(1) This is an appeal under clause 10 of the Letters Patent from an order of learned Single Judge of this Court quashing the order of deportation made against the respondent under section 3 of the Foreigners Act, 1946.
(2) It is not disputed that the respondent was born on 22nd October, 1907 in village Asourd, Tehsil Malerkotla, which has always been a part of the territories comprising India. He continued to reside there till 24th of August, 1947. On 31st January, 1953, he obtained a passport from the Government of India for visiting Pakistan. This passport was granted to him but it expired on 31st January, 1954, up to which date only it was valid. The respondent visited Pakistan in October, 1953, and returned to India in December, 1953. In February 1955, he went away to Pakistan again without getting the necessary visa.
According to him, he had to go because he had suddenly received news of the serious illness of his son-in-law in Pakistan. It was alleged by him that he was obliged to obtain a passport from the Pakistan Government in order to return to India as he could not get a visa without obtaining that passport. It is apparent from the return, which was filed by the State and others, to the petition under Article 226 of the Constitution, that the respondent again entered India on the basis of the same passport, which he had obtained from Pakistan, on 4th March, 1956. It seems that he came to India once again on a date which cannot be ascertained from the present record. Finally, as stated before, the Station House Officer, Malerkotla, served the order in December 1958, which was impugned by a petition filed under Article 226 soon after the order to deportation had been served on the respondent.
(3) The learned Single Judge based his order on the fact that the respondent was originally a citizen of this country and the Foreigners Act could not be made applicable to him. The case of the State was that the respondent had lost his citizenship of this country when he applied for a passport in Pakistan. The learned Judge considered that this matter could be decided only by the Central Government under section 9 of the Citizenship Act, 1955, and the rules framed thereunder. Relying on an earlier decision given by him in Nasir Ahmed v. Chief Commissioner, Delhi. (1958) 60 Pun LR 693: (AIR 1959 Punj 261) the learned Judge held that until the Central Government made the necessary order under Rule 30 of the Citizenship Rules which had not been done, it could not be said that the petitioner had lost his citizenship of this country.
(4) A large number of decisions have been given by various Courts including this Court in which points, which have been agitated before us, have been raised and decided. It is unnecessary to refer to fall of them because their Lordships of the Supreme Court have laid down the law in some recent decisions, which would now furnish the guiding principle for deciding the correctness or otherwise of the judgment of the learned Single Judge.
It would, however, be proper to refer to a Division Bench judgment of this Court in Mohinder Kumar v. Shiv Shankar, Civil Writ No. 71-D of 1959 D/- 16-1-1961 (Punj). The question in that case, which had been referred to a Bench, was whether a person who entered India on a Pakistani passport with a visa endorsed was a 'foreigner' liable to be repatriated under the Indian Foreigners Act after the expiry of the duration of the visa and whether his deportation could be deferred subject to the examination of him claim set up that he was sometime before an Indian national and that he had never lost that nationality. The Bench referred to Exhibit R/1, which had been produced in that case, and inferred from it that the petitioner there had migrated from Indian to Pakistan in the year 1948 and had lost his citizenship by virtue of the provisions embodied in Article 7 of the Constitution. That apart, the fact that he came to India on a Pakistani passport with a visa endorsed, was held to indicate that he was a foreigner. This was based on the provisions of Rule 3 of Schedule III appended to the Citizenship Rules, 1956.
The Bench relied on another judgment State v. Siraj-ud-Din, Criminal Appeal No. 34-D of 1959 (Punj), in which my Lord, the Chief Justice had observed that if an Indian citizen obtained a passport in Pakistan, or even obtained a temporary permit for entry into India, it was conclusive proof of the fact that he was a national of Pakistan and not a citizen of India.
In State v. Mohd. Shafi, Criminal Appeal No. 52-D of 1960, D/- 17-4-1961 (Punj) by a Bench consisting of my Lord the Chief Justice and Mahajan, J., the effect of the provisions contained in section 9 of the Citizenship Act and Rule 30(2) Schedule III Clause 3 was considered. The question whether clause 3 of the Schedule was ultra vires the Constitution was canvassed and the divergent views expressed by various High Courts were noticed, but it was observed that the aforesaid provision had always been held to be intra vires by this Court. If the decision of the present case has to rest on clause 3 of Schedule III, which had been relied upon a good deal in the Bench decisions, then the judgment of the learned Single Judge in the present case is liable to be reversed on the short ground that the respondent had obtained a pass port from the Government of Pakistan and this constituted conclusive proof of his having voluntarily acquired the citizenship of that country.
(5) The learned counsel for the respondent contends that it is not for this Court to decide whether a person, who was admittedly a citizen of India at the time when the Constitution came into force, had lost the citizenship and had become a foreigner when the impugned order was made against him. Section 9 of the Citizenship Act lays down that any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950, and the commencement of the Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, case to be a citizen of India.
Sub-section (2) of that section, however, is--
''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.'
It is the Central Government that is the prescribed authority for this purpose and the counsel contends that it is only that Government which can determine such a question and until it is so determined and a decision given that the respondent has acquired the citizenship of another country it must be held, and it has been rightly held, that he continues to be a citizen of India which would preclude any other being made under the Foreigners Act against him as he cannot be regarded to be a foreigner.
In this connection it becomes necessary to consider the law laid down by their Lordships of the Supreme Court in State of Andhra Pradesh v. Abdul Khader, (1961) 63 Pun LR 751 : (AIR 1961 SC 1467). In that case the respondent had been convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under section 14 of the Foreigners Act 1946. It had been found that on 20th January 1955, he had come to Adoni on a passport granted by the Government of Pakistan which bore the date 10th January, 1955. A visa had been endorsed on it, which had been granted by the Indian authorities, permitting him to stay in India up to 14th April, 1955. He continued to stay on in India after that date. It seemed that he had made a representation to the Government of India for extension of his visa till 2nd September, 1957. On 3rd September, 1957, an order dated 9th August 1957, requiring him to leave India was served on him. As he did not leave India as directed by this order, his prosecution followed and he was confided. His revision petition was allowed by the High Court of Andhra Pradesh and the State filed an appeal to the Supreme Court. The evidence produced in the case was considered by their Lordship who observed that no order could be made under section 3(2)(c) of the Foreigners Act if he was not a foreigner. The question was whether he was a foreigner. The Judicial Magistrate had found that by obtaining a passport from the Pakistan authorities he had disowned Indian nationality and he ceased to be an Indian national. It had been held that section 9 of the Foreigners Act did not apply but section 8 of that Act did and under that section a decision made by the Government that the person is a foreigner is final. Both these contentions were rejected as untenable. It was held that section 8 applied only to a person who was a foreigner and the question was of which foreign country he was a national. In the case of the respondent there no such question arose and no decision could be or was made by any prescribed authority of such a matter.
Referring to section 9(2) of the Citizenship Act, 1955, and Rule 30 their Lordship laid it down that the question whether a person who was an Indian citizen had acquired Pakistani nationality could not be decided by the Courts. The Magistrate was held to have had no jurisdiction to come to the finding on the strength of the passport that the respondent, an Indian citizen, had acquired Pakistani citizenship nor was there anything to show that the Central Government had decided that he had renounced Indian citizenship and acquired and acquired Pakistani nationality.
The following observations of their Lordships are noteworthy:--
'The question whether a person is an Indian citizen of a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is which the exclusive jurisdiction of the Central Government to decide. The Courts can decide it and, therefore, the learned Magistrate could have done so. He, however, did not decide that question that is find that the respondent had been a Pakistani national all along. On the evidence on the record such a finding would not have been warranted.'
While discussing the evidence their Lordship made it clear that the passport obtained from Pakistan would no doubt be evidence that the respondent was a Pakistani national, but if he was an Indian citizen on the promulgation of the Constitution, the passport could show no more than that he had renounced Indian citizenship and acquired Pakistani nationality. Such evidence would, however, be of no use for, in view of section 9(2) of the Citizenship Act, a Court could not decide whether an Indian citizen had acquired the citizenship of another country. The position was finally summed up in the following words:--
'The respondent has clearly discharged the onus that lay on him under section 8 of the Foreigners Act to prove that he was not a foreigner, by proving that he was born and domiciled in India prior to 26th January, 1950, when the Constitution came into force and thereby and become an Indian citizen under Article 5(a) of the Constitution. He has further proved that he had never migrated to Pakistan. It has not been shown that the Central Government had made any decision with regard to him under section 9 of the Citizenship Act that he has acquired a foreign nationality. Therefore, it cannot be held by any Court that the respondent who was an Indian citizen had ceased to be such and become a foreigner. That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(2)(c) of the Foreigners Act.'
The learned counsel for the respondent thus contends that the respondent in the present case has discharged the onus that lay on him under section 8 to prove that he was (not?) a foreigner, by proving that he was born and domiciled in India prior to 26th January, 1950, and that he had become an Indian citizen under Article 5(a) of the Constitution. There is no order of the Central Government, which had been made, giving a decision under section 9 of the Citizenship Act that he had acquired a foreign nationality. Consequently, we must hold in agreement with the learned Single Judge that he was an Indian citizen and had not ceased to be such and had not become a foreigner.
(6) The learned counsel for the appellants has relied on another judgment of the Supreme Court which according judgment of the Supreme Court, which according to him is almost on all fours (Union of India v. Ghaus Mohammad, Criminal Appeal No. 37 of 1960, D/- 4-4-1961: (AIR 1961 SC 1526),) with the present case.
Ghaus Mohammad had alleged that he had been a resident of Delhi and had never migrated from India to another country. His wife had brought a civil suit that she was a citizen of Indian and pleaded that her husband had all along been a citizen of India. He was served with an order in January 1958, under section 3(2)(c) of the Foreigners Act directing him not to remain in the Indian territory. Thereupon he filed a petition under Article 226 of the Constitution, which was decided by Meher Singh, J. The learned Judge relied on section 9 of the Citizenship Act and held that there was no material before the authority passing the order except certain statements made by the wife of the petitioner in that case, which had been made in his absence. Consequently he quashed the order which had been made under section 3(2)(c) of the Foreigners Act.
It was argued before their Lordships in appeal on behalf of the Union of India that section 9 of the Citizenship Act had no application to that case and their Lordships acceded to that contention in the following words:--
'That section deals with the termination of citizenship of a citizen of India in certain circumstances. It is not the Union's case nor that of the respondent that the latter's citizenship came to an end for any of the reasons mentioned in that section. The reference to that section by the High Court for the decision of the case, was therefore not apposite.'
Their Lordships proceeded to observed:--
'It is quite clear that this section applies to the present case and the onus of showing that he is not a foreigner was upon the respondent. The High Court entirely overlooked the provisions of this section and misdirected itself as to the question that arose for decision. It does not seem to have realised that the burden of proving that he was not a foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question.
The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. In out view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we purpose to leave the respondent free to file such a suit if he is no advised, we have not dealt with the evidence on the record on the question of the respondent's nationality so as not to prejudice any proceeding that may be brought in the future.'
(7) The learned counsel for the respondent points out that the facts in the present case are quite different because in the return it was clearly admitted that the petitioner was born in India and had continued to reside here till after the enforcement of the Constitution and had been granted a passport by the Government of India as an Indian national. The case set up in the return was that the respondent had acquired the citizenship of Pakistan after he left India and this according to the learned counsel, was only after the year 1953. It is submitted that from paragraphs 5 and 6 it is clear that the position taken up was but the respondent, who was admittedly an Indian citizen, did not retain that citizenship because he had obtained a passport and visas from the Pakistan Government subsequently and had thus acquired Pakistani nationality. It had also been stated that he had lost the citizenship on account of his migration to Pakistan in February 1955. For the purposes of migration in the return reference had been made to the facts stated in paragraph 12 of the petition.
What the present respondent had said in that paragraph was that in the end of February 1955 he had received news that his son-in-law, who was residing in Pakistan along with his only daughter, had fallen seriously ill. Thereupon, he without getting the necessary visa, the obtaining of which would have taken him at least a period of one month crossed the border and went over to Pakistan for meeting his ailing son-in-law. Counsel contends that this could not constitute an admission of migration to Pakistan and at any rule, such a migration could not deprive him of his Indian citizenship. As according to the appellants the respondent had lost his citizenship by acquiring Pakistani nationality, the determination of such a question under section 9(2) of the Citizenship Act clearly arose and that could be determined by the Central Government alone. In the absence of any such decision by the Central Government, it is urged, this case would be covered by the decision in 1961-63 Pun LR 751: (AIR 1961 SC 1467) and not by what was decided in Ghaus Mohammad's case, Cri. Appeal No. 37 of 1960, D/- 4-4-1961: (AIR 1961 SC 1526).
(8) Giving the matter full consideration, I am inclined to the view that the respondent must be regarded to have discharged thus onus which lay upon him under section 9 of the Foreigners Act to show that he was not a foreigner by the admission in the return of the present appellants themselves that he was an Indian citizen before he went to Pakistan long after the enforcement of the Constitution in the year 1950. On the appellants' own allegations that he migrated to Pakistan in February 1955, it could not possibly be held that he had migrated to Pakistan and had lost his Indian citizenship in terms of Article 7 of the Constitution. That would be so, in view of the law laid down in 63 Pun LR 751: (AIR 1961 SC 1467)(supra), where their Lordships pointed out that
'the reference in the opening words of Article 7 to Article 5 and 6 taken in conjunction with the fact that both Article 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in Article 7 is one before January 26, 1950.'
As no decision had been given by the Central Government under section 9 of the Citizenship Act, all the conditions mentioned in the final observations, made in (1961) 63 Pun LR 751: (AIR 1961 SC 1467) reproduced before, had been satisfied and it must be held, as was held in that case, that the respondent was not a foreigner. No order could be made against him under section 3(2)(c) of the Foreigners Act, not can it be said that in the present case any such question arises which would require a detailed examination of evidence which can only be done more appropriately in suit.
(9) The learned counsel for the respondent also attempted to argue that the case of the present respondent was governed by the definition of the word 'foreigner' in the Foreigners Act as it existed before the amendment of that Act which was made with effect from 19th January 1957 by Act II of 1957. The rule laid down in Fida Hussain v. State of Uttar Pradesh Criminal Appl. No. 128 of 1960: (AIR 1961 SC 1522) decided by the Supreme Court on 5th April, 1961, was sought to be applied. It is not necessary to decide this point on account of the decision given by us on the first question. It would suffice to say that it is not at all clear as to when the respondent returned to India from Pakistan after March 1956, when he had gone to that country and it cannot be said with certainly that he had entered India prior to the date of the amendment in the Foreigners Act so as to be entitled to the benefit, if any, of the definition of a foreigner as it existed before the amendment.
(10) In the result, this appeal fails and it is dismissed, but in view of the nature of the points involved, the parties are left to bear their own costs.
(11) KHOSLA, C. J.: I agree.
(12) Appeal dismissed.