STATE OF UTTAR PRADESH Vs. SHAH MOHAMMED

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Allahabad High Court in which the principal question for determination is whether Section 9 of the Indian Citizenship Act, 1955, hereinafter called the "Act", which came into force on December 30, 1955, would be applicable to a suit, which was pending on that date.

(2.) Respondent No, 1 was born on July 3, 1934. He went to Pakistan in October 1950. In March 1958 he obtained a visa from the Indian High Commission in Pakistan for coming to India. He came to India on July 22, 1953. On July 20, 1954 the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India. He, however, filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on February 10, 1955 and respondent No. 1 was directed to file a suit. He instituted a suit on May 6, 1955. He claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by two Muslim youths to accompany them on a trip to Pakistan. He went there without any intention to settle there permanently. Later on he made efforts to return but due to certain restrictions he was unsuccessful. He had no alternative but to obtain a passport from the Pakistan authorities in order to come to India. He had thus never changed his nationality and continued to remain a citizen of India. He sought a permanent injunction restraining the Union of India, the State of U. P., District Magistrate, Kanpur and the Superintendent of Police, Kanpur, who were impleaded as defendants from deporting him.

(3.) The suit was contested and on the pleadings of the parties the appropriate issues were framed. The learned Munsif held that respondent No. 1 had gone to Pakistan for settling there permanently and had ceased to be an Indian citizen. The suit was dismissed. Respondent No. 1 appealed to the First Additional Civil Judge, Kanpur. The learned Judge was of the view that respondent No. 1 had gone to Pakistan when he was a minor and when his father, who was his guardian, was in India. By his departure to Pakistan, respondent No. 1 could not change his nationality. Even on a consideration of the evidence it could not be held that he had shifted to Pakistan with the Intention of settling there permanently. His appeal was allowed and a permanent injunction as prayed was issued. The Union of India and other appellants preferred an appeal to the High Court. Before the High Court a preliminary objection was taken that the Civil Court had no jurisdiction to try the question whether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government,under Rule 30 of the Citizenship Rules framed under the Act. This objection was repelled in view of another decision of the High Court according to which Section 9 of the Act and Rule 30 could not operate retrospectively and affect pending litigation. Before the High Court the finding that respondent No.1 did not go to Pakistan with the intention of settling there permanently was not challenged by the appellants. The High Court was inclined to agree with the lower appellate Court that so long as respondent No. 1 was a minor he could not change his Indian domicile because his parents were domiciled in this country. The High Court proceeded to say that since respondent No, 1 had spent one year in Pakistan after he had obtained majority it was necessary to investigate whether he had acquired , during that period, the citizenship of Pakistan. An appropriate issue was framed and remitted to the lower Appellate Court for its determination. The appellate court held that respondent No. 1 had not acquired the citizenship of Pakistan since it was not legally possible for him to do so for the reason that according to laws of Pakistan he could become a major only on attaining the age of twenty-one. On December 11, 1963, the High Court disposed of the appeal of the present appellants by dismissing it in view of the findings which were in favour of respondent No. 1.