GOLAM RASUL v. SUPERINTENDENT OF POLICE, BIRBHUM — 1975 DIGILAW 55 (CAL)

S. K. MUKHERJEE, M. N. RAO ( 1 ) THIS appeal is directed against the judgment and order dated 1st September, 1964 passed in Civil Rule No. 562 (W) of 1962 by D. Basu J. By the said determination the learned Judge discharged the Rule with certain directions regarding the continuation of the interim order granted by this Court on 5th September, 1962. ( 2 ) AGAINST Order No. P 687/29-62 dated 2nd August, 1962, issued by the Superintendent of Police. Birbhum, whereby in exercise of the powers conferred by clause ? of sub-section (2) of section 3 of the Foreigners Act 1946 (XXXI of 1946) read with Government of India, Ministry of Home Affairs, Notification No. 1/32/61- (X ). 111 (S. I. 811), dated 15th March, 1962 he directed that the appellant shall not remain in India after the expiry of seven days from the date of service of the said order describing him to be a Foreigner and more particularly a Pakistan national. The appellant on 5th September, 1962 moved and obtained Civil Rule No. 562 (W) of 1962. The said Rule was limited to ground Nos. I, II and IV. At the time of issuing the Rule an ad-interim order was granted with liberty to the Respondents to ask for variation of the said order for not asking the appellant to leave India pursuant to the order in question. It was alleged in the petition that the parents of the appellant at all material times lived and resided at the ancestral house at Birbhum where the appellant was born in 1925. He was brought up and educated in Birbhum. In 1945 the appellant obtained an appointment as a Clerk in the Office of the Chief Commercial Manager, Band A Railway and thereafter at the time of partition of India, he exercised his opinion for service in Pakistan. It has been alleged that from his posting at Saidpur in Pakistan, in 1950, the appellant came to India and remained here till 10th October, 1952 and thereafter he temporarily retuned to his place of service at Saidpur in Pakistan and that too with the intention of resigning from the said post. It was also alleged that as Passport system was introduced in the meantime, the appellant had to come to India in March, 1953 on the strength of a Pakistani Passport. It was also alleged that as Passport system was introduced in the meantime, the appellant had to come to India in March, 1953 on the strength of a Pakistani Passport. He has further alleged that thereafter he went back to his place of service at Saidpur but again in 1959 he had to come back to India due to his mother's illness. He has alleged that fort overstaying at Home, he was discharged from his service in Pakistan on 21st December, 1959 and thereafter he surrendered his Pakistani Passport and on an alleged advice by the D. I. B. Suri, he made an application for Indian Citizenship under section 5 (1) (a) of the Citizenship Act, 1956. The appellant of course has not been able to prove that such application was not a voluntary one. ( 3 ) IT is admitted that the said application under the Citizenship Act was rejected on 7th July, 1962 and thereafter the impugned Order under section 3 (2)? of the Foreigners Act, 1946 was duly issued and served on the appellant. Before the learned trial judge the appellant challenged the order in question primarily on the ground that since he was and is a citizen of India in terms of Article 5 of the Constitution of India, so his citizenship could not be terminated without a determination by the Central Government under section 9 (2) of the Citizenship Act and the order rejecting his application under section 5 (1) of the said Act was neither conclusive nor binding. ( 4 ) ON a consideration of the arguments as advanced and on interpretation of section 9 (2) of the Citizenship Act read with Articles 5, 6 and 7 of the Constitution of India, the learned trial Judge come to the conclusion that the appellant could not be deemed to be a citizen of India under Article 5 of the Constitution of India and section 9 (2) of the Citizenship Act, on the facts of the case. The learned trial Judge, however, directed that his judgment will not have nay effect unless the proceedings as initiated and pending on that date under section 15 of the Citizenship Act is concluded. It will be evident from the facts recorded hereinafter that the said proceedings have been concluded. ( 5 ) IN this appeal Mr. The learned trial Judge, however, directed that his judgment will not have nay effect unless the proceedings as initiated and pending on that date under section 15 of the Citizenship Act is concluded. It will be evident from the facts recorded hereinafter that the said proceedings have been concluded. ( 5 ) IN this appeal Mr. Ali, the learned Advocate for the appellant apart from renewing the arguments which were made before the learned trial Judge, particulars whereof have been mentioned hereinbefore, further submitted that the onus to prove that the appellant was a Pakistani was not on him but on the person or authorities who allege him to be so and as such, proceedings under section 9 (2) of the Citizenship Act should have been initiated by them for the purpose of having a determination made as to whether the appellant petitioner is a Pakistani or not before issuing the impugned order. ( 6 ) MISS Chaturvedi appearing for the Respondents with Mr. C. C. Ganguli, on our direction produced the original records containing a Memo No. 2022-P. C. dated 15th May, 1965 addressed to the appellant by Shri S. R. Ghose, Deputy Secretary to the Government of West Bengal whereby he was informed that his application for revision dated 26th July, 1962 under section 15 (1) of the Citizenship Act against the order of the District Magistrate, Birbhum, rejecting the application for Indian citizenship under section 5 (1) (a) of the said Act has been dismissed. The record was directed to be produced and was also required to be looked into without any objection as the learned Advocate for the appellant asked for the same and he on instructions from his client even denied not only the receipt of the said order but also the existence of the same. Miss Chaturvedi further argued that in view of the fact that the appellant's application for registration as an Indian citizen was rejected by an order dated 7th July, 1962 which has subsequently been confirmed in revision under section 15 (1) of the Citizenship Act on 15th May, 1965 and such determination having become final, there is no reason for interference with the impugned order dated 2nd August, 1962 issued under section 3 (2) (c) of the Foreigners Act. She further submitted that the conduct of the appellant leaves no room for doubt that he was a Pakistani and he intended to remain so for all practical purposes and the fact that he had a Pakistani Passport, whatever be the explanation offered for obtaining the same, prima facie raises a presumption that the appellant is a Pakistani as otherwise such Passport would not have been issued to him. She further contended that the onus in the instant case to prove that the appellant was not a Pakistani but an Indian rested on him and such onus has not been duly discharged. She also contended that the fact that the appellant had applied for Indian Citizenship and at the material time he was holding a Pakistani Passport also conclusively proved that he was and is not an Indian citizen. Apart from these, Miss Chaturvedi also relied on Articles 5, 6, 7 and 394 of the Constitution of India and contended that if these Articles are read together then the appellant in the facts of the case cannot be deemed to be a citizen of India. ( 7 ) ON the first contention of Mr. Ali viz. , whether the appellant is a Pakistani or not and what would be the animus manendi viz. , the intention of remaining which is material for the purpose of ascertaining a person's domicile and so also the animus revertendi viz. , the intention of returning. ( 8 ) THE fact that the petitioner, after partition has opted for service in Pakistan, took a Pakistani Passport and also made an application for registration as an Indian Citizen under section 5 (1) (a) of the Citizenship Act and furthermore the said application ultimately become unsuccessful upto the Revisional stage cannot be disputed. From the admitted facts, which has also been duly found by the learned trial Judge (although disputed by the appellant), we find in agreement with him that the real intention of the appellant was not to come back to India and such intention is also apparent from his subsequent conduct viz. , taking of a Pakistani Passport. The movement of the appellant to Pakistan for employment or in connection therewith would be relevant and material in the instant cases as has been held in the more or less similar case of Aslam Khan v. Fazal Haque Khan reported in A. I. R. 1959 AII. , taking of a Pakistani Passport. The movement of the appellant to Pakistan for employment or in connection therewith would be relevant and material in the instant cases as has been held in the more or less similar case of Aslam Khan v. Fazal Haque Khan reported in A. I. R. 1959 AII. 79. When a Government Servant, employed under the Government of India exercises his opinion voluntarily for transferring his service to Pakistan and goes over to that Dominion for that purpose, such removal cannot be construed as merely temporary and that would be a case of migration. The word ?migration? as has been found in Smt. Shanno Devi v. Mangal Sain, reported in A. I. R. 1961 S. C. 58 means the intention of removal with the object of residing permanently. Movement from one Dominion to another for the purpose of casual employment would not mean ? migration?. Admittedly on exercise of his choice the appellant was expected to serve his Pakistani Service for sometime and the real intention of the appellant which appears from paragraph 3 of the petition was in fact to serve the Pakistani Government till the normal end of his service and in fact when he has further admitted that he would have done that unless he was discharged from service in Pakistan in 1960. When the appellant has not revoked his option within the prescribed period, which he could have done, he must be held that he made a definite and deliberate choice of residing in Pakistan permanently or for an indefinite period. Thus on the facts of the present case the movement of the appellant was not of a casual nature and as such would come within the term ?migration?. ( 9 ) THE fact that the appellant has obtained a Pakistani Passport would be a prima facie proof of his acquiring a Pakistani citizenship and as such he was rightly considered to be a foreigner under the Foreigners Act. This view finds support from the case of Mohammad Abdali v. State of Bihar reported in A. I. R. 1960 Patna 98. Such presumption of course can be rebutted if the person concerned under Rule 30 of the Citizenship Rules succeeds in convincing the Tribunal constituted under the Citizenship Act viz. , the Central Government that his act or action of taking the Pakistani citizenship was not a voluntary one. Such presumption of course can be rebutted if the person concerned under Rule 30 of the Citizenship Rules succeeds in convincing the Tribunal constituted under the Citizenship Act viz. , the Central Government that his act or action of taking the Pakistani citizenship was not a voluntary one. It has further been held in the case of State of U. P. v. Jafar Ali reported in A. I. R. 1963 Allahabad 18 that under the Pakistani Citizenship Act, a person can obtain a Pakistani Passport if he is a citizen of that country and no otherwise. This also establishes a prima facie evidence against the appellant and in support of the contentions of the learned Advocate for the Respondents that the appellant was a Pakistani national as otherwise under the Pakistani Citizenship Act he could not have got the Pakistani Passport. Mr. Ali seriously disputed the above views and contended that the fact of obtaining the Passport of another Dominion cannot be the conclusive proof of the loss of nationality or citizenship of the person concerned and the question as to whether a person has lost his citizenship of this Country and has acquired the citizenship of a foreign Country has to be tried by the Central Government and it is only after the Central Government has decided the point, the State Government can deal with the said person as a foreigner. In support of the above contentions Mr. Ali relied on the case of Government of Andhra Pradesh v. Syed Mohd. Khan, reported in A. I. R. 1962 S. C. 1778 and submitted further that the decision of the Central Government about the status of the person should be the basis on which any further action can be taken against him and he further argued that the onus to prove and establish that the onus to prove and establish that a peons is a foreigner and not a citizen of India is required to be discharge by the Central Government before any step is taken or contemplated under section 3 (2)? of the Foreigners Act. In support of the above submissions Mr. Ali further relied on the case of State of Madhya Pradesh v. Peer Mohammad reported in A. I. R. 1963 S. C. 645. of the Foreigners Act. In support of the above submissions Mr. Ali further relied on the case of State of Madhya Pradesh v. Peer Mohammad reported in A. I. R. 1963 S. C. 645. In that case a charge sheet was presented by the appellant State of Madhya Pradesh against the respondent Peer Mohammad and his wife under section 14 of the Foreigners Act, 1946 read with clause 7 of the Foreigners Order, 1948 alleging that the said respondents had entered India on May 13, 1956 on the strength of a Pakistani Passport and a Visa issued in their favour on 8th May, 1956. It was further alleged that even after the period of the visa had expired, they continued to stay in India consequently the District Magistrate, Burhanpur served as Notice on them on 14th May, 1957 calling upon them to leave India on or before 28th May, 1957. There was non-compliance with the notice and by their said unauthorised and illegal over-stay in India the respondents rendered themselves liable under section 14 of the Act and clause 7 of the Order. The respondents pleaded that they were not foreigners but were born in India and had been permanent residents of Burhanpur and so the criminal proceedings instituted against them were misconceived. In that case it has been observed by the Supreme Court that a person who was not deemed to be a citizen of India is one who has, after the first day of March, 1947, migrated from the territory of India to the territory of Pakistan. It has also been found that migration after 26th January, 1950 would be migration after the first day of March, 1947, but it is clear that a person who has migrated after 26th January, 1950 cannot fall within the relevant clause, because the requirement of the clause is that he must have migrated at the date when the Constitution came into force. ?has migrated? in the context of that case has been held cannot possibly include cases of person who would have migrated after the commencement of the Constitution. It has thus been held that it is only persons who had migrated prior to the commencement of the Constitution that fall within the scope of Article 7. Article 7 refers to migration which has taken place between the first day of March, 1947 and 26th January, 1950. It has thus been held that it is only persons who had migrated prior to the commencement of the Constitution that fall within the scope of Article 7. Article 7 refers to migration which has taken place between the first day of March, 1947 and 26th January, 1950. The question about the citizenship of persons migrating to Pakistan from India after the 26th January, 1950 will have to be determined under the provisions of the Citizenship Act. Mr. Ali thereafter relied on the case of Abdul Sattar Haji Ibrahim Patel v. State of Gujrat, reported in A. I. R. 1965 S. C. 810, which again was a case under sections 14 and 9 of the Foreigners Act. In that case the accused person who was prosecuted for an offence under section 14 of the Act alleged that he was born in India and that his parents were also here and were enjoying the status of Indian citizen. The prosecution alleged that the accused person was not domiciled in India on 26th January, 1950 when the Constitution came into force and that he had over-stayed in India after the expiry of his residential permit. The accused denied such allegations and contended that he was domiciled in India and was residing here on 26th January, 1950 and that he had gone to Pakistan only in August, 1954 on an Indian Passport to bring his wife and that Passport was destroyed by his father-in-law and therefore he had to obtain a Pakistani Passport for the purpose of coming back to India. The accused wanted to prove his case that he had to obtain the Pakistani Passport in 1954 against his will by examining certain witness. His evidence was not, however, accepted and he was convicted under section 14 of the act. It has been held in the facts of that case that the conviction of the accused was liable to be set aside and he should have been given a chance to prove his case and such question should be determined afresh. His evidence was not, however, accepted and he was convicted under section 14 of the act. It has been held in the facts of that case that the conviction of the accused was liable to be set aside and he should have been given a chance to prove his case and such question should be determined afresh. It was further held that in determining the question as to whether the accused was a foreigner within the meaning of the Act or not, section 9 of the Citizenship Act will have to be borne in mind and thus in deciding the question as to whether he was an Indian citizen within the meaning of Article 5, the onus of proof was on the accused to show that he was domiciled in India on 26th January, 1950 and that he satisfied one of the three conditions prescribe by clauses (a), (b) and (c) of the Article. Thereafter, Mr. Ali also relied on the case of Md. Ayub Khan v. Commissioner of Police Madras, reported in A. I. R. 1965 S. C. 1623. In that case the appellant, who claimed to have acquired the status of an Indian citizen on the commencement of the Constitution as a person who had been ordinarily resident in the territory of India for not less than 5 years immediately preceding the date, was served with a Notice dated 17th July, 1957 informing him that as he had obtained Pakistani Passport he should leave India within one month from the date of the service of the notice and in default of compliance he would be prosecuted and deported from India under the Foreigners Act, 1946 as amended by Foreigners Law (amended) Act, 1957, moved an application for appropriate Writs under Article 226 of the Constitution of India challenging the validity of the said order. At the time of the hearing before the High Court he contended that section 9 of the Citizenship Act, 1955 was ultra vires the Parliament and clause 8 of schedule III of the Citizenship Rules was also ultra vires the Central Government, and in any event Rule 30 of the Citizenship Rules contemplated of quasi judicial enquiry in which an opportunity must be given to the party sought to be affected, to make a representation and adduce evidence to show that the acquisition of a Passport from the High Commissioner for Pakistan was not voluntary. Such contentions of the appellant were rejected by the learned Judge and in appeal, a Bench of the Madras High Court held that the appellant had in fact made a declaration on the basis of which the Passport was obtained and the allegations made by him did not even imply that he was forced to make a false declaration. It was found by the High Court that section 9 lays down an objective test and when the individual had brought himself within it, the law determines the legal consequences of the situation, independently of his intent or understanding, and, therefore, there was no scope for an enquiry of the nature claimed by the appellant. On appeal it was held by the Supreme Court that section 9 (1) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso) by naturalisation, registration or otherwise, voluntarily acquired citizenship of another country. Subject to the exception in the proviso, therefore, naturalisation registration or acquisition of citizenship of another Country operates to terminate the citizenship of India. Acquisition of citizenship of another country to determine Indian citizenship, must, however, be voluntary. By Sub-section (2) provision is made for setting up an authority to determine the question where, when and how citizenship of another country has been acquired, and by Rule 30, the Central Government is designated as the authority which is invested with power to determine the question in such manner, and having regard to such rules of evidence as may be prescribed. Provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a passport of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should depend by the citizen concerned should depend upon the circumstances of each case. ( 10 ) PARAGRAPH 1 of Sch. III of Citizenship Rules, which raises a rebuttable presumption, when it appears to the Central Government that a citizen has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition and Paragraph 2 which authorises the Central Government to make enquiries for the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenship, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date voluntarily acquired citizenship of that other country. By the application of the Rule in paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. By the application of the Rule in paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. It has further been held that it is not the function of the Courts to determine whether the plea raised by a citizen is true or not; it is for the authority invested with power under section 9 (2) to determine that question if it is raised. ( 11 ) IT has further been held that it is not correct to say that section 9 lays down an objective test and once it is found that the passport is obtained in fact by an Indian citizen from another country, the law determines the legal consequences of that conduct and no question of his intent or understanding arises. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of section 9 (1), and by virtue of Paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free violation by the citizen. This view is strengthened by the scheme of Section 9 (2) read with Rule 30 which contemplates an enquiry by an authority prescribed under sub-section (2) for determination of the question whether citizenship of another country has been acquired by an Indian citizen. We find that the submissions of Mr. Ali on the question of onus as recorded hereinbefore are of no substance and in fact the initial onus to establish that he was not a Pakistani national but an Indian lay on the appellant and not on the Central Government initially. If such dispute is raised with the Central Government then such onus maybe shifted. Ali on the question of onus as recorded hereinbefore are of no substance and in fact the initial onus to establish that he was not a Pakistani national but an Indian lay on the appellant and not on the Central Government initially. If such dispute is raised with the Central Government then such onus maybe shifted. In the instant case the disputes if at all which was raised by the appellant was unsuccessful and no other Court including the High Court has any jurisdiction to resolve such dispute. The appellant in fact and in effect has not at all been able to shift the said burden of proof and in fact he has failed to do so. The learned Advocate for the respondent relying on the case of Abdul Sattar Haji Ibrahim Patel v. State of Guir (supra) and more particularly in paragraph 6 of the same submitted that the net result and effect of the said decision if applied to the present case, would lead to a conclusion that Article 7 of the Constitution of India has application in the instant case. ( 12 ) THE cases as referred to hereinbefore are in our opinion do not strictly apply to the facts and circumstances of this case, and the dispute, if any, will have to be determined by the Central Government but that too on such dispute being raised by the person concerned. Unless such a dispute is raised or contentions in the light of the Supreme Court decisions as mentioned hereinbefore are put forward the Central Government of its own is not required or obliged to make a determination. The facts of the present case are such that they cannot also be brought within the purview of the determinations of the Supreme Court as admittedly an application for citizenship was made by the appellant and the same it appears has been duly rejected. The fact of obtaining a Pakistani Passport would create a rebuttable presumption against the holder and that may not mean an automatic cesser of Citizenship of India and that too because of section 9 of the Citizenship Act and the rules framed thereunder. The onus to prove otherwise than what appears from the official document viz. , the Pakistani Passport in the instant case was on the appellant. The onus to prove otherwise than what appears from the official document viz. , the Pakistani Passport in the instant case was on the appellant. In the case of The Union of India v. Ghaus Mohammad, reported in A. I. R. 1961 S. C. 1528 it has been held that when an order asking the respondent to leave India was made under section 3 (2)? of the Foreigners Act, and that order was challenged and a question arose whether the person concerned was an Indian Citizen or not, under section 9 of the Act, the onus to show that he was not a foreigner was upon him and not on the Union of India. That case in our opinion applies with all its force to the facts of the present case and we cannot but repeat that the onus in the instant case to show that he was not a foreigner but an Indian citizen lay on the appellant and not on the Union of India and in fact he has failed to discharge the onus. ( 13 ) WE are further of opinion and in agreement with the submissions of Miss Chaturvedi that the appellant's application for registration as an Indian citizen is also a prima facie proof that he was a foreigner and such submission finds support from the decision in the case of Abdus Samad v. State of West Bengal, reported in (1973) 1 S. C. C. 451, where it has been observed that an application for registration as an Indian Citizenship. Every person, it has been held in that case must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with a territorial system of law. Construing Articles 5, 6, 7 and 394 in the facts of the present case and in the light of the observations in the cases as mentioned hereinbefore we also find that the appellant cannot be deemed to be or considered to be a citizen of India. ( 14 ) IN view of the above we find no substance in the contentions raised by the appellant and any case for interference with the determinations made by the learned trial Judge and as such the appeal is dismissed. There will however be no order to costs. ( 14 ) IN view of the above we find no substance in the contentions raised by the appellant and any case for interference with the determinations made by the learned trial Judge and as such the appeal is dismissed. There will however be no order to costs. ( 15 ) IT should be noted here that the learned Advocate for the appellant, in conclusion, prayed that in case the appeal fails then the operation of the order should be stayed for 8 weeks for enabling the appellant to move the appropriate authorities under section 9 (2) of the Citizenship Act. We feel that we shall not be justified in making such an order at this state. It may further be noted that apart from the decisions referred to above, no other case was cited at the Bar. S. K. Mukherjea, J: I agree. Appeal dismissed.