SYED ABRARUL HASSAN HABIB HIDAYATULLAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE three Writ Petitions are filed by the three respective petitioners under Art. 32 of the Constitution for the enforcement of their fundamental right under Article 19 (I ) (e). They were heard separately but it would be convenient to deal with them by one common judgment because they raise for our decision the same constitutional questions. In all the petitions, the constitutional validity of section 9 (2) of the Citizenship Act, 1955 (Act LVII of 1955) (hereinafter called the Act) and of rule 3 in Schedule III of the Citizenship Rules, 1956, is challenged. It would also be convenient to set out briefly at the outset the material facts on which the three petitions are based.

(2.) IZHAR Ahmad Khan, the petitioner in Writ Petition No. 101 of 1959, claims to be a citizen of India and was a resident of Bhopal. He was enrolled as a voter in the Parliamentary as well as State Legislative Assembly Electoral Roll. On the 20/08/1952, he was taken into custody by the police from the restaurant which he used to run at Bhopal and was told that he had been arrested under an order from the then Bhopal Government under S. 7 of the Influx from Pakistan (Central) Act. He was then removed by train the very next day and left at the Pakistan border and was asked to go to Pakistan despite his protests. Thereafter, his elder brother, Iqbal Ahmad moved the Court of the Judicial Commissioner, Bhopal, under Art. 226 of the Constitution for the issue of a writ in the nature of Habeas Corpus. In February, 1953, the learned Judicial Commissioner pronounced his judgment in the said writ petition. He found in favour of the petitioner that he was born in India and was a citizen of India. Even on the question of migration, the Judicial Commissioner made a finding in his favour. He, however, observed that the petitioner was in Pakistan in May and June, 1952, and he came to the conclusion that since he had contravened the provisions of S. 3 of the Influx from Pakistan (Central) Act, he was liable to be removed physically from India under S. 7 of the said Act.

(3.) SYED Abrarul Hassan, the petitioner in Petition No. 136 of 1959, claims to be a citizen of lndia and was a resident of Bhopal. In 1951, his family received the news from Pakistan that his elder brother SYED Hassan was seriously ill. That is why the petitioner with his mother and younger sisters and one younger brother went to Pakistan. Thereafter, the petitioner stayed there for some years. Then they tried to come back to India and with that object applied for a Pakistan passport to travel to India and after the passport was thus obtained, he returned to India in May, 1954. After he came to India, he applied to the Government of India for permission to settle down in India permanently and pending the said application, he was granted long term visas. In 1959, however, the District Superintendent of Police, Bhopal, served an order on him directing him to leave India by the 22/08/1959. This order was issued under S. 3 (2) (c) of the Foreginers Act. Like petition No. 101 of 1959, this petition also was originally filed to challenge the validity of the said order and to impugn the validity of the relevant provisions of the Foreigners Act on the ground that the petitioner was not a foreigner and that the relevant provisions could not be invoked against him.