J.K. Tandon, J.
1. It may be necessary at the very outset to state certain facts to enable the controversy to be judged. On 11th, September, 1957 (the year 1953 given in annexure F is a mistake) the Civil Authority who was the Superintendent of Police, Shahjhanpur, served a notice upon the petitioner under the provisions of the Foreigners Act 1946 that he was a Pakistani national who had entered this country under a passport and that his visa expired on the 21st September, 1953 but he was still continuing here. He, therefore, required him to leave India within thirty days from the date of the service of the notice else he will be prosecuted under Section 14 of the Foreigners Act and steps will also be taken to deport him out of the limits of this country. Prior to the service of the above notice the petitioner had oh more than one occasion made an attempt to be repatriated to this country in pursuance of the Nehru Liaqat Pact but his efforts did not materialize.
2. His parents, both the father and the mother, were admittedly citizens of this country. The father is dead but the mother is Still alive. The former died on the 8th November, 1956. He has two brothers who too are citizen?, of India. The petitioner claiming that he too is a citizen of India has commenced this petition under Article 226 of the Constitution impugning the legality of the notice dated the 11th September, 1957, and has asked that the opposite parties be restrained by a writ of mandamus from prosecuting the petitioner and also deporting him.
3. The petitioner's allegations are that he was born at his paternal house in Mohalla Banwaripur, post Office Tilhar, District Shahjahanpur, on 19th July, 1941 and that in July 1947 i.e. six years later he joined the Biryaganj Primary School Tilhar. His allegation further is that he pursued his studies in the above school until he left it in May, 1950. In support he has produced the School Leaving Certificate which describes his period of study in the school from 21st July, 1947, to 31st May, 1950. The importance of, the above allegation lies in the fact that on the 26th January, 1950, when the Constitution came into force he along, with his parents was domiciled in India. In his effort to show that he and his parents were domiciled in India and were citizen also of this country, the petitioner has cited several instances in which his parents and brothers including himself were held to be residents in India. In 1950 there were serious communal disturbances in the district of Shahjahanpur.
The petitioner's allegation is that he was at the time of these disturbances staying with, his sister in village Bhanderi, Police Station Kant, from where all the member of his sister's family including him had to escape into Pakistan to save their lives and property. At that time, the petitioner claims, he was still a minor and further that he had gone to Pakistan not with the intention of migration but because his sister went there to protect her life. Further according to him it was not until sometime in 1953 that his parents were able to know that lie bad been taken away to Pakistan by his sister. But as soon as this fact was known everyone, including the petitioner who to wanted to live with his parents made different efforts to return to his home. Ultimately he was able to return to this country in 1953 on a passport which he secured on his representing himself to be a Pakistani citizen. A visa was also obtained thereon which as earlier stated expired on the 21st September, 1953.
4. It is conceded that the principal question which will determine the fate of this petition is whether the petitioner is or is not a citizen of India. In ease he is such a citizen the proceedings commenced against him under the Foreigners Act will undoubtedly be bad. Article 5 of the Constitution has in Clause (a) and also in Clause (b) laid down that 'every person who was domiciled in India on the 26th January, 1950, and who was born in the Territory of India shall be a citizen of India' There is no dispute that the petitioner was born within the territory of India As a matter of fact there is no dispute also that his parents too were born in India. It alone, therefore, remained to be judged whether he was domiciled in this country on the 26th of January, 1950.
5. The petitioner's allegations are that he remained in this country ever since his birth until he was shifted by his sister to Pakistan in May, 1950. To support this claim he produced the School Leaving Certificate from the institution where he was admitted in July, 1947. According to this certificate he remained a student of the Biryaganj Primary School from July, 1947 upto the 31st of May, 1950. The counter affidavit by the respondents has alleged that the petitioner left India in 1947 but they have not placed any material wherefore they claimed this fact. Besides the certificate to which reference has been made above, the petitioner's brother Sharafatullah Khan also has sworn an affidavit that he (the petitioner) continued in the above school and also stayed in India until he left for Pakistan in May, 1950 with his sister. The circumstances in which lie left this country, namely, on account of the communal disturbances have also been repeated by him. In the face of the above material it cannot be doubted that the petitioner was resident in India at the commencement of the Constitution.
6. Whether he can be said to be domiciled also in this country may still have to be examined. Section 7 of the Indian Succession Act provides that 'the domicile of origin of every person of legitimate birth is the country in which at the time of his birth his father was domiciled'. Since the petitioner's father was domiciled in India and his birth also took place in India, his domicile of origin must, therefore, be in this country. Section 9 of the same Act lays down that the domicile of origin prevails until a new domicile has been acquired. Under Section 10 a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. The petitioner's allegation is that he went to Pakistan because his sister with whom he was living at the time went away to that country. He himself was a minor and never went there to take up his habitation in that country.
Section 14 in dealing with a minor's domicile provides that the domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin. If the petitioner was a minor in 1950 whence left this country and if he was a minor when he returned to this country in 1953 his domicile will continue to be in India. Whether, therefore, the petitioner's case is judged under the above provisions or under Article 5 of the Constitution, since the petitioner was domiciled in India on 26th January, 1950, he will be a citizen of this country. The temporary absence to Pakistan will not affect unless it can be shown that he had attained majority in May, 1950 when he went there or even in 1953 when he returned to this country declaring himself to be a Pakistani national.
7. The petitioner has given his date 'of birth 19th July, 1941. This is the date entered in his school certificate also. On behalf of the respondents it is claimed that he was born in 1935 as happened to be indicated by him in his passport. I do not think it will be safe to rely On the age entered in the passport particularly when in the school which tie entered in 1947 his birth was entered in 1941. The entry about age in the school records which were made at a time when no controversy existed about it deserved to be preferred. I am, therefore, prepared to hold that he was born in 1941 and was still a minor in 1953 when he came back to this Country.
8. The learned Standing Counsel next raised the question that the petitioner having declared himself a Pakistani citizen in 1953 and also obtained a passport as such citizen he must be held to be a citizen of Pakistan and any dispute as regards his being a citizen of this country or of Pakistan should, in view of Sub-section (2) of Section 9 of the Indian Citizenship Act, 1955 read with Rule 30 of the Citizensip Rules 1956 and those contained in Schedule III of such Rules, be determined by the Central Government. In other words, this Court cannot but treat him as a Pakistani citizen and any different claim by the petitioner must be determined by the Central Government under the above provisions.
9. Sub-section (2) of Section 9 cannot in my opinion be construed divested of the context of Sub-section (1) of that section. Sub-section (1) is to die effect that.
any citizen of India who by naturalization, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India.
There is a proviso beneath the sub-section but it is not relevant for the present purpose. Sub-section (2) then provides that.
If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such, rules of evidence, as may be prescribed in this behalf.
Rule 30 and the Rules contained in Schedule III of the Indian Citizenship Rules 1956 have been framed in pursuance of the above provision in Sub-section (2). Sub-section (2), as its language clearly pointed out, deals with the determination of the question whether when and how any person has acquired the citizenship of another country. The word, 'any person' do not mean or refer to a person who was not a citizen of India previously. They, on the other hand, mean a person who was a citizen of India but is said to have acquired by naturalisation, registration or otherwise the citizenship of another country. Every dispute about the claim of citizenship by a person, is not governed in the matter of its decision by rules etc. framed in pursuance of Sub-section (2). These rules can be invoked and are applicable to those cases only where it is admitted that the person was at one time the citizen of this country but has subsequently by naturalisaion, registration or otherwise acquired the citizenship of 'another' country. The words 'has acquired the citizenship of another country' (the underline (here into ' ') is mine) make this intention fully clear.
10. In the present case the respondents' allegation has never been that the petitioner was a citizen of this country and he became a Pakistani citizen by naturalisation etc. As a matter of fact, their allegation is that he wend away to Pakistan in 1947 and never acquired the citizenship of this country. In view of such allegations Section 9 of the Citizenship Act or the rules framed thereunder are not attracted and this Court is competent to determine the question.
11. Since the petitioner has succeeded in proving that he is a citizen of India he is entitled to the relief asked by him. The respondents are accordingly directed not to give effect to the notice dated the 11th September, 1957, nor to deport the petitioner out of the territory of India. The petitioner to get his costs from the respondents.