T A MAHOMED USMAN Vs. STATE OF MADRAS

JUDGEMENT

(1.) These petitions and the writ appeals have been heard together since they involved the decision of a common question of law as to the validity of certain rules framed under the Indian Citizenship Act, 1955 (Central Act 57 of 1955) and in particular of para 3 of schedule III thereof. The orders whose validity and legality are challenged in these tour proceedings are in common form and have been passed on the directions of the Central Government either by the Collector of the District (W. P. Nos. 498 of 1958 and 795 of 1958) or by the Commissioner of Police, Madras (W. A. No. 97 of 1958 and 48 of 1959), requiring the petitioner or the appellant as the case may be, described as the holder of a Pakistan passport, who was unauthorisedly overstaying in India, to leave India within a month of the receipt of the notice, with a warning that on failure to comply, he would be prosecuted and deported under the provisions of the Foreigners Act of 1948.

(2.) It is common ground that the basis upon which the orders have been passed, was that these individuals were not citizens of India and even if they were at one time citizens of India they bad ceased to be citizens, of India by virtue of their having voluntarily "acquired the citizenship of another country" - Pakistan, that their stay in India was on foot of their passports and that since the period specified in these documents had long ago expired, the Central Government were entitled to direct them to remove themselves from this country. On the other hand the claim of the petitioners and appellants was that they were citizens of India at the commencement of the Constitution by virtue of Article 5, and that they continued to retain thek Indian Citizenship till this date, that they bad not acquired Pakistan Citizenship and could consequently not be treated as 'foreigners' and directed to leave India. In view of the nature of the matters thus raised for decision, it is necessary to narrate the facts of each of the cases before us in order to appreciate the position of each individual involved in each of them and we shall, therefore, deal with each case separately.

(3.) W. P. No. 498 of 1958: The petitioner is said to have been bom in Tituvannamali, North Arcot District, in or about 1910. It is admitted that he went to Pakistan in or about July 1951, though how he managed to enter Pakistan and in what capacity is not in evidence. Desiring to come back to India he applied to the authorities in Pakistan and obtained a passport in December 1952 and came to India and to the Madras Stated. In January 1953 a visa was granted to him by the Indian authorities, and haying obtained extensions of the currency of the visa he stayed on in India till March 1954. During his stay in India he applied on 7-12-1953 to the Government to permit him to stay permanently in India but this was refused. He left for Pakistan on 22-3-1954 and came back to India and to Tiruvan-namalai for a second time on 28-10-1955 on the strength of the passport issued in December 1952, and a visa granted by tile Indian High Commissioner in Karachi. The passport had a currency of five years and was, therefore, valid until the end of 1957. When the term of the visa expired he applied for its extension by four months for his stay in India, and this extension expired on 23-7-1956. Thereafter he applied on 14-5-1957 under section 5(1) of the Citizenship Act, 1955 for his registration as a citizen of India, and this was rejected by the Collector on 5-7-1957, who thereafter, passed an order under Section 3 of the Foreigners Act on 16-7-1957 directing the petitioner to leave India within a month from its receipt. Meanwhile, against the orders of the Collector refusing registration, the petitioner petitioned to the State Government, and the petition was referred to the Government of India. The Government of India rejected the petitioner's application and the Collector of North Arcot was directed to take necessary action against the petitioner for his deportation out of the country. A prosecution has been launched against the petitioner for violation of the Foreigners' Act (C. C. No. 148 of 1958), and this proceeding is now pending. In these circumstances the prayer in the petition is for the issue of a writ of mandamus directing the State of Madras to forbear from enforcing the provisions of the Foreigners Act against him.