ALI AHMAD Vs. ELECTORAL REGISTRATION OFFICER

JUDGEMENT

(1.) The appellant and his parents were all born in the district of Birbhum. He had his ancestral home in that district. He was serving in the Posts and Telegraphs Department. In 1947 he opted for Pakistan. The option was provisional for six months and thereafter became final. The final exercise of option to serve the Pakistan Government is strong evidence of migration within the meaning of Article 7 of the Constitution. According to the appellant he left his wife in India and she visited him twice in 1948 and 1952. Article 7 is peremtory in its scope and makes no exemption for a husband migrating to Pakistan leaving his wife in India. The appellant stayed in Pakistan for six years. He returned to India in 1953 along with his wife under a Pakistani passport. Independently of Schedule III, Rule 3 of the Citizenship Rules, 1956, the Pakistan passport is strong evidence of the Pakistani nationality of the appellant. The passport is prima facie evidence of the national status of the holder, though independently of Schedule III, Rule 3, it is not conclusive evidence. The appellant also made an application for grant of Indian citizenship under Section 5(1)(a) of the Citizenship Act, 1955. This application is also evidence of the fact that the appellant is not an Indian, Citizen. On a consideration of all these facts, the Electoral Registration Officer and the Chief Electoral Officer found that the appellant migrated to Pakistan in 1947 and never became a Citizen of India and directed the deletion of his name from the electoral roll of Murarai Assembly Constituency. These findings are supported by the materials on the records and cannot be said to he either arbitrary or perverse. The tribunals acted legally and within the sphere of their jurisdiction. I, therefore, think that those findings ought not be interfered with. The appellant prayed for the issue of a Rule nisi against the order of the Electoral Registration Officer only, but Mr. Ali said that by oversight the appellant did not ask for a Rule against the order of the Chief Electoral Officer. We have, therefore, considered the matter on the footing that the application was directed against both the orders,

(2.) Section 9(2) of the Citizenship Act does not preclude the tribunals from, recording the finding that the appellant had migrated to Pakistan in 1947 and, therefore, never became a Citizen of India. Section 9(2) debars a Court from trying the issue whether an Indian Citizen has acquired the citizenship of another country, but the section does not bar the Court from considering the question whether the person concerned ever became a citizen of India--See Akbar Khan v. Union of India, State of Andhra Pradesh v. Abdul Khader. The appellant having migrated to Pakistan in 1947 never became a citizen of India on the commencement of the Constitution. In Choudhury Abdul Kasem v. Supdt. of Police, Burdwan, Civil Rule No. 4643 of 1960, D/-29-1-1963 (Cal) unreported, Banerjee, J. seems to have decided the case on the footing that the opting for service under the Government of Pakistan and the going out of India in 1947 gave rise to the question whether the person concerned had renounced his Indian citizenship and that such a question could be decided only by the Central Gov-eminent. With respect I am unable to agree with this decision. If a person has migrated from the territory of India after the 1st day of March, 1947, to the territory now included in Pakistan, he cannot be considered to be a citizen of India having regard to Article 7 of the Constitution. The Civil Courts are in no way precluded from considering the question whether such a person ever became a citizen of India.

(3.) In my opinion the appeal should be dismissed with costs hearing fee being assessed at three gold mohurs.