dated 1st September, 2008 stated that Article 8(2)
of the Interim Constitution of Nepal, 2007 provides
‘that at the commencement of this Constitution any
person who has his or her permanent domicile in
Nepal and whose father or mother was a citizen of
Nepal at his or her birth shall be deemed to be the
citizen of Nepal by descent.’ Moreover, pursuant
to Section 3 (1) of Nepal Citizenship Act, 2006, it
has been clearly provided that “ A person born at
the time when his/her father or mother is a citizen
of Nepal, shall be a citizen of Nepal by descent.
Likewise, the official designated by Section 9 of the
same Act shall provide citizenship upon fulfillment
of procedure pursuant to Rule 3 of Nepal Citizenship
Rules, 2006. No legal restriction has been imposed
to this course. As the opponent petitioner has
submitted application before an unconcerned
District Administration Office, he could not obtain
citizenship certificate which he has himself accepted
in his petition. The legal procedure prescribed by
law has not been fulfilled in his application. If any
person for his convenience does not follow the
process and procedure prescribed by law to avail or
use facilities used by common people it will also be
against the spirit of rule of law. Therefore, the plea
of the petitioner is not lawful and therefore, the writ
petition should be quashed. It is not clear why other
respondents have filed this writ petition based on
what type of locus standi. If the other respondents
have filed this writ petition due to the violation
of petitioner Ranjit Thapa’s fundamental rights,
they do not have locus standi to file this petition.
Therefore, the writ petition deserves to be quashed.
Hence, the writ needs to be quashed also on the basis
of question over jurisdiction.”
The written response submitted on behalf of the
Ministry of Law, Justice and Constituent Assembly
stated that the applicant has not been able to
clarify which action of this Ministry violated his
constitutional rights. Pursuant to Section 3 of Nepal
Citizenship Act, 2006 and Article 8(2) of the Interim
Constitution of Nepal, 2007, any person can obtain
citizenship certificate from his/her mother’s name.
Only the processes and procedures prescribed by
law have to be followed. Hence, the writ as sought
by the petitioner need not be issued and the writ
petition has to be quashed.
In the present writ petition scheduled in daily cause
list and presented before this bench for delivering
judgment as per the rule, going through the case
file and listening to the arguments of learned
advocates representing on behalf of the petitioner
viz. Mr. Narendra Pathak, Ms. Mira Dhungana
and Ms. Sushma Gautam who pleaded that Nepal
Citizenship Act, 2006 has provided that citizenship
certificate can be obtained in the name of mother
in case father does not confer or a person can obtain
citizenship certificate in the name of either mother
or father. Interim Constitution of Nepal, 2007 and
various international treaties, to which Nepal is a
party/signatory, have also ensured the condition
that no children shall remain stateless. When the
petitioner submitted application for citizenship to
District Administration Office, Kathmandu to obtain
citizenship certificate from the name of mother
after his father denied to confer him citizenship,
along with the field inquiry report, recommendation
of Kathmandu Metropolitan City, birth certificate
and the mother’s citizenship certificate issued
from Kathmandu district. The Chief District Officer
returned the petitioner without issuing citizenship
certificate asserting that ‘descent’ denotes ‘of
the father side’ and as his father’s address is at
Kabhrepalanchowk district, citizenship certificate
cannot be issued from Kathmandu district.
Therefore, the writ of mandamus should be issued
in the name of respondents to provide the petitioner
the citizenship certificate from either from the name
of mother or father as per his choice in case he
approaches with the necessary recommendation.
Likewise, the written response submitted on behalf
of Government of Nepal, Ministry of Home Affairs
stated that as regard the pleas of writ petitioners,
the Nepali citizens who have fulfilled the prescribed
terms and process prescribed by prevailing laws are
entitled to obtain Nepali citizenship certificates
from the concerned agency and as such this writ
petition needs to be quashed as it lacks legal
grounds.
The written response submitted on behalf of the
District Administration Office, Kathmandu states
that in order to ensure easy availability of Nepali
citizenship certificates, a policy of distributing
Nepali citizenship certificates from all the 75 District
Administration Offices has been pursued. Section
3 (1) of Nepal Citizenship Act, 2006 has clearly
provided that “A person born at the time when his/
her father or mother is a citizen of Nepal, shall be
a citizen of Nepal by descent. The citizenship of the
applicant’s father is issued from Kabhrepalanchowk
district and the address of his mother after her
marriage rests with that of the husband’s one. Hence,
the applicant is entitled to obtain Nepali citizenship
certificate from the Kabhrepalanchowk district itself.
Learned Joint Government Attorney Mr. Kiran
Poudyal representing the respondent Government
of Nepal argued that Nepal Citizenship Act, 2006
itself has provided that citizenship certificate can be
obtained in the name of either mother or father. The
petitioner of this writ petition has not been denied
to provide citizenship certificate. Since his father’s
address is at Kabhrepalanchowk district, in case
the petitioner submits application in that district
along with the recommendation, then citizenship
19
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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