Back
HIGH COURT OF CALCUTTA
P. B. Mukharji
ABDUL BARIK - Appellant
Versus
UNION OF INDIA - Respondent
Civil Revn. 4669 Of 1960
Decided On : SEPTEMBER 21, 1962
FOREIGNERS ACT, 1946 - SECTION 3(2)(C) - CITIZENSHIP ACT, 1955 - SECTIONS 5(1)(A), 5(1)(E), 6(A), 6(B)(I), 9(2) - CONSTITUTION OF INDIA, 1950 - ARTICLES 5(C), 6(A), 6(B)(I) - PAKISTAN PASSPORT - ELECTORAL ROLL - DOMICILE - MIGRATION - INTENTION TO RESIDE PERMANENTLY - GOOD CHARACTER - CITIZENSHIP BY BIRTH - CITIZENSHIP BY REGISTRATION - DEPORTATION ORDER - VALIDITY - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, Abdul Bank, challenged the order issued by the Governor under Section 3(2)(c) of the Foreigners Act, 1946, directing him to leave India within 7 days. The petitioner claimed to be an Indian citizen by birth and submitted an electoral roll as proof. He also asserted that he had applied for registration as an Indian citizen under Section 5(1)(a) of the Citizenship Act, 1955, and that the Governor's order was made while his application was pending.
Finding of the Court:
The court found that the petitioner's claim of pending citizenship application was false as the application was made after the Governor's order was served. The court also noted that the petitioner had obtained a Pakistan passport in 1953 and had renewed his 'f' category Visa annually until 1956, indicating his status as a Pakistani national. Additionally, the petitioner's application under Section 5 of the Citizenship Act contradicted his claim of being an Indian citizen by virtue of the Constitution.
Issues: 1. Whether the petitioner was an Indian citizen by birth under Articles 5(c) and 6 of the Constitution of India? 2. Whether the petitioner satisfied the conditions for registration as an Indian citizen under Section 5(1)(a) of the Citizenship Act? 3. Whether the Governor's order of deportation was valid and could be challenged through a writ petition under Article 226 of the Constitution?
Ratio Decidendi: 1. The court held that the petitioner failed to establish his Indian citizenship under Article 5(c) as he did not have an Indian domicile at the commencement of the Constitution and did not satisfy the residency requirements. 2. The court found that the petitioner did not meet the conditions for registration under Section 5(1)(a) of the Citizenship Act, including the requirement of good character and the intention to make India his permanent home. 3. The court held that the petitioner's challenge to the Governor's order was not appropriate under Article 226 as the question of his citizenship was a disputed question of fact that required a detailed examination of evidence.
Final Decision: The court dismissed the petition and discharged the Rule issued earlier. The interim orders, if any, were vacated, and there was no order as to costs.
( 1 ) THIS is a petition by Abdul Bank under Article 226 of the Constitution of India challenging the order No. 8381-PP/s-692/59 dated the 14th September, 1960, made by the Governor under Clause (c) of Sub-section (2) of Section 3 of the Foreigners Act, 1946 (XXXI of 1946) read with Govt. of India, Ministry of Home Affairs, Notification No, 4/3/56-1 F. I. dated the 19th April, 1958. The order is as follows:". . . . . . . . . the Governor is pleased hereby to order that Sri Abdul. Batik son of late Talib Hossain a foreigner of Pakistan nationality shall not remain in India after the expiry of 7 days from the date of service of this order on him. By order of the Governor. Sd/- S. K. Ghosh, dy. Secy, to the Govt. of West bengal. "
( 2 ) THE petitioner's case is that he is not a foreigner of Pakistan nationality. He asserts that he is an Indian and of Indian nationality. He says further that he was born in Mymensingh in the year 1923 which is now in Pakistan. The petitioner says that he is the posthumous child of his father. At the age of 11 years he came with some Ferang by the name of Nuru Serang of an adjoining village Sabagh to Calcutta. He came to Bhawanipore at Calcutta and was employed by a firm called Idris and Co. , 46, Strand Road. Calcutta at a pay of Rs. 15/- per month with food and lodging as a sales boy. Then he is supposed to have joined as a Khalashi with M/s. E. S. N. Co. , on the Strand Head, Calcutta. Thereafter he started a Pan Biri shop at 6/1 Munshigunj Road, Calcutta-23. His shop is now at 32/1 Munshigunj Road and he says that in 1950 he took a lease of those premises paying a rental to the landlord a sum of Rs. 150/- per month. According to the petitioner, he has no property in My-meusingh although he said that he had a brother who had died and who enjoyed the property of his father. The petitioner does not say that after the death of his brother sometime in 1953 what happened to those properties and whether he still has legal right to such properties or not. He was silent on the point. In support of his claim for Indian citizenship he says that he is in the electoral roll of the Legislative Assembly and annexes a copy of that electoral roll for 1956 only. Although in the petition he says that he was on the electoral roll also for 1950, but no proof of 1950 electoral roll has been submitted.
( 3 ) THE petitioner's further case is that he had applied to the Collector for registration as an Indian citizen under Section 5 (i) (a) of the Citizenship Act. While
this application was pending the Governor made this order against him. Therefore, in his petition he asserts that no order could be made by the Governor while the application for citizenship under Section 5 of the Citizenship Act was pending. The Rule in this case was issued on the limited grounds Nos. 1 to 4 as set out in paragraph 12 of the petition. These grounds relate to the alleged pending application for citizenship under Section 5 of the Citizenship Act.
( 4 ) ON the records before me the application has no merits either on facts or on law. At the outset it is necessary to say that the petitioner's whole case that the application for citizenship was pending while the Governor made the impugned order is false. The impugned order made by the Governor was made on or about the 14th September, 1960 and it was served on the petitioner on the 19th September, 1960. The petitioner did not make the application under Section 5 of the Citizenship Act until the 22nd September, 1960. The Governor's order was made before the petitioner's application for citizenship. In other words, he obtained this Rule on the and December, 1960, on the false allegation that the Governor had made this order while his application for citizenship was pending. In fact, his application for citizenship was made immediately after he was served with the order of the Governor, as the dates above stated indicate. The Rule, therefore, being limited on these four grou
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
