S.S.Dhavan, J. - (1.) This is a Second Appeal by samiullah against the concurrent decisions of the courts below dismissing his suit for a declaration that he is a citizen or India and for permanent injunction restraining the State of Uttar Pradesh from deporting him to Pakistan. Both the courts have held that they had no jurisdiction to try the case in view of Section 9(2) of the Citizenship Act react with Rule 30 of the Citizenship Rules, 1956. The plaintiff has now come to this Court in Second Appear.
(2.) The facts are these: In his plaint Samiullah alleged that he was born in the year 1911 in village Garhi Pukhta, in the district of Muzaffarnagar. His parents were Indians and he was married in his village and has two wives. His children were also born in his native village. He earned his living as a motor mechanic from time to time. During the years 1936-39 he served with M/s. Premier Motors at Dehradun but his services came to an end when the proprietor, Mr. Talbot, wound up his business and left India to serve in the Second World war. from 1945 to 1952 he was employed as a Branch Post Master under the Government of India in the post office in his village Garhi Pukhta. One of his sisters-in-law, Sughra Begum, migrated to Bahawalpur in West Pakistan in 1950 and took away with her the plaintiffs minor son without the plaintiff's consent. In 1952 he was offered a lucrative job in Bhawalpur by his former employer Mr. Tolbot who himself had taken up service as a motor engineer with a firm M/s. Afzal and Co., at Bahawalpur, the plaintiff accepted this job and went to Pakistan to earn his livlihood but without any intention of migrating from India or giving up his citizenship. He took his second wife and four children with him but left his first wife and daughter behind in his native village in India. In 1953 he received the news of the death of his first wife and decided to cut short his stay in Pakistan and return to India. He applied to the Deputy High commissioner for India in Pakistan at Lahore for a permanent return, but the latter informed him that he was required to obtain in the first instance a passport from the Government of Pakistan as a Pakistan national and then apply to the High Commissioner for a visa. As he had no other alternative means of returning to India permanently, he was compelled in accordance with the advice of the Deputy High commissioner to obtain a Pakistan Passport for himself and his family out "without renouncing their Indian citizenship" and only with a view to return to India permanently. The plaintiff submitted that in view of these circumstances all the entries in his passport relating to his domicile were incorrect and not binding on him. He with his family came back to India in October, 1953 and made attempts and moved petitions for permission to live here permanently. But before any permission could be granted, the period of his visa expired on 30th November, 1954 and the Muzaffarnagar Police asked him to return to Pakistan. He was threatened with deportation and moved the High Court for relief under Article 226 of the Constitution on the ground that he had not lost his Indian citizenship. But his petition was dismissed on an undertaking by the Government that if at any time it wanted to deport him it would give him three months time to establish by means of a suit or other proceedings that he had not lost his Indian citizenship. As the State was thinking of arresting the plaintiff and his family and deporting them to Pakistan by force, he was compelled to file this suit to restrain them and establish his status as citizen of India.
(3.) The suit was resisted by the State and a preliminary objection was taken that the jurisdiction of the civil Court was barred by Section 9(2) of the Citizenship Act of 1955 read with Rule 30 of the Citizenship Rules of 1956. The plaintiff's allegation that he is an Indian citizen was denied on the ground that he had voluntarily migrated to Bhawalpur with his whole family with the intention of permanently settling there. The State pointed out that the plaintiff had applied for the grant of a Pakistan passport which was granted only to Pakistan nationals, and had also applied for a visa thereby admitting himself to be a national of Pakistan. According to the case of the State, as he was not an Indian citizen, he was not entitled to stay in mala as of right and could not ask for an injunction restraining the Government from deporting him.;