1. By this petition under Article 226 of the Constitution of India, the petitioner Fazaldad s/o Sardarkhan challenges the validity of the order dated 4-4-1960 passed by the State Government under Sub-clause (c) of Sub-section (2) of Section 3 of the Foreigners Act No. 21 of 1946.
2. The petitioner claims to have been a resident of village Fabra in District Vidisha in the State of Madhya Pradesh for the last 40 years. He owns considerable immovable property there. The petitioner alleges that he had gone to Chak. Shekhu District Gujrat (Pakistan) in July, 1948 on a temporary visit in order to participate in a marriage and to bring back his children from there. For reasons beyond his control the petitioner had to stay in Pakistan till 22-10-1953. The permit system having been introduced in October, 1948 no one from Pakistan was allowed to come back to India without a permit. The petitioner, therefore, entered India on the strength of a Pakistan passport issued by the Government of Pakistan Karachi on 20-4-1953 and Visa No. C/1/6099 dated 22-10-1953 issued by the Indian High Commissioner Lahore. The petitioner contends that he has always been a citizen of India and that he could not, on account of his allegedly temporary visit to Pakistan in July 1948, which was delayed for reasons beyond his control, be deemed to have lost his rights of a citizen of this country.
3. It is true that Pakistan citizens could not be treated as foreigners prior to the amendment of the definition of 'foreigner' in Section 2 (a) of the Foreigners Act, 1946 by the Foreigners Laws (Amendment) Act, 1957. The Citizenship Act, 1955, however, makes a distinction between a Commonwealth citizen and a citizen of India. Under Section 11 of that Act every person who is a citizen of a Commonwealth country specified in the first Schedule shall, by virtue of that citizenship, have the status of a Commonwealth citizen in India. Pakistan is one of the countries specified in the first Schedule. But the conferment of all or any of the rights of a citizen of India on a citizen of any country specified in the first Schedule can be made only by the Central Government under Section 12 of the Citizenship Act by an order notified in the official Gazette. No such Notification has been issued by the Central Government conferring rights of citizens of India on citizens of Pakistan. Persons who migrated to Pakistan after 1-3-1947 and who did not return to India till the commencement of the Constitution cannot be considered to be citizens of India either by virtue of any of the provisions in the Constitution or the Citizenship Act 1955. -- (See Frioz Meharuddin v. Sub-Divisional Officer (MP), AIR 1961 Madh Pra 110.)
It is true that they could not, till the amendment of Section 2(a) of the Foreigners Act in 1957. be treated as 'foreigners'; but the effect of the provisions of Article 7 of the Constitution is that all persons who had migrated from the territory of India to the territory now included in Pakistan after the 1st day of March, 1947 had to be deemed not to be citizens of India unless they had returned to the territory of India under a permit for re-settlement or for permanent return. A person who after moving to Pakistan subsequently came to India on a temporary permit representing himself to be a Pakistani national cannot claim that he went to Pakistan only for a temporary purpose. (See State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282.) It is pertinent in this connection to refer to Rule 3 Schedule III of the Citizenship Rules, 1956 which runs as under:
'The fact that a citizen of India has obtained on any date a passport from the Government of any country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.'
This rule was framed by the Government under the rule making power conferred upon it by Section 18 of the Citizenship Act, 1955 read with Rule 30 sub-rule (2) of the Citizenship Rules 1956. The vires of this rule were unsuccessfully challenged before the Supreme Court in Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052. The observations made in para 34 of the judgment of the majority in Izhar Ahmed's case, AIR 1962 SC 1052 might be referred to with advantage in this connection. They are as under: --
'According to the laws prevailing in Pakistan a person is not entitled to apply for or obtain a passport unless he is a citizen of Pakistan under its Citizenship Act. Besides, the prescribed form of the application requires that the applicant should make a declaration to the effect that he is a citizen of Pakistan and the said declaration has to be accepted by the Pakistan authorities before a passport is issued. In the course of the enquiry as to the citizenship of the applicant, declarations by officials of Pakistan about She truth of the statement of the applicant are also required to be filed. Thus, the procedure prescribed by the relevant Pakistan laws makes it abundantly clear that the application for the passport has to be made by a citizen of Pakistan, it has to contain a declaration to that effect and the truth of the declaration has to be established to the satisfaction of the Pakistan officials before a passport is granted. When a passport is obtained under these circumstances, so far as the PakistanGovernment is concerned, there can be no doubt that it would be entitled to claim the applicant as its own citizen. The citizen would be estoppeds from claiming against the Pakistan Government that the statement made by him about his status was untrue. In such a case, if the impugned rule prescribes that the obtaining of a passport from the Pakistan Government by an Indian national (which normally would be the result of the prescribed application voluntarily made by him) conclusively proves the voluntary acquisition of Pakistan citizenship, it would be difficult to hold that the rule is not a rule of evidence.'
4. We must, therefore, hold on the basis of facts admitted lay the petitioner himself in his petition, to which reference has been made by us above, that the petitioner is a citizen of Pakistan.
5. In this view of the matter this petition is wholly without substance. It is hereby dismissed with costs. Counsel's fee Rs. 200/-.