Decided on September 25,1961



- (1.) THE petitioner in this case is Ataur Rahman Sarkar. According to the petitioner, he was born in a village called Ghosepara, within Police Station Raninagor, in the District of Murshidabad. He states that his father was also born in the said village and that he inherited property there. He further states that he is the sitting Vice-President of the local Rajapur Union Board. He states that his father had some landed properties at a village called Premtali in the district of Rajshahi, from before the Partition of Bengal. After Partition, the district of Rajshahi, having been included in Eastern Pakistan, the petitioner decided not to keep any connection with Pakistan and, with this end in view, he went to Rajshahi and exchanged the properties at Premtali with his relations who are there. He does not say with which properties the exchange was made. He then came back to India and in 1957, it is stated, that a case was filed against the petitioner under sec. 3 (3) of the Indian Passport Act being N. G. R. Case No. 1267 of 1957 and C. R. 2013 of 1957. This case was tried before the Sub-Divisional Officer, Lalbagh, and was dismissed on July 19, 1958, under section 245 of the Code of Criminal Procedure. On June, 1959 an order was served on the petitioner, under sec. 3 of the Foreigners Act, dated May 19, 1959 asking him to leave India within 15 days. It is against this order that this application is directed.
(2.) IN the affidavit-in-opposition filed by Shiba Kinkar Mitra who describes himself as the Superintendent of Police, Murshidabad, all the said facts are disputed. It is stated that the petitioner was born in Murshidabad, but he left for Pakistan in 1949. What happened was that after partition he opted for Pakistan and exchanged his properties in India with those in Pakistan, belonging to Shri Nagendra Nath Sarkar of Rajshahi. He paid taxes for his lands in India upto 1949 and thereafter ceased to do so. Having migrated to Pakistan, he came back in 1954 and thereafter started living here, although he had no passport and no documents whatsoever and did not register himself as a citizen of India. It is pointed out that between 1949 to 1954, the petitioner had neither paid any rents nor taxes. Also it is pointed out that all his properties are there in Rajshahi where his brother is now managing the same.
(3.) THAT being so, the question is whether in an application like this, I can grant the petitioner any relief. The position with regard to persons served with notice under sec. 3 of the Foreigners Act read with the Foreigner's Order, has now been the subject-matter of several decisions of the Supreme Court, so that the position has been clarified. In the State of Andhra Pradesh v. Abdul Khader (1) (Criminal Appeal No. 192 of 1959, judgment dated the 4th. day of April, 1961) [since reported A. I. R. (1961) S. C. 1467-Ed. ] the facts were as follows: The respondent had been born at Adoni in Andhra Pradesh and was carrying on business there, having rented a shop. About the end of 1954 and early in 1955, he went to Pakistan for a short time and then came back, having taken a Pakistani Passport. He was served with a notice under sec. 3 (2) (c) of the Foreigners Act and was prosecuted for breach thereof, as he did not leave India although so directed. The learned Judicial magistrate found that, by obtaining the passport from the Pakistan authorities, he had disowned his own nationality and had ceased to be an Indian national and was therefore a foreigner. The Supreme Court held that Section 9 (2) of the Citizenship Act, 1955, applied to the facts of the case. It provides that, if any question arises as to whether an Indian citizen has acquired the citizenship of another country, it shall be determined by such authority and in such manner as may be prescribed. Under Rule 30 of the Rules framed under the Act, the authority prescribed to determine that question is the Central Government. So the question whether the respondent, an Indian citizen, had acquired Pakistani Citizenship, could not be decided by the Courts. Sarkar, J. , however said this :- "the question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide. The courts can decide it and, therefore, the learned Magistrate could have done so. He however, did not decide that question, that is, find that the respondent had been a Pakistani national all along. On the evidence on the record such a finding would not have been warranted. For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded the evidence shows that the respondent did go to Pakistan, but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955. This evidence also indicates that he stayed there for a short time. He was all along paying the rent for his shop in Adoni. His family had always been there. Therefore, it can be said that he had never migrated to Pakistan. Clearly, a short visit to Pakistan would not amount to migrating to that country. ";

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