The question of whether a person has voluntarily acquired foreign citizenship is a matter to be determined by the Central Government under Section 9(2) of the Citizenship Act, 1955.

JUDGMENT :

A. Pasayat, Acting C.J.

1. These two writ applications being inter- linked are taken up for disposal to be governed by this judgment. In O.IC No. 1 7236 of 1 998 petitioners Salim Khan alias Hassan has called in question legality of direction given by the State Government by its order dated 6.1.1998 as issued by the Home Department requiring him to quit the country. Similarly order of the Superintendent of Police and D.P.O. Dated 17.3.1998 requiring him to leave the country as extension of stay as granted in his favour was going to expire on 29.3.1998 is under challenge. In the later order, failure was indicated to make the petitioner liable u/s 14 of the Foreigners Act, 1946 (in short, the "Act') for violation of Section 3(2)(e) thereof. Former order was issued in exercise of powers conferred by clause (c) of Sub-section (2) of Section 3 of the Act read with notification No. 4/3/56(1 )F.I. dated 19.4.1958 of the Government of India in the Ministry of Home Affairs. For contravention of the order, action as provided in the Act was to be taken.

In OJC No. 3462 of 1999 prayer has been made by Naimeum Nisa alias Husna claiming to be wife of Salim Khan, petitioner in OJC No. 17236 of 1998 to treat Salim as a citizen of India keeping in view the provisions of Article 5 of the Constitution of India, 1950 (in short, the 'Constitution') and Section 5(1)(b) and Section 5(1)(c) of the Citizenship Act, 1955. and for a direction to the Central Government to adjudicate whether Salim had voluntarily accepted citizenship of any foreign country as required u/s 9(2) of the said Act.

2. The opposite parties have taken the stand that the writ applications are misconceived; the factual position goes to show that without any legal sanctity Salim has continued to stay in the country beyond the period authorised, and therefore, the directions given are in order.

3. A brief reference to the factual position as highlighted by the parties needs to be noted.

In 1982 Salim married to a Pakistani girl, who came to India with Pakistan passport,. Salim left India in 1984 and came back in 1990. He again went back to Pakistan in 1994 and in 1997 he obtained Pakistan passport on the basis of Pakistan citizenship. He came to India in 1998. Reliance has been placed by the petitioner on certain documents to show that he was born in India in the hear 1 960, and is a permanent citizen of Cuttack City. As various attempts were made on his life, in order to save it and look after his old mother and under compulsion by arranging a Pakistan passport he came to India. Therefore, the act of obtaining the pass-port is neither voluntary in nature nor by way of registration as a Pakistan citizen. After reaching Cuttack, he submitted an application under the Citizenship Act before the State Government as well as before the Secretary to the Government of India, Ministry of External Affairs requesting them to treat him as a citizen of India. It is his specific stand that at no point of time he had accepted citizenship of Pakistan. It is to be noted here that Salim was in custody in terms of Section 14 of the Act. Naimeun, petitioner in OJC No. 3462 of 1999 married Salim on 9.12.1998.

4. Learned counsel for opposite parties submitted that the petitioner having accepted that in the pass-port issued by the Pakistan Government he has been described as a Pakistan citizen and on that basis visa having been issued, the present stand that he is citizen of India is without any basis.

5. In order to appreciate the rival contentions on factual aspects it is necessary to take note of few statutory provisions. Article 5 to 11 of the Constitution deal with citizenship. Article 5 provides that every person specified, who has his domicile in the territory of India at the commencement of the Constitution and is covered by any of the conditions in Clauses (a), (b) and (c) thereof shall be citizen of India. Article 8 deals with right of citizenship of any person who or either of whose parents