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Gulam Rasool Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 77 of 1962
Judge
Reported inAIR1962All621
ActsForeigners Act, 1946 - Sections 2; Constitution of India - Articles 7 and 226; Foreigners Act, 1957
AppellantGulam Rasool
RespondentState of U.P. and anr.
Advocates:Gyanendra Kumar and ;Narendra Kumar, Advs.
DispositionAppeal dismissed
Excerpt:
constitution - citizenship - section 2 clause (a) of foreigners act, 1946 - appellant moving to pakistan - came back after the amendment of the act - claimed citizenship - facts didnot lead to the conclusion that he was a citizen of india - being foreigner under the amended foreigner's act he became liable to deportation. - .....that he returned to india in 1956 and that since then he has a right to continue to live as an indian citizen. the learned single judge on examining the facts as stated in the affidavit filed by the appellant, the counter affidavit filed on behalf of the respondents and the rejoinder affidavit, came to the view that it may be held in favour of the appellant that in september, 1956, the appellant was not a foreigner within the meaning of that word as then used in the foreigners act, but proceeded further to hold that at least now the appellant is not a citizen of india and, consequently under the new definition introduced by the foreigners laws (amendment) act, 1957, he is a foreigner, so that action being taken against him by the respondents is justified. it was on this view that the.....
Judgment:

V. Bhargava, J.

1. We have heard learned counsel for the appellant on this appeal by which the appellant has prayed that his petition under Article 226 of the Constitution should be allowed and the order of the learned Single Judge dismissing the petition be set aside. The appellant in the petition prayed principally for the issue of a writ of mandamus restraining the respondents from compelling the appellant to leave India or arresting or deporting him out of its territories, as also a writ of mandamus to the Senior Superintendent of police, Agra, to forbear from interfering with the appellant's right to settle or reside in any part of India. The claim was put forward on the ground that the appellant was a citizen of India when the Constitution came into force, that he went to Pakistan sometime in the year 1955, that he never migrated from India and never acquired the nationality of Pakistan or any other foreign country, that he returned to India in 1956 and that since then he has a right to continue to live as an Indian Citizen. The learned Single Judge on examining the facts as stated in the affidavit filed by the appellant, the counter affidavit filed on behalf of the respondents and the rejoinder affidavit, came to the view that it may be held in favour of the appellant that in September, 1956, the appellant was not a foreigner within the meaning of that word as then used in the Foreigners Act, but proceeded further to hold that at least now the appellant is not a citizen of India and, consequently under the new definition introduced by the foreigners Laws (Amendment) Act, 1957, he is a foreigner, so that action being taken against him by the respondents is justified. It was on this view that the petition filed by the appellant was dismissed.

2. In this appeal when learned counsel addressed us, he proceeded on the assumption that the finding of the learned Single Judge that it might be held that the appellant was not a foreigner in September, 1956, necessarily implies that he was a citizen of India at that time. This assumption in our opinion is not at all justified. The question whether the appellant was or was not a foreigner in September, 1956 may be independent of the question whether he was or was not a citizen of India. The provisions of the Foreigners' Act as they stood in September, 1956, defined the word 'foreigner' as meaning 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 nataralization 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 Tribal areas;

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 deemed to be a foreigner.

This definition makes it clear that apart from citizens of India, even other persons were not covered by the definition of a foreigner if they happened to be persons belonging to the classes mentioned in Clause (i) or (ii). Consequently, the finding recorded by the learned Single Judge that it may be held that in September, 1956, the appellant was not a foreigner does not necessarily lead to the conclusion that he was an Indian citizen. It was in these circumstances for the appellant to show that he was an Indian citizen then or at some other time. In the affidavit filed in support of the petition the petitioner came forward with the case that he was born in India and that he continued to live in India until the year 1955 when he went to Pakistan, The affidavit seems to indicate that he sneaked into Pakistan surreptitiously without complying with the regulations which an Indian citizen had to comply with before going to Pakistan, The counter affidavit filed however gives a different picture. It appears from the counter affidavit that the appellant had migrated to Pakistan in 1950. There is a definite assertion that the appellant himself gave a declaration that he had migrated to Pakistan in 1950. There is the further assertion that the appellant had voluntarily declared his nationality as Pakistani and had given his permanent residence at Karachi when he obtained a passport and a visa to come to India in 1956. These assertions made in the counter affidavit were not controverted in the rejoinder affidavit. It is to be noted that in the rejoinder affidavit filed, the appellant had made some attempt to explain why he declared himself to be a Pakistani national at the time when he obtained the Passport in 1956 to come to India. According to him he was still an Indian citizen but he succumbed to the pressure of circumstances and agreed to be described as a citizen of Pakistan in the application for passport and visa and that the entries in that application were filled by the clerks concerned in Pakistan. Even this explanation given in the rejoinder affidavit did not cover the further assertion which has been made in the counter affidavit that the appellant actually gave a declaration that he had migrated to Pakistan in 1950. In fact a copy of the declaration made by him has been made an annexure to the counter affidavit and shows that the appellant himself gave the approximate date of migration in that declaration as '1950'. While such a declaration exists and no adequate explanation for it is forthcoming, the writ petition had to be decided on the basis that this declaration must be correct. It would, therefore, appear that the appellant migrated to Pakistan in 1950 and if he migrated in that year before the 26th of January he could never acquire Indian citizenship under the Constitution of India.

Under Article 7 of the Constitution he would be deemed never to have been a citizen of India.

It was for the appellant to show that he did not in fact migrate before the 26th of January 1950 in order to get any writ from this Court, the appellant instead of attempting to show, this came to this Court with a false case that he continued to live in India until 1955 and only went to Pakistan in that year. It is true that he has riled an affidavit showing that he was in India sometime during the years 1952, 1953 and 1954. That however does not militate against his declaration that he migrated to Pakistan in 1950. It is quite possible that having, migrated in 1950 and having lost Indian citizenship he sneaked into India sometime in 1952 and then continued to live here surreptitiously until he again sneaked back into Pakistan in the year 1955. If this happened the facts as given by the appellant in his affidavit about his departure for Pakistan in 1955 and his being in India in 1952, 1953 and 1954 would be consistent with the other declaration that he migrated to Pakistan in 1950. The appellant, it seems, wanted to keep the court in the dark about his departure to Pakistan in 1950 and the only presumption would be that he tried to do so because as a result of migration he never acquired Indian citizenship which means that he left India before the 26th of January 1950, and since he migrated to Pakistan, Article 7 of the Constitution became applicable to his case. While such a possibility exists, it is impossible to hold that the appellant was ever a citizen of India so that even in September, 1956, when he came back to India, even though he might not have acquired citizenship of any other country and might not have become a foreigner under the Foreigners Act, as it stood at that time, he was not a citizen of India either. Subsequently the Foreigners Act was amended and, not being an Indian citizen, he became a foreigner under that Act, as a result of which he became liable to deportation. He had thus become a foreigner when the respondents wanted to deport the appellant and also at the time when the petition was filed and the petition was dismissed by the learned Single Judge.

3. Under the circumstances it is clear that there is no force in this appeal and it is accordingly dismissed.


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