Decided on September 10,1963

STATE Respondents


- (1.) This is a petition under Article 226 of the Constitution of India by one Habatullah Haji Fazlehussain of Rajpipla. It is directed against the order dated 2nd of August 1963 passed by Shri N. H ShethnaDeputy Inspector General of Police C.I.D. Gujarat State Ahmedabad respondent No. 2 herein under sec. 3 subsection (2) clause (c) of the Foreigners Act 1946 directing petitioner not to remain in India after the date on which the order is served on him and calling upon him to leave India immediately thereafter. Respondent No. 1 is the State of Gujarat. Petitioner prays that a write in the nature of mandamus or writ direction or other order may be issued against the respondents quashing or setting aside the impugned order dated the 2nd of August 1963 and that the second respondent may be restrained from deporting petitioner from India.
(2.) The facts may at first be shortly stated. Petitioner was born at Baroda. He was educated at Rajpipla High School and studied upto Standard IV. On 13th February 1948 petitioner went to Karachi with his fathers sister one Mehranigar. He came to India in April 1949 on a permit which was valid for one month and went back to Karachi in May 1949 on the expiration of the period of his permit. Petitioner came back to India in 1951 on a temporary permit and again went back to Karachi on the expiration of two months from the date of his entry into India. Petitioner again came back to India in or about August 1955. On this occasion he came on a Pakistani passport and an Indian visa. Both the aforesaid documents were obtained by petitioner on his representation that he vas a Pakistani national. Petitioner did not depart from India after the expiration of his period of visa and he continued to stay in India thereafter. In 1958 petitioner was prosecuted in the Court of the learned First Class Magistrate Rajpipla under sec. 14 of the Foreigners Act 1946 for remaining in India after the period of his visa was over. However on 31st of January 1959 petitioner was acquitted of that charge on the ground that petitioner was not a foreigner within the meaning of the Foreigners Act as it stood at the time when petitioner entered into Indian territory. Petitioner however continued to stay in India even after 31st of March 1959. On 2nd of August 1963 respondent No. 2purporting to act under an authority conferred upon him by the Government of India Ministry of Home Affairs Notification No. F1/41/62FIIIdated 22nd January 1963 passed the impugned order deporting petitioner from the limits of India. This order was served on petitioner on 5th of August 1963 and on the same day he was arrested and was being removed to the frontier of India. On the 6th of August 1963 one Gulamhussain the younger brother of petitioner filed a petition bearing Miscellaneous Application No. 247/1963 under sec. 491 Criminal Procedure Code and obtained an interim order from this Court calling upon respondent No. 2 to produce the petitioner in this Court on a certain date. In accordance with that order of the Court petitioner vas produced before this Court on 8th of August 1963. Petitioner thereafter presented the present petition against respondents Nos. 1 and 2.
(3.) Petitioner claims that he became the citizen of India under Article 5 of the Constitution of India that he did not migrate to Pakistan during the period 1st of March 1947 to 26th of January 1950; that the Central Government has not under sec. 9 subsection (2) of the Indian Citizenship Act 1955 passed any order that petitioner has lost his citizenship and that in any case respondent No. 2 had no authority under the Foreigners Act to pass the impugned order.;

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