Affidavit is not seen to have been furnished on
behalf of the opponent, District Administration
Office.
Learned deputy-attorney, Mr. Chandra Kanta
Khanal, present on behalf of the opponents,
presented the pleadings with the description that
just to lay claim of the revocation, stating that
the provision of any Rule is inconsistent with the
Constitution and mother Act is not sufficient. Rule
and Directives are made so that it can be easy
to implement the provisions mentioned in the
Constitution and Act. Sub-clause (3) of Clause 3 of
Nepal Citizenship Act, 2063 has made the provision
that every minor found in Nepal, having paternity
and maternity not known, shall be considered as
a citizen of Nepal on the basis of descent until the
father or mother is traced. As per that, no citizens
have to be deprived of obtaining citizenships. The
provision that so-so procedures should be fulfilled
in order to obtain the citizenships cannot hook
the provision of the Constitution. That is just a
procedural issue. In the present dispute Prajapati
Sharma, the patron of this writ petitioner, Amrit
Kumar Sharma, is not seen to have obtained that
patronage from authorized body; hence, there is
no legal error on the decision made by District
Administration Office, stating that citizenship
cannot be conferred; hence, the present writ
petition should be revoked.
In the present writ petition that has been submitted
by being inducted in the daily cause lists as per Rule,
the learned advocates Mr. Sabin Shrestha and Ms.
Sushma Gautam, present on behalf of the petitioner,
have raised two issues upon the present dispute.
First, paternity and maternity of this petitioner,
Amrit Kumar Sharma, have not been identified.
He was taken by a person to the house of Prajapati
Sharma saying that he was his son; but later the
person who had taken him, disappeared; hence,
has lived under the patronage of Prajapati Sharma.
Because he was found within Nepal but paternity
and maternity have not been found; hence, the
petitioner has furnished the application to District
Administration Office to obtain the citizenship
on behalf of the patron as per Nepal Citizenship
Act and Rule, 2063. Application was furnished by
including all the necessary documents to obtain
citizenship, but the aforementioned Office has
refused to confer the citizenship on the basis that
the patron does not have legal status and names and
birth places of the parents of Amrit Kumar Sharma
have not been mentioned in the Schedule form and
birth registration certificate. However, there is the
provision that the kinds of persons mentioned in
Sub-clause 3 of Clause 3 of Nepal Citizenship Act,
2063 can obtain citizenships. Hence, the decision
of District Administration Office should be revoked.
Upon hearing the aforementioned pleadings made
by the legal professionals of both the parties, it is
seen that following issues are seen to be decided on
the present writ petition.
Second, in Sub-article (3) of Article 8 of the Interim
Constitution of Nepal, 2063, there is the provision
that every minor found in Nepal, having paternity
and maternity not known, shall be considered as
a citizen of Nepal on the basis of descent until the
father or mother is not found. Sub-clause (3) of
Clause 3 of Nepal Citizenship Act, 2063 has made
the legal provision of the same level. But, by making
the provision that patron’s name, surname and
address shall have to be mentioned, indicating
the description “paternity/maternity has not
been traced” in the place of the citizenship of the
person, whose paternity/maternity is not known,
where the name of father or mother shall have to
be mentioned, Sub-clause (3) of Clause 3 of same
Rule, 2063 and the (7) of Point No. 10 of Citizenship
certificate distribution procedure directives, 2063
have hooked upon the provisions existing in the
Constitution and the Act, and the provisions made
in Sub-rule (6) of Rule 3 and the (7) of Point No. 10
of the Directives are against the Sub-articles (2),
(3), (13), (22) of Article 8 of the Constitution and
Sub-clause (3) of Clause 3 of Nepal Citizenship Act,
2063; hence, order should be made be as per Article
107 (1) and (2) of the Constitution. Pleadings were
presented as above.
(1)
Are Sub-rule (6) of Rule (3) of Nepal Citizenship
Rule, 2063 and Point No. 10 (7) of Citizenship
Certificate Distribution Directives, 2063
inconsistent with Sub-article (3), 13, 22 of
Article 8 of the Interim Constitution of Nepal,
2063 and Sub-clause (3) of Clause 3 of Nepal
Citizenship Act, 2063 or not?
(2)
Is the order as per claimed by the petitioner
supposed to be issued or not?
While considering towards the first issue to be
decided, claim is seen to have been laid by the
petitioner, Amrit Kumar Sharma, stating that Subrule (3) of Rule 3 of Nepal Citizenship Act, 2063
and Point No. 10 (7) of Citizenship Certificate
Distribution Directives, 2063 have been inconsistent
with Sub-articles (2), (3) of Article 8, Article 10,
Sub-article (1) of 12, Sub-articles (1), (2), (3) of
Article 13 and Sub-clause (1) of Article 22 of the
Constitution, hence should be revoked to the extent
of that inconsistency, and that he is a person having
paternity maternity not known, who has been
living under the patronage of Prajapati Sharma,
and that although such person shall have to obtain
citizenship upon being considered as a Nepalese
citizen until father or mother is traced, the decision
of District Administration Office, Kathmandu not
to confer citizenship on the basis including that
87
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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