BHAKTIARKHAN KHWAJA NAUSADKHAN Vs. UNION OF INDIA
LAWS(GJH)-1960-10-7
HIGH COURT OF GUJARAT
Decided on October 13,1960

BHAKTIARKHAN KHWAJA NAUSADKHAN Appellant
VERSUS
UNION OF INDIA Respondents


Cited Judgements :-

SHAMIM BANO VS. UNION OF INDIA [LAWS(RAJ)-1979-7-30] [REFERRED TO]


JUDGEMENT

J.M.SHELAT - (1.)This appeal arises from a suit in which the appellant plaintiff sued for a declaration that he was a citizen of India; that the order of deportation passed against him on 10/08/1953 was illegal and inoperative; that the passport taken out by him from the Pakistani authorities was void and had no effect against him that his registration as a foreigner was null and void and for an injunction restraining the respondents-defendants from taking any steps against him under the Passport Act.
(2.)The appellant was born in the village Kalkarli in Swat State. In 1932 he came to India from his native village and settled down in this City. From 1932 to 1945 he worked in Several Textile Mills and from 1946 until he was deported he worked continuously in Lal Mills as a weaver. During this period he also worked as a member of the managing committee of a trade union of textile workers. On 2/02/1949 he got himself registered as a foreigner under the Registration of Foreigners Act 1939 On 24/01/1950 he returned his registration certificate to the police as a protest along with several other Pathans who were working in the Textile Mills in this City. On 10/08/1953 an order of deportation was made against him by the Central Government under the Foreigners Act 1946 and on 12/09/1953 he was removed to Pakistan from this City. On 22/09/1953 a Criminal Application No. 1022 of 1953 was filed in the High Court of Bombay under Article 226 of the Constitution by one Batuk Desai. On 2/02/1954 that application came up for hearing. While that application was being heard the learned Government Pleader who appeared for the State of Bombay made a statement to the effect that the Government would not enforce the order of deportation against the appellant and would not prohibit him from re-entering the country. Upon that statement the High Court observed that it would not be possible for the appellant to return to India from Pakistan unless the diplomatic authorities for India in Pakistan were to render facilities to the appellant to return to India that being the only method whereby he could come back to India as a citizen of this country. In the meantime the appellant was kept in police custody in Pakistan. After he was released and on reading a newspaper report of the judgment of the High Court in Criminal Application No. 1022 of 1953 the appellant went to the office of the High Commissioner for India at Karachi. Notwithstanding repeated requests he was not given facilities to re-enter India. It was the case of the appellant that finding himself in a position where he could not return to India he made a false application for a passport to the Pakistani authorities declaring therein that he was a national of Pakistan. He also made an application for a visa to the High Commissioner for India wherein also he described himself as a citizen of Pakistan. Having got a passport and a visa the appellant returned to India on the strength of those two documents. On 15/09/1954 he filed a Special Criminal Application No. 1040 of 1954 in the High Court of Bombay challenging the order dated the 10th of August 1953. On 20/09/1945 he withdrew that application on the learned Advocate representing the Government stating to the High Court that the Government would not take action under the said order. On 4/10/1954 he served the usual notice under sec. 80 of the Code of Civil Procedure and subsequently filed the present suit for the reliefs above stated.
(3.)The respondents in their written statement raised several contentions. The contentions amongst others were that the appellant was not a citizen of India that he was registered as a foreigner on the 2nd of February 1949 that he had not got his domicile in India that he had accepted Pakistan nationality and had come to India as a Pakistan national and that he was not entitled to the declaration asked for. One more contention taken was that the Court had no jurisdiction to entertain the suit. The learned trial Judge held that the Court had jurisdiction that the plaintiff was a citizen of India that the order of deportation against him was illegal and inoperative that the Pakistani passport obtained by him was void and inoperative and that he had been registered as a foreigner under the Registration of Foreigners Act under compulsion. On these findings the learned trial Judge decreed the suit. The respondents filed an appeal which was heard by the learned District Judge Ahmedabad. The learned District Judge held that it had not been established that the appellant-plaintiff was a citizen of India nor had he established that his registration under the Registration of foreigners Act was under coercion. He agreed however with the learned trial Judge that the Court had jurisdiction to try the suit and that the passport obtained by the plaintiff while he was in Pakistan was inoperative against him. One fact which seemed to have weighed considerably with the learned District Judge was that although the appellant had established that he had come over to this country in 1932 and had resided here until his deportation he had failed to prove that he had acquired domicile in this country in other words that he had failed to establish that when he came to reside in this city he had the intention to make this country his permanent home. The learned District Judge therefore found that without such proof the appellant could not be said to have become a citizen of this country. Upon that finding he set aside the judgment and decree passed by the trial Court and allowing the appeal dismissed the appellants suit with costs.
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