THE UNION OF INDIA Vs. MD. AYUB

JUDGEMENT

(1.) THIS Revision petition by the Union of India under Rule 36 of the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills arises out of a suit instituted by Md. Ayub on 27 -4 -1962 claiming a declaration that he is a citizen of India. The suit was dismissed by Shri S. N. Phukan, Assistant to the Deputy Commissioner, Shillong, by judgment dated 31 -8 -1965. However, an appeal filed by Md. Ayub against that judgment and decree founded on it succeeded in the Court of the Additional Deputy Commissioner. Shillong who held by his judgment dated 28 -9 -1970 that Md. Ayub was a citizen of India. The Union of India having felt aggrieved with the decree made by the Additional Deputy Commissioner has come up in revision to this Court.

(2.) MR . Ayub had pleaded that he was born at Shillong on 2 -12 -1933 of the parents Makdum Baksh and Amina Khatun, who are original residents of Thulrai. District Rai Barelly, Uttar Pradesh, that he was brought up and educated at Shillong, that he was married in 1952 at Shillong with the daughter of his uncle Hazi Kammu Mia, and that he was in business at Shillong for a long time. In the year 1961, the plaintiff pleaded further, the Superintendent of Police, United Khasi and Jaintia Hills. Shillong, served him with a notice under clause (c) of sub -section (2) of S. 3 of the Foreigners Act, 1946, directing him to leave India on or before 30 -9 -1961. That order of the Superintendent of Police was challenged in a Writ Petition filed under Art. 226 in the High Court but the High Court suggested to him that since disputed questions of fact were involved he better pursue his remedy by a regular suit It is thereafter that the plaintiff served a notice under Section 80 of the Code of Civil Procedure on the Union of India and having received no response was left with no alternative but to file the suit for a declaration that he was a citizen of India and as such the order of the Superintendent of Police was untenable in law. It was admitted in the plaint that the plaintiff's father and other members of his family had left for Pakistan some time in 1950 but it was added that the plaintiff had continued to reside in Shillong with his uncle Kammu Mia whose daughter he ultimately married. In para 20 of the plaint it was alleged that the plaintiff applied for and secured Indian Passport on 23 -11 -1953 for a visit to Pakistan as he wanted to meet his parents who were putting up m Sylhet and that he had actually gone to Sylhet on the basis of that passport. It was specifically denied that the plaintiff had ever forsaken his Indian citizenship or had migrated to Pakistan.

(3.) AS many as seven issues were settled by the trial Court but the parties concentrated themselves only on Issue No. 6 which was: ''Whether the plaintiff is an Indian citizen - The plaintiff examined six witnesses inclusive of himself besides relying on several documents while the Union of India rest contented by placing reliance on the document Ext. A. The trial Court held that the plaintiff, who was then a minor, must have gone over to Pakistan along with his father where the latter wanted to settle permanently, and that as such he was no longer an Indian citizen. The learned Additional Deputy Commissioner was of the opinion that there was no presumption that the plaintiff had left for Pakistan when his father went to that country and that there was sufficient evidence to establish that the plaintiff had continued to remain in Shillong after his father and other relations had gone over to Pakistan.