MOHAMMAD YUSUF Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution the validity of the order of deportation of the petitioner passed by the Superintendent of Police, Monghyr (Annexure E) on 13-5-1964 in purported exercise of the powers conferred by Clause (c) of sub-sec (2) of Section 3 of the Foreigners Act, 1946 (Art XXXI of 1946) read with the Government of India, Ministry of Home Affairs, notification No. 1/32/61 (IV) F III, dated the 15th March, 1962, is under challenge. The order has been made on assumption that the petitioner is a national of Pakistan. But it was urged on behalf of the petitioner by Mr. Basudeva Prasad that the petitioner was a citizen of India at the commencement of the Constitution and that he did not lose that citizenship either by any act on his part or on the basis of any determination made by the Central Government under Section 9 (2) of the Citizenship Act, 1955 read with Rule 30 of the Citizenship Rules, 1950. The learned Advocate General, however, urged that in consequence of his migration to Pakistan in 1947 he shall not be deemed to be a citizen of India in view of Article 7 of the Constitution and that he never acquired Indian citizenship according to law.

(2.) The admitted or unchallenged facts are these The petitioner was born in a village in Monghyr district sometime in 1932 or 1933. There is a controversy as to whether the petitioner was born in 1932 or 1933 and he has given different years as the year of his birth on two different occasions. But nothing material turns on this discrepancy. In 1947. when he was about 15 years, he entered service in the Eastern Railway and was posted at the Railway Workshop, Jamalpur. District Monghyr. After partition of India, sometime in September, 1947, the petitioner, though a minor opted for Pakistan and entered service in Said-pur Railway Workshop in East Pakistan. His parent and other members of his family, however, remained in India. He was married in due course and lived in Pakistan with his wife till about 1957. While in Pakistan, he obtained a Pakistani Passport No 374049, dated the 2nd December, 1953, for his wife Akhtari Begam, and Pakistani Passport No. A-150457. dated the 22nd August. 1950, for himself and came to India in July, 1957. Later on 15-1-1959 he applied to the District Magistrate of Monghyr (Annexure A) for an Indian citizenship certificate. This application was rejected by the District Magistrate on 18-3-1963 (Annexure B). The petitioner then made a representation to the District Magistrate for reconsideration of his order (Annexure C) and prayed that till such reconsideration the Police may be restrained from taking action for deporting him. The District Magistrate appears to have been favourably impressed with his prayer and in his letter No. 363 dated 10-1-1954 (Annexure D) addressed to the Government of Bihar he requested that the Central Government may be approached for the purpose of granting Indian citizenship certificate to the petitioner. In the meantime, however, the Superintendent of Police, Monghyr, by his order already mentioned directed deportation of the petitioner from India after the expiry of fifteen days from the date of service of his order. The petitioner then filed this application before this court and obtained stay of the operation of that order. In paragraph 16 of his petition he, however, stated that his application for grant of Indian citizenship was still pending with the Government. But from the counter-affidavit filed by the Government of Bihar (Annexure I) it appears that the Government of India by their letter dated the 6lh October, 1964, rejected his application with the following observations:

(3.) On these facts, the first question for consideration is whether the petitioner was a citizen of India at the commencement of the Constitution. Admittedly on that date he was serving in Pakistan. But it was urged that as he was a minor and his parents were in India, in the eye of law he must be deemed to be a citizen of India as the minor is under legal disability to change his domicile which follows that of his parents. But it was contended by the learned Advocate General that though the aforesaid view may be correct so far as the interpretation of Article 5 of the Constitution is concerned bearing in mind the general principle of private international law regarding the disability of a minor to change his domicile nevertheless by virtue of Article 7 of the Constitution the petitioner must he deemed not to be a citizen of India because he migrated to Pakistan after the 1st March. 1947. It was further contended that for the purpose of applying Article 7 the only point to be considered is whether on the admitted or proved facts it can he held that the petitioner "migrated" from India to Pakistan and that for that purpose the fact that he was a minor will not be very relevant except for the limited purpose of showing that he did not have the requisite animo manendi. The learned Advocate General further urged that a boy of fifteen may be presumed to have attained sufficient maturity of mind to decide whether to stay permanently in Pakistan or not and that on the admitted facts of this case it must be held that the petitioner "migrated" to Pakistan. This is the main question for consideration here.