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Abdul Gafar Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 218 of 1961
Judge
Reported inAIR1963Guj48; (1963)0GLR247
ActsConstitution of India - Articles 5 and 7; Foreigners Act, 1946 - Sections 2; Foreigners (Amendment) Act, 1957
AppellantAbdul Gafar
RespondentState of Gujarat
Appellant Advocate K.N. Mankad, Adv.
Respondent Advocate A.D. Desai, Adv. and;Asst. Govt. Pleader
DispositionPetition dismissed
Cases ReferredMohammad Umar v. State
Excerpt:
.....partition of india petitioner migrated to pakistan leaving behind family - petitioner returned to india on pakistani passport after 9 years - petitioner made application to government of india for permanent settlement - deportation order issued by government of gujarat directing petitioner to quit india within 7 days - whether order legal and valid - by virtue of section 9 of foreigners act onus to prove that petitioner not foreigner is on petitioner - by virtue of article 7 petitioner should be deemed to be non-citizen of india - order passed by state government valid and legal. - - it is well settled that article 7 overrides article 5 and, therefore, a person who is shown to have migrated to pakistan after the first day of march 1947, as has happened in this case, is not to be..........to the country of adoption, which constitutes migration. therefore, if the facts establish that a person migrated after 1st march 1947 to pakistan, he would be a person who by operation of article 7 is not to be deemed to be a citizen of india notwithstanding article 5.5. there is a case in point in state of bihar v. kumar amar singh : [1955]1scr1259 , where it was contended that the order of deportation from india of one kumar rani was in violation of her fundamental right under article 19 of the constitution. the question that arose there was whether the aforesaid kumar rani was a citizen of india at the date of the order. the contention raised on behalf of kumar rani, was that though it was a fact that she went to pakistan in 1948, she had gone there only for a temporary purpose,.....
Judgment:

Shelat, J.

1. The question arising in this application is with regard to the effect of the change made in the definition of 'foreigner' in the Foreigners Laws (Amendment) Act, XI of 1957.

2. The petitioner was born in Anjar (Kutch) in 1909. He was educated at Anjar and lived with his paternal uncle one Alimahomed, a Sanadi Vakil of Anjar. Until September 1947, he worked as a clerk of his uncle. Prior thereto, in 1942, he was nominated as a member of the Municipality of Anjar. It was said that sometime in September 1947, differences of opinion arose between him and his uncle and, therefore, he left India and went to Pakistan. He lived in Karachi front September 1947 until June 1956 and during that period he worked as a salesman and maintained himself out of the remuneration earned by him as a salesman. On June 11, 1956, he made an application to the Government of India for a permit for permanent resettlement. That was while he was still in Karachi. No such permit has yet been granted to the petitioner. He returned to India on June 14, 1956 on the strength of a Pakistani Passport and a 'C' visa obtained by him on June 11, 1956. In July 1956, while he was at Anjar, an earthquake occurred in consequence of which he lost his mother and also some of his properties, From June 14, 1956 until April 1961, the petitioner was living at Anjar. On April 6, 1961, he was served with an order of deportation issued by the Government of Gujarat requiring him to quit India within seven days from the date of the service of that order. The question that arises in this petition is whether that order could be validly passed against the petitioner.

2a. The contention of Mr. Mankad was that as the petitioner was born in the territory of India and was a natural born British subject and had his domicile in this country at the commencement of the Constitution, he was a citizen of India under Article 5 of the Constitution. Mr. Mankad also urged that when the petitioner returned to India on June 14, 1956, he was not a foreigner under the Foreigners Act, 1946, as it stood then. That being so, the amended definition of the word 'foreigner', which was brought into force as from January 19, 1957, could not alter his status and did not render him a foreigner. Now, assuming that the petitioner was not a foreigner when he entered India in June 1956, the question is, was he, a citizen of this country and if he was not a citizen, whether the amended definition of the word 'foreigner' changed his status and rendered him a 'foreigner'.

3. Under Section 9 of the Foreigners Act, whenever a question arises with reference to that Act or any order made or direction given thereunder whether any person is or is not a foreigner or is or is net a foreigner of a particular class or description, the onus of proving that such a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, notwithstanding anything contained in the Indian Evidence Act, 1872, lies upon such a person. There is no dispute that the petitioner left Anjar and went to Pakistan and was there for a period of about 9 years from September 1947 to June 1956. It is admitted that he served there as a salesman and maintained himself out of his salary as a salesman. During all these 9 years, he never visited this country to see his wife, his mother or his children or to look after the properties which he is said to have left. It is also not disputed that when he came Jo India in June 1956, he did so on the strength of a Pakistani Passport and a 'C' Visa in both of which he declared himself to be a Pakistani national. Before he entered this country he had applied for a permit for resettlement on or about June 11, 1956, and he applied for that permit on the footing that he had migrated to Pakistan. Furthermore on February 29, 1960, he gave a statement to the police at Anjar, wherein he states that he could not leave India though he had stayed here beyond the period permissible under the visa, as he had lost his passport during the earthquake at Anjar and not because he claimed to be a citizen of this country.

4. Article 7 of the Constitution provides that notwithstanding anything contained in Arts. 5 and 6, a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India, tinder this article the petitioner would be a person who is not to be deemed to be a citi2en of India, if it Is established that he had migrated from the territory of India to the territory now included in Pakistan after 1st March 1947. As pointed out above, the petitioner had made a solemn declaration in his application for a passport as also for the 'C' visa that he was a national of Pakistan and though such a declaration may not be conclusive proof of his being a national of Pakistan, it would be an admission on his part, which unless rebutted, would mean that he was a national of Pakistan. Mr. Mankad urged that there were two circumstances in this case, which would rebut the presumption that would arise as a result of the aforesaid admissions by him. These circumstances were (1) that the petitioner went alone to Pakistan in September 1947, leaving his wife, his children and his properties at Anjar and (2) that he had applied for a permit for permanent resettlement on June 11, 1956, before he left Karachi for India. In our view, these two circumstances would not necessarily rebut the presumption that he had migrated to and become a national of Pakistan. It is true that he left his wife, his children and his properties at Anjar, a fact which might perhaps be urged as an Indication that he had not left India with the intention of permanently settling down in Karachi. But there is the important circumstance that after he left India in September 1947 and stayed at Karachi for nearly 9 years, he never once visited his wife and children. That fact would indicate that he never troubled himself to Visit and see them or his other relations including his aged mother. Together with this circumstance there is the further circumstance that he settled down in Karachi for a period of about 9 years maintaining himself out of his salary as a salesman. These facts, in our view, are clear indications that he had gone to Pakistan with the intention of settling down there permanently, and that would mean that he migrated from the territory of India to the territory now included in Pakistan within the meaning of Article 7 of the Constitution. It is well settled that Article 7 overrides Article 5 and, therefore, a person who is shown to have migrated to Pakistan after the first day of March 1947, as has happened in this case, is not to be deemed to be a citizen of India. In that view, even if the petitioner may not be considered to be a foreigner when he entered India on June 14, 1956, he certainly was not a citizen of this country in any event. The expression 'migration' in Article 7 contains two concepts, viz., (1) transference from one place to another; and (2) the intention to make the destination a place of abode or residence in future. It is the notion of transference of allegiance from the country of departure to the country of adoption, which constitutes migration. Therefore, if the facts establish that a person migrated after 1st March 1947 to Pakistan, he would be a person who by operation of Article 7 is not to be deemed to be a citizen of India notwithstanding Article 5.

5. There is a case in point in State of Bihar v. Kumar Amar Singh : [1955]1SCR1259 , where it was contended that the order of deportation from India of one Kumar Rani was in violation of her fundamental right under Article 19 of the Constitution. The question that arose there was whether the aforesaid Kumar Rani was a citizen of India at the date of the order. The contention raised on behalf of Kumar Rani, was that though it was a fact that she went to Pakistan in 1948, she had gone there only for a temporary purpose, viz., for securing medical treatment of a reputed Hakim and that she was always and continued to be a citizen of India. The High Court of Patna, while not accepting her version that she had gone to Karachi in July 1948 for a temporary purpose, held that she was and continued to be a citizen of India on the ground that she was born in India and that her domicile continued to be that of her husband, who it was not disputed continued throughout to be in India. The High Court had Article 5 in mind and acted on the view of the English Law that a wife's domicile continues to be that of her husband during the continuance of the marriage. The Supreme Court negativing the contention on behalf of Kumar Rani said that the High Court had overlooked Article 7 of the Constitution and held that that Article would override Article 5, it was also held that as Kumar Rani had migrated from India to Pakistan after 1st March 1947, her case fell under Article 7 and therefore she could not be deemed to Be a citizen of India. Reliance, however, was placed by Mr. Mankad on the decision in State of Andhra Pradesh v. Abdul Khader, AIR 1961 SC 1467, where the Supreme Court held that the respondent in that case could not be said to have migrated to Pakistan. The facts of that case, however, were entirely different from the ones before us and in our view the question of migration being one essentially of fact, the decision in that case cannot assist Mr. Mankad. There were two significant facts in that case, which appear to have weighed with Their Lordships of the Supreme Court in coming to the conclusion that in that, case there was no migration as contemplated by Article 7. These facts were (1) that the respondent had stayed in Pakistan for a very short period, viz., hardly about a month or two; and (2) that while the respondent was in, Pakistan during that short period, he had continued to pay the rent of his shop at Adoni. The first fact was insufficient to prove his intention to settle down in Pakistan permanently, while the second fact negatived any such intention. In that case, however, Their Lordships considered, what may perhaps be useful in this case, viz., the distinction between the two questions (1) whither a person is an Indian citizen or a foreigner and (2) whether a person having once been an Indian Citizen has renounced that citizenship and acquired a foreign nationality. They held that the first question was not one which was within the exclusive jurisdiction of the Central Government to decide and, therefore, a Civil Court would have jurisdiction to determine it. The question therefore whether the petitioner in this case is a foreigner or a citizen of India is within the jurisdiction of a civil Court and not the Central Government by virtue of Section 9 of the Citizenship Act.

6. The question then is whether even on the assumption that the petitioner was not a foreigner when he entered India in June 1956, though he was not a citizen by reason of his having migrated to Pakistan, would he be regarded as a foreigner by reason of the alteration in the definition of the word 'foreigner' by the Amendment Act XI of 1957, which was brought into force as from the 19th January 1957? There can be no doubt that, Parliament has the legislative competence to provide by legislation that a class or category of persons who upto the 19th January 1957 were not foreigners shall henceforth be regarded as foreigners, as defined by the definition of the word 'foreigner' in Act XI of 1957. That can be done by Parliament either by means of a separate statute repealing the former statute or by changing the definition of 'foreigner' as was done by Act XI of 1957. In such a case the status of a person who is not a citizen but who at the same time is not a foreigner by reason of the existing definition of 'foreigner' would undergo a change and such person would be regarded as a 'foreigner' as from the date when the new definition was brought into operation. But it was urged by Mr. Mankad that Act XI of 1957 was not retrospective and, therefore, a person who was not a foreigner prior to the 19th of January 1957 cannot be affected by the new definition and that his vested right of not being considered a foreigner cannot be said to have been taken away by the Amendment Act. Now, it is true that the Act is not of a retrospective nature, though it was deemed to be in force as from the 19th January 1957, though enacted at a subsequent date, viz., April 2, 1957. Assuming that such a person has such a vested right as contended by Mr. Mankad, Parliament nevertheless has the authority to deprive by legislation such a vested right. Prima facie, therefore, it would appear that as from January 19, 1957, the petitioner by reason of the amendment of the definition be came a foreigner by his not being on that day a citizen of India.

7. Considerable reliance was placed by Mr. Mankad on our decision in Yusuf Ibrahim Mansuri v. State : AIR1962Guj194 , where we held that there was nothing in Act XI of 1957 to indicate that it was of a retrospective nature and that there was nothing in the Act also which would have the effect of rendering a person who is not a foreigner a foreigner. These cessations were made in the light of the facts end circumstances of that case. There the petitioner was born at Godhra, of parents who also were born in India and had a domicile in India at the commencement of the Constitution. He was, therefore, a citizen under Article 5. We held in that case that Article 7 did not apply to him as he had not migrated in the sense contemplated by that Article and therefore the petitioner there was not only not a foreigner but was and continued to be a citizen of India. Therefore, there was no question of the Foreigners Laws (Amendment) Act, 1957, being applicable to him. We also held there that the Act was not retrospective and did not apply to the petitioner in that case as he was a citizen all along and did not cease to be one on the ground of migration as contemplated by Article 7. We also held that as there was no order passed by the Central Government to the effect that he had lost his citizenship by having been in Pakistan or on his having obtained a Pakistani Passport, the order of deportation passed against him was not a valid order and was premature. The facts and circumstances in that case being entirely different from the facts in this case, that decision has no application particularly in view of the fact that we have held in this case that the petitioner had migrated to Pakistan and therefore cannot be deemed to be a citizen of India. In our view, Act XI of 1957 would apply in this case and therefore the petitioner would be a foreigner as from January 19, 1957, even assuming that he was not a foreigner prior thereto. Our attention was drawn by the learned Assistant Government Pleader to a decision in Mohammad Umar v. State, : AIR1961Ori150 , where the learned Chief Justice of the High Court of Orissa has also taken a view similar to the one taken by us.

8. For the reasons aforesaid, we have come to the conclusion that the order passed by the State of Gujarat against the petitioner was a valid order. The application, therefore, fails and is dismissed with costs. Rule discharged.


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