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PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Syed Shah Mohammad Abdali
Versus
State Of Bihar
Miscellaneous Judicial Case No. 154 of 1958 ;
Decided On : JULY 20, 1959
FOREIGNERS ACT - DEPORTATION ORDER - CITIZENSHIP - PASSPORT - VISA - EVIDENCE - FOREIGNERS ACT, 1946 (ACT XXXI OF 1946) - CITIZENSHIP ACT, 1955 (ACT 57 OF 1955) - CITIZENSHIP RULES, 1956 - ARTICLES 14, 19 OF THE CONSTITUTION OF INDIA - Whether petitioners are 'foreigners' within the meaning of the Foreigners Act, 1946 - Whether deportation order is intra vires of the Act - Whether Clause 3 of Schedule III of the Citizenship Rules is ultra vires of the Citizenship Act - Evidentiary value of Pakistani passport and C category visa.
Fact of the Case:
Petitioners, claiming to be Indian citizens, challenged the deportation order issued against them under the Foreigners Act, 1946, arguing that they were not foreigners and the order was unconstitutional. The State contended that the petitioners had acquired Pakistani nationality by obtaining a Pakistani passport and a C category visa from the Indian High Commissioner.
Finding of the Court:
The Court held that the petitioners were 'foreigners' within the meaning of the Foreigners Act, 1946, as there was prima facie evidence that they had acquired Pakistani citizenship by obtaining a Pakistani passport and a C category visa. The Court also held that Clause 3 of Schedule III of the Citizenship Rules, which provides that a passport from another country is conclusive proof of voluntary acquisition of citizenship of that country, was not ultra vires of the Citizenship Act, 1955.
Issues: 1. Whether the petitioners are 'foreigners' within the meaning of the Foreigners Act, 1946? 2. Whether the deportation order is intra vires of the Act? 3. Whether Clause 3 of Schedule III of the Citizenship Rules is ultra vires of the Citizenship Act?
Ratio Decidendi: 1. The definition of 'foreigner' in Section 2(a) of the Foreigners Act, 1946, includes a person who is not a citizen of India. 2. Section 3(2)(c) of the Foreigners Act empowers the Central Government to make orders prohibiting, regulating, or restricting the entry, departure, or presence of foreigners in India. 3. Section 9 of the Citizenship Act, 1955, provides that a citizen of India who voluntarily acquires the citizenship of another country shall cease to be a citizen of India. 4. Rule 30 of the Citizenship Rules, 1956, provides that the Central Government shall be the authority to determine the question of acquisition of citizenship of another country. 5. Clause 3 of Schedule III of the Citizenship Rules provides that the fact that a citizen of India has obtained a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date. 6. The Pakistani passport and the procurement of a C category visa furnish prima facie evidence that the petitioners had acquired Pakistani citizenship.
Final Decision: The Court dismissed the petition, holding that the petitioners had not made out a case for grant of a writ under Article 226 of the Constitution.
V.Ramaswami, J.
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.
4. The deportation order which is the subject-matter of debate in this case is annexure I to the application and is in the following terms:
DEPORTATION ORDER
Patna, 7-2-1958. No. C/PP-201 (10) Pat/58-1549C. Whereas Shri Syed Shah Mohd. Abdali s/o Late Abdul Kadir and his minor son Akhtar Imam, Pakistani nationals were asked in the notice served on him on 30-8-1957, to leave India by 30-9-1957.
And whereas the said Shri Syed Shah Mohd. Abdali and his minor son Akhtar Imam have failed to leave India by the date aforesaid. "Now, therefore, in exercise of the powers conferred by Clause (c) of Sub-section (2) of Sec.3 of the Foreigners Act 1946 (XXXI of 1946), read with the Government of India, Ministry of Home Affairs Notification No. 9/2/53-P(II) (1), dated 16-7-1955, the Governor of Bihar is pleased to direct that the said Shri Syed Shah Mohd. Abdali and his minor son Akhtar Imam. (i) shall not remain in India after the expiry of 3 (three) days from the date on which this order is Served on him;
(ii) shall depart from India by land route; and
(iii) shall not thereafter re-enter India,
By order of the Governor of Bihar,
sd/- Illegible,
Addl. Under Secretary to Government"
5. The question presented for determination in this case is whether the petitioners are "foreigners" within the meaning of the Foreigners Act (Act XXXI of 1946) and whether the deportation order made by the respondent is intra vires of the Act.
6. Se
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