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The Union of India Vs. Hasanali Mahamed HusseIn Shariff - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 89 of 1953
Judge
Reported inAIR1954Bom505; (1954)56BOMLR552; ILR1954Bom1367
ActsIndian Naturalisation Act, 1926 - Sections 7, 7(1), 7(2), 8, 8(7) and 9; Constitution of India - Articles 5, 367 and 372(2); General Clauses Act, 1897 - Sections 6; Adaptation of Laws Order, 1950
AppellantThe Union of India
RespondentHasanali Mahamed HusseIn Shariff
Appellant AdvocateK.T. Desai, ;R.J. Joshi and ;P.R. Vakil, Advs.
Respondent AdvocateA.A. Peerbhoy and ;C.J. Shah, Advs.
Excerpt:
.....section 27 of the british nationality and status of aliens act, 1914',the definition of a 'natural-born british subject' must be deemed to be satisfied and the legislature did not contemplate that the conditions mentioned in section 1 (1) (b) of the english statute should be satisfied. he must be deemed to have satisfied those conditions because, as already pointed out, the indian naturalization act looks upon a person who has received a certificate of naturalization as a british subject and a british subject as defined in section 27 of the english statute. indeed, we would require very strong argument from counsel for the union of india to tie satisfied that a british subject can be proceeded against under the foreigners act, because mr. under section 8 (7) when a child of a person to..........material section was in the following terms:'foreigner' means a person who- (i) is not a natural-born british subject as defined in sub-sections (1) and (2) of section 1 of the british nationality and status of aliens act, 1914 or (ii) has not been granted a certificate of naturalization as a british subject under any law for the time being in force in british india, or (iii) is not a ruler or subject of an indian state, or (iv) is not a native of the assam tribal are as: provided that any british subject who, under any law for the time being in force in british india, ceases to be a british subject shall thereupon be demed to be a foreigner,' now, by the adaptation of laws order, 1950, clauses. (iii) and (iv) were deleted and a new clause (iii) was added to the following effect:.....
Judgment:

Chagla, C. J.

1. This appeal arises out of a suit filed by the plaintiff to challenge an order dated October 22, 1951, issued by the Union of India. The order is issued under Sub-section (2) of Section 3 of the Foreigners Act and it calls upon the plaintiff not to remain in India after the expiry of one month from the date on which the order was served on Him, and it also calls upon him to depart from India by the Port of Bombay and not thereafter to re-enter India. Various contentions were urged before the learned Judge below. The learned Judge held that, the plaintiff was a citizen of India by reason of the fact that he was domiciled in India and he-had been ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution. It was urged by the plaintiff that he was born in the territory of India. That contention was rejected by the learned Judge. Having held that the plaintiff was a citizen as defined by Article 5 of the Constitution, the learned Judge came to the conclusion that the plaintiff could not be externed under the Foreigners Act.

2. Turning to the Foreigners Act, the Act docs not authorise the Government to extern all non-citizens. The only person who could be externed under the provisions of the Foreigners Act is a person who is a foreigner as defined by the Act., Therefore, it is possible for a person not to be a citizen and yet not to be a foreigner within the meaning of the Act. Therefore, we have to be satisfied that the plaintiff is a foreigner before we can uphold the order of the Government of India to extern him from this country. The Foreigners Act was adapted by the President under Article 372(2) of the Constitution, and before adaptation the material section was in the following terms:

'Foreigner' means a person who-

(i) is not a natural-born British subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914 or

(ii) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in British India, or

(iii) is not a ruler or subject of an Indian State, or

(iv) is not a native of the Assam tribal are as: Provided that any British subject who, under any law for the time being in force in British India, ceases to be a British subject shall thereupon be demed to be a foreigner,'

Now, by the Adaptation of Laws Order, 1950, Clauses. (iii) and (iv) were deleted and a new Clause (iii) was added to the following effect: 'is not a citizen of India'.

3. What is contended on behalf of the plaintiff is that even though the plaintiff may not be an Indian citizen, he is a British subject and therefore not a foreigner within the meaning of the Foreigners Act, in order to appreciate this contention one or two relevant facts might be stated. Both the plaintiff and the plaintiffs father hail from Iran and the contention of the defendant is that both of them were born in a place in Iran called Yezd.

The plaintiff was born on April 18, 1920, and the plaintiff's lather is still alive and is at present in Iran. On July 21, 1915, a naturalization certificate was issued to the plaintiff's father by the Government of India and that certificate describes him as a native of Yezd in Persia and an inhabitant of Bombay on June 20, 1915, and the certi ficate recites that he was born at Yezd in the year 1880, that he came to Bombay in the year 1906, that he was carrying on trade as a tea shop keeper and that he desired permanently to settle in Bombay.

If further recites that the memorial presented by the memorialist was duly verified by oath on June 20, 1915. The certificate, therefore, certifies that Mahomed Hussain Haji is deemed to be a natural born, subject of His Majesty, as if he had been born within the territories subject to the Govt. of India. It is admitted that this certificate is still in force and has never been revoked, and the question that we have to consider is, what is the effect of this certificate upon the rights of the plaintiff who was born to Mahomed Hussain Haji subsequent to the grant of this certificate, because as pointed out he was born on April 18, 1920.

4. Now, this certificate was issued under Act 30 of 1852. That Act was subsequently repealed and the Indian Naturalization Act of 1926 (7 of 1926) took its place, and Section 7 of that Act deals with the effect of grant of certificate and Sub-section (1) of that section provides that a person to whom a certificate of naturalization has been granted shall be deemed to be a British subject and be entitled to all the rights, privileges and capacities of a British subject born within British India except such rights, privileges or capacities, if any, as may be withheld from him by the certificate.

In this case no right, privilege or capacity has been withheld from the father of the plaintiff. The right conferred upon a person obtaining a certificate can also be conferred upon a child who was born prior to the grant of that certificate provided that child has been included in the certificate. Then Sub-section (2) deals with a child born subsequent to the grant of the certificate and that section provides that the child shall be entitled to the same rights, privileges and capacities and be subject to the same obligations, duties and liabilities to which the person who was granted the certificate was at that date entitled and subject, and the material provision is that at the date of the birth of the child the person to whom the certificate was granted should have retained the rights, privileges or capacities of a British subject.

Now, it is not disputed that when the plaintiff was born in 1920 the plaintiff's father retained all the rights, privileges and capacities of a British subject. 'British subject' is defined in Section 2 (a), and it means a British subject as defined in Section 27 of the British Nationality and Status of Aliens Act, 1914. It is, therefore, clear that if the father was given the privilege or right as a British subject not to be under a liability of being externed from India, and if he had that right when the plaintiff was born to him, that right or privilege could be exercised by the plaintiff.

5. Turning to the definition of 'foreigner' at the date when the naturalization certificate was issued, that definition is to be found in Act III of 1864 which is the same as in Act 31 of 1946. The definition in that Act provided that a foreigner shall denote a person who has not been granted a certificate of naturalization as a British subject under any law for the time being in force in British India.

This again is not disputed by Mr. Desai on behalf of the Union of India that as far as the father was concerned, he having been granted a certificate of naturalization was not a foreigner within the meaning of the Foreigners Act and he could not be externed from the country, if, therefore, the father was granted that right and privilege under the Foreigners Act and if he retained that right and privilege when the plaintiff was born, in view of Section 7 (2) of the Indian Naturalization Act, 1926, the plaintiff continues to enjoy that right and privilege and he cannot be looked upon as a foreigner and cannot be externed. It would be for the appellant to satisfy us that under some law that right or privilege has been taken away from the plaintiff.

We shall presently deal with the interesting arguments advanced by Mr. Desai to satisfy us that that right and privilege has been taken away, but before we go to that aspect of the case it is necessary to consider another definition under the Foreigners Act which in our opinion also prevents the appellant from exercising its power under the Foreigners Act. Under Clause (i) of Section 2 (a) a natural-born British subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914, is not a foreigner, and therefore if the plaintiff can be looked upon as falling within the ambit of clause (i), he would not be liable to be proceeded against under this Act. Turning again to the Indian Naturalization Act of 1926, the expression 'British subject' is defined and the definition is:

'British subject means a British, subject as defined in Section 27 of the British Nationality and Status of Aliens Act, 1914.'

and turning to that English statute, Section 27 is the section containing definitions and 'British subject' is defined as a person who is a natural-born British subject. Therefore, if the plaintiff becomes a British subject by reason of the fact that his father had a naturalization certificate issued to him and he was born at a time when his father still continued to hold the naturalisation certificate, he became a British subject by reason of Section 7 (2) of the Indian Naturalization Act and by reason of the definition of 'British subject' he became a British subject as defined in Section 27 (a) (i) of the British Nationality and Status of Aliens Act, 1914; an other words, he could be looked upon as a natural-born British subject.

6. Now, the answer given to this argument by Mr. Desai is that Section 1(1) of the British Nationality and Status of Aliens Act, 1914, defines a 'natural-born British subject', and the definition is:

'1.--(1) The following persons shall be deemed to be natural-bom British subjects, namely'; and the relevant Clause is (b)

(b) Any person born out of His Majesty's dominions, whose father was a British subject at the time of that person's birth and who fulfils any of the following conditions, that is to say': Mr. Desai concedes that the plaintiff was born out of his Majesty's dominions and his father was a British subject, but his contention is that the conditions laid down in Clause (b) are not satisifed. There are four conditions in the Act as amended at the relevant date and the one we are concerned with is condition (2), viz., 'whose father was a person to whom a certificate of naturalization had been given,' and Mr. Desai with considerable force contends that although a certificate of naturalization was given to the father of the plaintiff, it was not a certificate of naturalization as contemplated by the English statute.

But in our opinion it is not necessary to look at the defintion of 'natural-born British subject' given in this statute. By reason of 'British subject' being defined in the Indian Naturalization Act as 'a British subject defined in Section 27 of the British Nationality and Status of Aliens Act, 1914', the definition of a 'natural-born British subject' must be deemed to be satisfied and the Legislature did not contemplate that the conditions mentioned in Section 1 (1) (b) of the English statute should be satisfied.

The object of defining 'British subject' as ' a British subject defined in Section 27 of the British Nationality and Status of Aliens Act, 1914' was to give him the same status, the same rights and the same privileges which a British subject as defined in Section 27 of the English Act would have. It was not contemplated by the Legislature that it would be necessary for such a British subject, before he was looked upon as a British subject, as defined in Section 27 of the English Act, to satisfy the conditions laid down in Section 1 (1) (b) of that Act.Therefore, turning again to the Foreigners Act, Section 2(a)(i) defines a foreigner as a person who is not a natural-born British subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914. In the case of the plaintiff, he is a natural-born British subject as defined in that section, firstly, by reason of the definition of a 'British subject' in the Indian Naturalization Act of 1926, and, secondly, by reason of the definition of a 'British subject' given in Section 27 (1) of the English Act.

Section 27 of the English Act defines 'British subject' as a person who in fact is a natural-born British subject, and Sub-section (1) confers that status upon persons who by legal fiction are considered to be natural-born British subjects, and the Indian law puts a person who becomes a British subject by reason of naturalization in the category of a natural-born British subject. ' Therefore, in our opinion it is not possible for Mr. Desaj to contend that the plaintiff would not fall in the category of Section 2(a)(i) of the Foreigners Act because he does not satisfy the conditions laid down in Sub-section (1) and (2) of Section 1 of the English statiste. He must be deemed to have satisfied those conditions because, as already pointed out, the Indian Naturalization Act looks upon a person who has received a certificate of naturalization as a British subject and a British subject as defined in Section 27 of the English statute.

7. Therefore, whether one looks at the matter from the point of view of the case of the plaintiff falling under Section 2(a)(i) of the Foreigners Act or from the point of view of the right and privilege conferred upon the plaintiff's father being continued to be held by tne plaintiff by reason of Section 7 (2) of the Indian Naturalization Act, the plaintiff cannot be considered to be a foreigner against whom any order can be issued by the Union.

Indeed, we would require very strong argument from counsel for the Union of India to tie satisfied that a British subject can be proceeded against under the Foreigners Act, because Mr. Desai's contention really comes to this that although the plaintiff's father was a British subject and the plaintiff is a British subject by reason of Section 7 (2) of the Indian Naturalization Act, yet today in view of the Constitution it is open to the Government to extern him under the Foreigners Act.

8. Now, the argument of Mr. Desai is based on one or two consideration Section In the first place, he contends that the Indian Naturalization Act (7 of 1926) was repealed by the President exercising his powers under Article 372(2) of the Constitution, and Mr. Desai says that the plaintiff is no longer entitled to claim any privilege under Section 7(2) of that Act. The answer to that contention is very simple. Under Article 367 it is provided: 'Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations & modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.'

Therefore, in interpreting this Constitution we must consider the effect of any repeal by the Constitution of any previous law as if the Constitution was a law passed by the Legislature and Section 6 of the General Clauses Act applied. Under Section 6 the rights and privileges under a repealed statute are saved unless the contrary is provided by the Legislature. But Mr. Desai says that the repeal of the Indian Naturalization Act is not by the Constitution, but is by adaptation by the President under Article 372(2).

But Article 372(2) gives the power to the President of repealing any law in force, and we have to inter-: pret this Article 372(2) in the light of the General Clauses Act, and it is clear that when the President exercising his power under this article repeals a law in force, the rights and privileges acquired by any person under the law repealed are preserved unless there is a provision to the contrary in the Adaptation Order.

Now, in repealing the Indian Naturalization Act the Adaptation Order has in no way taken away the rights already acquired, and as far as the Foreigners Act is concerned, far from the Legislature intending to take away the rights of British subjects it has retained Section 2(a)(i) and (ii) of the Foreigners Act. Therefore, neither the repeal of the Indian Naturalization Act, nor the adaptation of the Foreigners Act discloses any intention on the part of the President to take away the rights i of British subjects already acquired under the laws' repealed or modified.

9. It is then urged by Mr. Desai that it is open to him to satisfy us that after the naturalization certificate was granted to the father of the plaintiff he has acquired Iranian citizenship and therefore he has lost his rights and thereby the son has also lost his rights. Now, the Indian Naturalizatilon Act provides for the revocation or a certificate issued to any person under that Act and the effect of the revocation is provided for by Section 9 CD and that is: 'where a certificate is revoked under section 8, the former holder thereof shall cease to be deemed to be a British subject.' Therefore, unless there is revocation of the certificate, the holder of the certificate must continue to be a British subject.

It is then urged by Mr. Desai that a very curious result would follow if it is held that the son acquires the rights of his father as he had them at his birth and as the son himself is not the holder of a certificate he can go on enjoying those rights and notwithstanding his acquiring a citizenship of another country no action could be taken against him under the Foreigners Act. There is again a simple answer to this difficulty suggested by Mr. Desai.

Under Section 8 (7) when a child of a person to whom the naturalization certificate has been issued attains majority, he must be deemed to be a person to whom a certificate of naturalization has been granted and it is open to the Government to revoke the certificate which the son is deemed to hold under Section 8 (7). Therefore, it is perfectly competent for Government, if it is satisfied that good reasons exist for doing so, to revoke the certificate deemed to be held by the plaintiff, and if such action is taken by Government, then the plaintiff would cease to be deemed to be a British subject and whatever rights he has as a British subject under the Foreigners Act can no longer be enjoyed by him.

10. In the view that we have formed in our opinion it is unnecessary to consider whether the learned Judge was right in coming to the conclusion that the plaintiff had become a citizen of India by reason of domicile and continuing to live in India for five years prior to the coming into force of the Constitution. We are deciding against the Union of India on the sole ground that the plaintiff is a British subject and action cannot be taken against him under the Foreigners Act. We do not decide and we leave the question open as to whether the plaintiff ,has become an Indian citizen as held by the learned Judge below.

11. The result is that the appeal fails and must be dismissed with costs.

12. Prothonotary to issue a direction under Section 82 giving the Union Government one month's time to satisfy the decree for costs in suit and of the appeal after the issue of an allocatur.

13. Liberty to the respondent's attorneys to withdraw the sum of Rs. 500 deposited in Court.

14. Appeal dismissed.


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