DAWOOD ALI ARIF Vs. DEPUTY COMMISSIONER OF POLICE

JUDGEMENT

(1.) The facts in these two cases are shortly as follows : The petitioner in the first case is Dawood Ali Arif Bham and the petitioner in the second case is his wife. The petitioner Dawood Ali Arif Bham says that he is the Mutwalli of a wakf situated in Calcutta, the wakf estate having been created by the petitioner's grand-father Hazi Kasem Arif Bham, deceased. He says that in 1950, when there was recrudescence of communal disturbances in Calcutta, he and his wife Aziza Begum, petitioner in the second case, left for Amnura in Rajshai situate in Eastern Pakistan. There, he resided for some time and eventually he applied for a Pakistan passport. In the meantime the passport-cum-visa system had been introduced in India, sometime in October, 1952 and the special passport obtained by the petitioner from the District Magistrate, Rajshai, is dated 28th November, 1952. With this passport, the petitioner and his wife came back to India. On or about 5th May, 1954 it is alleged that he surrendered his passport to the Deputy High Commissioner for Pakistan in Calcutta. On 24th May, 1957 the petitioner was served with a notice by Sri B. B. Bagchi, Deputy Commissioner of Police, Special Branch, Calcutta. The order was in the following terms :

(2.) This order was signed by Shri B. Bagchi as Deputy Commissioner of Police, Special Branch and Civil Authority for Calcutta and Suburbs. It is against this order that the petitioner has come up to this Court. These Rules were issued on 10th July, 1957 calling upon the opposite parties to show cause why a Writ in the nature of Mandamus should not issue, directing them to forbear from giving effect to the order complained of in the petition, and for other reliefs. The position in Jaw seems to be as follows : Article 5 of the Constitution lays down that at the commencement of the Constitution, every person who had his domicil in the territory of India and who was either born in the territory of India or either of whose parents was born in the territory of India, or who had been ordinarily resident in the territory of India for not fess than five years immediately preceding such commencement, shall be a citizen of India. This provision of law is however subject to Article 7 which is set out below :

(3.) According to Article 5, the petitioner is undoubtedly a citizen of India. He was born, and his parents were born, in Indian territory and he was residing in India immediately prior to the commencement of the Constitution, not only for 5 years but all his life. The question is whether it can be said that after the first day of March, 1947 he has migrated from the territory of India to the territory now included in Pakistan. I have stated above that in 1950 the petitioner and his wife deliberately left India and went over to Eastern Pakistan. It may be that there was a reason for going, namely, the communal disturbances in India. But even assuming that this was the reason why they went to Eastern Pakistan, the question is whether they had the intention of making it their abode or residence in future. If the petitioner has deliberately accepted Pakistan nationality, or in other words, if it could be shown that he has acted with deliberation in renouncing his Indian citizenship and accepting Pakistan nationality, then in my opinion, he is precluded from saying that he had no intention of making Eastern Pakistan his abode or residence. The question seems to be very simple. The petitioner, to start with, was an Indian national, the question is, did he continue to be so or did he accept Pakistan nationality? The simple fact that he went to Pakistan at a time when there was communal disturbance would by itself prove nothing. But having gone there, he applied and obtained a Pakistan passport. In order to obtain a Pakistan passport, it is necessary to make a declaration affirming that the applicant was a Pakistan national. Having made such an application, and having obtained a Pakistan passport on the strength thereof the position was that the petitioner became a national of Pakistan, and his migration to Pakistan was complete. A passport by itself is not a conclusive proof of nationality. But it is accepted as a proof of the fact, by international agreement and the comity of nations. But whatever be the probative value of it, surely, a person who has deliberately applied for a passport affirming himself to be a Pakistan national cannot be heard to say that he did so under false pretences. The affidavits filed before me contain a lot of special pleading to the effect that whatever the petitioner did was under the stress of circumstances. That, in my opinion, cannot be accepted. As I have said, the mere going to Pakistan under provocative circumstances would have done no harm. But there was no occasion for the petitioner to declare himself to be a Pakistan national and accept a Pakistan passport. By accepting a Pakistan passport he caused the sovereign state of Pakistan to accept him as its citizen and to request other sovereign states of the world to extend protection and safety to the petitioner as a Pakistan citizen. After all this, the petitioner cannot be heard to say that he continued to be an Indian citizen, that he never migrated to Pakistan, and the fact that the special passport was surrendered does not seem to have any value in law and has no effect upon the position or the status of the petitioner. It has now been held by the Supreme Court in, State of Bihar v. Kumar Amar Singh, that Article 7 of the Constitution clearly overrides Article 5 and that even the wife of an Indian citizen, who migrated to Pakistan after 1-3-47, will lose her Indian citizenship. That being so, the question is whether the steps taken against the petitioner under the Foreigners' Act 1946 (Act 31 of 1946), are valid in law.