ALI AHMAD Vs. K PATI

JUDGEMENT

(1.) In this case the petitioner has applied to the High Court for grant of a writ under Article 226 of the Constitution for calling up and quashing the order of the Superintendent of Police, Dhanbad, dated the 9th May, 1961 requiring the petitioner to obtain a Pakistan passport from the nearest Pakistan Mission in India and threatening that in default action under the Foreigners' Act will be taken against the petitioner.

(2.) Cause has been shown by learned Counsel appearing for the respondent to whom notice of the rule was ordered to be given.

(3.) On behalf of the petitioner the main argument put forward by learned Counsel is that the order of the Superintendent of Police, Dhanbad, dated the 9th May, 1961 is illegal and ultra vires. It was submitted that the petitioner was a citizen of India at the commencement of the Constitution and the question whether he had renounced Indian citizenship and acquired citizenship of Pakistan can be determined by adopting the procedure prescribed in Section 9(2) of the Citizenship Act. It was pointed out on behalf or the petitioner that the proper procedure for such a case was for the Central Government to determine the status of the petitioner under Section 9 of the Citizenship Act read with Rule 8 of Schedule 8 of the Citizenship Rules, It was submitted that in the present case there was no enquiry by the Government of India on the question of the petitioner's status and until that enquiry was made by the Government of India, the respondent was not legally entitled to take proceedings against the petitioner under the Foreigners' Act. In support of his argument learned Counsel relied upon the decision of the Supreme Court in Govt. of Andhra Pradesh v. Mohd. Khan, AIR 1962 SC 1778. We are unable to accept the contention of learned counsel as correct. The question for determination in the present case is not whether the petitioner has renounced Indian citizenship or acquired citizenship of Pakistan under Section 9(2) of the Citizenship Act. On the contrary, the question to be decided is whether the petitioner was an Indian citizen at the commencement of the Constitution under Article 5 of the Constitution which states as follows: the commencement of this Constitution, every person who has his domicile in the territory of India and-