J.Sahai, J. - (1.) Fasiuddin, the petitioner in writ petition No. 1436 of 1957 is the husband of Smt. Tahira Khatoon, the petitioner in writ No. 1435 of 1957. Both the petitioners claim that they are citizens of India. Before 1950 they used to live in the city of Shahjehanpur. In 1950 serious communal riots took place in Shahjahanpur district in which the Muslim population of the District mainly suffered and the petitioners alleged that they left Shahjehanpur for Pakistan only in order to escape the communal frenzy and with no intention to settle down in Pakistan and always intending to come back to Shahjehanpur. After the communal riots came to an end and conditions became normal the petitioners wanted to return back to India. Other means having failed the petitioners at last decided to obtain a temporary permit to come back to Shahjehanpur, hoping that once they were back they would stay on. Consequently they obtained a temporary permit and returned back to India in September, 1953. The period of the temporary visas was to expire in August: 1954. The district authorities at that time threatened to deport the petitioner to Pakistan. The petitioners, therefore, filed a writ petition in this Court That petition was admitted. It came up for hearing before Hon'ble Gurtu J., who on 11-2-1955 passed the following order: "Upon the undertaking given by the learned counsel for the respondent that the applicants will not be prosecuted or deported for a period of four months and the applicants being desirous of filing a suit to establish their nationality, and as the applicants through their counsel have stated that they do not press this application, it is accordingly dismissed for want of prosecution, without any order-as to costs". Thereafter the petitioners filed suit No. 54/55, in the court of the learned Additional Munsit, Shahjehanpur, impleading the Union of India, the State of Uttar Pradesh and the District Magistrate as defendants. The relief claimed in that suit was for the grant of a declaration that the petitioners were-citizens of India. That suit was decreed on 27-4-56. All the three defendants mentioned above filed an, appeal in the court of the District Judge, Shahjehanpur, which was dismissed on 13th of September, 1958. On 29th May, 1957, the petitioners were served with two separate notices, both dated 28th May, 1957, asking each of them to leave India within a period of thirty days from the date of the receipt of the notice and informing them that if they do not leave India within the period of thirty days they would be prosecuted under Section 14 of the Foreigners' Act.
(2.) On these facts the petitioners have prayed that the notices dated the 28th May, 1957, be quashed and a writ of mandamus be issued commanding the respondents to refrain from taking any action against the petitioners in pursuance of the notices dated 28th May, 1957.
(3.) Counter and rejoinder affidavits to the same effect have been filed in both the cases. The main allegations made in the counter affidavits are, firstly, that the petitioners are Pakistani nationals, having migrated there in 1948 and, secondly, that the Government of India had issued orders under Section 9(2) of the Citizenship Act declaring on 11-4-57 that the petitioners have voluntarily acquired citizenship of Pakistan. The said order runs as follows : "Whereas it has come to the notice of the Central Government that Sri Fasiuddin, son of Sri Aminuddin r/o Mohalla Jhandakalan, Shahjehanpur and his wife Smt. Tahira Khatoon have claimed) Indian Citizenship, notwithstanding their having obtained Pakistani Passports and short term visas, for their entry into India from Pakistan; now,, therefore the Central Government acting under "Section 9(2) of the Citizenship Rules, 1956 and giving due regard to the principles of evidence contained in schedule to the aforesaid rules, hereby determine that the said Sri Fasiuddin and his wife Smt. Tahira Khatoon have voluntarily acquired the citizenship of Pakistan. Sd./- Fateh Singh Deputy Secretary to Government of India". A copy of the judgment of the learned Munsif decreeing the petitioners' suit as also of the learned Civil Judge dismissing the appeal filed by the Union of India, the State Government and the District Magistrate has been filed in the case. The judgments mentioned above as also the allegations in 'the affidavit' which have not been controverted clearly show that a Civil Court of competent jurisdiction has already passed a decree declaring the petitioners as the citizens of this country and that decree has been affirmed by the appellate court and has become final. Had it not been for the order passed by the Government of India on 11-4-1957 there would have be(tm) plain sailing for the petitioners and there could have been no difficulty in these writ petitions being allowed. The only ground on which these writ petitions are being opposed on behalf of the respondents is that the order of the Government of India supersedes the decree of the civil court and is conclusive to show that the petitioners are not Indian nationals.;