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Osman Ali Vs. Dy. Secretary Home (Passport) Dept. Govt. of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1963CriLJ210
AppellantOsman Ali
RespondentDy. Secretary Home (Passport) Dept. Govt. of West Bengal and ors.
Cases ReferredState of Andhra Pradesn v. Abdul Khader
Excerpt:
- .....with the question of termination of citizenship in this instance, the question of termination of indian citizenship never arose. the only question was that the appellant was considered a foreigner within the meaning of section 3 of the foreigners act, whose continued presence in the country was considered undesirable and he was accordingly ordered to remove himself within a specified time under section 3(2)(c) of that act.13. having cleared the ground of the misconception, which we think the appellant suffered from, it would now be our duty to consider whether there is any substance in the other contentions raised on his behalf.14. it has been said that against his averments in the writ petition that he has been an indian citizen all along ever since his entery into this country 25.....
Judgment:

Debabrata Mookerjee, J.

1. This appeal is from an order of Banerjee J. dismissing in limine an application under Art. 226 of the Constitution for the issue of a composite writ of mandamus and certlo-rari.

2. The facts which require to be stated for the limited purpose of this appeal are these:

3. The appellant claims to be an Indian citizen who was born at Noakhali before India was partitioned, about 25 years ago he came to this country and later accepted employment as a Boiler Fireman at Samala Colliery in the district of Burdwan. His case is that he has ever since been living at the place where he acquired lands upon which he built a house, married a wife and had by her children. He had been Involved about 1950 in litigation and produced evidence of having paid rents for the lands he held. His case further is that on receipt of an urgent message that his sister had been lying seriously ill at Noakhali, he attempted to obtain a passport from the country but having failed to do so, he adopted the advice of obtaining a Pakistani passport which was issued in his favour on the basis that he had been a Pakistan national. This passport was issued on the 31st of March 1953 and against it he obtained an Indian visa which permitted him to stay in this country till the 7th of April 1955. The visa was later extended by another year which permitted his stay in India till the 7th of April, 1956. Al-though he had obtained the Pakistani passport, it was never used since he had intimation of the death of his sister and consequently there was no longer any reason for him to leave this country. In February 1961, a police office approached him for purposes of interrogation and the appellant then produced his Pakistani passport which he had obtained on, what he now states, a false pretence in order to be able to rush to Noakhali so that he might have a last look at his dying sister.

4. Presumably, in consequence of enquiries which followed, the appellant was served with a notice dated the 8th of September 1961 issued by the Deputy Secretary to the Government of West Bengal, 'Home (Passport) Department. The notice stated that in exercise of the power conferred by Clause (c) of sub-Section (2) of Section 3 of the Foreigners' Act, 1946, read with the Government of India Notification No. 4/3/56-(l)-F.I. dated the 19th April, I958, the Governor was pleased to order that the appellant, a foreigner of Pakistan nationality, should not remain in India after the expiry of seven days from the date of service of the order upon him. The appellant did not comply with the order but applied instead to the Superintendent of Police District Enforcement Branch Burdwan asking for permission to stay on in this country till the 5th of December, 1961. In this petition, the appellant stated that while he felt bound to quit India by the date mentioned in the notice, he prayed to be shown some accommodation on the ground that he had to collect his debts and pay his own for which at least one month would be necessary. The actual words used by the appellant may be noticed: 'For all the reasons, it will be convenient on my part to quit India provided at least one month is extended for quitting India. I am bound to leave India and I must go to East Pakistan.

5. This petition, it may be presumed, was forwarded in due course to the proper authorities, but it does not appear that they were prepared to extend his date of stay in this country. The petitioner then applied to this Court under Art. 226 of the Constitution for appropriate writs sand orders cancelling the notice under the Foreigners' Act requiring him to leave this country.

6. As has been said, the learned Judge was not impressed with the case made and dismissed the application summarily. It is against this order that the present appeal has been brought.

7. Before we proceed to consider the grounds urged in support of the appeal, it is necessary to say a few words as to the conduct of the appellant.

8. After the appeal had been filed, an application for an interim stay of the order of deportation was applies-for. This prayer was made in the presence of the State and the learned Government Pleader produced before us the Pakistani Passport with the endorsement of visa upon it which the appellant had obtained. The petition addressed to the Superintendent of Police, District Enforcement Branch, Burdwan, to which w have referred, was also disclosed to the Court by the learned Government Pleader. It is remarkable that no reference whatever was made to the admission contained in this petition of the fact that the appellant was a Pakistani national in the writ petition under Art. 226 of the Constitution. There was no reference, direct or indirect, to this all-important circumstance, we have no doubt that the appellant was clearly under and obligation to place before the Court all circumstances relative to his case before he could reasonably ask for the Court's assistance in a writ application, it is well-known that before relief can be asked for by way of a writ, all necessary facts have to be disclosed in a straightforward manner and any attempt to keep from the Court any material circumstance is bound to be visited with penalty in the shape of instant dismissal of such application if authority is required for this proposition, reference may be made to the decision in Rex v. Kensington Income Tax Commissioners, (1917) 1 KB 486, where Viscount Reading C. J. made the following observation:

Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.

Our own Court has held in several cases one of which was the case of Dubar Goala v. Union of India, : AIR1952Cal496 , in which H. K. Bose J. (as he then was) made it clear that where an applicant for a writ kept from the Court material facts and circumstances, the applicant disentitled himself to relief under Art. 226 of the Constitution.

9. In view of these decisions, it seems plain that the petitioner's application deserved to be dismissed, if for no other reason, upon this ground alone that he had not disclosed in his application certain essential facts bearing upon its merit. This would, in our view, be a sufficient ground for dismissing the appeal without even considering its merits; but on a second thought we felt we might, just for the sake of completeness, consider the main arguments advanced on behalf of the appellant.

10. It has been said that the appellant is an Indian citizen, in terms of Art. 5(c) of the Constitution and that being so he just cannot be thrown out of the country, in this unceremonious fashion. Art. 5 provides that if a person has his domicile in the territory of India at the commencement of the Constitution and has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, he shall be a citizen of India. The requirements of this Article, therefore are that a person must have his domicile in the territory of India and that he must have been a resident in the territory of India for a space of not less than five years Immediately before January 26, 1950. The appellant avers that he had his domicile in India at the time of the commencement! of the Constitution and that he had been residing in the country for a period of five years before its commencement. He thus takes upon himself the duty and responsibility of proving that averment. Except a bare statement to that effect in the petition upon which he asked the Court's assistance for the issue of a writ, there is nothing on the record which might indicate that he fulfils the requirements of the Article. In the course of argument, it was sought to be said that certain rent receipts, which were an annexure to the writ application, were sufficient evidence of the fact that he was a resident of the country, at any rate, in 1950. Even if we accept the rent receipts as reliable evidence, they would merely prove that certain rents were paid on behalf of a man bearing the same name as the appellant bears, but these receipts do not relate back to any point of time prior to 1949-1950. That being the position, it may perhaps be said that a man of the same name was living in the territory of India at about the time of the commencement of the Constitution; but the other requirement relative to five years' stay preceding its commencement remains unsatisfied. There is nothing in this case except, as we have said, the bare averments that he came to this country 25 years ago from Noakhali, that he has been serving as a fireman in a colliery in the district of Burdwan where he has set up a home, living with his wife and children. There is nothing to show, besides these statements that he had his domicile in the country at the time of the commencement of the Constitution and that he-had been living in the territory of India for five years preceding such commencement. We are not prepared to say in a case of this kind that mere averments would be enough to satisfy the requirements of Art. 5.

11. The next contention urged on behalf of the appellant is that the order of deportation which is under challenge was made without a legal basis, it Is said the Central Government alone possesses the power and authority under the Citizenship Act and the Statutory Rules to determine the question that fell to be decided in the present case. It is argued that by virtue of Section 9 of the Citizenship Act and the Rules framed under that Act, it is the Central Government which possesses the power to determine the question which required to be decided in the present case, it Is to be recalled that Section 9 of the Citizenship Act deals with the question of termination of citizenship. Sub-sec.(2) says that

If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence as may be prescribed in this behalf.

The relevant rule in the Citizenship Rules is Rule 30(1) which says that if any question arises as to whether, when or now any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of Section 9(2), be the Central Government. Sub-rule (2) provides that the Central Government shall, in determining any such question, have due regard to the rules of evidence specified in Schedule III.

The Schedule contains several rules and reference need be made to only some of them. Rule 3 lays down a rule of evidence. It says:

The fact that a citizen of India has obtained on an date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.' Rule 4 is complementary to Rule 3 and says:

The fact that a citizen of India 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 before that date.

Rule 4 is complementary to Rule 3 and says:

In determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country, the Central Government may take the following circumstances into consideration, namely:

(a) whether the person has migrated to that country with the intention of making it his permanent home;

(b) whether he has, in fact, taken up permanent residence in that country; and

(c) any other circumstance relevant to the purpose.

12. Strictly speaking, Rule 4 need, not occupy our attention. We require only to consider Rule 3 since it has been relied upon on behalf of the appellant as the rule which the Central Government was required to follow in determining the question that fell to be decided in the case. The contention is that since the Government thought that the obtaining of a Pakistani passport was a circumstance relative to the proof of the fact that the appellant's Indian; citizenship had terminated, it was the Central Government and that Government alone which was authorised to give a decision and that decision was required to be rendered in terms of Rule 3 of the Schedule which we have just read. We must say at once that this contention is not well-founded in view of the facts of the present case. Even a casual reference to sub-Section (2) of Section 9 of the Citizenship Act would demonstrate that the question raised in that Sub-section relates to the acquisition of citizenship of another country by a person who was once a citizen of India. The present case seems to be quite ditterent. In terms of the notice issued under the Foreigner's Act by which the appellant was required to leave India, the authorities concerned proceeded upon the footing that the appellant was a foreigner not that the appellant was once an Indian citizen and lost the right of citizenship by acquiring the citizenship of a foreign country, in this instance, of Pakistan. If that is the position, no question can possibly arise as to the application of sub-Section (2) of Section 9 of the Citizenship Act and Rule 30 of the Citizenship Rules which contains reference to Schedule III, which we have just referred. This argument, in our view, is based upon a complete misconception of the case made against the appellant. It does not appear from anything on the record that the authorities ever considered the appellant to be an Indian citizen who had forteiea his citizenship and acquired the citizenship of another country. There can be no doubt that Section 9 of the Citizenship Act deals with the question of termination of citizenship in this instance, the question of termination of Indian citizenship never arose. The only question was that the appellant was considered a foreigner within the meaning of Section 3 of the Foreigners Act, whose continued presence in the country was considered undesirable and he was accordingly ordered to remove himself within a specified time under Section 3(2)(c) of that Act.

13. Having cleared the ground of the misconception, which we think the appellant suffered from, it would now be our duty to consider whether there is any substance in the other contentions raised on his behalf.

14. It has been said that against his averments in the writ petition that he has been an Indian citizen all along ever since his entery into this country 25 years ago and that he has been employed in a colliery in the district of Burawan where he has set up a home for himself and his family, there is nothing to counter those facts and that being so, it must be held that the appellant is entitled to cancellation of the order complained of We are unable to give effect to this contention. It is true there are those averments in the petition asking for the Court's interference under Art. 226 of the Constitution but there is at the same time the fact which stares the appellant in the face that he omitted to disclose his own admission which clearly shows that he was a Pakistani national. We recall in this connection the petition which the appellant filed before the Superintendent of Police, District Enforcement Branch, Burdwan, in which be owned up and acknowledge the fact that he was a Pakistani national, that no felt bound to leave this country and the only prayer he made was that some consideration might be shown so that he might be able to wind up his personal affairs and close his establishment in India. This is a highly significant circumstance which the appellant kept from the Court which we cannot possibly ignore. Add to this the Pakistani Passport carrying upon it the endorsement of Indian visa which was produced at the hearing of the appeal by the learned Government Pleader. These are materials which we think would be good enough answer to the appellant's case that the averments as to his being an Indian national remain uncontradicted. It is true, there has been no formal affidavit affirmed on behalf of the State nevertheless these materials, about the correctness of which there has been no challenge, cannot be allowed to go unnoticed. We think in the circumstances that these materials are prima facie sufficient to entitle us to think that the case which the appellant tried to make that Is an. Indian national who is being attempted to be thrown out of the country improperly by recourse to the provisions of the Foreigners' Act, cannot be sustained.

15. We have held that the appellant cannot on the present materials be granted any relief on the footing that his case is covered by Art. 5(c) of the Constitution. We have also found that the argument, that the order requiring the appellant to remove himself from this country made under the Foreigners Act was bad and without jurisdiction on the ground that it had not been made by the Central Government, is equally unsustainable.

16. Our attention has been invited to several observations of the Supreme Court on questions cognate to the one raised in this appeal. Several decisions were relied upon on behalf of the appellant; while we do not think all of them have direct relevance on the question raised, at least two of them require to be noticed with due respect, and it would be our duty to follow the rule laid down in them by that Court.

17. Before we consider those decisions, it would be useful to briefly restate the real point for consideration in the present case. That question is whether in the facts alleged, the appellant could be held to be an Indian national. He has relied upon several circumstances. Obviously, the stand taken on behalf of the State Government is that those facts are in dispute. Consequently, it cannot be said that mere assertions of the appellant without factual proof entitle him to the relief he seeks. The position then is that if a case raised disputed questions of fact as to whether or not a person is an Indian national, a decision of that question cannot properly be rendered in a writ application. Thai is the effect of the decision in the case of Union of India v. Ghaus Mohammed, : 1961CriLJ703 . In that case, a person said to be a Pakistani national was served with an order under sub-Section (2) (c) of Section 3 of the Foreigners Act to leave India. In the course of discussion, the question arose whether the person concerned was a foreigner. It was held that that question about which there was a good deal of dispute would require detailed examination of evidence and therefore a. proceeding under Art. 226 of the Constitution was not appropriate for the decision of such question which could only be decided by a suit. Applying the test laid down by the Supreme Court, it seems to us clear that where, as here, questions of fact are in dispute and the parties have rival versions to offer, the matter ought to be decided by a suit and cannot conveniently be disposed of in a writ application, The words used Dy Sarkar J. who spoke for the Court are these:

'The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Art. 226 of the Constitution would not be appropriate for a decision of that question in our view, this question is best decided by a suit...

We can do no better than apply this test and answer the question raised by the appellant that the dispute in the present case is eminently fit to be decided by a suit.

18. It is to be observed that specific provision has been made in the Foreigners' Act itself by which the burden of proving that a particular person is not a foreigner has been laid upon the person who so asserts. That provision is contained in Section 9 of the Act and says that notwithstanding anything contained in the Evidence Act, the proof of the question as to whether a person is a foreigner or not has to be offered by him and he must discharge that onus. Only one exception has been made and that in the case covered by the previous section, Section 8, which deals with the question of determination of nationality, where doubt or uncertainty exists as to such nationality or where a foreigner is recognised as a national by the law of more than one foreign country. In our opinion, the question of determination of nationality does not directly arise In this case, in terms of Section 8 and that being so, it is not one of the excepted cases spoken of in Section 9. The appellant has therefore, to establish that he is not a foreigner and proof must be offered by him to substantiate his contention. In the facts of this case, it must be held that many disputed questions arise which require fuller investigation than could possibly be provided for in a writ application. The burden resting upon the appellant must, therefore, be discharged in terms of Section 9 of the Act. There can be no doubt that this burden has remained wholly undischarged in the present case.

19. It was attempted to be argued on behalf of the appellant that a suit is likely to be in fructuous in the circumstances of the present case since the authorities concerned appear to have relied on the very act of obtaining a Pakistani passport as a circumstance in proof of the fact that the appellant deserved to be expelled from the country. We do not think this is a correct approach. The act of obtaining a Pakistani passport may be one out of several circumstances upon which Government may rely for the purpose of reaching the conclusion. That the appellant is not an Indian national. That is just one circumstance not the whole of the circumstances upon which he inference against the appellant seems to have been based. We pro-pose to say nothing further on this aspect of the matter since it may be that on a future date the appellant, so advised, may take the matter to Court and ask for a decision of the Patna dispute in a civil action. All that we wish to emphasise is that where there is a dispute as to the fact of a person being a foreigner or an Indian national, the jurisdiction of the Courts is not ousted. The Courts have authority to decide the dispute. It is only in a given set of circumstances that that jurisdiction has been taken away as has been pointed out clearly by the Supreme Court in the case of State of Andhra Pradesn v. Abdul Khader, (1961) 2 SCA 643: AIR 1961 SC 146 where again Sarkar J., speaking for the Court, made the position plain. His Lordship observed as follows:

The question whether a person is an Indian 'citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and has acquired a foreign nationality is not one which is within the exclusive jurisdiction of the Central Government to decide. The Courts can decide it and, therefore, the learned Magistrate could have done so.' Thus, if authority is needed for the proposition that the Court still retain its jurisdiction in a case of the kind with which we are dealing, that authority is to be found in the decision just cited.

20. We do not know whether the appellant would feel advised to pursue the matter further and ask for a decision of the question of his status in a Civil Suit. If he feels so advised, he will take that step, and in order that he may not be hampered, we have it from the learned Government Pleader that the Stale Government will not give effect to the order in question until four months from date so that the appellant may have time to pursue his remedy. In default of the suit being brought within four months from now, it would be open to the authorities concerned to enforce or give effect to the order dated the 8th September 1961.

21. Subject as aforesaid, the appeal is dismissed.

22. We make no order as to costs.

H.K. Bose, C.J.

23. I agree.


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