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Mahammad Nazaharul Haque and anr. Vs. B. Bagchi, I.P.J.P. and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. Nos. 479 and 480 of 1961
Reported inAIR1974Cal29,77CWN695
ActsCitizenship Act, 1955 - Section 9; ;Citizenship Rules, 1956 - Rule 3; ;Constitution of India - Articles 6, 7 and 9
AppellantMahammad Nazaharul Haque and anr.
RespondentB. Bagchi, I.P.J.P. and ors.
Appellant AdvocateArun Kumar Datta, Adv. in F.M.A. 479 of 1961; ;Aradhone Ganguly and ;Rathindra Kumar De, Advs.
Respondent AdvocateS.K. Roy Choudhary, Adv. in F.M.A. No. 480 of 1961 and ;Gouri Sankar Kshatri, Adv. in F.M.A. No. 479 of 1961
DispositionAppeals allowed
Cases ReferredAbdul Sattar v. State of Gujarat
- .....1955. they applied to the government of west bengal for passports which were issued to them by the state government on august 5, 1955. the period for the passport was for one year. the appellant applied for renewal of the passport after its expiry.8. instead of renewal, on july 2, 1957 the respondent no. 1 being the deputy commissioner of police, special branch and civil authority for the town of calcutta and suburbs, under foreigners' order, 1948 (respondent no. 2) served notices on the respective appellants asking the appellants to leave india within thirty days from the date of the service of the said notice, failing which, they would be rendered themselves liable for action including prosecution under the provisions of the foreigners' act, 1946 and foreigners' order, 1948. the said.....

Laik, J.

1. It is a long-winded litigation. These two appeals are directed against a consolidated judgment and order passed by a learned Judge of this Court, on two civil revision cases, moved by one Mahammad Nazaharul Haque (Appeal No. 479/61) and the other by his wife Surrayya Begum (Appeal No. 480/611, which arose on two separate applications moved under the provisions of Article 226 of the Constitution of India and heard together. These two appeals also have been heard one after the other. The facts and questions of law in both the appeals are almost similar. No separate argument was advanced in Appeal No. 480/61, excepting adopting the arguments made by the learned Advocate in Appeal No. 479 61. The State of West Bengal was represented by Mr. S. K. Roy Choudhury, learned Advocate. The two other respondents Nos. 1 and 2 viz., D. C., Special Branch, and the Civil Authority under the Foreigners' Order, being the same person, excepting the Union of India, appeared before us. The main argument on behalf of the respondents was advanced by Mr. S. K. Roy Choudhury, learned Advocate appearing on behalf of the said three respondents, which was adopted by Mr. Kshetri, learned Advocate appearing in Appeal No. 480/61. F. M. A. 479/61 :

2. It is the appellant's case that all his ancestors were Indian nationals who used to reside and carry on business in Calcutta. They owned several immovable properties in the city. Appellant's father was born in Calcutta. He was an Indian national and was employed in the Postal Department for about 20 years until he died in the year 1926 in Calcutta. The appellant's uncle was also a citizen of India (Calcutta) and carried on business and owned immovable properties. The maternal grandfather of the appellant was also a citizen of India (Calcutta) and was the owner of a decorating business from 1924. The said business is still being carried on. The father of the appellant married the appellant's mother who was also an Indian national by birth in the year 1922 and both lived permanently in Calcutta.

3. The appellant further stated that he was born in Calcutta in the year 1925 and received his education in this city all along. During 1937-40 he studied at La Martineire School and during 1944-46 in St. Joseph's College, Calcutta. In 1949 he married Suryya Begum who is the appellant in the other appeal (F. M. A. 480/61) who was also an Indian national by birth.

4. His further case is that some of his relations wanted to open a branch of the decorating business at Dacca and went there in January 1952 and thereafter he took his wife, namely, the other appellant, many times there. No passport was then necessary for travel to Dacca and back. After the introduction of the passport system in October 1952 by the Governments of India and Pakistan, the appellant obtained a passport from the Government of Pakistan in or about October 1952 for himself and for his wife. In 1954 a separate passport was issued to his wife by the Government of Pakistan on her application in that behalf. On September 7, 1954, a son was born to the appellant at Calcutta.

5. It was also the case of the appellant that on July 19, 1955, he surrendered his passport issued by the Government of Pakistan to the Deputy High Commissioner for Pakistan at Calcutta. Before the said surrender the appellant made a declaration before a Magistrate at Alipore that the appellant had no intention to take up any other nationality, that he wanted to live in India permanently as a citizen of India, as he was before. A similar declaration was made by the appellant's wife, namely, the other appellant who also surrendered her passport in the same way.

6. Between November 1952 and June 1955 the appellant stated that he came eight or ten times from Dacca to Calcutta and stayed here for a total period of sixteen to eighteen months during such visits. The appellant further stated that in August 1955 he entered into an agreement to purchase an immovable property in Calcutta and took out an insurance policy on his life which is payable in Calcutta on July 19, 1966.

7. It was also pleaded by both the appellants that both of them have been staying uninterruptedly in Calcutta from June 1955. They applied to the Government of West Bengal for passports which were issued to them by the State Government on August 5, 1955. The period for the passport was for one year. The appellant applied for renewal of the passport after its expiry.

8. Instead of renewal, on July 2, 1957 the respondent No. 1 being the Deputy Commissioner of Police, Special Branch and Civil Authority for the town of Calcutta and Suburbs, under Foreigners' Order, 1948 (Respondent No. 2) served notices on the respective appellants asking the appellants to leave India within thirty days from the date of the service of the said notice, failing which, they would be rendered themselves liable for action including prosecution under the provisions of the Foreigners' Act, 1946 and Foreigners' Order, 1948. The said document is Annexure to the application at page 17 of the paper-book. On July 25, 1957, requests were made to the respondent No. 1 by the respective appellant to withdraw the said notices dated July 2. It was principally stated in the said reply that both the appellants were at all material times and still are citizens of India. They had gone to Dacca temporarily for the purpose of their business and had come back to India after finishing the same. They never intended to live nor had they migrated to Pakistan. They never intended nor had they acquired the citizenship of Pakistan or of any other country. Personal interviews with the respondent No. 1 followed, but no relief was obtained.

9. The contention of the appellants in the Rule before the trial Court and in the appeal before us was that the respondent No. 1 by issuing the raid order had acted in breach of the provisions of law and in any event in excess of the same. The respondents acted without jurisdiction by serving the said notices under the Foreigners' Act, 1946 and Foreigners' Order, 1948 and/or by refusing wrongly to reconsider or withdraw the said orders. Hence, the two applications were filed for appropriate Writs or Orders under the provisions of Article 226 of the Constitution.

10. Affidavits have been filed by respondent No. 1 on behalf of himself and the respondent No. 2, namely, the said Civil Authority. Affidavits were also filed by the Union of India, namely, the respondent No. 3 as well as on behalf of the State of West Bengal being respondent No. 4. The defence in all the affidavits were substantially the same. It is stated that the appellants were not citizens of India. They laid stress on the fact that the appellants obtained Pakistani passports on declarations that they were Pakistani citizens. Consequently, the case of the respondents in the Rule as well as in the appeals in this Court was that the appellants voluntarily acquired Pakistani citizenship and as such ceased to be Indian nationals. In the result it is submitted that the appellants were foreigners and accordingly, the aforesaid orders were rightly passed by the respondent No. 1 and the representation of the appellants could not be acceded to.

11. It might be stated that in the affidavit used by Mr. Some, Deputy Secretary (Home), Passport Department, State of West Bengal, certain detailed facts have been given. It was stated that the appellants did not apply for citizenship of India, they did not take recourse to the provisions of the Citizenship Act, 1955 which had already come into force. It was further stated that the appellants were found to be staying in India without any proper or valid document of the Government of West Bengal and it was decided that the respondent No. 1 should be requested to issue an order which is being challenged in the instant application and in the appeal. On the point of law it was stated that the Court has got no jurisdiction to determine the question as to whether the appellants had or had not voluntarily acquired the citizenship of Pakistan. Affi-davits-in-reply have also been used on behalf of the appellants before the learned trial Judge.

12. Elaborate arguments were advanced before the trial Judge on several provisions of the Citizenship Act, 1955 and the Rules framed thereunder as well as on the Foreigners' Act, 1946 and the Rules framed thereunder in 1948 as also upon the provisions of Articles 5 to 11 of the Constitution. It was also urged that the respondent No. 1 was incompetent to issue the order under the provisions of Article 258(1) of the Constitution.

13. Two questions fell to be considered before the learned Judge. First, whether the appellants were citizens of India under the relevant provisions of the law. Second, whether they are foreigners within the meaning of the Foreigners' Act and the Rules and Orders made thereunder. The question of migration incidentally came up for discussion before the trial Court.

14. The learned Judge inter alia found in his judgment as follows :--

(a) 'If the petitioner had not applied for or obtained a Pakistan passport, there would have been no difficulty in his way.' (Page 58 of the Paper-Book).

(b) 'By merely surrendering the passport and affirming an affidavit before a Magistrate in Calcutta the petitioner did not regain his Indian citizenship.' (Page 58 of the Paper-Book, bottom).

15. After discussing Articles 5 to 11 of the Constitution, the learned Judge referred to an English case viz., West Derby Union v. Metropolitan Life Insurance Co., 1897 AC 647 and to three Indian decisions, namely, the case of Nasir Ahmed v. The Commr. of Delhi, , the case of Abdul Kader v. State of Andhra Pradesh, : AIR1959AP241 and the case of Mobarak Ali v. State of Bombay, 0043/1957 : 1957CriLJ1346 . The learned Judge followed the principles laid down at p. 242 by the Andhra Pradesh High Court and observed at p. 64 of the paper-book 'With respect, I accept the proposition so laid down'. His Lordship distinguished the principles laid down in the aforesaid Supreme Court decision. Relying on a decision in the case of Noor Mahommad v. State of Madh. Bha., AIR 1956 Madh Bha 211, his Lordship accepted the principle that the Pakistani passport must be regarded as prima facie evidence of petitioners' Pakistan nationality and of their intention of having been in Pakistan as their abode and residence. After discussing two other decisions in the case of D. A. Ariff v. The Deputy Commr. of Police, Special Branch, 62 Cal WN 729 and the Supreme Court case of the State of Bihar v. Kumar Amar Singh, : [1955]1SCR1259 , his Lordship came to the conclusion that from the point of view of the Constitution, the petitioners cannot claim the benefit of citizenship of India.

16. After having so held, the learned Judge went into the question as to whether the appellants were amenable to the jurisdiction under the Foreigners' Act, 1946. The provisions of the said Act, the Foreigners' Order, 1948 and the Foreigners' Exemption Order, 1957 were discussed and ultimately it was held that if the appellants were not the citizens of India, they are foreigners and amenable to the jurisdiction of the Foreigners' Act or the Order, unless the exemption under the said Exemption Act as well as under the provisions of the said Order could be claimed by the appellants.

17. The question of delegation made by the State of West Bengal to the respondent No. 1 was also held in favour of the respondents.

18. One of the main arguments of the appellants before the trial Judge was that, only the Central Government can decide whether a person is or is not a citizen of India. It was, however, rejected by the trial Judge after a long discussion. He concluded his finding by saying

'In my opinion, the facts and circumstances which have come to light show that the petitioner has migrated to Pakistan after March 1, 1947 within the meaning of Article 7 of the Constitution, as such he cannot be deemed to be a citizen of India, no matter he has acquired the citizenship of Pakistan or not.'

(Page 75 of the Paper-Book).

19. There is a discussion in the judgment on the points which have been raised before him on Articles 258(1), 166(1) and 166(3) of the Constitution which points have not been canvassed before us. This is in short a summary of the case and of the judgment and its reasonings covering forty closely typed pages.

20. In the appeals before us Mr. Arun Kumar Dutt (Jr.) casting a backward look, challenged the judgment as erroneous and the questions were strongly contested. Several judgments passed by the Supreme Court, some of which have not been and some others which could not be noticed at the date of delivery of the judgment appealed against, namely, November 20, 1959, were placed. The judgment appealed against was subjected to a mine of criticism. Mr. Dutt pointed out that the principles laid down by the learned Judges of the Andhra Pradesh High Court which have been so strongly and mainly relied on by the learned trial Judge and reported in : AIR1959AP241 (ibid) have been overruled by the Supreme Court in the very same case in the appeal reported in : 1961CriLJ573a , (State of Andh. Pra. v. Abdul Kader). Mr. Dutt further submitted that the reasonings given by the learned trial Judge are mostly inappropriate and counter-productive. It defeats, understanding. The law, according to him, is now well settled by the Supreme Court in the following decisions, namely, Akbar Khan Alan Khan v. Union of India, : [1962]1SCR779 ; Izhar Ahmed Khan v. Union of India, : AIR1962SC1052 ; Govt. of Andh. Pra. v. Syed Mohd. Khan, : AIR1962SC1778 ; State of Madh. Pra. v. Peer Mohd., : AIR1963SC645 ; Abdul Sattar v. State of Gujarat, : AIR1965SC810 and Md. Ayub Khan v. Commr. of Police, Madras, : [1965]2SCR884 . A salvo of criticism was accordingly thrown on the judgment of the trial Court. He maintains his characteristic vehemence.

21. Mr. Roy Choudhury, learned Advocate, though ran into difficulties, in reply, cited four other decisions of the Supreme Court, namely, the cases of Kulathil Mammu v. The State of Kerala, : 1966CriLJ1217 ; State of Uttar Pra. v. Shah Mohammad, 0065/1969 : [1969]3SCR1006 ; State of Uttar Pra. v. Rahamatullah, : 1971CriLJ1103 and lastly, the case of the State of Assam v. Jilkadar Ali, : 1972CriLJ1441 the judgment being delivered on the 18th of July, 1972. Mr. Roy Choudhury intends to draw a distinction, but it is so fine that for the moment it escapes me. He at last was forced by consistency to look at this old gnawing problem.

22. We are not unmindful that the said English decision in 1897 AC 647 (ibid) has been taken note of by the Supreme Court in the case of Oriental Metal Pressing Works v. B. K. Thakoor, reported in : [1961]3SCR329 and in the case of Hindusthan Ideal Insurance Co. v. Life Insurance Corpn. of India reported in : [1963]2SCR56 . We are also conscious that the said Supreme Court decision in 0043/1957 : 1957CriLJ1346 , has been noticed in the case of State of West Bengal v. J. K. More, reported in : 1969CriLJ1559 . It has also been pointed out to us that Izhar Ahmed's case, : AIR1962SC1052 (supra) has also been considered by the Supreme Court in the case of Municipal Board. Hapur v. Raghavendra, : [1966]1SCR650 . We are reminded that Md. Ayub Khan's case, : [1965]2SCR884 (supra) has been distinguished by the Supreme Court in the case of Sk. Moinuddin v. Govt. of India, reported in : 1967CriLJ1074 . We have specially noticed that in Kulathil Mammu's case, : 1966CriLJ1217 (supra), the majority judgment after considering inter alia another Supreme Court decision in the case of Central Bank of India v. Ram Narain reported in : 1955CriLJ152 held that the narrower meaning given in the Supreme Court case of Sm. Shanno Debi, : [1961]1SCR576 (supra) to the word 'migrated' as used in Article 6 of the Constitution was not correct and that the said expression in Articles 6 and 7 of the Constitution has got a wider meaning.

23. At any rate, for the purpose of these types of cases as in its instant appeals, the following propositions, for which there is ample authority might be laid down :

(i) The passport obtained by a person from Pakistan would no doubt be evidence that he was a Pakistani national, but that evidence would be subject to the provisions of Section 9(2) of the Citizenship Act.

(ii) A Court cannot decide whetheran Indian citizen has acquired the citizenship of another country, but the only authority to so decide is the Governmentof India acting as a quasi-judicial tribunal under the provisions of Section 9(2) of the Citizenship Act, 1955.

(iii) Section 9(2) oi the Citizenship Act and Rule 3 of the Citizenship Rules are intra vires the Constitution and valid law.

(iv) The proposition that as soon as it is alleged that a passport has been obtained by a person from a foreign Government, the State Government can immediately proceed to deport him without the necessary enquiry by the Central Government, is not correct. It is only after the Central Government has decided the point after enquiry that the State government can deal with the person treating him to be a foreigner. In dealing with the said question the Central Government would undoubtedly be entitled to give effect to Rule 3 in Schedule 3 of the Citizenship Rules and would be entitled to deal with the matter in accordance with the other relevant rules framed under the Act, but the question must be first considered by the Central Government. In other words, the decision by the Government of India is a condition precedent in that behalf.

(v) The provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority, without enquiring that the citizen concerned has obtained a passport of another country. The authority has also to determine as to whether the person has voluntarily acquired foreign citizenship.

(vi) The enquiry would be quasi-judicial in nature and the citizen concerned must be given due notice of the nature of the action. Reasonable opportunity must, be afforded to the citizen to convince the authority that what is alleged against him is true. If a plea is raised by the citizen that he had not voluntarily obtained the foreign passport, the citizen should be afforded an opportunity to prove the said fact. Termination of Indian citizenship does not merely depend upon action of a foreign country in issuing the passport.

(vii) Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have also to be dealt with by the Government of India under the Citizenship Act. The decision in Abdul Sattar v. State of Gujarat, AIR 1965 SC 819 (ibid) is corrected by the Supreme Court in its later decision in Kulathil's case in : 1966CriLJ1217 .

(viii) The word 'migration' under Articles 6 and 7 of the Constitution is capable of both narrower meaning as well as a wider meaning. The movement between the two countries must be voluntary and not be for a specific purpose for a short or limited period. Article 9 does not use the word 'migration' and deals only with voluntary acquisition of foreign citizenship before the Constitution came into force.

(ix) The decision in the case of : 1972CriLJ1441 would be of no help in these types of cases.

24. The learned trial Judge has dismissed the applications on the findings and principles of law laid down as noted earlier in the judgment.

25. I pause here for a moment to remind myself that the singular consequence is that the assumptions of the trial Court would be contrary to the principles, which I take it to be firmly established. Ordinarily, the law takes it as such. Older materials have, in my judgment, no application either in strictness or by analogy. The industry of the learned Advocates on both sides enables them to put before us references to the relevant law and out of respect to that industry I should conclude this judgment by expressing thanks in favour of both of them as the principles were scrupulously weighed in their scholarly balances. We do not deny all the arguments addressed to us on various points, but the decision of these appeals did not occupy us for long in view of the above propositions of law. We do not think that it is necessary to relate in details all the cases noted above, though we have considered the important matters raised prominently in the judgment appealed against and in the cases cited before us. We have got no hesitation to say that the judgment of our learned brother is erroneous and the same cannot be sustained and is to be set aside,

26. For the aforesaid reasons appropriate writs should be issued restraining the respondents from giving effect to the impugned order until the question about the appellants' status in both the appeals is determined by the Central Government. It is needless to add that it would be open to the Central Government to take any action under any law which might be applicable to the appellants in the facts of the instant cases.

27. Both the appeals are, therefore, allowed. In the special facts and circumstances of these cases each party will bear its, his or their own costs throughout.

Sen Gupta, J.

28. I agree.

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