YAR MOHAMMAD Vs. SUPERINTENDENT OF POLICE MURSHIDABAD DISTRIC

JUDGEMENT

(1.) THIS Rule is directed against a quit India Order issued under Section 3 of the Foreigners Act dated 19. 7. 1963 which is at annexure "a" to the petition. The petitioner's case is that he was an Indian citizen under Article 5 of the constitution having been born in a village of the district of Murshidabad in the year 1906, so that he cannot be asked to quit this country as a 'foreigner' until the question whether he has renounced his citizenship is determined in a proceeding under Section 9 (2) of the Citizenship Act. At the time of part'tion, however, the petitioner, who was a Railway servant, opted for service in Pakistan, according to his own petition, and remained in that country as an employee until June 1953 when he resigned from service and came back to India after obtaining a Pakistani passport. The law on this point has been fairly settled by this time. It has been laid down by the Supreme court that Article 5 is subject to Article 7, because Article 7 starts with the words 'notwithstanding anything in articles 5 and 6'. The result is, that if a person has migrated to the territory now included in Pakistan subsequent to the 1st day of March 1947 he cannot at the same time claim to be an Indian cititizen by the operation of Article 5. The question then is whether the [petitioner can be said to have migrated to Pakistan. This Court has held in several cases starting with the case of (1) Golam Rasul v. Superintendent of police, AIR 1965 Calcutta 302, that option for service in a foreign State is a deliberate act for a Government employee declaring his allegiance to a foreign State and the object of such option is to stay in that foreign State for an indefinite period. It cannot be said to be a visit to another State for a temporary or a casual purpose. The view taken about migration in (2)Shanno Devi v. Mangal Sain, reported in AIR 1961 S. C. 58, has been overruled fey the Supreme Court by its later decision in (3) Kulathil Mammu v. State of Kerala and others, AIR 1966 s. C. 1614, where it has been said that migration does not mean anything like 'domicile' as understood in Private International law, that is to say, moving to another country with the intention of residing there permanently or for the purpose of building up a permanent home there; but simply moving to another State for purposes other than what may be called to be casual. As already held, option for service in a foreign State by a Government employee can never be said to be casual. There is no question of applying Section 9 (2) of the Citizenship Act where the application of Article 5 is excluded by a migration within the meaning of article 7. It is also settled that where a notice under the Foreigners' Act that the onus of showing that the person served with such notice is not a foreigner is upon him (4) Union of India v. Ghaus, air 1961 S. C. 1526. The petitioner has also come back to India under a Pakistani passport. He made a formal application for Indian citizenship under article 5 (1) (a) of the Citizenship Act 1955 which was rejected by the competent authority as early as on the 9th february 1961. It is only by a happy coincidence of circumstances in the petitioner's favour that he has been allowed to remain in India till today. It was argued on behalf of the petitioner that this Court should give liberty to the petitioner to agitate this matter by a civil suit, that is to say, to declare that he was an Indian citizen; but this cannot be entertained where article 7 operates, because as I have already said,-as a matter of law,-a person who is alleged to have migrated, cannot claim to be an Indian citizen by the operation of Article 5. The Rule is accordingly discharged and the interim order granted on the 19th September, 1963 is vacated. There will be no order as to costs. On the prayer of the learned Advocate for the petitioner, operation of this order will remain stayed for four weeks from this date.