SYED SHAH MOHAMMAD ABDALI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case the petitioners Syed Shah Moham-mad Abdali and Akhtar Imam have obtained a rule from the High Court calling upon the respondent to show cause why the deportation order dated 7-2-1958, requiring the petitioners to leave India, should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. Cause has been shown by learned Counsel on behalf of the State of Bihar.

(2.) Petitioner No. 1 alleges that he is an Indian citizen, having been born in village Islampur in the district of Patna, and petitioner No. 2, Akhtar Imam, is his adopted son. In May, 1948, both the petitioners had gone to Karachi to see their relation Syed Shah Mohammed Usman. Petitioner No. 1 fell seriously ill at Karachi, and after his recovery ho applied to the High Commissioner for India in July, 1948, for a permanent permit to return to India. He filed another application on 6-3-1953, for a permanent permit. It is alleged that on 23-5-1953, petitioner No. 1 was informed by the High Commissioner for India that he should obtain a Pakistani passport in the first instance and resubmit his application for a permit. Petitioner No. 1 accordingly applied to the Pakistan authorities for a passport and obtained a Pakistani passport No. 125572, dated 11-7-1953, and thereafter applied for a visa to the High Commissioner for India at Karachi. After obtaining the visa the petitioners came to India, and on 7-1-1954. petitioner No. 1 applied for permission to the Gov-ernment of India for permanently staying in India. The application was not granted, and in 1955 the petitioner applied for an extension of his passport. On 30-9-1957, a notice was issued to the petitioners to leave India. The petitioners did not comply with the order. Eventually on 7-2-1958, the deportation order was issued by the State Government under Section 8, Sub-section (c) of the Foreigners Act, 1946 (Act XXXI of 1946). The case of the petitioners is that they are Indian citizens and not foreigners within the meaning of the Foreigners Act, 1946, and so the deportation order dated 7-2-1958, is unconstitutional and ultra vires.

(3.) In the counter-affidavit it is stated by the respondent that the petitioners are not Indian citizens but they have acquired Pakistani nationality. It is further stated that the petitioners had obtained Pakistani passport No. 125572, dated 11-7-1953, and on the basis of this passport the petitioners had applied for and obtained a 'C' category visa from the High Commissioner for India at Karachi.