KULATHIL MAMMU Vs. STATE OF KERALA

JUDGEMENT

(1.) The main question that arises in this appeal on a certificate granted by the High Court of Kerala is the interpretation of the word "migrated" in Art. 7 of the Constitution. Aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the High Court was born on March 5, 1936 in the district of Kozhikode of presents who were both Indian citizens. Aboobacker left India sometime in 1948 and went to Karachi in Pakistan when he was a boy of 12 years of age. He remained in Pakistan till 1954. On March 10, 1954, he obtained a Pakistani passport and came to district Kozhikode in India on visa granted to him in September 1954. On November 1, 1954, he again left for Pakistan. In 1956 he came to India again with the same passport but on a fresh visa obtained in April 1956. He remained in India till June 1956 when he returned again to Pakistan. In the passport Abookacker's father who was dead by then was described as an Indian and Aboobacker's own nationality was given as a Pakistani and the approximate date of migration was mentioned as 1948. There was no record in Kozhikode after June 1956 as to the whereabouts of Aboobacker; but in October 1964 he was found living in the district of Kozhikode and did not have any valid travel documents. Consequently he was arrested and as case under the Indian Passport Rules 1950 was registered against him. He was released on bail thereafter and the matter was reported to the State Government. On this report the State Government passed an order on November 5, 1964 under the Foreigners Act (NO. 31 of 1946) requiring him not to remain in India. As Aboobacker was unwilling to comply with the order he was arrested and detained.

(2.) On November 16, 1964, a writ petition was filed on behalf of Aboobacker by the appellant in the High Court, and the contention raised therein was that Aboobacker was an Indian citizen and therefore the order passed against him under the Foreigners' Act was illegal. It was prayed that the order should be quashed and Aboobacker released.

(3.) The petition was opposed on behalf of the State and on the facts which we have set out above and which are not in dispute now, the contention of the State was that Aboobacker ceased to be a citizen of India when the Constitution came into force by virtue of Art. 7 thereof and the consequence the order directing him to leave India under the Foreigners' Act was legal and proper.