KHAIR MOHAMED RAES MOHAMED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is preferred by the original plaintiff against decree dated 16th September, 1976 passed by the Bombay City Civil Court at Bombay in Suit No. 7274 of 1975. The plaintiff filed the above referred suit (a) for a declaration that the plaintiff was a citizen of India ; (b) for a declaration that in any event the plaintiff was not a foreigner in 1955 when he is alleged to have travelled to India on a Pakistan Passport and (c) for a permanent injunction restraining the defendants from deporting the plaintiff out of India or from taking any action against the plaintiff under the Foreigners Act. By the said decree, the trial Court dismissed the above referred suit. Being aggrieved by the said decree of dismissal of the said suit, the plaintiff has preferred this appeal. Parties to the appeal are hereinafter referred to as the plaintiff and defendant for the sake of convenience.

(2.) THE plaintiff averred in the plaint that the plaintiff was born in Nipani in Belgaum District situated in former British India and that the plaintiff was domiciled in India at the commencement of Constitution of India and was, therefore, a citizen of India under Article 5 of the Constitution of India. It is the plaintiffs case that the plaintiff had never migrated from India and had never left India for Pakistan as alleged by the defendants in the said suit. On 24th September, 1975, the plaintiff was arrested on the allegation that the plaintiff had committed an offence under section 14 of the Foreigners Act. Within a few days thereafter, the plaintiff was released on bail. On 30th September, 1975, the plaintiff was served with a deportation order bearing No. LEP/sbi/16/75 dated 30th September, 1975 issued by the Deputy Commissioner of Police, SBI, CID and Civil Authority for Greater Bombay. In view of the service of the said departation order, the police authorities made an application to the learned Magistrate to the effect that the police did not desire to prosecute the plaintiff in view of the issue of the said deportation order and applied to the learned Magistrate for discharge of the plaintiff from the said criminal case. The learned Magistrate passed an order for discharge of the plaintiff. On 24th/25th September, 1975, certain statements of the plaintiff were recorded by the Sub-Inspector of Police by name Laxman Balaji Phatanjare during the course of his investigation. On or about 1st October, 1975, the plaintiff filed the above referred suit and applied for ad-interim injunction to the Bombay City Civil Court at Bombay restraining the defendants from deporting the plaintiff out of India. The ad-interim injunction was granted by the trial Court in terms aforesaid.

(3.) IN the written statement filed in the said suit, the defendants contended that the plaintiff could not be considered as a citizen of India under Article 5 of the Constitution of India in view of the applicability of Article 7 of the Constitution which had an overriding effect. In para 5 of its written statement, the defendant contended that the plaintiff had himself stated in his application for grant of Visa dated 30th March, 1955 that the plaintiff had migrated to Pakistan some time in the year 1947. In the said written statement, the defendant further stated that while the plaintiff was in Pakistan the plaintiff had voluntarily applied for and obtained a Pakistan Passport bearing No. 283062 dated 12-3-1955 valid till 12-3-1960 from the Passport Officer, Government of Pakistan at Karachi on the basis of an express representation to the effect that the plaintiff was a citizen and national of Pakistan under the Pakistan Citizenship Act, 1951. In the said written statement, the defendant further stated that on the strength of the said Pakistan Passport the plaintiff had applied for and obtained category C Visa No. 18645 dated 30-3-1955 valid till 30-6-1955 from the Indian High Commissioner at Karachi on the same basis and the same representation for limited purpose of visiting India to see his relatives. The defendant further stated in the said written statement that on the strength of the said travel documents the plaintiff had entered India on 6-4-1955 through the Bombay Sea Check Post as evidenced by entry Sr. No. 6357 dated 6-4-1955. The defendant further stated in the said written statement that the plaintiff had failed to leave India and in view of his overstay in India illegally and unauthorisedly, the plaintiff was arrested on being traced in Bombay on 24-9-1975. In the said written statement the defendant contended that the plaintiff was not a citizen of India on the date when the Constitution of India came into force by reason of applicability of Article 7 of the Constitution of India. The defendant further contended in the said written statement that in any event the claim of the plaintiff to Indian citizenship stood terminated by reason of the voluntary acquisition of Pakistan passport in view of the provisins contained in section 9 (2) of the Citizenship Act, 1955 read with rule 30 and rule 3 (2) to Schedule II to Citizenship Rules, 1956. The defendant relied upon the statements of the plaintiff recorded by the Sub-Inspector of Police on 24-9-75 and 25-9-75 during course of which the plaintiff appears to have admitted his signature on application for Visa as well as the fact of migration of the plaintiff from India to Pakistan at the relevant time.