Abdul Khaleque vs The State of Assam and Another

G. Mehrotra, J.—This rule arises out of a petition under Articles 226 and 227 of the Constitution for issue of a writ of Mandamus directing the opposite parties not to give effect to the notice dated 9th April 1960 issued by the Superintendent of Police and Registration Officer, Darrang, Tezpur.

The petitioner''s case is that he as a citizen of India is living in village East Paneri under police station Penerihat in the District of Darrang since the year 1944. He was born in the year 1932 at village Kamalapur, District Tripura in undivided Bengal, now East Pakistan. Thereafter the petitioner has alleged that his brother went to Pakistan but we are not concerned with the detailed history of the case. The petitioner asserts that he has all along been an Indian citizen and under the provisions of the Constitution on the date when the Constitution came into force, he was an Indian citizen. He never lost his Indian citizenship and therefore the notice issued by the Superintendent of Police asking him to leave India is illegal.

The notice purports to have been issued under the Foreigners Act. It is stated in the notice that the notice is one in the exercise of powers confer-red by clause (c) of sub-section (2) of Section 3 of the Foreigners Act, 1946 read with the Assam Government Notification dated 2nd September 1957 and the notification dated 13th May 1955 issued by the Government of India, Ministry of Home Affairs. As the authorities were of opinion that the petitioner was a foreigner, he was to leave India after expiry of thirty days from the date on which the order was served on him.

It is not seriously contested that the Superintendent of Police had the authority to issue the aloresaid notice. The question, however, urged by the petitioner''s counsel is that the Superintendent of Police u/s 3 of the Foreigners Act had authority to issue a notice only if the petitioner was a foreigner as defined under the Act. A foreigner is a person who is not a citizen of India. As the petitioner claims to be a citizen of India, the notice according to him is illegal.

A counter affidavit has been filed on behalf of the opposite parties in which it is denied that the petitioner is a citizen of India. It is stated in paragraph 6 of the counter affidavit that the petitioner is not an Indian national. He was in India by virtue of a Pakistan passport and he also admittedly visited Pakistan in 1956. Further in paragraph 7 it is stated that the petitioner had been residing in India by virtue of a passport obtained in Pakistan. The impugned order is quite valid. The case therefore, taken up by the opposite parties appears to be that the petitioner lost his Indian citizenship by virtue of his migration in Pakistan in 1956 and by virtue of the fact that he came to India on a Pakistan passport.

From the stand taken by the opposite parties it is therefore, clear that the petitioner is not denied to be an Indian citizen on the date of the Constitution. It is really alleged that the petitioner lost his Indian citizenship by virtue of the fact that he migrated in the year 1956 to Pakistan and that he obtained a Pakistan passport. The dispute therefore, between the parties is as to whether the petitioner lost his Indian citizenship or not by virtue of the fact that he obtained a Pakistan Passport. Section 9 of the Indian Citizenship Act as amended, reads as follows:

9(1) Any citizen of India who by naturalisation registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of Anr. country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:

Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of Anr. country, until the Central Government otherwise directs.

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

Under the provisions of the Citizenship Act certain rules have been framed and Rule 30 provides the procedure for investigation of this question. Section 9 therefore clearly lays down that in cases where there is any dispute as to whether an Indian citizen has lost his citizenship by acquiring citizenship of Anr. country, it is the Central Government alone which is authorised to decide that matter and unless that matter is decided by the Central Government properly, it cannot be said that the notice against the petitioner was a valid notice.

If the contention of the opposite parties is accepted that in every case where the authorities consider a person to be a foreigner they are entitled to issue notice, then the petitioner even though, bona fide asserting the claim that he is a citizen of India will have no opportunity to contest that point. In our opinion therefore, the present order must be set aside and it is always open to the proper authorities after the matter has been decided by the Central Government that the petitioner has lost his Indian citizenship by virtue of getting a Pakistan passport, to issue an order u/s 3 of the Foreigners Act.

It is not necessary to refer to the number of authorities which have been cited at the bar but it is enough to point out that the petitioner has relied upon the cases of Syed Shah Mohammad Abdali and Another Vs. The State of Bihar, and Nasir Ahmed Vs. The Chief Commissioner, Delhi and Another, Mr. Goswami for the opposite parties has referred to an unreported decision of this Court D/- 15-7-1959 in the case of Sekander Ali Bepari v. The State of Assam in Civil Rule No. 54 of 1959 in which a Division Bench of this Court set aside the notice and directed the petitioner to file a regular suit for decision of the matter whether he was an Indian citizen or not. That case is distinguishable.

When the question arises as to whether the petitioner was an Indian citizen at the commencement of the Constitution, the only court which can determine the question is a civil court inasmuch as the question for determination is one of fact and this Court in a writ petition will not go into the disputed question of fact, but if the point raised by the opposite party is that the petitioner has lost his Indian citizenship or his Indian citizenship has terminated on account of his acquiring citizenship of some other State, it is a matter which can be decided u/s 9 of the Citizenship Act by the Central Government. In the result therefore we allow this petition and set aside the notice with the observations made above. The parties will bear their own costs.

Deka, J.

I agree.