A.M.Bhattacharjee, J. - (1.) THE petitioner Md. Ishaque was served with an order under section 3(2) (c) of the Foreigners Act, 1946, directing him to quit India within a certain date on the allegation that the petitioner "is a foreigner and a national of Pakistan" and the petitioner has challenged this order in this writ proceeding.
(2.) INDIA, to my knowledge, is the only country which has, almost from the dawn of civilisation, proclaimed and advocated the principles of "Viswa Yatra Bhabatyeaka Neeram" and "Vasudhaiva Kutumbakam" - the whole world is one house and all the people of the world, wherever they may be, are relations. One has only to read Tagore's celebrated poem "Bharat Tirtha" to remind himself as to how INDIA has, from the hoary past, kept her gates wide open with a perennial call of welcome to all foreigners. Quit INDIA approach was an anathema to our cultural heritage and our national movement under the same name under the leadership of the Mahatma was never directed against the foreigners, but against the then Foreign Rulers because of their exploitative onslaught. Tagore prophesied that both the East and the West would be coming to INDIA, every one would have to come here with bowed heads to the shore of this vast humanity, that is INDIA. Foreigners are, therefore, to be generally welcomed, and not to be driven out, as far as possible, and to add a mundane note to this sublime message, at least for earning foreign exchange vitally necessary for our national economy. Coming now to the case at hand, it must be noted that the averments and assertions made by the Petitioner in his affidavit have not been traversed by the Respondents in any way whatsoever, they having filed no counter thereto at all. The facts stated in the petition, therefore, must, for the purpose of this case, be accepted to be true modo et forma and, when so accepted, there cannot be any scope for escaping from the inescapable, and resisting the irresistible, conclusion that the petitioner was a citizen of INDIA at the commencement of the Constitution. In fact, in support of the impugned order, what has been mainly, if not solely, urged for and on behalf of the Respondents is that the Petitioner, though originally a citizen of INDIA, has voluntarily acquired citizenship of Pakistan by obtaining Pakistani passport(s), and that it has now been so determined by the Central Government under section 9(2) of the Citizenship Act, 1955 by its order dated 31st May, 1989, being Annexure I to the Petition. It would be trite to say that the question of any such determination under section 9(2) of the Citizenship Act, 1955 read with Rule 30 of the Citizenship Rules, 1956 and Schedule III thereto, can only arise in the case of a person who having been a citizen of INDIA is alleged to have acquired the citizenship of a foreign state. 4. But once it is admitted that the Petitioner was a citizen of INDIA, but has been served with the impugned order dated 6th April, 1976 to quit INDIA, being Annexure D, on his subsequently acquiring a foreign nationality and that the same has been so determined by the Central Government only on 31st May, 1989, Annexure I, the impugned Order to quit INDIA of 1976 must collapse on the sole ground of its being anterior to such determination as aforesaid in 1989. It is now settled law that if a person, who was citizen of INDIA, is directed to quit INDIA on the allegation that he has ceased to be such a citizen on his voluntarily acquiring the citizenship of another country, such an order cannot precede, but must follow a proper determination to that effect by the Central Government under the provisions of section 9(2) of the Citizenship Act, 1955 in the manner provided under Rule 30 of the Citizenship Rules, 1956 read with the provisions of Schedule III thereto. Section 9(2) casts a mandatory obligation on the Central Government to determine that question and provides that if any question arises as to whether an INDIAn citizen has ceased to be so by voluntary acquisition of citizenship of a foreign State, "it shall be determined" by the prescribed authority, being the Central Government, in accordance with the aforesaid provisions. The position would also have been different if the person directed to quit was never a citizen of INDIA. The position would also have been different, if, even though the person was an INDIAn citizen, the Central Government has determined under the aforesaid provision that he has ceased to be so having voluntarily acquired a foreign citizenship, and the order to quit INDIA is pursuant to and follows such determination. It is not possible to countenance the view that any officer or authority, other than the Central Government, can determine the question that a citizen of INDIA is no longer so and can be thrown out beyond the frontiers. 5. There is yet another aspect of the matter. Under section 5(1)(c) of the Citizenship Act, 1955 amended by the Amendment Act of 1986, the prescribed authority, on an application made in this behalf, may register as citizens of INDIA, "persons who are, or have been married to citizens of INDIA and are ordinarily resident in INDIA and have been so resident for five years immediately before making an application for registration". It has not been disputed, and the uncontroverted affidavit and the Annexures also clearly demonstrate, that the wife of the petitioner, a teacher in a Government College, is and was all along a citizen of INDIA and her husband, the Petitioner, is otherwise eligible to apply for registration under that Section. The petitioner, therefore, even if he has ceased to be citizen of INDIA on his obtaining Pakistani passport, has now acquired a right, under the law, to be considered for registration as an INDIAn citizen. It is also not disputed that such an application has been filed by the wife of the petitioner, being Annexure-H to the petition. It is true that the application ought to have been made by the petitioner himself to the prescribed authority and the authority may register the petitioner on an application being made by him to that effect. With these uncontroverted facts staring at the face, I am inclined to think that the petitioner, who, even if he has ceased to be citizen of INDIA, has now acquired, at the least, the right to be considered for registration as an INDIAn citizen, should be given a reasonable opportunity of exercising such right by making such an application and not to be proceeded against before his application is disposed of. 6. I would accordingly direct that the petitioner, if he so chooses, may make an application under section 5(1)(c) of the Citizenship Act, 1955 for registration as a citizen of INDIA to the prescribed authority within two months from this date and on his making any such application within the period as aforesaid, the authorities concerned shall not proceed to take any steps towards his deportation from INDIA until the said application is disposed of according to law and is declined. As already indicated, the impugned order dated 6th April, 1978 under section 3(2)(c) of Foreigners Act, 1946 is invalid having been made without the requisite determination by the proper authority under section 9 (2) of the Citizenship Act, 1955 and the same shall stand quashed. But this would not, as it cannot, prevent the appropriate authorities from issuing afresh order under section 3(2)(c) of the Foreigners Act, 1946, if no such application is filed by the petitioner under section 5(2)(c) of the Citizenship Act, 1955 within the period as aforesaid or, if so filed, is rejected by the concerned authority in accordance with law. Let appropriate directions issue accordingly. No costs. Let xerox copy of this Judgment be given to the Learned Advocate of the petitioner on the usual terms. Application disposed of of.;