contractor and, therefore, the respondent was entitled to compensation for it. 12-423SCil75

The High Court found that as it was provided in clause 15 that before the Engineer-in-charge could stop the work and get the work

dm1e by another contractor, he should give the respondent a written notice and as such a notice was not given, the respondent was entitled to damage.

We see no reason to think that observance of the condition as regards the written notke was not mandatory. We see no force ia the argument that the written notice was not necessary as that was i; pecifically provided for in the clause.

The last point for consideration is whether the suit was barred by limitation •as it was not brought within six months of the act complained of.

The High Court was of the view that s. 64 of the Bombay Houshlg Board Act, 1948 has no application as the claims were for damages for breach of contract. . '

Section 64 provides :

"No person shall commence any suit against the Board. or against any oflicer or servant of the Board or any person. acting under the orders of the Board, for anything done or purporting to have been done in pursuance of this Act, with-·

out giving the Board, officer, or servant or person two months' previous notice in writing of the intended suit and of thf: cause therMf, nor after six months from the date of the act Complained of.''

"Anld in the case of any such suit for damages, if tender of sufficient amends shall have been made before the action was brought, the plaintiff shall not recover more than the amounts so tendered and shall pay all costs incurred by the defendant after such tender." The appellant submitted that the act of C'11tering into the contract was an act done or purporting to have been done in pursuance of the Act and therefore. any claim for money as damages for breach of the contract by the respondent would come within the purview olf the section.

The Preamble of the Act provides :

"Whe:reas it is expendient to take such measures, to make such schemes and to carry out such works as are 'necessary for the purpose of dealing with and satisfying the need of housing accommodation and with that object in view it is necessary to establish a Board and to make certain other provisions hereinafter appearing; It is hereby enacted as follows."

Section 19 provides tliat the Board ma:; enter into all such coi1tracts as it may consider necessary for carrying out the purposes of the Act.

Section 23 ( 1) states that the Board may incur expenditure and undertake works for framing and execution of housing schemes. Section 23 ( 2) says that the government may entrust to the Board the framing

and execution of any housing scheme. Therefore, the Board has statutory duty to frame schemes for construction of houses and execute them. Section 24 (f) would also indioate that the purpose of a scheme is construction of houses. In these circumstances, we think that the contract entered rato by the Board for construction of buildings might be an act done in pursuance to the provisions of the Act. We will also assume that it makes no difference whether the contract was enten::d into with the Board or whether it was deemed to be entered. into with the Board under s. 54 of the Act. But the question is whether the act complained of, n•amely, the no'a-payment of a claim for money based on breach of contract, was an act done or purporting to have been done in pursuance of the Act.

There can be no doubtthat the act complained of by the respondent was the no•a-payment of money . as damages or compens•ation resulting from an alleged breach of contract.

ln The Municipal Borough of Ahmedabad v. Jayantilal Chhotalal Patel (1) the Court held that when a municipality has power to, enter into a contract under the Municipal Boroughs Act and the municipality purports to exercise its power to enforce such contract, any act done in the exercise of its power to e'aforce the contract is not in pursuance of the Act but in pursuance to the contract and, therefore, a suit brought against the municipality for return of deposit under a contract to clean the streets was not a suit of the type described in s. 206 of the Bomboay Municipal Boroughs Act, 1925 which is in pari materia with s. 64 of the Act. In the course of the judgment, Chagla, J. (as he the,1 was) observed that what the plaintiff sought to enforce was, the right which came into existence as a result of the contract entered into between the plaintiff and the municipality and not a public duty cast upon the municipality by the st•atute, that in forfeiting the deposit, the municipality was not acting in purslia',1ce to the power given to it under statute but was doing so in pursuance of a power given to it undi:r the contract and, therefore, the suit to enforce rights under the contract entered into with the municipality which the municipality was 'L10t under any obligation to enter into, cannot fall with the ambit of the section. We think that the decision lays down the law correctly and that the principle deducible from it is applicable to the facts here.

Mr. S. T. Desai referre'd to the decision of the Madras High Court . in Athimannil Muhammad v. The Malabar Di!iitrict Board(2) and said that the decision therein would govern the instant case. That was a case where a suit was filed against the District Board more than six months after the date of the •accrual of the cause of actim, claiming damages on the ground that its P1esident improperly cancelled a contract of lease for one year of the tolls in certain places. which was stated to have been entered into by the plaintiff with the Board through its "'.ice President. The President in performance of what he thought was !us duty under the Madras Local Boards Act accepted a higher offer by another persm1 and the necessary consequence of it was cancellation o.f !he .acceptance of t?e plaintiff's offer. It was held that though the d1stmct1on between act10ns on contract a'i1d actions independent of con-

(!) (I.L.R.) 1947 Born. 841

(2) J.L.R. 58 Madras 746.

tract mav be convenient enough as a working rule, the real test to be applied was whether what -was complained of -:vas. some at done in pursuance of a statute. Varadachariar, J. in delivermg the iudgrnent of the Court saitl that the cancellation of the acceptance of the offor was the necessoary result of what the President thought was his duty in accordance with the terms of the Act as he interpreted them namely to accept the highest tender and that he did this on the footing !hat the Vice President's acceptance of the plaintiff's tender was not In compliance with the Act. He further said that the right to collect tolls was a special privilege conferred upon local bodies by statute and that they were authoriz~'d. either to manage the collection of the tolls themselves or through their own agency or to lease them out, and that in any case what the President as representing the Board did in connection with the leasing out of the right to levy tolls was undoubtedly an act done in execution of his powers or duties under the Act.

We need

1,10t consider the correctness of this decision as, ev1:n on the &ssumption that it is correct, it has no application to the facts here.

There the Court found that the act complained of had reasonable connection with the discharge of his statutory duty as President or at any rate, he thought that it was his statutory duty as President to accept the highest bid.

The distinction between an act done with some semblance of authority or show of right and a prima fade illegal act in this context has been clearly pointed out in the decision in Jalgao11 Borough Municipality v. The Khandesh Spinning and Weaving Mills Co. Ltd.( 1) where the question was whether-notice under s.206 of the Bombay Municipal Boroughs Act, 1925, was necessary before filing a suit to recover a sum of money on the basis of a contract.

The Court held that an act which is Prima f acie illegal is not within the category of acts done or purported to have bee'i1 done in pursuance of that Act, and that it is only an act do1nc under a vestige or semblance of authority or with some show of a right that would fall within the category.

Bhagwati, J. in the course of his judgment said that the acts which would fall within the category of those do_ne or purported to have been done in pursuance of the Act could only be those which were done under a vestige or sembhmcc of authority, or with some :; how of a right and that the distinction between ultra vires and illegal acts on the one hand and wrongful acts on th~ othe; wrongful in the sense that they purport to have ben done in pursuc'ace of the Act is that they arc intended to have been done in pursuance of the Act and are done with a vestige or semblance of authority or sort of a right invested in the party doing those acts.

In The Tmstees of Port of Bombay v. The Premier Automobiles Ltd.e) section 87 of the Bombay Port Trust Act 1879 which is in pari materia with s.64 .of the Act fell for cons.ideratin ana' the question was whethr short del!very by a statutory bailee was something done or purportmg to have been done under the proviions of that Act. In the course of the judgment, Krishna Jyr., T., speaking for the Court,

(l) l.L.R. (1953) Bombay 590

(2) A.LR. 1974 S.C. 923

said that a suit for damages for breach of contract would not attract the sectior. (see para 46 of the judgment).

As we said, the act complained of in this case was the n0\1-payment of the amount alleged to be due to the respondent on the basis of the breach of the contract between the parties.

We do not think that the act complained of could be said to h•ave been done or purported to have been done in pursmrace of the Act. 1 By no stretch of imagination could it be said that the breach complained of had any reasonable connection with any duty cast upon the appell•ant or its agents by the Act.

In the result, we disallow the clainis of the respondent in items A-3 and A-4 set aside the decree of the High Court to that extent. We affirm the decree of the High Court in respect of the claims in items C-1 and C-2.. The appeal is allowed to the extent indicated but is dismissed in other respects.

We direct the parties to bear their cost in this Court.

V.P.S.

Appeal allowed in part.

KARBHASE NAIK & CO., SHOLAPUR

January 29, 1975

K. K. MATHEW

N. L. UNTWALIA, JJ.

s. 64

Bombay Housing Board Act, 1948

Clause 14

Clause 15

cl. 14

cl. 14

Cl. 15

s. 64

Bombay Housing Board Act, 1948

cl. 14

cl. 15

cl. 15

Bombay High Court

S. T. Desai

D. D. Kango

P. C Bhartari

K. J. John

Sharad Manohar

Randhir Jain antl Suresh Sethi

MATHEW

State of Bombay

Sholapur

State of Bombay

Bombay Housing Board

s. 54

clause 14

clause 15

clause 14

clause 14

clause 14

Clause 14

clause 14

clause 14

clause 14

clause 14

s. 2

clause 15

clause 15

Clause 15

clause 15

clause 15

s. 64

Bombay Houshlg Board Act, 1948

Section 64

Section 19

Section 23

Section 23

Section 24

s. 54

s. 206

Bomboay Municipal Boroughs Act, 1925

s. 64

Chagla

S. T. Desai

Madras High Court

Varadachariar

Bombay Municipal Boroughs Act, 1925

Bhagwati

section 87

Bombay Port Trust Act 1879

Krishna Jyr


CNION OF INDIA & ORS.

TATA IRON & STEEL CO. LTD.

January 31, 1975

[A. N. RAY, C.J., H. R. !(HANNA AND P. K. GOSWAMI, JJ.]

Constitution of India, 1950 Art. 226, 227-Powus of High Court under article 226 & 227 to interfe.re with classification ef a product by taxing a111lwrities.

Central Excise Act, 1944-Ske/p and strip necessity for idwtifiable rest in fiscal statutes,

The respondent manufactures hot rolled finished steel products in rectangular

, cross-section of thicknes:; varying between 16.2 mm and 311.2 mm a1_1d rolled C in coils (hereinafter reforred to as the Product). The respondent describes the product as Strip whereas the appellant classifies it as a Skelp. Skelp is subject te higher excise duty than Strip.

The Assistant Collector, Central Excise treated the product as Skelp.

On appeal to the Collector of Central Excise, he confirmed it and in revision the Central Government also approved.

The respondent filed a Writ Petition in the High Court. The High Court

acepted the contention of the respondent.

On appeal by Special Leave the appellant contended befqre this Court : (i) That it is primarily for the Taxing D Authorities to determine the head or nature under which any particular wmmodity fell. (ii) The Court can interfere with the decision only if it is pc:rverse.

If there were two constructions possible and if the Taxing Authority accepts one of them the Court cannot interfere.

The respondent submitted. (i) Assessment without application of an identifiable test is p!:rverse :md arbitrary. (ii) In the present .case. there was no identifiable test before the Taxing Authorities. There is no difference between Skelp E anti Strip.

Dismissing the appeal,

Hdd : There are large number of definitions out of which one can be picked up to satisfy th1: definition of Skelp according to some authority and another definition to fit in with the concept of strip according to another ::mthority.

Since there is no statutory definition for Skelp and Strip, different tests hfbve been resorted to by the different authorities. The question arises whether the High Court wa;; right in interfering with the orders under Art. 226 of the F Constitu.tion. It is not for this Court to come to. the condusion on fact1.

The absence of any identifiable standard natmally gives rise to the scope for arbitrarv assessment at the hands of different authorities. It is not possible to hold that the High Court has gone wrong in granting the reliefs prayed for.

(4220-F;

423C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1527 of 1~~ G

Appeal by Special Leave from the Judgment & Odrer dated the 14th December, 1973 of the Delhi High Court in Civil Writ No. 1678 of 1967. ·

F. S. Nariman, Addi. Sol. Gen. of India, D. N. Mukherjie and R. N. Sahthey, for tllle Appellants.

 N. A. Palkhiala, Ravinder Narain, I. B. Dadachanji, 0. C. Mathur, . K. J. John and K. R. lhaveri, for the Respondent. ·

The Judgment of the Court was delivered .by-

GoswAMI, J. This appeal is by special leave from the judgment of the 1Jelhi High Court m a writ app11cauon there under amc!e 226 of the (.; onstitut1on.

The respondent manufactures various other items hot rolled finished steel products in rectangular cross-section of thickness varying between 1.7 mm and 6.55 mm and width varying between 16.2 mm and 311.2 mm and rolled in coils which it supplies to the Indian Tube Company Limited at Jamshed-pur for making tubes and also to others. Tim article is subjected to Central Excise Duty under the Central Excises and Salt Act, 1944 (hereinafter called the Act). The dispute between the respondent anld the appellants is that while the former describes the said manufactureld pi:oduct as strip the appellants .classify it as skelp.

This difference in classifying the product differently results in fiscal misfortune to the respondent since skelp is subjected to a higher Central Excise Duty than strip.

It may be stated that 'during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of duty.

From February 19, 1964, the respondent chimed that the aforesaid product be classified as strip since there hat! been a levy of higher duty /for skelp. The Assistant Collector, Central Excise, Jamshedpur, whb is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp. That led to the successful writ application of the respondent in the High Court resulting in this appeal.

In the forefront of his argument the learn<o'd Additional Solicitor General for the appellants relying upon two decisions of this Court, aamely, The Collector of Customs, Madras v. K.

Ganga Setty (1) and V. V. Iyer of Bombay v. lasjlt Singh, Collector of Customs and .

Another, (2) submitted that "it is primarily for the taxing authorities to determine the heads or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt i.e., if the construction was preverse then it was a case in which the Court was competent to interfere. Jn other wort:ls, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject aoneals to the Court as the better one to adont". On the other hand with equal emohasis Mr. Palkhivitla for the respondent submitted that an assessment without the anolicatirm of an idf\ntifiable test is nothine but perverse and arhitrarv.

He: submits that in the nresent ca•Pthe.re was no identifiable test before the taxing authorities by which the

(1) [1963] 2 s. c. R. 277 ..

(2) [197311s.c.c.148.

product of the respondent coul\i b~ held to be skep and not stri~ subjecting the respondent to a heavier duty. Accordmg t? the learned counsel there is no difference between sklep and stnp, the two items being interchangeable.

It may be noted for our purpose that undr section 3 of t.he Act Central Excise Duties are leviable on all excisable goods which are produced or manufactured in l n\:lia at the rates set out in the First Schedule. Item No. 26AA in that Schedule relates to iron and steel products and mentions in sub-item (iii) therein fiats, skelp and strips showing the rate of duty in the third column.

Undr rule 8 of the Central Exci~.e Rules,, 1944, made under section 37 of the Act, the Central Government may from time to time by notification in the official gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from whole or any part of the duty leviable on such goods. In exercise of the power under this rule the Central Government has made such exemptions in the rates of duty as have made it higher on skelp than on strip.

Before we proceed further we may notice how the various Excise authorities dealt with the matter at dtfferent stages. The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964. According to him "skelp is the name used in reference to a plate of wrought iron or steel use'rl for making pipe or tubing by rolling the skelp into shape and lap welding or revetting edges together and strip is a term used, to describe a fiat rolled product of smaller cross-section than sheet or bar." He accordingly adopted the definition given in Marymen's Dictionary of Metalurgy. The order of the Collector of Central Excise in appeal made on October 24/29, 1964, shows that the authority note(! the definition of strip as follows:- ·

"Hot or cold rolled finished steel product in rectangular cross-section of thickness below 5 mm and of width below 800 mm and supplied in straight length''.

This definition is substantially in conformity with the one given by the Indian Standards Institution (ISI). The appellate authority held that "since the products have not satisfieli the above specifications, they have been correctly classified as 'skelp' by the Assistant Collector .... ". Jhen comes the order in revision of the Central Government of August 18, 1967 .. Inter alia it was held that "the pr<*:luct does have bevel edges peculiar to skelp and not found in strips. Under the

ircumstances, there is no doubt what~_ver that the product in qm:stion 1s correctly classified as skelp".

From the above three orders it is clear that the authorities were

ot at a!l etain abou! a uniform .definition of 'skelp' distinirnishing 1t from stnp . Extensive arguments were advanced at the bar with regard to the definitions of these two words. We may, therefore, look

UNION v.'IRON & STEEL co. (Goswami,].) 421

at the various definitions to which our attention has been drawn. Since the appellants largely upon the definitions given by the Indian Standards Institution, "an expert body", we will first note these definitions.

The ISI's definitions of strip and skelp as given in IS 19 5 6-1962 (amen, tled upto July 1968) are as follows:-

8 Upto 1965 the ISI gave no description of 'Strip. It had defined skelp in 1962 as follows :-

"Skelp Hot rolled narrow strip with rolled (square, slightly round or bevelled) edg''.

Strip A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edge.

(a) Narrow stripstrip (other than hoop) of width belaw 600 mm and supplied. in straight length or in coil form.

(b) Wide Strip- Strip of width 600 mm above and suplied in coil form only." Upto 1965 the ISi gave no description of strip.

It had defined skelp in 1962 as follows :-

"Hot rolled strip with square or slightly bevelled edges, used for making welded tubes" •

. E In 1968 the ISI's definition of skelp stands as follows :-

"Hot. rolled narrow strip with rolled (square, slightly round or bevelled)

edge."

Strip was defined by the ISi for the first time in 1965 as follows:-

"Coiled Strip- A hot or cold rolled flat product, rolled in rectangular cross section and supplied in coil form.

Strip A hot or cold rolled flat product, rolled in rectangular cross- ,. section thickness below 5 mm and of width below 600mm an4 supplied in straight lengths''.

The ISI's definition of strip given in 1968 is as follows :--

"A hot or cold rolled flat product, rolled in rectangular cross-section of thickness 10 mm and below and supplied with mill, trimmed or sheared edges.

(a) Narrow strip-Strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form.

(b) Wide strip-Strip of width 600 mm and above and

supplieli in coil form only".

Anne1ure 'J' submitted by the respondent along with its rejoinder affidavit in the High Court at page 101 of the record, gives various

definitions of ship take'n from various dictionaries and treatises such A as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C.-Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C.-MetaUurgical DictiQnary, page 192, year 19'53; -Backert A.0.L. A.B.C. of Iron & Steel, page 1912, year 1925-5th edition; Chamber's Technical Dictionary, year 1967. Similarly definition of strip is also given from these Dictionaries and books. It is B also pointed out that there is no category of skelp mentioned in Brnssels Nomenclature. British Stantlards 2094!, Part 4; 1954, defines skelp as follows :-

"Hot rolled strip with square or slightly bevelled edges used for making welded tubes".

Chamber's Tedm.ical Dictionary Revised Edition (Re- C printed 19541) defines skelp as follows :-

"SkelP'--(P. 77:5) Mild steel strip from which tubes are

mo.Ide by drawing through a bell at welding temperature; to produce 111p welded or butt welded tubes".

We may not add to the list but are satisfied that there are a large number of definitions out of which one can be picked up to satisfy the definition of skelp according to some authority and another definition to fit in with the concept of strip according to another authority. Since the duties on strip and skelp are not the same, it is absolutely necessary to define the worti skelp so that there can be no doubt or confusion in the mlnd of either of the taxing authority or of the tax payer with regard to the tax liability aua skelp as opposed to strip. Since, however. there is no statutorv definition of this controversial :Item different tests have naturally been resorted to by the different authorities anrl the same variation is discernible . even in the affidavits of the appellants submitted before the High Court.

The short question, therefore, that arises for consideration is whether in the above background the High Court was right in interfrring with the orders under ai; ticle 226 of the Constitution. It is not for the High Court nor for this Court to come to a conclusion on facts as to whether the 'product can truly come under the description of skelp. That undoubtedly would require some evidence be taken at the

Ieel of the taxing authority provided, however, there is an identifiable, uruform and determinate test by wjich skelp can be properly distinguished from strip. In. the mass of documents filed before us and the extensive arguments addressed at the bar with regard to the definitions culled from various Uictionaries, hand-books and authorities, we are not at all surprised that the three authorities came to the same conclusion bv deoending uoon their own chosen tests.

A oarticular type of strio mav accordine: to certain definitions be skein 11nd accorrllr11? to others not skelt>.

This. however. cnnot be oermittP<t in a fi•r:i11eitls- 1atio" which bv all standrcls shoulcl arloot a clear cif'finition of 11~1 excisable item which is incapable of giving rise to a confounding contro-

) '

versy as in this case unless the matter is beyond doubt in view of the popular meaning or meaning ascribed to the term in commercial parlance. ln absence of any clear criterion to detennine what is skelp and not strip, no useful purpose would be served by even remanding the matter to the Excise authorities for a decision after taking necessary evitlence.

It is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip of skelp it may be possible for the authorities to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test. This is, however, not possible in this case in view of the fact that there is no identifiable standard. The best way is to define the product for the purpose of excise duty in approximate terms demarcating clearly the distinction between the two terms.

The absence of any identifiable standard would, therefore, naturally give rise to the scope for arbitrary assessment at the hands of different authorities.

Whether this has happeneti in this case, as complained bv the respondent citing the instance of the Hindustan Steel Company, Rourkela, it is not necessary for us to pursue in this appeal.

We are, therefore, unable to hold that the High Court has gone wrong in granting the reliefs prayed for.

The appellants strenuously emphasised upon the test relied upon in the Revisional order as to skelp having bevelled edges which, according to them, is peculiar to skelp and not to strip. But this does not bear scrutiny as on the counter-affidavit of the Union of India in the High Court at page 57 of this record it shows that "as regards tested Hot rolled strips, the edges are never looked into, they can be bevelled, square or have Mill edge" (emphasis added). This is an admission of the appellants that strips may also have bevelled edges. ·

The two decisions relied unon hv the annellants do not come totheir aid in this case since there is no identifiable standard or test to determine clearly which product can be skelp and not strip. In Gartga Setty's case (supra) the controversy arose with regard to whether "feed oats" fell within item 42 (fodder) or within item 32 (grain) of particular circular.

Dealing with the matter this Court observed as follows:-

" .... any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed".

The decision of the Customs authorities, therefore, this Court held, could not be characterised as perverse or mala fide calling for int01.- ference. Similarly following Ganf!a Setty's case (supra) in Jas; it Sini{s • case (suora) the conclusion and findin!!s of the Customs authorities were accented as reasonable.

Jn both the abovtcases therPwere definite tests bv which the particular article could be held to fall uner one item and not under the other and the construction of the authorities

4l4 SUPREME cou&r ll.EPmtTS [1975] 3 s.c.R.

with TC~ to the scope of the })l\rt.icwar::entries was, therefore, held to be reaSonable and not calf'mg for interference by the court The question that arises in the instant case is of a contple; ely different nature as pointed, out above there being no j(lehtifiable test reasonably capable of distingaiflhing skelp from strip.

In the result the appeal fails and is disfllissed with costs.

. P.H.P.

AppeaL dismissed .

CNION OF INDIA & ORS

TATA IRON & STEEL CO. LTD

January 31, 1975

A. N. RAY, C.J.

P. K. GOSWAMI, JJ.

Constitution of India

Art. 226, 227

article 226 & 227

Central Excise Act, 1944

Art. 226

F. S. Nariman

D. N. Mukherjie

R. N. Sahthey

N. A. Palkhiala

Ravinder Narain

I. B. Dadachanji

. C. Mathur

K. J. John

K. R. lhaveri

GoswAMI

1Jelhi High Court

April 24, 1962

February 28, 1964

February 19, 1964

Central Government

Palkhivitla

section 3

First Schedule

section 37

Jamshedpur

June 17, 1964

October 24/29, 1964

Jhen

August 18, 1967

ISI

Henderson

Hindustan Steel Company, Rourkela

Union of India

Gartga Setty

Ganf!a Setty


GANGADHAR YESHWANT BHANDARE

ERASMO DE JESUS SEQUIRIA

February 4, 1975 [H. R. KHANNA;, P. N. EHAGWATI AND R. s. SARiCARIA, JJ.]

Goa, Vaman and. Diu Citizenship Order, 1%2';..c/, )A..:.....Pi; sspol't Issued by a foreign coulltry. to be surrendered liefo, re acert11in.date.,-Gqvermnent specifically asked a citizen not to surrender foreign pas8port....;..Seryics of cltl:de1.1. used In .a top secret mission:--Wllether retmtton of .foreig11 passPort deprlvt4 lu'm of Indian Citizenship ·

Clause (2) of the Go~, Daman and.Diu.(Citizcnsliip) oder, 1962 tall~ tlmt every person who or either of whose paents WLtS borR befurc the 20th <I&)' of Db; ember, 1961 in the territories now cil'ml!l'i'Sed in the' union territoii qf Ooa, Daman and Diu shall be deemedto h, iive beeom\ a. citlr.en of Iadf&:p1': that day. The proviso to that clause says .'thai,· 'any SQCh peii shall not lie. deemed to have become 11 citizen of India; as aforesaid if within one month from ihe date of publication of the order that person makes a .declaratioil'in writing that he chooses to retain the citiz.enship or nationality' '\Vl'riCh h.e Ji$4 immediately before the 20th day of December, 1961. In Decenttier. 19"62 clii!, tile

(3A) was .inserted in Schedule 3 to the CitizeQship Rules which. states that .where. a person who has beome an Indian citizen by virtue of 'the 1!162 .. CitlZensbip Order holds a passport issued by the Government of any , other. Country~ fact that he has not surrende'fed the said passport on. or befotj:I January' 19; 1963. shaU be conclusive proof' of ms having volwitarily acquired the t:itizedship of• that countrv before that date. . ~

In . his . eloction petition the appellant alleged at the resj)Gndent .C:p(lse~. io maintain his Portuguese nationality, aild citizeashii; I by making a deClaration in writing on April 27, 1962. Thereal'fer, he proceeded. on foreign travel as analie.n on the basis of the. Portuguese passport issued to him by the fm:mer Portlie8c administra:tion. which vas renewed upto July 17, 1964 in ..London: It was further alleged that the respondent obtained his alien residential• nnit in India and that he deliberately failed to surrender his Portuguese passport fore January 19,1963 as required by cl. 3A 'of the Amending Rules; 1962 .. It 'was also alleged that the communic<ttion of the. Goa administration that' the respondent bad prima facie become a citizen of I9dia byvirtue of the Cltiienship Order was not correct and contrary to the doeumentary evideote:

The Judicial Commissioner held (i) that the respondent-was entru,.5tedwilh a secret mission on behalf of . the Government of India and it was ia th8* connection that he was made to sign the declaration dated April '9J.7; 1962 aftd' that the declaration Wl\S not made voluntarily; (ii) that the renewal of tile Portuguese passport did not imply loss of Indian citiz.ensl; tip; ·(iii) tl\at the ittenc tion of the Portuguese passport .after January 19, 1963 was -due' to l::ooipeUiiig. reasons and that the Government of India must be deemed to have .glvon lts decision that llie respondent was a11. Indian .citizen. . ·

Dismissing ttl" .appeal to this Court.

HELD : (I) According to the Special Adviser to the Military Governor •lfho later became Special Adviser to the Lt. Governor, the declaration of the respondent da!.ed April. 27, 1962 that he cho, se to retain the Po_ituj\uese. citizenship and nati.onality as signd by him <?.nly by way 'Of. formahty 1n view of the fact that the SpeC1al Adviser had decided tO uso the respondent in a tep secret matter relating to the security of India ... The -respondent was involved with a J>o11ug11ese lady and that fact provided a cover fOr carrying out the' assignment.

The respondent retained his Portuguese passport and obtained residential permits to stay in Goa as a foreigner. till January, .1964

:at the instance of the Spe:ial Adviser so that he could carry out the assignment

entrusted to him. He had gone abroad in 1963 in connection With the assignment on a Portugu.ese pai; sport under the instructions of the Special Adviser.

The respondent renewed the Portuguese passport in London under instructions of the Special Adviser.

On respondent's return he was asked by the Special Adviser to retain his passport till such time as it was decided to use him again or asked him to relinquisl! it. The Special Adviser was competent to ask the re;!pondent to retain his Portugues'e passport and to proceed on top secret a.ss.1gnment.

[43 IE-H]

( 2) The words "as agreed" appearing on the letter dated April 27, 1962 addressed by the respondent to the Spedal Adviser go to show that it was in pursuance of some arrnngement between the Special Adviser and the respondent that the latter was retaining his Portuguese passport and visiting Portugal. The note made by the Special Adviser expressly refers to the fact that the respondent after returning from his foreign trip was to take over an Indian passport and renounce Portuguese nationality.

No express reference to the secret mission. in 4hc very nature of things, could be expected either in the letter or in the note. lt was obviously essential for the success of the secret mision that things should not be divulged by making them explicit. [433G-H]

(3) No question of sharing of the expenses of the respondent would arise if the respondent was not 1md<rtaking a trip for reasons conne:ted with tile affairs of the State.

[ 434A]

( 4) The evidence on re:ord proves that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign the declaration dated April 27, 1962.

Th~ D intention. of the respondent at the time he signed the declaration was not to become a Portuguese national but to acquire Indian nationality. [4340]

(5) The declaration dated April 27, 1%2 and the retention of the pa;.spo:t by the respondent after January, 1963 could not have the effect of depriving the respondent of the benefit of. Indian citizenship.

But for the declaration dated April 27. 1962 the respondent according to cl. (2) of the Citizenship Order would be deemed to have become a citizen of India on December 20. 1961.

The declaration was signed by him because of the secret mission which had E been entrusted to him in connection with the affairs of the State. It cannot. therefore, be said that the ,:hoice to retain Portuguese nationality as expressed in his declaration date.ct April 27, 1962 and January 19, 1963 represented his real choice exercised by him voluntarily.

[4350; 434H; 435A-B]

(6) The Judicial Commissioner was right in considering the declaration dated April 27, 1962 and the letter dated July 27. 1970 from the Ministry r, f Home Affairs tha.t he had become prima fade a citizen of India as a certificate issued by the O:ntral Government under S; 13 of the Citizenship Act. It is also pl.ain

II' that the Central Government reaffirmed its decision that the respondent had pri'ma facie become a citiz<m of India in spite of the fact that the O:ntral Government was informed about the making of declaratiqn dated April 27, 1962.

Lt•tters dated July 26, 1970 and July 27, 1970 though they did not profess to be certificates issued under s. 13 and though the latter of these two letters recites that there was no necessity of a certificate, clearly incorporate the vi.w nf the Government of India that the respondent wa~ an Indian citizen.

[437G;

C; 438C] G

C1v1L APPELLATE JURISDICTION : Civil Appeal No. 991 of 1973.

From the judgment and order dated the 16th March, 1973 of the Co'urt of Judicial Commr.,, Goa Daman & Diu in Election PetitiO'a No. 1 of 1971.

V. R .. Bhandare, V. N. Ganpu]e and Urmila Sirur, for the appe- II Hant.

A. K. Sen and S. R. Agrawala, for the respondent.

A The Judgment of the Court was delivered by

KHANNA, J.-The short question which arises for determinati.on in this appeal against the judgment of the Judicial Commissioner Goa, Daman & Diu dismissing petition filed by Gangadhar Yeshwant Bhantlare appe.llant to question the election of Erasmo De Jesus Sequiria respondent to the Lok Sabha is whether the said respondent B at the relevant time was a citizen of India.

The respondent was declared elected to the Lok Sabha from the Moraugao parliamentary constituency in the elections held in March

1971. The appelJant who had been validly nominated as a candidate at the election fur 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 de<:Iared void on the. ground that on the date ofl the election the respondent was not qualified to be chosen to fill a parliamentary seat under the Constitution of India and the Re presentation 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 & Diu was liberated from the Portuguese domination and becarr.e a part of the Indian Union the said territory was a Portu, guese possession and the respondent was Portuguese citizen. Pollowing 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 (Y{ the Citizenship Act, 1955 issued on March 28, 1962 Goa, Daman and Din E (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 trms 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 J?Crson .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 ta.t the _respondent. chose to mai!ltai~ his _Portuguese nat10nahty and c1hzensh1p by makmg a declaration m wnting 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

428 SUb\..lME COURT REPORTS [197 5] :l s.c.11. •.

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

pasport, which was granted to him on June 18, 1962. The new passport Wall 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.

On December 20, 1962 the Central Government published the Citizenship (Amendment) Rules, 1962 and insered in Schedule III to the Citizenship Rules, 1956. clause 3A which reads as under:

."3-A. Where a person, who has become an.Indian citi zen by virtue ()f the Goa, Daman and Diu (Citizenship) Order, 1962 or the Dadra and Nil.gar Haveli (Citizenship) Order, 1962,. issued under section 7 o.f the Citizenship A.ct,

1955 (57 of 19:55), h'Dlds a passport issued by the Government QI' 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, 1963 as required undel' the above clause. In January 1964 the respondent' returned his Portugueis-e passport. to the Special Officer, Ministry of External Affairs and claimed Indian citizenship. No reference~ was made in Lhat communication by the respondent to the fact that he had made a declaration retaining his Portuguese citizenship. On D~ cember 15, 1964 a letter was se.nt 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 .section 13 of the Citizenship Act.

In response to that the respondent was informed by letter dated July 27, 1970. that the said certifica.te was not necessary for hm 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 of scrutiny by the appellant that the respondecnt 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 l:ok Sabha be declared to be void.

The respondent in his written statement stated that the declaratlon filed by him on April 27, 1962 was not a valid declaration iitiasmuch as he did not choose to retain his Portuguese nationality and citizenship. Thi:I said decll\I'ation was. stated to ave been made by the respondent at the request of. the then Special Adviser Goa for reasons. which had no connection with any int<mtioo on . his part. to retain the Portugues nationality and citizenship or to lose Indian

citizenship. The respondent admits that he left India in May 1962 and got his passport renewed from the Portuguese Omsulate in London. The respondent was, however, advised by his friends not to go to Portugal and consequently he did not go there. The respondent. it is further stated, was told by the Special Adviser to C'.lntinue to retain the Portuguese passpon so that he might be in a position to make a later trip to Pt>rtugal. According further to the respondent, . he applied for a residential pennit 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 not intend to jeopardise his Indian citizenship. When clause 3A in Schedule lU to the Citii.enship Rules was added, the respondent addressed a letter to the Special Offiecr.

Ministry. of External Affairs: to the efJ!cct that hl:l was retaining for the time being the Portuguese passport and that his object wa.q to obtain Indian passport in due course. The respondent thereafter surrendered his Portuguese passport on January 15,

1964. The rcHpondcnt, it is further stated, obtained a passport as a citizen of Tndh1 from the Government of India through the Chief Se<:retary, Goa.

Daman and Diu in 1965. Another passport was obtained by the respondent in that capacity in 1970. According to the respondent, letter from Goa Administration dated December 15, 1964 and letter dated July 27, 1970 from the Govert'lment of India are conclusive on the point that he was 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 .. vircs the Citii.enship Act. According to the respondent, he was a citizen of India at the relevant time and his election was not liable to he declared void on the ground set up by the appellant.

It ma; y be stated that the appellant impleaded he side;; the respondent, tho Returning Officer and the Union of India as respondents 2 and 3 respectively in the election petition. Respondent No. 2 was deleted from the list of respondents on July 31, 1971 on an application filed by the appellant. So far as the Union of India respondent No. 3 is concerned, ili6 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.

Before that a written statement was filed on behalf of the Union of India.

Aceording to the Union of India, the respondent signed decltu-ation dated April 27, 1962 not voluntarily but on the advice and at the instance of the Speciai Adviser GQa.

As regards the residential permits which were granted to the respondent, the Union of India states that those permits were issued with a view to avoiding. any complication as the respondent held a , Portuguese passport for reasons connected with the affairs of the State. The Union of India has denied that the re5pondent acquired the Portuguese ciprenship or that he c6a5Cd fo be an Indian citiz.en. According further to the Union of India, the respondent is an Indian cit.ii.en. Indian passports arc stated to ha.ve bceb issued in favour .of the respondent because of his being an ladian citizen. f .1-4!3SCl'75

430 SUPREME COURT REPOiTS [1975] 3 s.c.R.

er: .

Following issues were framed by the learned Judicial Commission-

I. "Ha.s this Court jurisdiction to entertain the election petition?

2. Is the petitioner a citizen oil India?

3. Did the petitioner comply with the prov1s1ons of sfr.:--

tion 8 I ( 3) of the Representation of the People Act, 1951 and if not, is the petition fit to be dismissed under se:ction 86(1) of that Act?

4. Whether the first proviso to para 2 of the Goa, Daun:i.n

and Diu (Citizenship) Order, 1962 is ultra vires and in excess of the powers conferred by section 7 of the Citizenship Act, l 955?

5. Was the first respJndent disqualified to be chosen as a member of the Lok Sabha in March l 971 for the reasons stated by the petitioner in the election ptition ?

6. To what relief ?''

Issues l, 2 and 4 which were treated as preliminary issues were decide:d in favour of the appellant and against the respondent as per order dated October 5, 1971. Issue No. 3 was also dec:idecl in favour of the appellant. On issue No. S the learned Judicial Commisskmer held that the respondent was entrusted with a secret mission on behalf of the Government of India and it was in that connection that he was made to sign declaration dated April 27, 1962. The said declaration was not made voluntarily. The renewal of Portugue:se passport by the respondent, it was held, did not imply the loss of. Indian citiz.enship. The rct1ntiJn of the Portuguese passport by the respondent after January 19, 1963 was found to be due to compcITinl:J

reasons. In the opinion of the Judicial Ccmmissioner, the Govc:rnmcnt of India must b1~ deemed to have ven its decision that respondent was an Indian c.itizen. The respondent was accordingly held not disqualified to be chosen as a member of the Lok Sabha. fn th1~ result the. election petition was dismissed.

In appca.I before us Mr. Bhandarc on behalf of the appellant has challenged the finding the Judicial Commissioner that the respondent did not sign. declaration dated April 27, 1962 voluntarilv

and that it was in connection with a secret mission entrusted to him on behalf of the Government of India that he was made to sign tha.t declaration. It is urged that the respondent was not an Indian citizen

at the relevant time ad as such wa!> 00t qualified to be chosen to fill a seat irt the Parliament. We have civen our careful consideration to the s1,1brnission of Mr. Bhandare arid though we agree with him that as provided in article 84 of the Constitution, a person shall not be qualified: to be 1chnl JJ fill a seat in Parliament unless he is a oitizen of hdia, we find it difficult to accept his other conteniions

Ex. P3 is declaration dated April 27, 1962 which, according to the appellant, was made by the respondent voluntarily. The declaration read as under :

The Sr. Superintendent of Police, Goa Panjim

Sir,

Panjim dated 27th April 1962

l ERASMO JESUS DE SEQUEIRA aged 23 years resi dent at CAMPAL, PANJIM declare that 1 have carefully read the order passed. by the Military Governor on the 5th

o~ April, 1962 regarding the declaration of Nationality. l have also carefully perused the Notification of the Govt. of fndia dated 28th March, 1962 which is an order called 'Goa, Diu and Daman Citizenship Order 1962'. I accordingly declare that I choose to retain the

PORTU- GUESE citizenship Nationality which I was holding imme diately before the 20th of December, 1961. I, therefore, herein sign my declaration, declaring my PORTUGUESE citizenship . . . . . ... Nationality.

Sd/Erasmo Jesus De Sequeira Signature

The learned Judicial Commissioner has found that the above declaration was made by the respondent not voluntarily and that he was made to sign it in connection with a secret mission entrusted to him on behalf of the Government of India. The finding of the Judicial Commissioner in this respect is supported by the evidence of Mr. G.

K. Handoo who was appoin.ted in Deceinber 1961 as a Special Adviser to the Military Governor of Goa and who was thereafter appointr<l in March 1962 Special Adviser to the. Lt. Governor. Before that Handoo was Additional Inspector General of Police, Maharashtra and Commandant of the Border Security Force of Goa, Daman and Diu. He had also been dealing with foreign intelligence and security

of Goa in the Ministry of External Affairs. According to Handoo, declaration Ex. 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 Govern ment 0£ India. The respondent, it is stated, was involved with a Portugue~ lady and that fact provided a cover for carrying out the assignment. Handoo has further stated that the respondent retained his Portuguese passport and obtained residential permits to stay in Goa as a foreigner till January 1964 at the instance of Handoo so that the respondent could carry out the assignment entrusted to him. It is also

sta~ by Handoo that the respondent went abroad in l 962 in connection with the assignment on a Portuguese passport under the instructions of Handoo. The expenses for the above foreign trip of the respondent were shared by the Government ofl India and the respondent. It is further in the evidence of Handoo that the respondent renewed hct.!!ortuguese passport in London under the instructions of

the witness. On his return the respondent contacted Handoo. Handoo then told the respondent to retain his passport till such time as Handoo decided to use him again or asked him to relinquish' it. Handoo adds that he was competent to ask the respondent to retain his Portuguese passport and to proceed on. top-secret assignment.

It is also in the evidence of Han.doo that the respondent addressed letter

Ex. P4 to Handoo o.n April 27, 1962. The letter roads as under:

CONFIDENTIAL Mr. G. K. HANDOO

SPECIAL ADVISER

GOA

DEAR MR. HANDOO:

CAMPAL

. PANJIM 27th APRIL, 1962

Confirming my call on. you thi~ morning, I, as agreed, write to advise you that [ wish to retain my Portuguese passport No. 703/58 issued at Goa for the present, to enable me to visit Portugal and sec a very personal friend on ll

highly personal reason.

I request that pennissiou be granted fur me to leave: India on this passport, and would appreciate a re-entry permit valid for :; ix months being granted at the same time.

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.

With compliments.

Yours sincerely,

Sd/~ Erasmo Jesus de Sequeira"

On the above letter Handoo recorded a note meant for Joshi who was indharge of Pas&-po.rt Section at Panjim.

The note reads as under:

"Please s'ec. I had spoken to you about this.

The applicant h!IS to go back; to Portugal wi1h reference to hil; entanglement with a white Portugtiese lady and has to fina!ly settle thi~ domestic issue and return. He will then take over an Indian passport which can be isued as he will renounce Portu~:se nationality. Plea.so issuei him a , e-entry permit as desired at 'A' above."

The sttement of the resp.mdent when he came into the witnessbox iii .sitiillar to dtat of Halldoo. The learned Ju<licial Commissioner has accepted the evidence adduced on bebalf ot.,!~ respon

[).

dent in this. respect, and we see no particular reason to disbelieve the same.

Handoo was a senior officet who dealt with foreign intelligence and security of Goa.

At the relevant time he was Special Adviser to the Lt. Governor. So far as the present proceedings of the election petition are concerned, he is wholly disinterested and there appears to be no cogent ground whatsoever as to why he should give faJ5e evidence in favour of the respondent. . As regards the respondent, we. find that he was subjected to lengthy and searching ctossexamination lasting for 11 days.

The learned Judicial commis sioner , has commeuded the demeanour , of the responde.nl in the witness-box and has observel:l that'. the respondent's clear, unhesitatin~ and finn answers impressed him for the tiuthfuhis. According to the. Judicial Commissioner, the evidcntiary value of the respondent's

sl:ltemen~. instead of being weakelij)d, was fortified as a result of cress-examination.

This Court in an e!ection appeal normally does not interfere with the aru>raisement of. t}\e. evidence of the witnsses by the High Court unless stich appraisement is afflicted with some glaring infirmity. After havin~ been taken through the: evidenee of Handoo and the r-espondent, we find -no reason whatsoever . to take a .view different from that takCn'by 1he Judicial Commissioner regard ing the trustworthiness of the two witnesses.

Mr. Bhandare has drawn our attention to the suggestion which was put in cross-examination to the respondent that he was being helped. by •the ruling party at the Centre in the matter of his citizenship and the present election petition because of the support lent by him to the ruling party since 1969.

The respondent repudiated this suggestion and we find that apart from this bare suggestion in cro!\8cxamination there is no other material on the record to show that the suggestion was well-founded. We further find that . Handoo retired from Government service and did not hold any official position after November 1962. His evidence in the present proceedings was recorded on a)rnmission in Au!!llst 1972. Hilndoo being no longer in Government service at the time of the reOOrding of his evidence, it is t -clear as to how he could be influenced bv the pahv ih power "t the Centre to give evidence in favour of the respondent.

The evidence of the respondent and Handdo is also bOrne out by the letter which was addressed by the resTIOndent tf) Handoo on April 27, 1962 and the note made on that letter by Handoo. The word~ "as amed" .in the above letter (!'o to show that it Wlls in pursuance of some arrangement between Handoo and the respondent that the latter was retaining his Portuguese passport and Visiting Portucr.Ll.

The note which was made by Handlx> expresslv refers to the tac

that the. respondent after retuminl! from bis foreign trio was to take over an Indian passport aml renoun~ Portuguese nationality- No express referen.i:e to lhe secret mission in the very nature of thin~ could be expected either in the letter or in the note It was .pbviously essential. for the sm; cess of the secret mission, Jhat things should not' be divulged bv making them explicit.

The evidence of. the respondent and Handoo also shows. that the expense& for the foreign trip of the respondent were. borne partlyby

the Government and partly by the respondent.

No question of sharing of those expenses by the Governrn.ent would arise if the respondent was not undertakin_g that trip for reasons connected w:ith the a!Pilirs of the State as alleged by the respondent.

While dealing \X/ith the question as to what value should be attached to the evidence adduced by the respondent, we must also bear in mind the written statement which bas been) filed on behalf of the Union of India.

According to the stand taken by the Union ofl India, declaration dated April 27, 1962 was nut signed by the respondent voluntarillf but on the advice and at the instance of the Special Adviser Goa.

The Union of India has tµrther stated that the residential perm, its were granted to the respondent with a. view to prevent any complication as the respondent l)eld a Portuguese passport for reasons connected with the affairs of the State.

Looking to all the facts, we. agree with the learned Judicial Commissioner that the evidence on re6o.rd proves that the respondent was entrusted with a secret mission dn, behalf of,' the Government qf India 1md it was ln that connection; that he was made to sign dealaration dated April 27, 1962.

We lso agree that the intention of: the respondent at .. the titne. he sign~ the declaration was not to beccme a Portuguese

11;1tional but to acquire Indian nationality and citizenship.

The evidence of Handoo and the respondent also establishes that it was at the instance of Handoo in connection with the secret mission entrusted to him that respondent travelled on a Portugu\se passport

i!IJ 1962 and obtained on the expiry of his passport a fresh passport from Portuguese Consulate in London in June 1962. The evidence further establishes ihat it was for the same reason that the respondent did Mt surrender his Portuguese passport on or before January 19, 1963 in accordance with clause 3A inserted in Schedule III to the Citizenship Rules, 1956. The same was the reason, according to that evidence, for .the stay 0£ the respondent in Goa as a foreigner on residential !Jermits till January 1964.

It has next been argued by ~Ir. Bhandare that whatever might be the reason which mighlt have weighed with the respondent in malting declaration P3 dated April 27, 1962 regarding his Portuguese nationality and the retention of the Portuguese passport till after January 19,

I. 963 the law must tak1e its course and the court should give effect to the proviso to clause 2 of the Citizenship Order and clause 3A of Schedule III to the Citirenship Rules, 1956. In accordance with the above provisions, the respondent, it is urged, should be held to be a Portuguese citizen and not an Indian citizen.

We are unable to aCOC'!l:le to the above submission. The respondent was ad111tttedly born before the 20th day of December 1961 in the Union Territory of Goa, Daman and Diu. As such, but for declaration P3 signed by him, he would according to clause 2 of the CitiZlmship Older be deemed to have become a citizen of India on the 20th day of December 1961. Question then :!rises as to what is the effect of declaration P:I made by the respondent on April 27, 1962 and the retention of the .fl0rtugu4~ passport by him after January 19, 1963.

G. Y. BHANDARE v. ERASMO DE JE~US (Khanna, I.> 435

W,~ have found above that even though the respondent wanted to becdme an Indian citizen, he signed declaration P3 and retained the Portuguese pasport till January 1964 because of the secret mission which had been entrusted to him in connection with the affairs of th~-State.

It cannot, therefore, be said that the choice to retain Portuguv.-se nationality a~' expressed in declaration P3 as well as the choice to retain the Portuguese passport aJlter January 19, 1963 represented the real choice of he respondent exercised by him voluntarily and of his free volition. </>n the contrary it was because of the necessity and the compulsive ro'a, on of ensuring the success of the secret mission entrusted to him in connection with the affairs of the State that the respondent signed declaration P3 and retained the Portuguese passport till after January 19, 1963. The evidence on record establishes that declaration P3 was a sham declaration which did not embody the real intention or choice of the person signing it. It was not intended to be acted upon and was signed at the instance 0£ a senior officer acting on behalf of the Government of India because it was considered to be a necessary camouflage and cover to facilitate the carrying out of the secret mission entrusted to hirh in connection with the affairs oE the State.

The same was reason for the retention of the Portuguese passport by the respondent after January 1963. As such, declaration P3 and the retention of the passport by the respondent af, ter January 1963 cannot have the effect of depriving the respondent of the benefit of Indian citizenship. It would indeed look anomalous if a declaration signed in the above circumstances were to result in the evil consequence of tbe respondent being denied the right to become an Indian citizen. We may observe that once a declarati'on like P3 is signed by

a person and he retains a Portuguese passport after the due date the onus would be very heavy upon him to prove that the declaration' was not signed by im voluntarily and that the retention of the Portuguese passport by him was also not a voluntary act. Unless he discharges that onus by clear and cogent evidence, the law would takes its course and he would not be regarded an Indian citizen. Where, however, as in the pi:esent case the person concerned discharges th;; it onus and it is estabhshed by clear and cogent evidence that the real choice and intention of the person concerned was to become an Indian national and that--he __ sied the declaration and retained the passport because of the comoul~1on of a secret assignment entmsted to him in connection with the affairs of. the State, he cannot be deprived of his entitlement to Indian citizenship.

We may in the above context refer to the case of Mohd. Ayub Khan v. Commissioner of Police, Madras & Anr.(') This Court in -that case was dealing with pa, ragraph 3 of Schedule III to the Citizenship Rules, 1956 which raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date 'Voluntarily acquired citizenship of that other country. Referring to that paragraph this Court observed :

"By the application of the rule in Para.graph 3 the authori- __ :Y must ragard obtaining of a foreign passport on a parti-

(l) (196S) 2 S.C.R. 884.

cular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of fureign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he bad not voluntarily o!lr tained the passport, the citizen must be afforded an opportunity to prove that fact. c.ascs may be visualized in which on account of force a person may be compelled or on ai:- courit of fraud or inisreprcsentatfon he may be induced, without , any intention of renuciati\O)Jl of liis Indian citizenship, to obtain a passpol/1 from a fureign oountry. It would be difficult tQ .say that s'tlch a passport is one which bas be(:n 'obtained' within the meaning of Paragraph 3 of Sch. IU

and that a conclusive presumption must arise that he h<1s acquired. voluntarily citizenship of that country:"

The learned Judkial C.Onunissioner has held that letter R3 dated July 27, 1970 taken along with other documents should be construed as a certificate issued by the Government under section 13 of the Citizenship Act. The above finding has hee1, t assailed by Mr. Bhandare.

In this connection we find that according to section 13 of the Citizensb, ip Act, the Central Government may, in S\!Ch cases as it thinks fit, cerdfY that a persOIJ, h mpect t9 whose,..citizenship of India a oovbt exists, is a citizep of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a

cilizen at am earlier date. The respondent, as mentioned earlier, surrendered his Portuguese passport on January 15, 1964. While surrendering bis passport, the respondent wrote letter dated January

t5; 1964 to the Special Officer, Ministrv of External Affairs daiming Indian citizenship. The Ministry 9f Extelhal Affairs then referred the matter to the Senior Superintendent of Police Panjim. The statem!!nt of 1he respondent Wai then recorded by the police and the Senior Superintende11't of Police thereafter made a report.

A ieport was then sent to the Mittistry of External Affairs by the Chief Secre-

~. Government of Ooa, l)aman and Diu.

A letter was therc- r sent on behalf of the Ministry of EJ1ternal Affairs on Th:cembe11 2, 1964 to the said Chief Secretary stating that in view oB . the inf<mnation suoJ>lied .bv the Chief Secretary, there was no objection to the respondent being treated as a citizen of India under the Citizenship Order. 011 December lS, 1964 a communication was sent fo the resoondent .as, the Under Secretary. Home Deoartment of the Go'rcrnment of Goa, Daman and Diu that prima facie die resnondent had become a citizen of India bv virtue of the Citizenshin Order. M:ore than f!Our and a half -years thereafter on Julv 1, 1969 the Inspector General of Police addressed a letter to the Chief Secretarv Go'•emment of Goa, Daman and Diu that the respondent had mad~ decl!aration P3 dated April 27. 1962 choosing to retain Portmruese citi:r.enrJUp and that this fact had not been broul!:ht to the notice of the Government before lettir dated December 15, 1964 was issued to the

respondent that he had prima facie become a citizen of In<li.a. The Chief Secretary thereafter addresed 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. There was then further correspclJ.dence between the Government of India and the Government of Goa, Daman and Diu. On July 26, 1970 the Joint Secretary to the Government of India, Ministry of Home Affain addressed letter P52 to the respondent that the mattei regarding his clai..."11 tQ. Indian citizenship had been reconsidered and it bad been decided that the matter should be treated as closeJC!. The Governn1ent of India thus reaffirmed its decision which bad been conveyed to the respondent in 1964 that the respondent bad become prima facie a citiun of India by virtue of the Citizcnship Order. It is also plain that the Central Government reaffirmed its decision that the respondent had prima facie become a citiun 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 27, 1970 the faint Secretary in the Ministry of Home Affairs addressed the following Jetter P3 to the respondent :

"i am directed to refer to your Jetter dated 27th July, 1970

requesting for grant of a certificate of citiunship under section 13 of the Citizenship Act, 1955, and to say that since the Goa Administration have in their letter No. HD-9-436/ 64 dated 15th December, 1964, already informed you that you have prirna 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 not arise."

1As already mentioned, the learned Judicial Commissioner ha3 held that the above letter taken along with the preceding correspondence should be construed as a certificate issued by the Central Government under section 13 of the Citizcnship Act. We find no cogent ground to take a different view. By the above letter the Government of India plainly reiterated and reaffirmed its view conveyed to the respondent on December 15, 1964 that he had prima facie become a citizen of India by virtue of the Citizenship Order. It was no, doubt mentioned in the letter that the necessity of a certificate unit' . '.; ectron

13 docs not arise, but this was plainly in view of the assumption made by the Government of India as expressed in that letter that the respondent was already accepted to be a citiun of India. The learned Judicial Commissioner, in the circumstances, cannot be held to be in error in construing letter R3 and the preceding correspondence as

a certificate under section 13 of the Citiunship Act.

' To put it differently, section 13 vests the Central Government with power to certify in case a doubt exists as to whether a particular person is a citizeR of India that he is such a citizen. In the case of the respondent a doubt was raised by the Government of Goa, Daman

anc.I Diu on the point as to whether he was a citizen of India. The Govemment of, Goa, Daman and Diu in this context r.eferred to the fact that the respondent while prayin11: on January 15, 1964 for being declared Indian citizen had suppressed the fact about his having signed

declaration P3 on April 27, 1962 choosing to retain Portuguese nationality. The Central Government even after being apprised of that fact refused to reconsider its decision of 1964 and observed that the matter should be treated as closed. When the respondent the:reafter asked for certificate under section 13 the Central Government said that no such certificate was necessary in view of the earlier official co1.J111unication which had been sent to him that he had prima facic become a citizen of India.

These facts, in our opinion, clearly establish that the Central Government after being put in possession of all relevant facts reiteratd its view that the respondent was an Indian citizen and shm1ld be ( "nsidered as such. Letter dated July 26, 1970 and July 27, 1970, : k Jgh they d<J not profcs> to be certificates issued under section 13

a~· ... : though the later of these two letters recites that there was no necessary of a certifkate, clearly incorporate the view of the Government of India that the respondent was an Indian citizen. The letter~ thus serve the purpose of a ce1tificate and we agree with Mr. Sen, counsel for the respondent, that they operated as certificate and should be constrned as such.

We may observe that the Government of India issued a passport in favour of the respondent in 1965 and thereafter in 1970. The respondent before his election to the Lok Sabha ir! 1971 was al:'io 1t member of the Lok Sabha from 1967 till 1971. When elected as a member of the Lok Sabha in 1967 as also when he obtained the Indian passport in 1965 and 1970 the respondent had to sign the declaration that he was an Indian citizen. He has already renounced his Portuguese citizenship. To hold at this stage that the respondent is not an Indian citizen would have the effect of r1mdering him stateless.

As a result of the: above, we find that there is no merit in the appeal. ft accordingly fails and is dismissed with costs.

Appeal dismissed.

P.B.R.

GANGADHAR YESHWANT BHANDARE

ERASMO DE JESUS SEQUIRIA

February 4, 1975

H. R. KHANNA

Schedule 3

July 17, 1964

London

India

cl. 3A

Government of India

Portugal

April 27. 1962

December 20. 1961

April 27, 1962

July 27. 1970

ntral Government

Citizenship Act

Central Government

s. 13

V. R .. Bhandare

V. N. Ganpu]e

Urmila Sirur

A. K. Sen

S. R. Agrawala

KHANNA

Gangadhar Yeshwant Bhantlare

Erasmo De Jesus Sequiria

December 20, 1961

Goa

Daman

Diu

Union of India

section 7

Citizenship Act, 1955

Daman

clause 2

Diu

June 18, 1962

June 17, 1964

December 20, 1962

clause 3A

section 7

cember 15, 1964

section 13

Citizenship Act

Goa Administration

December 15, 1964

C'.lntinue

rtugal

clause 3A

July 27, 1970

clause 3A

Schedule III to the Citizenship Rules

clause 2

Union of India

Representation of the People Act, 1951

section 7

Citizenship Act

Govc:rnmcnt of India

Bhandarc

Parliament

Bhandare arid

article 84

The declaration read as under :

The Sr.

G.

K. Handoo

Handoo

Government ofl India

G. K. HANDOO

Erasmo Jesus de Sequeira

Joshi

Bhandare

Hilndoo

Handdo

Handoo

Union ofl India

clause 3A

January 19,

I. 963

clause 2

clause 3A

clause 2

section 13

Citizenship Act

section 13

January

t5; 1964

Government of Goa

July 26, 1970

section 13

Citizenship Act, 1955

section 13

section 13

section 13

section 13

Government of Goa, Daman

January 15, 1964

section 13

section 13

Sen