MOHAMMAD SADIQUE Vs. G NARAIN

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India for quashing the order (Annexure 'A') dated the 15th July, 1965, passed by the Superintendent of Police and Registration Officer, Ranchi (opposite party No. 1) under Clause (c) of Sub-section (2) of Section 3 of the Foreigners Act (Act XXXI of 1946) directing the petitioner to leave India within a period of 16 days from the date of service of that order, failing which the petitioner would make himself liable for action under the said Act.

(2.) The case of the petitioner, in short, was that the parents of the petitioner belonged to village Chiniaut in district Jhung, West Pakistan, and that the petitioner was born at Chiniaut in 1914, but shortly after his birth he was taken by his father Maula Bux to Calcutta and he was brought up at Calcutta. Maula Bux had settled down in Calcutta in 1900 and he had a house on the Eden Hospital Road in the town of Calcutta. The petitioner settled down at Ranchi in the year 1930 and started a hide and skin business in the town of Ranchi. The business flourished for a few years bul later on the petitioner sustained serious loss and ultimately he sought employment. He was employed as Manager of the Ranchi Hide and Skin Company since 1950. The petitioner resided permanently at Ranchi since 1930 and be was a citizen of India at the time of partition of India in the vear 1947 and also at the time of the passing of the Constitution of India in the vear 1950. The petitioner opened an account in the savings bank of the Ranchi Post Office in the year 1933 and the pass book thereof has been mark ed Annexure 'B'. Similarly, he opened an account in the Chotanagpur Banking Association Ltd., Ranchi, in the year 1934 and that is evident from Annexure 'B1'. The petitioner got a motor driving license in the year 1947 (vide Annexure 'B2'). The petitioner went to village Chiniaut in West Pakistan in 1949 for a short time to see his relatives on a permit granted by the Deputy Commissioner. Ranchi, and he returned to India after a period of two months only on a permit issued by the Deputy High Commissioner for India at Lahore. The petitioner again visited Chiniaut in the year 1954 on an Indian passport dated 23rd November, 1954, and returned to India after two months. The petitioner had visited Chiniaut only on those two occasions as a citizen of India. His name is entered in electoral roll of the Ranchi Municipality as well as that of the State Legislature and Central Parliament and a copy of the relevant entries in the electoral roll has been marked Annexure 'D'. The petitioner neither migrated from India nor did he ever leave India and as such he never lost his Indian Nationality. He had acquired valuable properties in India such as, lands purchased in Ranchi. He alleged that he being a citizen of India, the provisions of the Foreigners Act were not applicable and the order directing him to leave India was mala file, arbitrary and unreasonable.

(3.) This application has been opposed on behalf of the opposite party and Ravindra Kumar Sinha, Inspector of Police, Criminal Investigation Department, attached to the Foreigners section, Police Office, Ranchi, has sworn a counter affidavit stating that the permanent home of the petitioner was in village Chiniaut where his wife, his children and his father were residing. According to him, the petitioner never settled down in Ranchi, although he has been often residing at Ranchi. The petitioner has constantly been in touch with his family members and relations and he often went to live with them. Since the creation of India and Pakistan as separate States the petitioner had still continued his home in village Chiniaut as before where his family members were residing. The petitioner has been visiting West Pakistan clandestinely on some occasions. The petitioner gave his address from time to time at different places, such as (i) Fiars Lane, Calcutta, (ii) 32, Eden Hospital Road, Calcutta, (iii) Kali Asthan Road, Ranchi and (iv) Kantatoli Ranchi. An application was made on behalf of Mrs. Hazra Begum (petitioner's wife) in the year 1959-60 for a long term visa. An inquiry was made in that connection. The petitioner was called upon to produce evidence in regard to the business which he claimed to have been carrying in, but he was unable to produce any documentary evidence. In course of the inquiry the petitioner himself produced a certificate (Annexure 'I') dated 10th October, 1960, indicating that he was Manager of the Ranchi Hide Company since October, 1951. According to the deponent of the counter-affidavit, the assertion of the petitioner that he was Manager was incorrect. The petitioner did not acquire the citizenship of India and he was not domiciled in India in the year 1950 and neither he not his parents were born in the territory of India. Moreover, the petitioner was not ordinarily resident in the territory of India for the requisite period of five years immediately preceding the commencement of the Constitution. The petitioner had no doubt obtained an India Pakistan passport but the petitioner obtained that passport by wrongly stating in his application that he was born at Calcutta. The true fact having become known that he was born at Chiniaut and not at Calcutta, the said pass port was cancelled by the State Government on 12th December 1964 by the letter marked Annexure 'II'. The petitioner had 8 children, namely, (i) Nasim Sadique, (ii) Gulam Sadique, (iii) Anwar Sadique, born in 1948, (iv) Nisar Sadique, born in 1950, (v) Ayub Sadique, born in 1964, (vi) Gulzarina, (vii) Rafia Munir and (viii) Nasrin Begum born in 1962, and all of them were born and bred up in Pakistan and they were residing there. It did not appear that Mrs. Hazra Begum, the wife of the petitioner ever came to India after the commencement of the Constitution and before 1959. The father of the petitioner and other members of the petitioner's family were living in village Chiniaut and all of them were Pakistani citizens.