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Ali HossaIn Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberWrit Petn.
Judge
Reported inAIR1961Cal482
ActsConstitution of India - Articles 7 and 226
AppellantAli Hossain
RespondentState of West Bengal and ors.
DispositionApplication dismissed
Cases ReferredAli Sher v. State
Excerpt:
- .....bengal, a copy whereof is at page 16 of the annexure. therein be stated that he continued to be an indian citizen, although due to an unpardonable mistake which he had made in 'hot haste' he had to make himself a pakistani citizen. he prayed for permission to live in india permanently and stated that he was surrendering his pakistani passport. on the 11th june 1958 the assistant secretary to the government of west bengal, home (political) department, replied to this by stating that the petitioner was not eligibly for registration as a citizen of india and that he would continue to be treated as a pakistani national. the petitioner's pakistani passport was returned. on or about the 11th june, 1958 an order was served upon the petitioner under the foreigners act, 1946 and the foreigners.....
Judgment:
ORDER

Sinha, J.

1. The facts in this case are briefly as follows : The petitioner was born in Midnapore. Sometime in August 1949, he went to his married sister in East Pakistan. On or about 14th July, 1954 he obtained a Pakistani passport and having obtained the requisite visa he came to India on 8th August, 1954. He went back to East Pakistan on Or about 4th October, 1954 and came back to India on 10th December, 1957 after obtaining a second visa on his Pakistani Passport. He states in his petition that this time he came with the object of living in India. On or about the 4th February, 1958 he made an application to the Deputy Secretary, Home (Political) Department of the Government of West Bengal, a copy whereof is at page 16 of the annexure. Therein be stated that he continued to be an Indian citizen, although due to an unpardonable mistake which he had made in 'hot haste' he had to make himself a Pakistani citizen. He prayed for permission to live in India permanently and stated that he was surrendering his Pakistani Passport. On the 11th June 1958 the Assistant Secretary to the Government of West Bengal, Home (Political) Department, replied to this by stating that the petitioner was not eligibly for registration as a citizen of India and that he would continue to be treated as a Pakistani national. The petitioner's Pakistani Passport was returned. On or about the 11th June, 1958 an order was served upon the petitioner under the Foreigners Act, 1946 and the Foreigners Order, 1948 to leave India within five days from the date of service of the notice. On the 27th June, 1958 the petitioner applied to Government for re-consideration of the said order. This was rejected On or about 7th September, 1959. From this, the petitioner appealed to the Central Government on or about 28th September, 1959. On or about 10th August, 1960 the petitioner was informed that the appeal had been rejected. The petitioner has now made this application for the issue of writs of certiorari, mandamus and prohibition. In fact, the petitioner asks that the said order under the Foreigners Act and the Foreigners Order be not given effect to.

2. In my opinion, this application ought to, be rejected. The matter comes under Article 7 of the Constitution. The petitioner migrated to Eastern Pakistan after the 1st day of March, 1947. Assuming that he intended to retain his Indian nationality he should have obtained a permit tor re-settlement or permanent return. No such permit bad been granted to him.

3. Mr. Sen appearing on behalf of the petitioner argues that I should reconsider my decision in Dawood Ali Arif v. The Deputy Commissioner of Police, : AIR1958Cal565 . He has relied on two decisions. The first is a decision of a single Judge of the Allahabad High Court, Sharafat Ali Khan v. State of Uttar Pradesh, : AIR1960All637 . In that case, the petitioner went to Karachi in Western Pakistan during his minority. His father, who was an Indian citizen, remained in India. and in March 1956 was murdered at Rampur. Thereupon, the petitioner found if essential to come back to India to take care of his widowed mother and family, and be obtained a Pakistani Passport making the usual declaration. Broome, J., held that the Passport raised only a rebuttable presumption of nationality and that the provision of Clause 3 of Schedule III of the Citizenship Rules, 1956 which lays down that the fact that a citizen has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country, was an artificial rule binding on Government and not on the courts. The learned Judge held that a minor during his minority could not acquire a domicile different from that of his guardian and could not in law migrate to a foreign country. He, therefore, held on the facts of the case that the petitioner had not acquired a foreign domicil and continued to be an Indian citizen. The learned Judge stated as follows :

'He could not change his domicil or nationality during the period of his minority, and there is nothing whatsoever to suggest that he showed any intention of changing his domicile or nationality after attaining majority, apart from the bare fact that he applied for and obtained a Pakistan Passport, Mere applying for such a passport ..... is no proof of the acquisition of Pakistan citizenship.

Presumably the petitioner must have declared himself to be a Pakistani in his application tor the passport, but this at best was nothing more than an admission which is capable of being explained away. And in the circumstances of the present case, there is ample explanation for the admission presumed to have been made by the petitioner when applying for a Pakistan passport. His father had been murdered on 8-3-1956 and it was essential for him to return to India with the utmost speed; and the only way in which he could accomplish this end was by making a false declaration and obtaining a Pakistan passport .....

The result was that the petitioner, if he wanted to reach India in time to he of any service to, his bereaved mother and younger brother and sisters, had no alternative but to apply for a Pakistan passport. My conclusion, therefore, is that a mere fact that the petitioner obtained a Pakistan passport is in the circumstances of the present case no justification for holding that he ever voluntarily acquired Pakistan citizenship. From this it follows that he has not forfeited his Indian citizenship under Section 9 of the Citizenship Act and he is still entitled to the rights of residence and free movement in India guaranteed by Article 19 of the Constitution.'

4. It will appear, therefore, that this case was decided on its peculiar facts. It is unnecessary for me to decide the question as to whether the provision of Clause 3 of Schedule III of the Citizenship Rules, 1956, is good or binding on the courts. It is obvious from the facts of the present case that the petitioner migrated to Eastern Pakistan and deliberately took out a Pakistani passport, which he utilised twice, having gone back once and in course of his travels he obtained two visas. All this had been done on the footing that he was a Pakistani citizen. In my opinion, an adult person cannot be permitted to make a false declaration in obtaining a passport, and that the very charitable view taken by Broome, J., can only be explained by the peculiar facts of that case. It should not be extended to facts such as we have in this case. Mr. Sen has also referred to a decision of Mathur, J., Ali Sher v. State, : AIR1960All431 . I do not think that anything held by Mathur, J., is of any assistance to the petitioner in this case. The learned Judge held that when persons migrated to Pakistan before 26-1-1950, the question whether, they are Indian citizens or Pakistani nationals can be determined by the courts of law and not necessarily only by the Central Government. As I said, I am not considering in this case whether the rules of evidence framed under the Citizenship Rules are valid or not or whether the courts are precluded from considering the matter and coming to their own decision. On the facts of this case, I must come to the conclusion that the petitioner migrated to Eastern Pakistan and deliberately acquired Pakistani nationality. It is only lately that he has acquired the desire of becoming an Indian citizen once more. But this opportunity the Government is not willing to grant, and cannot be compelled to do so. On the facts of the case, I am unable to hold that the petitioner continued to be an Indian citizen.

5. The result is that this application fails and must be dismissed. It is, therefore, rejected.


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