UNION OF INDIA Vs. HASANALI MAHAMED HUSSEIN SHARIFF

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff to challenge an order dated October 22, 1951, issued by the Union of India. The order is issued under Sub-section (2) of Section 3 of the Foreigners Act and it calls upon the plaintiff not to remain in India after the expiry of one month from the date on which the order was served on Him, and it also calls upon him to depart from India by the Port of Bombay and not thereafter to re-enter India. Various contentions were urged before the learned Judge below. The learned Judge held that, the plaintiff was a citizen of India by reason of the fact that he was domiciled in India and he-had been ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution. It was urged by the plaintiff that he was born in the territory of India. That contention was rejected by the learned Judge. Having held that the plaintiff was a citizen as defined by Article 5 of the Constitution, the learned Judge came to the conclusion that the plaintiff could not be externed under the Foreigners Act.

(2.) TURNING to the Foreigners Act, the Act docs not authorise the Government to extern all non-citizens. The only person who could be externed under the provisions of the Foreigners Act is a person who is a foreigner as defined by the Act. , Therefore, it is possible for a person not to be a citizen and yet not to be a foreigner within the meaning of the Act. Therefore, we have to be satisfied that the plaintiff is a foreigner before we can uphold the order of the Government of India to extern him from this country. The Foreigners Act was adapted by the President under Article 372 (2) of the Constitution, and before adaptation the material section was in the following terms:

(3.) WHAT is contended on behalf of the plaintiff is that even though the plaintiff may not be an Indian citizen, he is a British subject and therefore not a foreigner within the meaning of the Foreigners Act, in order to appreciate this contention one or two relevant facts might be stated. Both the plaintiff and the plaintiffs father hail from Iran and the contention of the defendant is that both of them were born in a place in Iran called Yezd. The plaintiff was born on April 18, 1920, and the plaintiff's lather is still alive and is at present in Iran. On July 21, 1915, a naturalization certificate was issued to the plaintiff's father by the Government of India and that certificate describes him as a native of Yezd in Persia and an inhabitant of Bombay on June 20, 1915, and the certi ficate recites that he was born at Yezd in the year 1880, that he came to Bombay in the year 1906, that he was carrying on trade as a tea shop keeper and that he desired permanently to settle in Bombay. If further recites that the memorial presented by the memorialist was duly verified by oath on June 20, 1915. The certificate, therefore, certifies that Mahomed Hussain Haji is deemed to be a natural born, subject of His Majesty, as if he had been born within the territories subject to the Govt. of India. It is admitted that this certificate is still in force and has never been revoked, and the question that we have to consider is, what is the effect of this certificate upon the rights of the plaintiff who was born to Mahomed Hussain Haji subsequent to the grant of this certificate, because as pointed out he was born on April 18, 1920.