ALI HOSSAIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The facts in this case are briefly as follows : The petitioner was born in Midnapore. Sometime in August 1949, he went to his married sister in East Pakistan. On or about 14th July, 1954 he obtained a Pakistani passport and having obtained the requisite visa he came to India on 8th August, 1954. He went back to East Pakistan on Or about 4th October, 1954 and came back to India on 10th December, 1957 after obtaining a second visa on his Pakistani Passport. He states in his petition that this time he came with the object of living in India. On or about the 4th February, 1958 he made an application to the Deputy Secretary, Home (Political) Department of the Government of West Bengal, a copy whereof is at page 16 of the annexure. Therein be stated that he continued to be an Indian citizen, although due to an unpardonable mistake which he had made in "hot haste" he had to make himself a Pakistani citizen. He prayed for permission to live in India permanently and stated that he was surrendering his Pakistani Passport. On the 11th June 1958 the Assistant Secretary to the Government of West Bengal, Home (Political) Department, replied to this by stating that the petitioner was not eligibly for registration as a citizen of India and that he would continue to be treated as a Pakistani national. The petitioner's Pakistani Passport was returned. On or about the 11th June, 1958 an order was served upon the petitioner under the Foreigners Act, 1946 and the Foreigners Order, 1948 to leave India within five days from the date of service of the notice. On the 27th June, 1958 the petitioner applied to Government for re-consideration of the said order. This was rejected On or about 7th September, 1959. From this, the petitioner appealed to the Central Government on or about 28th September, 1959. On or about 10th August, 1960 the petitioner was informed that the appeal had been rejected. The petitioner has now made this application for the issue of writs of certiorari, mandamus and prohibition. In fact, the petitioner asks that the said order under the Foreigners Act and the Foreigners Order be not given effect to.

(2.) In my opinion, this application ought to, be rejected. The matter comes under Article 7 of the Constitution. The petitioner migrated to Eastern Pakistan after the 1st day of March, 1947. Assuming that he intended to retain his Indian nationality he should have obtained a permit tor re-settlement or permanent return. No such permit bad been granted to him.

(3.) Mr. Sen appearing on behalf of the petitioner argues that I should reconsider my decision in Dawood Ali Arif v. The Deputy Commissioner of Police. He has relied on two decisions. The first is a decision of a single Judge of the Allahabad High Court, Sharafat Ali Khan v. State of Uttar Pradesh. In that case, the petitioner went to Karachi in Western Pakistan during his minority. His father, who was an Indian citizen, remained in India. and in March 1956 was murdered at Rampur. Thereupon, the petitioner found if essential to come back to India to take care of his widowed mother and family, and be obtained a Pakistani Passport making the usual declaration. Broome, J., held that the Passport raised only a rebuttable presumption of nationality and that the provision of Clause 3 of Schedule III of the Citizenship Rules, 1956 which lays down that the fact that a citizen has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country, was an artificial rule binding on Government and not on the courts. The learned Judge held that a minor during his minority could not acquire a domicile different from that of his guardian and could not in law migrate to a foreign country. He, therefore, held on the facts of the case that the petitioner had not acquired a foreign domicil and continued to be an Indian citizen. The learned Judge stated as follows :