Decided on August 03,1970

Intaz Ali Borbhuiya Appellant
The Superintendent Of Police And Ors. Respondents


Goswami, C.J. - (1.) THIS second appeal is directed against the judgment and decree of the learned Assistant District Judge, Silchar, reversing those earlier of the learned Munsiff.
(2.) THE Plaintiff's case in the plaint is as follows: He is an Indian citizen by birth. He was born in 1911 at village Dakhin Krishnapur under Silchar Police Station, Cachar District, Assam. He has his ancestral home in that village. He was employed as a Clerk in the Office of the Inspector of Agriculture, Silchar, and he continued to serve as such till the partition of India in 1947. At the time of partition, he was asked to signify his choice as to which of the two Dominions he wanted to serve. Thinking that his native District of Cachar would fall in the newly formed Dominion of Pakistan, he provisionally opted in favour of Pakistan. Subsequently when he found that the district of Cachar was allowed to remain with the rest of India, ho wanted to change his provisional option finally in favour of India. The authority concerned did not allow him to do so; instead he was released from his service and was asked to go to East Pakistan and report for necessary posting. The Plaintiff therefore reluctantly went to Pakistan and joined as a Clerk in the Agricultural Department at Sylhet, East Pakistan, leaving his wife and children at Dakhin Krishnapur. Since his posting at Sylhet, he had been continuously trying to get transfer to Cachar and was having communication with the Government of Assam. He finally took a Pakistani passport and returned to India in November 1960. The Plaintiff relies upon a letter dated 30 -7 -60 of the Under secretary to the Government of Assam addressed to him at Sylhet with regard to his application dated 27th May, 1960 for acquiring Indian citizenship. It is stated In that letter Ext A : the case of a Pakistan optee person is considered in the light of the provisions of the Indian Citizenship Laws and therefore, the question of registration as Indian citizen will arise only in case of an optee person who has returned to India and who has been ordinarily resident here for a period of 6 (six) months Immediately preceding the date of his formal application for registration. The Plaintiff particularly avers in paragraph 3 of the plaint that after his return to India in 1960 he began to reside at his ancestral home permanently and after six months applied for "necessary registration under the Indian Citizenship Act............" and that the application was till then under consideration of the Government. As he was served with a quit India notice, he has brought this suit for declaration of his right of citizenship and for permanent injunction. The Defendants denied his claim and stated that the Plaintiff opted for service under the Pakistan Government and migrated to Pakistan from India and served there till the later part of I960. The Plaintiff came to India on 2 -11 -1960 with a Pakistan passport and Indian visa which was valid up to 21 -9 -1961 but he continued his unauthorized stay after the expiry of the said period. His case was placed before the Foreigners Tribunal which also held him to be a foreigner. The Defendants further stated that the Plaintiff has acquired the citizenship of Pakistan by voluntarily migrating there. Besides, obtaining of the Pakistan passport conclusively proves that he renounced the Indian citizenship and acquired that of Pakistan. The Defendants stated that the Central Government is the only authority in a case of this description and the Civil Court has no jurisdiction to entertain the suit.
(3.) ALTHOUGH eleven Issues were framed in the trial Court, the only issue that is of importance and which was pressed in the appellate Court as well as here is Issue No. 11, which is; Is the Plaintiff a citizen of India 2.;

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