GAJENDRAGADKAR - (1.) THESE three Writ Petitions are filed by the three respective petitioners under Art. 32 of the Constitution for the enforcement of their fundamental right under Article 19 (I ) (e). They were heard separately but it would be convenient to deal with them by one common judgment because they raise for our decision the same constitutional questions. In all the petitions, the constitutional validity of section 9 (2) of the Citizenship Act, 1955 (Act LVII of 1955) (hereinafter called the Act) and of rule 3 in Schedule III of the Citizenship Rules, 1956, is challenged. It would also be convenient to set out briefly at the outset the material facts on which the three petitions are based.
(2.) IZHAR Ahmad Khan, the petitioner in Writ Petition No. 101 of 1959, claims to be a citizen of India and was a resident of Bhopal. He was enrolled as a voter in the Parliamentary as well as State Legislative Assembly Electoral Roll. On the 20/08/1952, he was taken into custody by the police from the restaurant which he used to run at Bhopal and was told that he had been arrested under an order from the then Bhopal Government under S. 7 of the Influx from Pakistan (Central) Act. He was then removed by train the very next day and left at the Pakistan border and was asked to go to Pakistan despite his protests. Thereafter, his elder brother, Iqbal Ahmad moved the Court of the Judicial Commissioner, Bhopal, under Art. 226 of the Constitution for the issue of a writ in the nature of Habeas Corpus. In February, 1953, the learned Judicial Commissioner pronounced his judgment in the said writ petition. He found in favour of the petitioner that he was born in India and was a citizen of India. Even on the question of migration, the Judicial Commissioner made a finding in his favour. He, however, observed that the petitioner was in Pakistan in May and June, 1952, and he came to the conclusion that since he had contravened the provisions of S. 3 of the Influx from Pakistan (Central) Act, he was liable to be removed physically from India under S. 7 of the said Act. Having gone to Pakistan much against his will, the petitioner tried to obtain the help of the High Commissioner of India for returning to India but he failed and so he had to sign an application form in order to secure a passport to come to India. With the passport thus obtained he came back to India on the 13/08/1953. Soon after his return to India, he applied for permission to stay in India permanently and his visa for stay in India was accordingly extended from time to time pending the final decision of his application for leave to stay in India permanently. Meanwhile, on the 15/02/1954, S. 7 of the Influx Act was declared void by this Court. In consequence, the petitioner began to press his application for permanent settlement in India and along term visa was granted to him by the Government of India pending the decision of his application. Thereafter, the Act was passed in 1955 and under advice, the petitioner applied for registration as a citizen. The said application was, however, rejected and his application for leave to stay in India permanently met with the same fate. The petitioner was then directed by the District Superintended of Police, Bhopal, to leave India within seven days by an order dated the 16/06/1959, served on the petitioner. This order was passed under S. 3 (2) (c) of the Foreigners Act, 1946 (No. XXXI of 1946. It was against this order that the petitioner came to this Court by his present writ petition on 13/08/1959. In the petition originally filed by him, the petitioner's contention was that be was not a foreigner within the meaning of the Foreigners Act and be challenged the validity of be relevant operative sections of the said Act. After notice was served on the Union of India be State of Madhya Pradesh and he District Superintendent of Police, Bhopal who were impleaded as respondents 1, 2 & 3 to the petition, the matter came on for hearing before this Court on 22/01/1960. After hearing counsel for some time, the Court delivered an interlocutory judgment in which it pointed out that the crucial question which falls to be considered in the writ petition is whether the petitioner is a citizen of India or not. This question can be decided only under S. 9 (2) of the Act. Therefore, this Court observed that an enquiry should be made by an appropriate authority in that behalf and the result of the enquiry intimated to this Court as early as possible. On receipt of the result of the enquiry by this Court, the petition will be listed for final hearing. Meanwhile, stay of deportation of the petitioner was continued. In accordance with this interlocutory judgment, an enquiry was held under S. 9 (2) after serving a notice about the said enquiry on the petitioner. On 11/09/1961, the Central Government recorded its conclusion that the petitioner had voluntarily acquired the citizenship of Pakistan after 26/01/1950, and before 29/07/1953. This conclusion was reached substantially by the application of the impugned R. No. 3. After the enquiry had thus terminated and its result communicated to this Court, the petitioner applied for permission to take additional grounds and amongst the grounds which he thus wanted to raise, are the two questions which we have already indicated. That, in brief, is the background of facts in Petition No. 101 of 1959.
(3.) SYED Abrarul Hassan, the petitioner in Petition No. 136 of 1959, claims to be a citizen of lndia and was a resident of Bhopal. In 1951, his family received the news from Pakistan that his elder brother SYED Hassan was seriously ill. That is why the petitioner with his mother and younger sisters and one younger brother went to Pakistan. Thereafter, the petitioner stayed there for some years. Then they tried to come back to India and with that object applied for a Pakistan passport to travel to India and after the passport was thus obtained, he returned to India in May, 1954. After he came to India, he applied to the Government of India for permission to settle down in India permanently and pending the said application, he was granted long term visas. In 1959, however, the District Superintendent of Police, Bhopal, served an order on him directing him to leave India by the 22/08/1959. This order was issued under S. 3 (2) (c) of the Foreginers Act. Like petition No. 101 of 1959, this petition also was originally filed to challenge the validity of the said order and to impugn the validity of the relevant provisions of the Foreigners Act on the ground that the petitioner was not a foreigner and that the relevant provisions could not be invoked against him. Subsequently, this petition as well as Petition No, lot of 1959 were heard together on 22/01/1960, and the course of events in this petition was similar to that in the earlier petition. The result was that after an enquiry was held under S. 9 (2) of the Act and the petitioner was informed that the Central Government had come to the conclusion that the petitioner had voluntarily acquired the citizenship of Pakistan after 26/01/1950, and before 20/11/1952, he applied for leave to take additional grounds, including the two grounds to which we have already referred: Thus the material facts in these two petitions are substantially similar. Habib Hidayatullah, the petitioner in petition No. 88 of 1961, claims to be a citizen of India and complains that his fundamental rights under Art. 19 of the Constitution are being infringed because he is about to be deported out of India on the ground that he has acquired the citizenship of Pakistan. It appears that the petitioner sailed from Bombay for Basra (Iraq)in April, l950, and stayed there for three years in connection with business. Then he accompanied his brother to Karchi in May, 1953, for his treatment. On arrival at Karachi, the Pakistan authorities took away his Indian travel documents. Then he tried to obtain the assistance of Indian High Commission for returning to India but failed and so he applied for and obtained a Pakistani passport on 14/12/1957. According to him, he obtained his passport with a view to return to India. On returning to India with this passport the petitioner made several representations to the Indian authorities for his recognition as a citizen of India and even tried to obtain registration as such. His efforts in that direction, however, failed and so he stood the risk of being deported from India. That is how the petitioner filed the present petition on 20/02/1961. By his petition, he claimed a direction against the respondents the Union of India and the State of Maharashtra restraining them from taking any steps to deport him from India. ;