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Abdul Majid Vs. Senior Superintendent and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1967CriLJ1223
AppellantAbdul Majid
RespondentSenior Superintendent and anr.
Excerpt:
- - we are, therefore, satisfied that the order of the central government cannot be challenged on the ground that no opportunity was afforded to the petitioner to put his case before the aforesaid authority......spite of the expiry of the period mentioned in the visa. the government of uttar pradesh moved the central government to determine the national status of the petitioner and the government of india by its order no. 13/473/63 i.c., dated the 17th march 1964, determined that the petitioner has voluntarily acquired the citizenship of pakistan after the 26th january 1930, and before 29th april 1959. in pursuance to an order of the civil authority, agra, purporting to be under para. 5/8 of the foreigner's (internment) order, 1962, the petitioner was arrested on 29.9.1965 and since then is being detained in the premises of the district jail at agra.3. learned counsel for the petitioner has urged that the order of the central government determining the nationality of the petitioner is invalid.....
Judgment:

H.C.P. Tripathi, J.

1. By this petition under Section 49X of the Criminal P. C. the petitioner challenges the validity of his detention in the district jail at Agra in pursuance to an order passed by the civil authority, Agra, under the provisions of para. 5/8 of the Foreigners' (Internment) Order, 1962, as applicable to Pakistani nationals in India.

2. The undisputed facts which are relevant to the questions in controversy are these.

The petitioner who was born at Agra migrated to Pakistan in the year 1955. Some time in the year 1961 he entered India on the basis of a Pakistani Passport No. 593116 dated the 29th April 1959, and a short term visa No. 10488 dated February 1961 and has been over-staying since then at Agra in spite of the expiry of the period mentioned in the visa. The Government of Uttar Pradesh moved the Central Government to determine the national status of the petitioner and the Government of India by its order No. 13/473/63 I.C., dated the 17th March 1964, determined that the petitioner has voluntarily acquired the citizenship of Pakistan after the 26th January 1930, and before 29th April 1959. In pursuance to an order of the civil authority, Agra, purporting to be under para. 5/8 of the Foreigner's (Internment) Order, 1962, the petitioner was arrested on 29.9.1965 and since then is being detained in the premises of the district jail at Agra.

3. Learned Counsel for the petitioner has urged that the order of the Central Government determining the nationality of the petitioner is invalid firstly because no opportunity was furnished to the petitioner to represent his case personally and secondly it is not in accordance with Section 9(a) of the Citizenship Act inasmuch as the determination has not been made by an authorised person. It is contended that as the aforesaid order is invalid the petitioner continues to remain a citizen of India which he was on the date of the enforcement of the Constitution and the impugned order of the civil authority detaining him on the ground that he was a national of Pakistan is wholly illegal. We do not find any force in these contentions.

4. In a habeas corpus petition the question relating to the validity of the order of the Central Government determining the nationality of the petitioner under Section 9(2) of the Citizenship Act cannot be gone into and for the purpose of this petition it must be held that the Central Government has validly held that the petitioner has acquired the citizenship of Pakistan. It may, however, be mentioned here that from the averments made in the affidavit of Sri Fateh Singh, Joint Secretary to the Government of India, Ministry of Home Affairs, it appears that the President of India has framed the Government of India (Allocation of Business) Rules, 1961, under Article 77(3) of the Constitution and by Item No. 35, ''Citizenship and Naturalisation' is the subject allotted to the Ministry of Home Affairs. It has been further averred that Rule 3 of the Government of India (Transaction of Business) Rules, 1961, framed by the President in exercise of the powers under the aforesaid Article of the Constitution provided that 'all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961, shall be disposed of by or under the general order or special direction of the Minister incharge' and that the Homo Minister has by general order relating to distribution of work between various officers of the Ministry had directed Sri Fateh Singh to determine the question whether a particular individual has voluntarily acquired the citizen-ship of another country under Section 9(2) of the Citizenship Act on behalf of the Government of India. It was he who had decided that the petitioner had voluntarily acquired the citizenship of Pakistan. The order dated the 12th March, 1962, made by Sri Fateh Singh was communicated to the petitioner under the signature of Smt. S. Kaur, Under Secretary to Government of India, who is authorised under Authentication (Orders and other Instruments) Rules, 1958, to authenticate such orders. It is, therefore, obvious that the aforesaid order of the Central Government is in accordance with the rules framed by the President in exercise of his powers under Article 77(3) of the Constitution and its validity cannot be challenged on that ground.

5. Before passing the aforesaid order a notice dated the 3rd September, 1963, was served on the petitioner to submit any representation he wished to make in the matter and to forward any other material he intended to rely upon in support of his contention that he has not voluntarily acquired the citizenship of Pakistan. In response to this notice it appears that the petitioner did make a representation to the Central Government in which he detailed the various grounds on the basis of which he had claimed that in spite of his having obtained a Pakistani passport for entering India he had not acquired the citizenship of Pakistan, In this representation the petitioner also prayed for a hearing in person. It appears that the Central Government after considering the cause shown by the petitioner but without giving him a hearing in person determined that he had voluntarily acquired the citizenship of Pakistan after the 29th January, 1950 and before 29th of April, 1959.

6. In the circumstances enumerated above it is clear that the petitioner was given due notice of the nature of action and a reasonable opportunity to convince the Central Government that what was alleged against him by the State Government was not true. In our opinion it was not necessary for the Central Government to give a personal hearing to the petitioner before determining the question of his citizenship.

7. In A.K. Gopalan v. State of Madras : 1950CriLJ1383 , Kania Justice observed:

I am not prepared to accept the contention that a right to be heard orally is an essential right of procedure even according to the rules of natural justice. The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory.

8. Proceedings under Section 9(2) of the Citizenship Act are no doubt quasi-judicial proceedings but they do not contemplate that the authority deciding the question is bound to give a personal hearing to the concerned person. We are, therefore, satisfied that the order of the Central Government cannot be challenged on the ground that no opportunity was afforded to the petitioner to put his case before the aforesaid authority.

9. The aforesaid order of the Central Gov. eminent shows that the petitioner had acquired the citizenship of Pakistan. He would, therefore, automatically become a national of Pakistan within the meaning of the Foreigners' (Internment) Order, 1962, and as such amenable to detention in pursuance to an order passed by the civil authority under para 5/8 of the aforesaid order.

10. In a number of such petitions we have held that the provisions of paras 5 and s of the Foreigners' (Internment) Order are of a wide sweep and any national of Pakistan can be arrested or cause to be arrested by the civil authority under paras of the aforesaid order. Whether a Pakistani national should be detained or not within the provisions of the aforesaid Internment Order is a question which depends on the subjective satisfaction of the civil authority of the area and an order passed by him cannot be put to an objective test. It is true that now the hostilities between India and Pakistan have ceased but whether in view of the changed circumstances the further detention of the petitioner is necessary or not is a question which can be determined only by the civil authority of Agra.

11. There is no force in this petition and it is dismissed.


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