1. The petitioner Kekhasarao Sorabji Irani was born in Bombay in the year 1922. His father Sorabji Kaikobad Irani came to India from Persia in the year 1902 to assist his sister in the business of running a restaurant in Bombay. Sorabji married in 1913 the petitioner's mother Goharbai in Bombay. He continued his business in Bombay and settled down in India and never went back to his country of origin or went out to any other country till his death in the Sassoon Hospital at Poona. When Sorabji died, the petitioner was 7 months old. The petitioner was educated at Poona and passed his Matriculation examination in the year 1940. After passing the Matriculation examination he studied for a diploma course in Engineering in the Poona Engineering College. In 1944, he obtained a diploma in Mechanical Engineering from the College of Engineering at Poona. Thereafter the petitioner worked in a ammunition factory at Kirkhee, first as a supervisor trainee from May 1944 to November 1944, and then as supervisor B grade in Material Estimate Office from December 1944 to March 1946.
2. In 1947 the petitioner settled down in Sholapur. He has been running a general store and restaurant at Sholapur since that date till now. On October 19, 1949, he married one Banu Rashid. Banu Rashid is an Indian citizen born in India in 1932 and her parents were also domiciled in India. The petitioner resided in India since his birth. He never went out of India. The petitioner, therefore, claims to be a citizen of India under Article 5 of the Constitution of India. He continued to enjoy all the rights of the citizens of India including the right to vote.
3. However, the petitioner is being harassed from the year 1960 by police officers in the office of the District Superintendent of Police at Sholapur and other authorities of the Government of Maharashtra. The harassment began in the year 1960 when one Sub - Inspector Joshi approached him and told him that as he was Irani, he should register himself and his wife as foreigners. The petitioner protested. He told S. I. Joshi that he was not an Iranian national but an Indian citizen by birth. He also told him that his wife was also an Indian citizen, that his name 'Irani' was only a surname and had nothing to do with his nationality or domicile. The Sub - Inspector, however, told him that he and his wife must fill in the forms of registration under Registration of Foreigners Rules and that if he did not do so he would be prosecuted and expelled from India. He also assured him that if he filled in the forms, nothing would happen to him. The petitioner, therefore, filled up from A under the Registration of Foreigners Rules, 1939. Even in that form, against the column 'present nationality', he mentioned 'Indian'. Against the column 'previous nationality', if any' he mentioned 'Nil'. This form was filled in by him on January 5, 1960; and similar forms were also filled in at that time by the wife of the petitioner and his mother Goharbai. In the form filled in by Goharbai, her nationality was mentioned as Iranian because she wrongly believed that as she was born in Iran, she was Iranian national and had also obtained as Iranian passport.
4. Nothing happened till April 10, 1961 when in pursuance of a letter addressed by the District Superintendent of Police, Sholapur a residential permit was issued to the petitioner stating :-
'As you are not in possession of valid national passport, you have been permitted to stay in India for three months, i.e. until 10-7-1961.'
It was also stated in the letter that the petitioner should get a valid passport from his Consul in India before the above date. A similar letter and residential permit were received by the petitioner's wife. The petitioner then approached the office of the District Superintendent of Police and met one Sub - Inspector of Padgaonkar and told him that the said residential permits were illegally and wrongly issued to the petitioner and his wife notwithstanding that they were Indian citizens. S. I. Padgaonkar advised the petitioner to apply for naturalization under Section 6(1) of the Citizenship Act read with Rule 17 (1) of the Citizenship Rules. Acting on the advice of S. I. Padgaonkar, the petitioner filled in form No. XII prescribed under Rule 17 (1). Even in that form , however, he stated that he was an Indian citizen by birth. A similar form was filled in by his wife. The two forms were forwarded to the Secretary, Ministry of Home Affairs, Government of India, New Delhi through the Collector of Sholapur. On August 18, 1961, the Additional Collector, Sholapur returned the forms to the petitioner directing him to send the same directly to the Government of India. The petitioner, therefore, sent the two forms directly to the Secretary Ministry of Home Affairs, Government of India , New Delhi. The Government of India returned the forms with a remark that as the affidavits in support of the two forms did not bear the same date. The forms were returned. Nothing happened thereafter till the year 1964.
5. On July 18, 1964, the District Superintendent of Police, Sholapur once again called upon the petitioner to obtain a passport and apply for extension of time of his stay in India. The petitioner, who had not consulted any lawyer or taken any legal advice till this stage, thought it necessary to take legal advice. He was advised then that as he was an Indian citizen, he had not to apply under Section 6(1) of the Citizenship Act. He also wrote a letter to the Assistant Secretary, General Administration Department Government of Maharashtra, Bombay on September 24, 1964 submitting that the residential permits were wrongly and illegally issued to him in the past and that he should be treated as an Indian citizen as he was always an Indian citizen. The petitioner was directed by a letter dated December 30, 1964 by the District Superintendent of Police to give particulars about himself and his wife claiming to be citizens under the Constitution in answer to the questionnaire sent to him. In that reply the petitioner's father's nationality was described as 'Not known but domiciled in India'.
6. Notwithstanding this, however, on July 15, 1965, the District Superintendent of Police, Sholapur informed the petitioner that the Government of Maharashtra had not considered the request of the petitioner to be treated as an Indian citizen for the reason that the details about the father of the petitioner were not known. The petitioner then sent a letter to the Government of Maharashtra on September 27, 1965 giving all the details about himself and his father and the circumstances in which he and his wife had filled up previously certain forms. That letter runs as follows :-
'68, Railway Lines,
Dated : 27-9-1965.
Mr. K. S. Irani,
68, Railway Lines,
The Under Secretary,
The Govt. of Maharashtra,
General Administration Department,
Subject : Request for grant of Indian citizenship.
I sent an application on 24-9-1964 to Your Honour for grant of Indian citizenship tome. I had stated in that application that I was born in Bombay in the year 1922 and educated in Engineering College, Poona. I have given all the details about myself and parents in that application. I and my wife being Indian citizens, it was not necessary for me and my wife to get registered as Indian Nationals, when we are already Indian citizens. But when the District Superintendent of Police, Sholapur intimated to my mother, my wife and myself in 1961 to get registered as Iranian Nationals, we got ourselves, by misunderstanding, so registered.
When I sent my application dated 24-9-1964 referred to above, I had sent certificates and forms duly filled in along with the application. I have received a letter No. 79/IP/937/SB of 1965 dated 15th July 1965 from the District Superintendent of Police, Sholapur that my application dated 24-9-1964 referred to above to the General and Administration Department, Government of Maharashtra could not be considered for the reasons stated in the D. S. P.'s letter dated 15th July 1965 referred to above.
It appears grant of Indian citizenship has been withheld from me and my wife mainly because the authorities require additional information about my father.
My father, late Sorabji Kaikobad Irani came to India from Iran in about 1902, when he was 17 or 18 years old. He was called to India for assisting in Hotel business by his eldest sister, who was staying in Bombay and who is not living now. My father's younger sister Gulbai Home Driver aged about 70 is at present staying at Poona in Camp area. She has been staying in Poona since childhood.
My father died in 1922 in Sassoon Hospital, Poona, when I was 7 months old. My parents were married in India in about 1913 and I was born in 1922. My father never went back to Iran, after he came to India in 1902.
My father's sister Gulbai Home Driver who is staying in Camp area gave the above information about my father.
I feel assured that the information supplied above will satisfy Your Honour that impediments in the way of grant of Indian citizenship to myself and my wife as mentioned in the letter dated 15th July 1965 of the D. S. P., Sholapur referred to above can very well be removed and early orders may be passed in my case and that of my wife regarding the grant of Indian citizenship.
Since, as stated in the D. S. P.'s letter dated 15th July 1965 my wife's case depends upon my claim to Indian domicile, this application may be treated as one on behalf of myself and my wife.
I request that Your Honour will give an early and favourable decision in the matter.
I beg to remain,
Yours most obedient servant,
Sd/- K. S. Irani.'
Surprisingly, the Government of Maharashtra rejected the request of the petitioner to be treated as a citizen of India; and the petitioner was informed about this decision by the District Superintendent of Police on April 21, 1966. The petitioner asked the Government of Maharashtra by his letter dated April 28, 1966 to furnish him the reasons as to why he was not being treated as the citizen of India.
7. The petitioner also tried to know more about his citizenship and was advised that he should obtain a domicile certificate of citizenship from the taluka Magistrate, North Sholapur. Accordingly, he obtained a domicile certificate on July 8, 1966 which runs as follows :-
'No. II - MAG - 129/66
CERTIFICATE OF AGE, NATIONALITY, DOMICILE, ETC.
(Issued by Authorities in the State of Maharashtra)
On submission of the proof noted below :-
It is hereby certified that Shri Kekhasarao Sorabji Irani was born on the 19th day of April in the year one thousand nine hundred and twenty two only at Bombay Taluka Bombay District Bombay in the State of Maharashtra within the territory of India or of Maharashtra that he is a CITIZEN OF INDIA that he is domiciled in the State of Maharashtra (add, if necessary) by reason of birth that he belongs to community Parshi.
Particulars of Proof submitted.
A Answers given by the applicant on the form of questionnaire prescribed.
B Birth certificate issued by the Public Vaccination Medical Practitioner, Bombay.
C Affidavits or Declaration of by the applicant.
D Other proof certificate of Birth Registry from Asstt. Health Officer, Greater Bombay Municipal corporation, Public Health Department.
Dated at Sholapur this 8th day of July 1966.
(Seal of the Taluka Executive Magistrate, Sholapur.)
Taluka Executive Magistrate,
It is clear from the certificate that the Taluka Magistrate gave the certificate after considering the answers given by the petitioner in the form of questionnaire prescribed for obtaining the domicile certificate, birth certificate issued by the Public Vaccination Practitioner, Bombay, affidavits made by the petitioner and the certificate of birth registry from Assistant Health Officer, Greater Bombay.
8. Though he obtained this certificate, the petitioner's troubles did not end. He received from the District Superintendent of Police a letter on August 19, 1967, more than a year after he obtained the aforesaid domicile certificate. The letter sounds rather curious. The letter stated :-
'I have the honour to inform you that the Government desire whether you and your wife are still interested in acquiring Indian citizenship. If so, you are requested to apply afresh as your old application is out - dated.'
By his letter dated August 30, 1967, the petitioner replied that as the petitioner and his wife were Indian citizens, there was no necessity for them to make any application for citizenship.
9. In spite of this, on March 26, 1968, the petitioner received a letter from the District Magistrate, Sholapur calling upon the petitioner to attend his office on March 28, 1968 'to receive instructions in making an application for grant of a certificate of naturalization under S. 6(1) of the Citizenship Act and in producing the requisite documents along with the said application'. The petitioner did not attend the office. He sent a letter on April 26, 1968 reiterating that he was already an Indian citizen; and that he could not be compelled to apply for naturalization, bringing to the attention of the District Magistrate the fact that he had already obtained certificate of age, nationality and domicile, a copy of which was forwarded to the District Magistrate along with the letter.
10. It is strange, however, that instead of accepting the certificate, the authorities took the extraordinary step of trying to take back the certificate of domicile issued by the Taluka Magistrate from the possession of the petitioner, so that he should be prohibited from making use of the said document as evidence of his status. The Tahsildar, North Sholapur, who is also the Taluka Magistrate, North Sholapur, by his letter dated ............... April 1968 called upon the petitioner to attend his office with the certificate of nationality and domicile dated July 8, 1966. At this stage, the petitioner apprehended that there was a sinister move to deprive him of his certificate of nationality and domicile. He contacted his legal advisers at Bombay. They advised him not to produce the certificate of domicile before the Taluka Magistrate. On July 5, 1968, the Tahsildar wrote a further letter which runs as follows :-
No. O. P. L - M - 68
Shri K. S. Irani,
You have not produced domicile certificate upto 16th May 1968 as promised by you on 8th May 1968. You are therefore requested to produce the same on or before the 10th July 1968. You are therefore informed that if you fail to do so severe action will be taken against you and as per Government Rule domicile certificate will be taken back from you.
Tahsildar, South Sholapur'.
11. On receipt of this letter, the petitioner filed the above petition in this Court on July 30, 1968 under Art. 226 of the Constitution of India submitting that he was being harassed unnecessarily by the Police and the Government authorities from 1960 onwards.
12. In the petition, after setting out the facts mentioned hereinabove, he contended that having regard to the facts of birth and subsequent life of the petitioner, his status as a citizen of India under Art. 5 of the Constitution of India was established beyond a shadow of doubt. He submitted that he was domiciled in India at the time of the commencement of the Constitution having been born in India in 1922 and having been brought in India, educated in India carrying on business permanently and living permanently in India. He also submitted that his conduct in filling up the forms under the Registration of Foreigners Rules and under Section 6 of the Citizenship Act was not voluntary and was as a result of illegal pressure and threat by the police officers, that even in these forms, he had mentioned the true fact, viz., that his nationality was Indian and hence his status as a citizen of India, was not affected by filling up those forms, He, however, apprehended that the authorities including respondent No. 1, the State of Maharashtra, respondent No. 2 the District Superintendent of Police, Sholapur and respondent No. 3, the Taluka Magistrate, North Sholapur, Sholapur were contemplating immediate action which would be inconsistent with his status as an Indian citizen. He alleged in the petition that his fundamental rights as a citizen of India were in jeopardy due to the threatened action on the part of the respondents. He, therefore, prayed that it should be declared that he is a citizen of India and entitled to all the protection and rights guaranteed to the citizen of India under the Constitution of India. He also prayed for an order restraining respondent No. 1, the State of Maharashtra, respondent No. 2, the District Superintendent of Police, and respondent No. 3, the Taluka Magistrate, North Sholapur, Sholapur from deporting the petitioner out of India and/or forcing him to take passport of any foreign country and/or taking any action which may be inconsistent with the constitutional status of the petitioner as a citizen of India. He prayed for a further injunction restraining the respondents from calling upon the petitioner to surrender the certificate of nationality and domicile given to him.
13. The petition was admitted by this Court on August 14, 1968. The respondents did not care to file any affidavit in reply to the petition till January 23, 1970. On that day, however, respondent No. 3, the Taluka Magistrate, who was also the Assistant Electoral Registration Officer, Sholapur City South Assembly Constituency, Sholapur, called upon the petitioner to show cause why the objection to the inclusion of his name in the electoral roll should not be accepted. The objection was on the ground that the petitioner was not a citizen of India. The petitioner then wrote a letter informing respondent No. 3 that the above petition was pending in this Court; and as the petitioner had exercised his franchise at all the general elections previously he should not be deprived of his franchise illegally. He reiterated that he was a citizen of India at the commencement of the Constitution of India and he was protected by Art. 5 of the Constitution of India. In spite of this reply, the name of the petitioner was deleted from the electoral list. He, therefore, filed Civil application No. 348 of 1971 alleging that respondent No. 3 had committed contempt of this Court in omitting the petitioner's name from the list.
14. It was not before June 21, 1971 that the respondent filed their affidavit in reply to resist the petition. On that day, the Under Secretary to Government of Maharashtra, General Administration Department filed an affidavit in reply vaguely denying the allegations made by the petitioner with regard to his birth, education, upbringing occupation and living in India and calling upon the petitioner to produce all the relevant papers without making any serious attempt to repel any of the submissions made by the petitioner under Art. 5 of the Constitution of India. Notwithstanding the specific allegations against Sub - Inspector Joshi and Sub - Inspector Padgaonkar, the respondents did not care to file any affidavit of those officers. The Under Secretary filed the affidavit in reply merely denying the allegations made without stating on what basis he was denying those allegations. The Under Secretary, who did not claim any personal knowledge about the facts alleged in the petition, filed the affidavit in reply stating that the allegations were 'not admitted' and yet, he relied merely on the forms filled up by the petitioner and his wife under Section 6(1) of the Citizenship Act, 1955 and the Registration of Foreigners Rules. He also relied on certain directions to cancel the said certificate issued to the Taluka Executive Magistrate. In paragraph 4 of his affidavit in reply, he said :-
'The Superintendent of Police reported to the Collector in his letter dated 9th October 1967 that the applicants were born and brought up in India and there was nothing adverse against them and that he had no objection to consider the request of the applicants. The Superintendent of Police obtained fresh applications from the applicants and submitted them to the Government together with a fresh report. The Government on receipt of the said report vide their letter in G. A. D. No. CTZ (N) 49/61 dated 1-2-1968, requested the District Magistrate to ask the applicants to apply for naturalization in Form XII of the Citizenship Rules, 1956 to the Government of Maharashtra with requisite information and documents. It was pointed out in the said letter that the domicile and citizenship certificate obtained by the petitioner from the Taluka Executive Magistrate North Sholapur were quite incorrect and the Taluka Executive Magistrate was directed to cancel the said certificate'.
In paragraph 26, however, he stated :
'I however say that the District Magistrate, Sholapur directed the Taluka Executive Magistrate to cancel the certificate of domicile issued by him to the petitioner for the reason that the petitioner was an Iranian national and was registered as a foreigner'.
The respondents have not cared to place before the Court the so - called directions issued by the District Magistrate to the Taluka Executive Magistrate.
15. Mr. Naik, who appeared for the respondents, produced before us a file from the Sachivalaya, which showed that the Under Secretary, General Administration Department, had informed the District Magistrate that it was not correct on the part of the Taluka Magistrate to have issued a certificate of domicile and nationality to the petitioner; and the District Magistrate was advised : 'The said certificate may be cancelled immediately under intimation to Government. The circumstances under which the said certificate was issued may also be explained'. Mr. Naik relying on this letter argued that in pursuance of these directions, the District Magistrate must have issued instructions or directions to the Taluka Magistrate; and accordingly, the Taluka Magistrate called upon the petitioner to return the domicile certificate. The Under Secretary has submitted in the affidavit that the domicile certificate issued by the Taluka Magistrate was invalid because the petitioner and his wife had applied under Section 6(1) of the Citizenship Act and were registered under the Registration of Foreigners Rules in the Office of the District Superintendent of Police at Sholapur. He has further submitted in the affidavit in reply that because the petitioner 'who has been registered as an Iranian national and has refused to comply with the request made by the Government of Maharashtra to put in an application for naturalization under Section 6 of the citizenship Act', he was not entitled to any relief prayed for in the petition.
16. At the outset, it is necessary to observe that we are amazed at the manner in which the submissions made by the petitioner since 1960 have been dealt with by the Police Department and by the General Administration Department of the Government of Maharashtra. It is shocking to see that by executive instructions, directions are given by the General Administration Department to the District Magistrate to cancel a certificate of domicile issued by a Taluka Magistrate. Issuing of a domicile and nationality certificate, which consists of important legal evidence of nationality, citizenship and domicile of a person, is a judicial function. If at all there was something wrong with the certificate, the District Magistrate ought to have been asked to call for the papers and see whether the order was properly passed under Section 435 of the Criminal P. C.; and if the District Magistrate was satisfied that the certificate was wrongly or illegally issued, he ought to have made a report to this Court under Section 438 of the Criminal P. C. Disregarding all these provisions and the functions of the Taluka Magistrate, who is an Executive Magistrate under the Criminal P. C. it pains us to note - instructions have been issued, without even hearing the petitioner, to cancel the certificate; and the Taluka Magistrate proceeded to call upon the petitioner to give back the certificate in a most extraordinary manner. It is in these circumstances that the petitioner, who claims to be a citizen of India and about whose citizenship we have no doubt whatsoever, was compelled to file this petition before us about the callous manner in which he was being deprived of his certificate of domicile and nationality by officers, who are admittedly acting under the Government of Maharashtra in the General Administration Department as stated by the Under Secretary in his affidavit in reply. We asked Mr. Naik to point out any provision of law under which such instructions could be given by the Government to the District Magistrate or to the Taluka Magistrate. He had to concede there was none.
17. The next question is whether the fact (1) that the petitioner and his wife filled up forms under the Registration of Foreigners Rules; (2) that they further filled forms under the Citizenship Act, 1953; (3) that the petitioner's mother claimed to be an Iranian national and obtained an Iranian passport; and (4) that the petitioner refused to apply for naturalization on the ground that he was already a citizen of India, are grounds on which the petitioner could be considered as a foreigner.
18. The petitioner claims citizenship under Art. 5 of the Constitution of India which runs as follows :
'At the commencement of this Constitution, every person who has his domicile in the territory of India and
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India'.
The petitioner claims to be citizen both under clause (a) and clause (c) of Srt. 5 as he was born in the territory of India in 1922 as stated above; and after he attained his majority, he made India his permanent home; and, therefore, his domicile was in the territory of India. It is also his contentions that he has been ordinarily resident in the territory of India for not less than 5 years immediately preceding the commencement of the Constitution.
19. As stated above, the affidavit in reply merely challenged the petitioner to produce all the relevant documents. There is no effective denial of the facts alleged in the petition. At the hearing of the petition, the Counsel for the petitioner produced before us for perusal the petitioner's birth certificate, his school certificate, the diploma of engineering given to him by the Engineering College at Poona and other documents referred to in the petition. The documents fully supported the averments made in the petition. His father died when he was only 7 months old. It is clear from the facts stated above that even his father had come to India to settled down permanently in India. Perhaps, his domicile was also India, as there is no evidence whatsoever before us to show that he ever went back to Iran after he once came to India to manage the restaurant of his sister. The mere fact that the petitioner's mother described herself as an Iranian or obtained an Iranian passport would not change the domicile of the father of the petitioner. Apart from that, the petitioner was not only born in India, brought up in India, educated in India, but after he attained majority, he served in the ordnance factory and started a business of his own in Sholapur in 1947 making India his permanent home. His wife was also permanently residing in India. He had never left India after his birth.
20. Having regard to the above facts, which are not at all effectively or properly traversed by the respondents, we have no doubt in our mind that at the commencement of the Constitution, i.e., on November 26, 1949, the petitioner was domiciled in India. He became a citizen of India under Art. 5 as he was born in the territory of India and he had been ordinarily residing in the territory of India for not less than five years immediately preceding the commencement. 'By domicile,' as remarked by Lord Cranworth in Whicker v. Hume (1858) 7 HCL 124 .
'We mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.'
A more sophisticated definition of domicile is that is 'is a conception of law which, though founded on circumstances of fact, gives to those circumstances an interpretation frequently different from that which a layman would give to them and it is a conception of law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law so to have because of his dependence on some other person.'
The American Law Institute has provided a useful definition of domicile as 'the place, generally the home, which the law assigns a person for certain legal purposes'. This Court and the Supreme Court have applied the definition of domicile given by Mr. Justice Chitty in Craignish v. Craignish (1892) 3 Ch 180 , viz.,
'That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom'.
See Central Bank of India Ltd. v. Ram Narain, : 1955CriLJ152 and Michael Anthony rodrigues v. State of Bombay, : AIR1956Bom729 .
21. Applying any of these definitions, it is clear from the facts of this case relating to the birth, conduct and life of the petitioner that he must be considered to have had Indian domicile prior to the commencement of the Constitution. His permanent home was in India form his birth and particularly from the time he attained his majority. Even assuming that his domicile of origin was Persia or Iran, as his father and mother hailed from Iran his occupation is carried on in India and he and his family have been residing in Sholapur permanently and hence in law he acquired a domicile of choice in India prior to the commencement of the Constitution. The respondents have not been able to place any material before us which shows any present intention of the petitioner of removing himself from India or leaving the shores of India.
22. It is, however, contended by Mr. Naik on behalf of the respondents that it is not open to the petitioner to contend that he was a citizen of India as he had signed the forms referred to above under the Registration of Foreigners Rules and Section 6(1) of the Citizenship Act. There is no merit in this contention, because, as stated above, the petitioner has clearly adumbrated in his petition the facts and circumstances in which he was made to sign these forms. It is also clear from these forms that even when signing these forms, he has correctly stated that he had no previous nationality and he always from his birth an Indian citizen.
23. Mr. Naik submitted that the story of the petitioner that he was induced by coercion and pressure by the police officers to sign these forms is a cock and bull story inasmuch as the petitioner was running a restaurant and store at Sholapur and was clever enough to get a certificate of nationality and domicile from the Taluka Magistrate suppressing these facts. There is no substance in this contention, because the petitioner had not suppressed any of the facts. On the contrary, when he was oppressed by the repeated blunders of the police officers in asking him to apply under the Citizenship Act and to register himself as a foreigner, he took legal advice and obtained the certificate of domicile and nationality. Even in the forms signed by him, as stated above, he described himself as a citizen of India.
24. Moreover, once the facts establish that he was a citizen of India under Art. 5 of the Constitution of India, it is now well settled that it is only the Central Government which has jurisdiction to decide whether he has acquired foreign citizenship. This question has to be decided by the Central Government as provided by Rule 30 of the Rules framed under the Citizenship Act, 1955. Unless the Central Govt. decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India. See State of U. P. v. Rahamatullah, : 1971CriLJ1103 in which case, Rahamatullah was arrested for overstaying in India as a foreigner on July 11, 1963. On March 6, 1965 he was charged by the City Magistrate, Varanasi with the commission of an offence punishable under Section 14 of the Foreigners Act. The prosecution alleged that he was a Pakistani national and had on April 1, 1965 entered into India on a Pakistani passport dated March 15, 1955 and Indian visa dated March 22, 1955 obtained by him as a Pakistani national and even after expiry of the permitted period, he was overstaying without a valid passport or visa. the accused pleaded in that case that though he had entered India on a Pakistani passport, he was not a Pakistani national. On the contrary, he claimed to be an Indian citizen and, therefore, rightfully living in India. According to him, he had been born in India of Indian parents in 1932 and was an Indian citizen under the constitution. The High Court of Allahabad in revision set aside the conviction ordered by the Magistrate and confirmed by the Sessions Judge as the High Court found on the facts relating to the life and conduct of the accused that he was not a foreigner when he entered India though he had obtained a Pakistani passport. The High Court also held that having not entered as a foreigner, his case was outside paragraph 7 of the Foreigners Order, 1948, made under Section 3 of the Foreigners Act. The order of acquittal passed by the High Court was confirmed by the Supreme Court after reviewing several authorities relating to the question of acquisition of foreign citizenship by a citizen of India; and the Supreme Court observed :-
'It seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby lost Indian nationality, he could not be treated as a foreigner and no penal action could be taken against him on the basis of his status as a foreigner, being a national of Pakistan'.
In our view, therefore, even in the instant case, the respondents were acting illegally in treating the petitioner as a foreigner notwithstanding the clear facts of his life and conduct which showed that he was a citizen of India. Section 2(a) of the Foreigners Act, 1946 defines a foreigner as a person who is not a citizen of India. Having regard to all the facts and circumstances of the case including the forms relied on by the respondents, we find that there is nothing on the record before us to show that the petitioner was not a citizen of India.
25. We must, therefore, declare that the petitioner was a citizen of India at the commencement of the Constitution of India and continues to be so and is entitled to all the protection and rights guaranteed to a citizen of India under the Constitution of India. The respondents must also, therefore, be prohibited by an injunction from deporting the petitioner out of India and/or forcing him to take passport of any foreign country and/or taking any action which may be inconsistent with the constitutional status of the petitioner as a citizen of India on the basis of any of the orders referred to in the petition. The petition succeeds. Rule absolute. The respondents to pay the costs of the petitioner.
26. In view of these reliefs granted to the petitioner, the Counsel for the petitioner does not press for the reliefs prayed for in Civil Application No. 348 of 1971. Civil Application No. 348 of 1971, is, therefore, allowed to be withdrawn.
27. Order accordingly.