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Sham Roj Vs. Addl. Superintendent of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1047 (W) of 1973
Judge
Reported inAIR1978Cal252,81CWN1090
ActsCitizenship Act, 1955 - Section 9(2)
AppellantSham Roj
RespondentAddl. Superintendent of Police and ors.
Appellant AdvocateC.F. Ali and ;Sk. Abu Sufain, Advs.
Respondent AdvocateAshoke Sarkar, Adv. (for No. 1) and ;Archana Sengupta, Adv.
Cases ReferredShree Mohammad Yusuf v. Union of India
Excerpt:
- orderm.n. roy, j.1. in this rule, the petitioner has impeached an order in annexure 'b', which is dated 9th june, 1966 and whereby his application under section 9(2) of the citizenship act, 1955 (hereinafter referred to as the said act), was rejected and the consequential order in annexure 'd', which is dated 7th april. 1973, whereby in terms of clause (a), (b) and (c) of sub-section (2) of section 3 of the foreigners' act, 1946 (hereinafter referred to as the said 1946 act), he has been directed to quit india,2. at the outset it should be noted and that too for the particulars which would be available hereafter, that the impugned order of rejection under section 9(2) of the said act is the third order of rejection in succession. the petitioner has stated that on or about 8th nov., 1973.....
Judgment:
ORDER

M.N. Roy, J.

1. In this Rule, the petitioner has impeached an order in Annexure 'B', which is dated 9th June, 1966 and whereby his application under Section 9(2) of the Citizenship Act, 1955 (hereinafter referred to as the said Act), was rejected and the consequential order in Annexure 'D', which is dated 7th April. 1973, whereby in terms of Clause (a), (b) and (c) of Sub-section (2) of Section 3 of the Foreigners' Act, 1946 (hereinafter referred to as the said 1946 Act), he has been directed to quit India,

2. At the outset it should be noted and that too for the particulars which would be available hereafter, that the impugned order of rejection under Section 9(2) of the said Act is the third order of rejection in succession. The petitioner has stated that on or about 8th Nov., 1973 his birth took place at 387, Mudiali Road, Metiabruj, 24 Parganas and the same was duly recorded at the local Registry office. Such recording, he has stated to have been done at the instance of or by his paternal grandfather, as the petitioner's father had lelt India while the petitioner was a minor of 2 years and he was looked after by his said grandfather and grandmother. It has been stated by the petitioner that after the death of his mother, the father left in the manner as stated hereinbefore for Peshawar in the year 1939 and he never came back to Metiabruj.

3. It has also been asserted by the petitioner that at the age of 14, he felt a vacuum for his father and as such he went to Peshawar in December, 1951 for the purpose of finding him out. He has further stated that for 9 months he was at Peshawar, but ultimately he could not succeed in achieving his object. He has also stated that he could not even ascertain whether his father was alive or not. It has also been stated by him that at that time there was no passport system prevalent between India and Pakistan and such system was introduced only on 15th Oct,, 1952. He has alleged tbat in view of the said introduction, he could not come back to India without a valid passport and as Indian passport was not issued to him because he was a minor at the relevant time, on the advice of his well wishers he applied for a Pakistani passport and the Pakistan Passport authorities, having taken a compassionate view, without any enquiry into his domicile, nationality or whether he was a major or minor, granted a Pakistani passport in his favour in 1954.

4. It appears from the statements in the petition that by virtue of or with the help of the said Pakistani passport, the petitioner crossed the border and entered India thereafter, and came back to Calcutta after about 4 years. He has further alleged that during bis stay in Pakistan, he had no earning and in fact he had or has no properties in Pakistan. He has further alleged that after coming to India, he has duly surrendered his Pakistani passport and he has not acquired the citizenship of Pakistan and that too even by taking out a Pakistani passport. He has further alleged that such Pakistani passport was taken by him against his will and with the object of crossing the Indo-Pakistan border. It has also been stated by the petitioner that by such act, he has never compromised or forsaken his Indian citizenship or nationality. The petitioner has further stated that his grandfather, who was originally from Peshawar, was living here in Calcutta with his wife, and his father was born near about 60 or 65 years ago and his birth, as stated hereinbefore, also took place here, as a result whereof he has contended that he is an Indian citizen under Article 5 of the Constitution of India.

5. It has also been stated by the petitioner that towards the beginning of 1963 he received an information that his father was alive at Peshawar and that he was staying there as Sk. Md. Badlur. He has stated that on such information, he filed an application for Indian passport in the Office of the District Magistrate and Collector, 24 Parganas, Alipore, by disclosing all the relevant facts, including the fact of his coming to India with the help of a Pakistani passport as mentioned hereinbefore, He has alleged that after due and full scrutiny and enquiry, on or about 8th Oct., 1963, he was favoured with an Indian passport for 5 years and with that passport he went to his father at Peshawar. On directions being given to Mr Ali, learned Advocate for the petitioner, the said passport bearing No; H 147156, as issued on 8th Oct., 1963 was produced. This passport, the learned Advocates appearing for the respondents have characterised to be a forged and not bona fide one since the same, as appeared from the passport, was issued in the name of one Md. Shambox Khan. Other particulars of the contentions of the respondents, would be dealt with and noted hereafter.

6. It has also been alleged by the petitioner that the authorities concerned having come to know that once the petitioner had a Pakistani passport, constantly started putting pressure on him to file an application to the Deputy Secretary, Home (Passport), Writers Buildings, Calcutta, stating how the Pakistani passport was obtained by him and as such, he had to file about 3 applications one after another. But those applications, he has alleged to have not been duly considered in their proper perspective by the authorities concerned. It has also been alleged that one such application under Section 9(2) of the said Act was forwarded to the Central Government and they also without holding any enquiry into the matter and without giving him any opportunity to substantiate his case, ex parte and arbitrarily rejected the same, and by that his prayer, on the ground that he being a minor was bound by his father's domicile. Such order of rejection, according to the petitioner, was communicated by the impugned order of 9th June, 1966 (Annex-lire B). It has been contended by the petitioner that if he was given due and reasonable opportunity, he could have satisfied the authorities concerned by production of relevant documents and evidence including the Indian passport that he was an Indian. For such failure of the relevant authorities, who are respondents herein, the impugned rejection of the petitioner's application under Section 9(2) of the said Act. has been contended to be void, irregular and bad and in flagrant violation of the principles of natural Justice and Rule 30 of the Rules framed under the said Act. The last of the applications under Section 9(2) of the said Act as mentioned hereinbefore, has been stated by the petitioner to have been filed on 29th June, 1966. There was an order restricting the movement of the petitioner, against which, he obtained C. R. No. 1903 (W) of 1966, which was ultimately discharged on 31st July, 1972, as at the relevant time, such restriction against the petitioner was not subsisting. Apart from the statements as above, it has also been alleged by the petitioner that his Indian passport was also produced by his learned Advocate before the authorities concerned, for the purpose of taking the issue of the said passport in his favour, into consideration, as that would have conclusively proved that he was an Indian, as otherwise such passport would not have been issued in his favour. It has also been alleged that even in spite of such production, the authorities concerned have failed to appreciate the relevant facts duly and properly and as such, were wrong in dot allowing the petitioner's application under Section 9(2) of the said Act.

7. The appearing respondents, in their respective affidavit-in-oppositions have mentioned that in the year 1958, the petitioner, while he was about 21 years of age, came to India as a Pakistan national on the strength of his Pakistani passport. He first made an application on 9th Dec. 1964 to the Deputy Secretary, Home (Special Department), Citizenship Section, Calcutta, for obtaining Indian citizenship. The said application was rejected after due consideration of facts and such decision was communicated on 18th Dec., 1965. Thereafter, for the second time, the petitioner made another application for Indian citizenship, which was also rejected and the fact of such rejection was also duly intimated to him on 4th March, 1906. Again, for the third time, on 31st March, 1966, the petitioner through his learned lawyer made a representation for necessary consideration and for determination of nationality under Section 9(2) of the said Act. It appears from the affidavits as mentioned, that such representation was also rejected on 9th June, 1966, The relevant records were produced at the time of the hearing of the Rule and from a reference to the orders as mentioned hereinbefore, it appears that such rejections Wf-re made on the same grtnmd as in the instant case viz., that the petitioner being a minor had the domicile of his father on 26th Jan., 1950 and as such he was not a citizen of India at the relevant time. It has also been contended by the answering respondents that the petitioner was treated as a Pakistan national and as such the impugned order in Annexure 'D' was duly passed and communicated. It has also been contended by those respondents that the considerations of allowing the petitioner's application under Section 9(2) of the said Act, do not arise in this case, as at the relevant time he was not a citizen of India and that too for the reasons as recorded hereinbefore. They have also Contended that after procuring the passport from the Pakistan authorities the petitioner came to India and in fact, he made his application for Indian citizenship, 5 years alter his entry to India. In the affidavit filed on behalf of the Respondent No. 3, it has been categorically mentioned that the application dated 29th June, 1966 as alleged to have been filed by the petitioner, was not received by the Central Government and is not available in the records. In the affidavit-in-opposition of Respondent No. 1, it has been specifically mentioned and that too on enquiries held, that the petitioner's father and step brothers and sisters are residing at Peshawar, at their paternal hou.se at Bodlur where the petitioner resided during his stay in Pakistan from December 1951 to 2nd August, 1958 i. e. for about 6 1/2 years. In that view of the matter, it has been contend ed that the statements of the petitioner to the effect that he went in search of his father but could not find him out, are not correct. The said respondents have also stated that the petitioners voluntarily renounced his Indian citizenship and became Pakistan national and as such he succeeded in procuring a Pakistan passport for coming to India. The said respondents have also, on reference to the records, mentioned that the petitioner procured the Pakistani passport in 1954 but strangely enough he came to India in 1958 and as such it has been submitted that had he any intention to live in India as an Indian citizen, he would certainly have tried to come to India just after getting his passport. It has also been contended that the father of the petitioner was a Pakistan national when the Constitution of India was promulgated and being a minor and as per law, he acquired the domicile of his father. ft has also been contended with reference to the petitioner's application for citizenship that he acquired Pakistan nationality and secured his passport on that basis in 1964 and that shows without any doubt that the petitioner had no intention to live in India. The allegations as made by the petitioner that he had to make his application for Indian citizenship, although he was an Indian by birth, have been categorically denied by the Respondent No. 1.

8. Mr. AH appearing in support of the Rule, contended that since the petitioner wag the bolder of an Indian passport, it was conclusively proved that he was an Indian and such fact not having been duly taken into consideration by the authorities concerned, there was grave illegality and irregularity committed. He further submitted that the rejection of the petitioner's application dated 29th June, 1966 under Section 9(2) of the said Act was improper and consequently, the quit India order in Annexure 'D' was also void, inoperative and without jurisdiction. He has further submitted that the refusal of the authorities concerned in affording the petitioner opportunities to produce relevant documents and evidence, including the Indian passport, which conclusively proved his Indian nationality, has created great obstacle in his attempt to prove his nationality and such refusal has not only caused grave injustice but the same should be considered as in violation of the principle of natural justice. In that view of the matter, it was submitted by him that the declaration as made was improper and on total non-application of mind, apart from being in violation of the principles of natural justice. It was also contended by him that the authorities concerned were not correct in observing and that too on the facts of this case, that the petitioner being a minor on the relevant date would have the domicile as his father had on 26th Jan., 1950 and the non-consideration of the effect of the fact of desertion of the petitioner by his father, has become fatal and as such the determination as made was improper.

9. Admittedly there were 3 applications under Section 9(2) of the said Act by the petitioner and they were dismissed practically on the same ground. That is why it has been mentioned earlier that the petitioner has moved the present application after successive rejections of his applications Tinder Section 9(2) of the said Act. On such admitted fact viz., when the petitioner's applications were dismissed earlier on the ground that he being a minor would have the nationality of his father on the relevant date, it would be very difficult to hold the present application to be maintainable and the more so when no new facts for reconsideration of the earlier order have been put forward. The only new fact which Mr. Ali has contended. that the petitioner could have produced, is the fact of the grant of Indian passport, particulars' whereof have been mentioned hereinbefore. The passport as mentioned hereinbefore was produced under directions of this Court. The same, without any doubt, shows was issued in favour of one Md, Shambox Khan and in the said passport the petitioner has himself signed as Md. Sham Roj Khan. That apart, the date of birth as given in the said passport and which is 14th July, 1935 is at variance with the declaration of the date of birth as mentioned or shown in Annexure 'A' viz., the birth certificate, Where the date of birth is recorded as 8th Nov., 1937. It is also true that on production of the said passport, necessary visa was obtained by the petitioner at least on two occasions from the Pakistan authorities and in the said passport the petitioner has given the name of his father and his full address as 'Fazlur Rehman Sk. Md; Ali Badlur Peshawar'. The learned Advocates appearing for the respondents contended that in view of the discrepancies as mentioned hereinbefore, perhaps the said passport was not a genuine one; for the purpose of finding out, when admittedly there are discrepancies in the name of the petitioner and in his age considering the two different dates of birth, the learned Advocate for the Respondent No. 1, was asked to asceertain the fact. As the authority which granted the said passport viz., the District Magistrate and Collector, 24 Parganas, Alipore is not a party respondent, Mr. Sarkar, the learned Advocate for the Respondent No. 1 was also asked to find out the real position. He has, on instructions received from tbe authorities concerned, informed that those records being very old are not available, as they have been destroyed. Be that as it may, there are those admitted discrepancies as mentioned hereinbefore and that give rise to some suspicion and doubt about the genuineness of tbe passport in question, as such the granting of the Indian passport in favour of the petitioner and the basis of the passport as produced, cannot be taken into consideration in this proceeding. Thus, there is also no doubt that wben tbe petitioner came to India on tbe basis of a Pakistani passport, he has been rightly considered to be Pakistan national as otherwise no such Pakistan passport could have been granted to him, The manner and the way in which such passport was obtained and was issued, as disclosed by the petitioner, cannot also be taken into consideration. An application for registration as an Indian citizen as in tbe instant ease and possession of Pakistan passport, and residence of the other members of his family staying in Pakistan at tbe relevant time, as held by the Supreme Court in the case of Abdus Samad V. State of West Bengal : 1973CriLJ1 repels the plea of Indian citizenship. In terms of the said determination of the Supreme Court, mere residence is also not domicile. Every person must have a domicile and he cannot have two simultaneous domiciles. In support of his contentions, Mr. Ali further placed reliance on the Bench decision of the Allahabad High Court in the case of Rashid Hasan Roomi v. Union of India. : AIR1967All154 . In that case the petitioner, who was born in India, of Indian parents and resided for more than five years immediately preceding the commencement of the Constitution of India, was deserted and left behind in India, while be was still a minor, by his father, who migrated to Pakistan and became its national. Tbe petitioner, who continued to live in India after such desertion was enrolled in the voters' list of India and contested election and was elected Chairman of bis own Town Area Committee. It was held on the question of his citizenship that;

'the petitioner remained a citizen of India and did not become a national of Pakistan as the Petitioner's domicile in this case could not be linked with that of bis father, the reason being that the general rule of domicile that the change in the father's domicile is communicated to the minor son even though they may reside in different countries is inapplicable in a case where the father deserting tbe minor son in his domicile of origin acquires a fresh domicile.'

In support of his contentions, Mr. Ali further relied on the Bench determination of the Gujarat High Court in the case of Yusuf Ibrabim Mansuri v. State of Gujarat, ATR 1962 Guj 194. In that case the petitioner who was born in India in 1938 and was educated there for sometime went to Pakistan in 1953 at the instance of some other man. He returned to India on a Pakistani passport in 1954 and was residing in India, wben in pursuance of an order passed in 1960 by the State Government declaring him to be a foreigner, he was deported. The petitioner applied for a passport to come to India within a fortnight of bis reaching Pakistan and came again to reside in India. He filed a petition under Article 226 of the Constitution praying for a writ of prohibition restraining the State from expelling him on the expiry of visa. It was contended by the State that the petitioner had voluntarily migrated to Pakistan and had renounced his citizenship. There was no order passed by Central Government under Section 9(2) of the Citizenship Act declaring him a foreigner, and on such facts it has been held:

(i) that the petitioner being a minor at the time of migration to Pakistan could not be said to have voluntarily migrated to Pakistan so as to make Article 7 of the Constitution applicable to his case.

(ii) As petitioner's entry into India on the strenght of a Pakistani passport was prima facie proof that he was a foreigner, it was for him to establish that he was not a foreigner and to rebut the prima facie case against him that he was a foreigner. But as he was hardly 16 years of age when he applied for the passport in Pakistan his declaration could not be said to be of such a binding nature as to deprive him of bis rights as a national of India. His very conduct in applying for passport soon after he went to Pakistan would itself be evidence of rebuttal against the presumption that he had gone to Pakistan with the desire or intention to abandon his citizenship of India.

(iii) He could not be deemed to be a foreigner even under the Foreigners Laws (Amendment) Act 1957 because the question of renunciation of a citizenship would have to be decided by the Central Government, as a Tribunal under Section 9(2) of the Citizenship Act of 1955, which would have the exclusive jurisdiction to determine that question. In the absence of any order by the Central Government declaring the petitioner a foreigner, the order declaring him a foreigner passed by the State Government was premature.'

Thus the facts of the present case being tested with the observations of the Supreme Court, seem to be not in favour of the petitioner's contentions. Mr. Ali then contended, relying on the observations in Cheshire's Private International Law (8th Edn.). that the doctrine, that a change in the father's domicile is necessarily communicated to the child, is generally laid down in absolute terms, but it is to be hoped that should the occasion arise, it will not be pressed to its logical conclusion e. g. 'when a father deserts his son, leaves him in his domicile of origin and himself acquires a fresh domicile elsewhere or when he is divorced for adultery and the custody of the children is given to his wife', the rejection of the application under Section 9(2) of the said Act as in this case, on the ground that the petitioner being a minor must have the domicile of the father, was improper and all the more so when the father had deserted or abandoned the minor at a tender age of two. He also contended that the petitioner's name was in the voters' list is also a factor to be considered. As observed in Mukharji on the New Jurisprudence, domicile plays a very important role in the conflict of laws. Juristic approaches for a better understanding of this difficult question reached a peak in England, When the British Parliament was considering the Domicile Bill of 1958-1959 usual competition in this concept on the respective advantages and disadvantages of the twin ideas of domicile and nationality as a foundation of the personal law arose. Continental countries expressed a preference in favour of the test of nationality while in the Commonwealth Countries and the United States domicile appeared to be a more favourite concept.

10. The Common law Countries have evolved certain principles relating to domicile and those principles have been evolved from the determinations made and propositions as laid down in the case of Udny v. Udny (1869) LR 1 SC and Div 441 (HL). Every person must have domicile, there can be one domicile at a time and thus no person can have more domiciles than one. The basic question whether certain facts do or do not constitute domicile is ordinarily decided by the Municipal Law of the Court of the Country deciding. Thus in terms of the determinations in Casdagli v. Casdagli, (1919) AC 145, lex fori plays a significant part on the question of Renvoi where domicile is the connecting factor. The essential divisions of domicile are (1) the domicile of Origin, (2) the domicile of choice and (3) the domicile of dependence. There has been little change in those essential concepts of domicile. Domicile and residence are different and yet related concepts. Domicile, ordinarily operates as the basis of jurisdiction in many vital aspects of a person's private life e. g. marriage, legitimacy and succession. On the other hand residence operates as the basis of jurisdiction in cases like taxation, right to vote in certain aspects of matrimonial question, and generally in cases where public rights are involved. The main purpose which the domicile of origin serves is two-fold e. g. (1) to secure that every person at birth has a domicile and (2) that there is no legal gap in the adherence of domicile. These purposes are further buttressed by the theory of automatic return to the domicile of origin to fill up the gap between the abandonment of one domicile of choice and the acquisition of another. The observations in Cheshire as referred to by Mr. Ali have since been altered (Cheshire 9th Edn.) by the Domicile and Matrimonial Proceedings Act 1973 in the one case where both parents are alive but are living apart. In such a case the child's domicile is that of the mother, if the child has his home with her and no home with his father, or if he has acquired his mother's domicile in this way and has not since then had a home with his father. This latter provision means that a child who has his home with his mother keeps her domicile though he ceases to live with her, provided he does not later have a home with his father. Furthermore, a child who has his mother's domicile by reason of those provisions of the Act continues to retain it after her death unless and until he has a home with his father.

11. In terms of the determinations in the cases ot Forbes v. Forbes (1854) Kay 341 and Udny v. Udny (1869 LR 1 SC & Div 441 (HL),) (supra), a child acquires at birth a domicile of origin by operation of law, namely, if legitimate and born in his father's lifetime, the domicile of his father, and if illegitimate or born after his father's death in terms of the determinations in the cases of Udny v. Udny; Re Wrights Trust (1856) 2 K and J 595, and Urquhart v. Butterfield (1887) 37 Ch. D. 357, the domicile of his mother. Since it appears from the facts disclosed in this case, that the birth of the petitioner took place during the lifetime of his father and he was legitimate, he has acquired on his birth the domicile of the father by operation of law. Furthermore, the arguments as advanced by Mr. Ali on the question of desertion or abandonment of the petitioner appear to be of no avail or assistance or applicable in the instant case. The words 'abandonment or desertion' of a child, according to Strouds Judicial Dictionary mean 'abandon or expose' a child under two years of age, and under the provisions of Offences Against the Person Act, 1861, 'includes a wilful omission to take charge of the child on the part of a person legally bound to do so, and any mode of dealing with it calculated to leave it exposed to risk without protection'. It has also been observed that a parent does not 'abandon or desert' his child within the meaning of Custody of Children Act 1891, who, doing little or nothing for itself, yet knows and approves of effectual steps which someone else is taking for the child's maintenance, 'Abandon' means to totally withdraw from an object; to lay aside all care for it; to leave it altogether to itself. It also means to give up with the intent of never again claiming a right or interest in. It stresses leaving a person or a thing according to Websters, at the mercy of someone or something. In terms of the observations of the Supreme Court in the case of Kanwar Singh v. Delhi Administration : [1965]1SCR7 , 'Abandon' means let lose, or left unattended or left ownerless. The evidence in this case shows that the petitioner, while a minor was left with the grand parents who used to look after him and in fact brought him up. There is also no evidence of actual desertion or abandonment of the petitioner by his father as alleged and on the other hand the definite evidence as appears from the records as produced is that the petitioner went to Peshawar in Pakistan, where his father along with the step mother, step brothers and step sisters is living and in fact during his stay there, he resided with the father and the other members as mentioned hereinbefore. Thus, the arguments of Mr. Ali on the grounds of desertion and abandonment also fail as in fact, being tested with the contingencies or requirements as mentioned hereinbefore, it cannot be held that there was actual abandonment or desertion of the petitioner by his father. The cases as cited by Mr. Ali are also distinguishable on the facts of the present case. On the other hand the Bench decision of the Patna High Court in the case of Shree Mohammad Yusuf v. Union of India, AIR 1967 Pat 226 supports the determination as made in the case of the petitioner.

12. In view of the above, it cannot but be held that the reasons advanced for refusal of petitioner's application under Section 9(2) of the said Act were not unauthorised. Moreover, successive applications under the said section, when rejections were made on the self same ground, would not be maintainable. I also record my surprise as to why on the face of the discrepancies in the Passport bearing No. H 147156 as aforesaid, the petitioner was allowed the necessary travel facilities or how the same was issued in that form or manner. The authorities concerned in the instant case have acted in a most unsatisfactory manner. It must also be noted that the age declared by the petitioner himself in the affidavit of the petition on which the Rule was issued also varies from the age as declared earlier and in the documents and records as mentioned hereinbefore. It may further be mentioned that in the passport the petitioner has signed as Md. Shamroj Khan, whereas in the connected petition of the Rule and the Vakalatnama he has described himself and signed only as Shamroj.

13. Thus the arguments advanced by Mr. Ali fail, so also the application and the Rule is thus discharged. There will be no order as to costs.

14. Let the Passport as produced be returned to the petitioner. The Respondents are also directed to take back their records. It will be highly appreciated if the authorities concerned take immediate steps to find out as to how and on what basis, the passport in the instant case was issued and why the petitioner was allowed to travel by the same in view of and on the basis of the admitted discrepancies.

15. Stay of operation of the order as prayed for is refused.


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