GOLAM RASUL Vs. SUPERINTENDENT OF POLICE BIRBHUM

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 1st September, 1964 passed in Civil Rule No. 562(W) of 1962 by D. Basu J. By the said determination the learned Judge discharged the Rule with certain directions regarding the continuation of the interim order granted by this Court on 5th September, 1962.

(2.) Against Order No. P 687/29-62 dated 2nd August, 1962, issued by the Superintendent of Police. Birbhum, whereby in exercise of the powers conferred by clause ? of sub-section (2) of section 3 of the Foreigners Act 1946 (XXXI of 1946) read with Government of India, Ministry of Home Affairs, Notification No. 1/32/61-(X). 111 (S. I. 811), dated 15th March, 1962 he directed that the appellant shall not remain in India after the expiry of seven days from the date of service of the said order describing him to be a Foreigner and more particularly a Pakistan national. The appellant on 5th September, 1962 moved and obtained Civil Rule No. 562(W) of 1962. The said Rule was limited to ground Nos. I, II and IV. At the time of issuing the Rule an ad-interim order was granted with liberty to the Respondents to ask for variation of the said order for not asking the appellant to leave India pursuant to the order in question. It was alleged in the petition that the parents of the appellant at all material times lived and resided at the ancestral house at Birbhum where the appellant was born in 1925. He was brought up and educated in Birbhum. In 1945 the appellant obtained an appointment as a Clerk in the Office of the Chief Commercial Manager, B& A Railway and thereafter at the time of partition of India, he exercised his opinion for service in Pakistan. It has been alleged that from his posting at Saidpur in Pakistan, in 1950, the appellant came to India and remained here till 10th October, 1952 and thereafter he temporarily retuned to his place of service at Saidpur in Pakistan and that too with the intention of resigning from the said post. It was also alleged that as Passport system was introduced in the meantime, the appellant had to come to India in March, 1953 on the strength of a Pakistani Passport. He has further alleged that thereafter he went back to his place of service at Saidpur but again in 1959 he had to come back to India due to his mother's illness. He has alleged that fort overstaying at Home, he was discharged from his service in Pakistan on 21st December, 1959 and thereafter he surrendered his Pakistani Passport and on an alleged advice by the D.I.B. Suri, he made an application for Indian Citizenship under section 5(1)(a) of the Citizenship Act, 1956. The appellant of course has not been able to prove that such application was not a voluntary one.

(3.) It is admitted that the said application under the Citizenship Act was rejected on 7th July, 1962 and thereafter the impugned Order under section 3(2)? of the Foreigners Act, 1946 was duly issued and served on the appellant. Before the learned trial judge the appellant challenged the order in question primarily on the ground that since he was and is a citizen of India in terms of Article 5 of the Constitution of India, so his citizenship could not be terminated without a determination by the Central Government under section 9(2) of the Citizenship Act and the order rejecting his application under section 5(1) of the said Act was neither conclusive nor binding.