MOHAMMAD ISHAQUE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present writ petition has been filed by one Md. Ishaque praying, inter alia, for issuance of a writ of mandamus, commanding the respondents to cancel the impugned Order, dated 10.4.78 passed by the Deputy Commissioner of Police, Special Branch, Calcutta, copy whereof is Annexure "D" to the writ petition and also Order, dated 22.12.78 passed by the Deputy Secretary, Government of West Bengal, copy whereof is Annexure "E" to the writ petition. By the aforesaid Order, dated 10.4.78 the Deputy Commissioner of Police, Special Branch, Calcutta, in exercise of the powers conferred by Clause C of sub-section 2 of Section 3 of 1' Foreigners' Act 1946 (XXXI of 1946) read with Government of India, Ministry of Home Affairs, Notification No. 1/32/61 (XIII S.O. 811), dated 15th March, 1962 ordered that Md. Ishaque, a foreigner, a national of Pakistan, shall not remain in India after the expiry of 30 days from the date of service of the Order on him. By the Order, dated 22.12.78 the Deputy Secretary, Government of West Bengal placed on record that in continuation of the department's Letter No. 2106-P.C., dated 12th May, 1978 on the said subject, he was directed to state that on reconsideration of the case of Md. Ishaque, it has been decided in consultation with the Government of India that there is no merit in his request for grant of Indian Citizenship or facilities for continued stay in India.

(2.) Being aggrieved by and dissatisfied with the aforesaid Orders, the petitioner has filed the present writ application for issuance of a writ of mandamus to cancel the said Orders and to restrain the respondents from giving any effect thereto and for other consequential reliefs as stated m the writ petition. It is alleged that the petitioner is an Indian Citizen by birth and domicile. It is further alleged that the petitioner was educated in Calcutta all through and his name has been recorded in the voters list of the Assembly and Indian Parliament from Jorasanko Constituency. He married in 1968 and towards the end of 1968 he went to Dacca with a cousin who had a business in Dacca just on a pleasure trip without any document as there was no restriction in the Benapole Checkpost. Due to his financial incapacity he was not in a position to come to India through United Kingdom but he was advised to apply for a Pakistani Passport for going to India and as such he applied for the same which was given to him in 1973. The Passport No. is AD 599712, dated 12.12.73. He has stated that the said Passport was obtained by him against his will and he had no intention to compromise with his Indian Citizenship. He has further alleged that on reaching India he placed all his cards before the Authorities who condemned him as a foreigner holding, inter alia, that Pakistani Passport is a conclusive proof of having voluntarily acquired the Citizenship of that country and as such steps were taken to expel him from the country without holding any enquiry as envisaged in Section 9 sub-section 2 of Citizenship Act. He goes on alleging further that the Deputy Commissioner of Police without any determination of his Indian Citizenship has no jurisdiction to issue the impugned Order asking him to quit India within 30 days. He was not given a right of hearing by any Authority concerned and the purported Orders (Annexures D and E) are illegal, arbitrary, mala fide and those are required to be quashed by issuing an appropriate writ by the Hon'ble Court. The petitioner has again alleged that a representation was made by the wife of the petitioner to the Chief Minister of West Bengal who referred to matter to the Home Department for reconsideration and without complying with the provisions as laid down h Section 9(2) of the Indian Citizenship Act, the Acts done or caused to have been done by the said department are wholly unwarranted and uncalled for.

(3.) The writ petition was entertained on 16th January, 1979 and although there is no interim Orders, the impugned Orders have not been given effect to and the writ petition is contested by filing an Affidavit-in-opposition.