ABDUL RASHID MIA Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) THIS rule arises out of an application under Article 226 of the Constitution of India.

(2.) THE Petitioner claims to be an Indian citizen and his case is that he was born in the district of Dacca in 1922 and migrated to Jalpaiguri, now in West Bengal, some time in the year 1932. Thereafter he came to Dhubri and worked as manager in his uncle's hotel. The Petitioner went to Pakistan but he came back to India on a passport obtained from the Government of Pakistan in the year 1952. Since then he has been staying at Dhubri. In 1957 he applied for registration of his name as a citizen of this country, but shall application was refused. Thereafter an order was passed by the Superintendent of Police asking him to quit India, For violation of the order to was prosecuted under Section 14 of the Foreigners Act but was acquitted on the ground that the order of the Superintendent of Police was without any authority. Thereafter, on the 20th of July, 1961 the present order was passed by the Superintendent of Police asking him to leave india within thirty days. On receipt of the order, the present petition is filed in this Court. The validity of the order has been challenged mainly on the ground that the Petitioner is not a foreigner within the meaning of the Foreigners Act, and, thus, no order under Section 3 of the Act could have been passed against him. The bases his contention mainly on the provisions of Article 6 of the Constitution. His contention is that prior to 1948 he migrated to India and since then he has been residing in India continuously, and as such, he was a citizen of India at the commencement of the Constitution of India in the year 1950. He has continued to be an Indian citizen and merely by coming to India in the year 1953 on a Pakistani passport he did not lose his citizenship right.

(3.) MR . Islam, who appears for the Petitioner, contends that the State case mainly is that the Petitioner was never a citizen of India at the date of the Constitution coming into force, and, therefore, the proper relief which the Petitioner is entitled to is to remit an issue to the District Judge for determination of the question of fact as to whether the Petitioner migrated to India prior to 1948 and whether thereafter resided there continuously or not. It is contended that the position of the State is that even if the Petitioner was an Indian citizen at the commencement of the Constitution, he lost his Indian citizenship by virtue of the fact that he came to India in the year 1952 on a Pakistani passport.