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Sk. HakimuddIn Vs. the Deputy Secretary, Govt. of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3429 of 1958
Judge
Reported inAIR1961Cal299,66CWN126
ActsCitizenship Act, 1955 - Section 5(1); ;Citizenship Rules, 1956 - Rule 9; ;Constitution of India - Article 226
AppellantSk. Hakimuddin
RespondentThe Deputy Secretary, Govt. of West Bengal and ors.
Appellant AdvocateC.F. Ali and ;K.M. Ali, Advs.
Respondent AdvocateJ. Mazumdar and Somendra Chandra Bose, Advs.
Excerpt:
- .....to leave; but he prayed for time and finally made an application under section 5(1)(a) of the indian citizenship act, to be registered as a citizen of india. section 5(1)(a) enables a person of indian origin, who is ordinarily resident in india and was so resident for 6 months prior to the making of the application, but who is not a citizen of india, to apply for being registered as a citizen of india. the petitioner states that he is such a person and as he wishes to become an indian citizen he had made that application. the applications for registration are made, and dealt with, according to the prescribed rules. rules 3, 4, 5 and 6 prescribe the form of application for registration. rule 7 prescribes that an application for registration shall be made to the collector. in this.....
Judgment:
ORDER

Sinha, J.

1. The petitioner was born in East Punjab, which was then a part of India, and still is since 1931, he had been residing in Calcutta. In 1950, he went to Dacca in East Pakistan. There, he took out a Pakistani passport declaring himself to be a Pakistan citizen. He has then come back to India with a temporary visa and upon the expiry thereof he was asked to leave; but he prayed for time and finally made an application under Section 5(1)(a) of the Indian Citizenship Act, to be registered as a citizen of India. Section 5(1)(a) enables a person of Indian origin, who is ordinarily resident in India and was so resident for 6 months prior to the making of the application, but who is not a citizen of India, to apply for being registered as a citizen of India. The petitioner states that he is such a person and as he wishes to become an Indian citizen he had made that application. The applications for registration are made, and dealt with, according to the prescribed rules. Rules 3, 4, 5 and 6 prescribe the form of application for registration. Rule 7 prescribes that an application for registration shall be made to the Collector. In this case, it is not disputed that by virtue of delegation it is the respondent No. 3 who is the proper person to hear it, and it is also not disputed that he has himself delegated the power to the respondent No. 2, the Probate Deputy Collector, who actually dealt with the application. On the 18th of September, 1958 the respondent No. 2 rejected the application without hearing the petitioner at all. In the petition, paragraphs 7 and 10, it has been categorically stated that no hearing was given and no enquiry was made by the respondent No. 2 or by any subordinate Officer under him and that he summarily rejected the application. This order of rejection is disputed in this application.

2. Rule 9 states that the Collector shall, before registering a person under Section 5(1)(a), satisfy himself on five headings. For example, he has to satisfy himself that the person is of Indian origin. Secondly, that he has close connections in India. Thirdly, that he has an intention to make India as his permanent home. Fourthly, that he is of good character and otherwise a fit and proper person to be registered as a citizen and finally, that he has signed the oath of allegiance as prescribed in the form of application. It is not disputed that the last requirement has been satisfied. Since there was no enquiry of any description, and the order was made summarily, I must come to the conclusion that the Collector could not have been satisfied upon all the headings as required under Rule 9. For example, it is impossible for a person to satisfy himself about the intention of another without making an enquiry. So far as the application itself is concerned, the intention is apparent that the petitioner wishes to be an Indian citizen, but as to whether he intends to make India his permanent home, cannot be decided without an enquiry. In his application, the applicant has said on oath that he intends to do so. The Collector must, therefore, either accept it or reject it and this he cannot do summarily but must make some enquiry.

3. The next question is as to whether the petitioner should have been personally heard. In myopinion, there is nothing, either in the Act or theRules, by which the petitioner can compel the Collector to give him a personal hearing. In my opinion, a personal hearing would be the most satisfactory way of dealing with the matter, but I cannot compel the Collector to do that which the law does not enjoin. In this application, the law itself has not been challenged. In this application although categorical allegations have been made, the respondent No. 2 has not denied it, nor has he filed an affidavit, and on the materials before me I am satisfied that the ingredients of Rule 9 have not been complied with and there is nothing to show that the Collector had satisfied himself on the headings as laid down in Rule 9. In my opinion, it is obvious that he did not.

4. The result is that upon this short pointthis application should be allowed and there willbe a Writ in the nature of Certiorari quashing theorder dated the 18th of September, 1958 rejectingthe application of the petitioner for registrationunder Section 5(1)(a) of the Indian Citizenship Act.The Collector will now proceed to satisfy himselfupon proper enquiry as required by the Rules and,act in accordance with law. Mr. Mazumdar onbehalf of the respondent says that although no personal hearing can be guaranteed, if the petitionersends to the respondents No. 2 or No. 3 any documentary evidence within a fortnight from today,then the same will be considered before an orderis made. There will be no order as to cost.


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