- (1.) THIS is a writ petition under Art. 226 of the Constitution whereby the petitioners Niyaz Mohammed, his wife Fatma and his sons residents of Nimbahera seek to challenge an order of deportation passed against them by the Superintendent of Police Chittor directing them to leave India.
(2.) IT is asserted by the petitioners that all of them were born in India and had their domicile in the the territory of India on 26. 1. 50, when the Constitution of India came into force. IT is, therefore, claimed that they were Indian citizens by virtue of Art. 5 of the Constitution of India. According to the petitioners they had visited Pakistan temporarily sometime in the year 1953 for the first time to find work there as labourers and it was never their intention to settle there permanently or to acquire the citizenship of Pakistani The petition proceeds to say that the petitioners returned to India on 10. 2. 56 on a pass-port and a visa valid for three months and thereafter, they continued to stay in India. On or about 1. 4. 59, they were prosecuted for an offence under sec. 14 of the Foreigners Act, 1946 and were acquitted by the S. D. M. Nimbahera and the learned Magistrate held that the petitioners could not be treated as foreigners in terms of the Foreigners Act, 1946, as it stood prior to its amendment by the Foreigners Laws (Amendment) Act, 1957. Their grievance is that the Supdt. of Police has unjustly ordered them to leave India. The writ petition is opposed on behalf of the respondents and the assertion of the petitioners that they visited Pakistan for the first time in the year 1953 is strongly controverted and it is urged that the petitioners had left India for Pakistan after the partition sometime in the year 1948 and had acquired the nationality of that country after they had gone there. Thereafter, according to the respondents they continued to live in Karachi upto January, 1956. They visited India sometime in March, 1955 on a Pakistani pass-port wherein they were described as Pakistani citizens. After the expiry of the period of their stay in India according to the pass-port they reported to the police authorities that they were leaving for Pakistan on 25. 4. 56, but it appears that subsequent to that they continued to stay in India clandestinely. When this came to the notice of the police authorities, the petitioners were prosecuted for an offence under sec. 14 of the Foreigners Act for their having over-stayed in India. It is further urged that in the criminal case the petitioners No. 1 to 3 had stated that they were returning to Pakistan on the expiry of the period of their permit, but on the way as misfortune would have it, their trunk containing the pass-port and visa was stolen away and this necessitated their return to Nimbahera. It is thus pointed out that as the petitioners were not Indian citizens they are not entitled to maintain the present writ petition. The most vital question that arises for consideration in the case is whether the petitioners were Indian citizens on 26. 11. 50 when the Constitution came into force. If they were Indian citizens on that date then the question whether their subsequent going away to Pakistan would result in the acquisition of the citizenship of Pakistan and in consequence the relinquishment of the citizenship of India is one that will have to be got determined from the Central Govt. as provided in sec. 9 (2) of the Indian Citizenship Act of 1955, If, on the contrary, they were not Indian citizen on 26. 1. 50, when the Constitution of India came into force, then the question whether they were not Indian citizens could be determined by the Civil Courts. As in the present case there is a dispute whether the petitioners were or were not Indian citizens on 26. 1. 50, we feel that it is a matter which cannot properly be determined in exercise of our extraordinary jurisdiction under Art. 226 of the Constitution. For the determination of such a question of fact evidence will have to be adduced and a finding arrived at on the consideration of the same. Reliance has been placed by the petitioners on the judgment of the S. D. M. Nimbahera dated 30. 11. 59 by which the petitioners were acquitted for an offence under sec. 14 of the Foreigners Act. We have, however, examined that judgment and are unable to hold that it affords any help to the petitioners. The question that came up for decision in that case was whether the overstay of the accused who had entered India before the Foreigners Act, 1946 was amended by the Foreigners Laws (Amendment) Act, 1957, would amount to an offence under the Foreigners Act, 1946. This Court's position has been authoritatively settled by the Supreme in Fateh Mohammed Vs. The Delhi Administration (1 ). It has been observed therein that even though a person may not be a foreigner at the time he entered India, the subsequent amendment in the law which impressed him with the character of a foreigner would be sufficient to make the the subsequent stay in India contrary to the provisions of Foreigners Act an offence under that Act. In that case also Fateh Mohammed entered India in 1956 on a Pakistan pass-port which enabled him to stay in India till 8. 8. 56, In November 1959, he was served with an order restricting his stay but Fateh Mohammed did not comply with the said restrictions and consequently he was prosecuted on the allegation that he was foreigner subject to certain restrictions which having been not complied with by him he rendered himself liable to an offence under the Foreigners Act. Amendment of the definition of the term 'foreigner' made by the Foreigners Laws (Amendment) Act, 1957 was applied to him and it was held that he would be liable for the offence even though he was not a foreigner when he entered India in 1956. We may further observe that the judgment of the learned S. D. M. Nimbahera does not deal with the question whether the petitioners were, or were not citizens of India on 26. 1. 50 when the Constitution came into force. We do feel, as observed by us above, that in a case where the facts are disputed the matter cannot property be investigated in exercise of our extraordinary jurisdiction. It will be open to the petitioners to seek a declaration from a competent civil court whether they were citizens of India on 26. 1. 50. If, it is found that they were citizens of India when the Constitution came into force, but are alleged to have lost the citizenship on account of their acquisition of the citizenship of another country then that question will be determinable under sec. 9 (2) of the Citizenship Act by the Central Government. We are fortified in the view we have taken by several decisions of the Supreme Court which we may now briefly refer. In the Union of India vs. Ghaus Mohammad (2), their Lordships of the Supreme Court observed : - "where an order asking the respondent to leave India is made under sec. 3 (2) (c) of the Foreigners Act, and that order is challenged, the question is whether the respondent is a foreigner or an Indian citizen. Sec. 9 of the Act applies to the case and the onus of showing that he is not a foreigner is upon the person and not on the Union of India, whether sec. 8 of the Act or sec. 9 of the Citizenship Act, 1955 has any application to the case. The question whether the respondent is a foreigner is a question of fact and where there is a great deal of dispute on the question which would require a detailed examination of evidence a proceeding under Art. 226 of the Constitution would not be appropriate for a decision of the question. The question is best decided by a suit. '' The position was reiterated in Akbar Khan Alam Khan vs. Union of India (3), and it was observed : - "sub-sec. (2) of sec. 9 bars the jurisdiction of the Civil Court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by any one else. The only question, however, which a civil court is prevented by sec. 9 from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The civil courts are not prevented by this provision from determining other questions concerning nationality of a person. Where a person's claim to the citizenship of India was resisted on the ground that having migrated to Pakistan in 1946 he never acquired Indian Citizenship this might follow from Art. 7 of the Constitution. The jurisdiction of a civil court to decide that question is not in any way affected by sec. 9 (2) of the Citizenship Act. Therefore, in such a case the entire suit should not be dismissed. The Court below should decide the question whether the person had ever been Indian Citizen. If that question is answered in the affirmative, then no further question would arise and the suit would have to be dismissed. If it was found that the person had been on January 26, 1950, Indian citizen, then only the question whether he had renounced that citizenship and acquired a foreign citizenship would arise. That question the Court cannot decide. The proper thing for the court would then be to stay the suit till the Central Government decided the question whether the person had renounced his Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify. It cannot be said that it is only when a right is created by a statute and a tribunal is set up for the determination of that right by that statute that the jurisdiction of a civil court as to a question concerning that right is taken away. A competent legislature may take away a civil court's jurisdiction to try other questions also. " In Government of Andhra Pradesh vs. Syed Mohd. Khan (4), it was indicated as to for what purposes the decision of the Central Government will be necessary and it was observed : - "the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. The decision of the Central Government about the status of the person on the basis of which any further action can be taken against him. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under Rule 3 in Sch. III of the Citizenship Rules, the conclusion may follow that he has acquired the citizenship of the foreign country; but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question. The view that as a result of sec. 9 read with Rule 3 in Sch. III of the Citizenship Rules, as soon as it is shown that a person has acquired a passport from the Pakistan Government, there is an automatic statutory cesser of his citizenship of India is not correct. There is no such automatic cesser of citizenship by virtue of sec. 9. There is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and have lost in consequence the citizenship of this country, it is essential that that question should be first considered by the Central Government. In dealing with the question, the Central Government is entitled to give effect to Rule 3 in Sch. III and deal with the matter in accordance with the other relevant Rules framed under the Act. Hence an order of deportation passed by a State Government against a Pakistani found in the State cannot be sustained where there is no enquiry by the Central Govt. about his status. The case reported in State of Madhya Pradesh vs. Peer Mohd. (5) is to also the same effect. In the circumstances, we are unable to hold that despite the dispute on questions of facts the present writ petition is maintainable. In the result, we hereby dismiss the writ petition, In the circumstances of the case, we leave the parties to bear their own costs. . ;