Shelat, J.
1. This is a petition for a writ of prohibitionrestraining the respondents from deporting orexterning the petitioner from out of the territoryof India, the petitioner's case being that he is acitizen of India.
2. The petitioner entered India on November 17, 1954. on a Pakistani passport dated the 2nd of November 1954 bearing No. 239028. After coming to India he was employed by his cousin, one Yusuf Ismail Lala, a forest contractor carrying on business in Godhra, first as a cleaner and thereafter as a driver of a motor-truck. The petitioner obtained a licence from the R.T.O.. Baroda, for . the purpose of enabling him to drive the motortruck, and got himself married to one Kulsum, the daughter of Moosa Gafur of village Vejalpur in district Panchmahals. Thereafter he was prosecuted in criminal case No. 743 of 1958 in the Court of the Judicial Magistrate, First Class, Godhra, on a charge under See. 14 of the Foreigners Act, 1946, read with paragraph 7 of the Foreigners Order, 1948. The petitioner was acquitted in that case by the learned Magistrate who held that the petitioner was not a foreigner within the meaning of Section 2 of the Foreigners Act and therefore could not be said to have committed breach of paragraph 7 of the Foreigners' Order. The State of Gujarat appears to have been satisfied with that order and accepted that order as it did not file any appeal challenging the correctness of that order. But, by a order dated December 12, 1960, which was served upon the petitioner on February 22, 1961, the petitioner was required to go out of India within 7 days from the service of that order. The order alleged that the petitioner was a foreigner and therelore was not entitled to stay in India. The petitioner was arrested by the Godhra Police On February 28, 1961, at 5 p.m., and was removed in a (rain which left Godhra at 7-40 p.m. and was thrown out of this country. He reached Karachi on March 3, 1961. The petitioner then applied for a passport to come to India only within a fortnight after he reached Karachi. He managed to obtain a Pakistani passport on March 21, 1961, on the strength of which he re-entered India on April 5, 1961, and has since then been staying in Godhra with the aforesaid Yusuf. The petitioner prays for a writ o prohibition on the ground that he apprehands that on the expiry of the visa granted to him, he would again he expelled from this country by the respondents though he is not a foreigner and is a citizen of this country.
3. According to the petitioner, he was born at Godhra on March 1, 1938, of parents who also were born in India. He continued his studies in India and was brought up. from his childhood by the aforesaid Yusuf. It is his case that he was lured away to Pakistan in 1953 by one Rasul Ibrahim. If that were to be true, it would mean that he left this country and went to Pakistan when he was about 15 years of age. According to him he did not go to Pakistan either with the desire or intention of migrating to that country or to renounce his citizenship of India and/or acquire the citizenship of Pakistan. His case is that, as he could not come back to India, he applied as a last resort for a Pakistani passport as a mere device to return to India and obtained a Pakistani passport dated November 2, 1954, and also a visa. On the strength of these documents he entered India via Bombay on November 17, 1954, and was residing in India when, as aforesaid, he was arrested and deported from India. In the meantime he was, as we have already narrated, prosecuted under the Foreigners Act, 1948, but was acquitted on the ground that he was not a foreigner end therefore paragraph 7 of the Foreigners Order, 1948, did not apply to him.
4. The first question that arises for determination is whether the petitioner is a foreigner and not a citizen of this country and was liable to be deported from this country in consequence of the order dated December 12, 1960, or otherwise.
5. In the affidavit in reply made by the D.S.P., Panchmahals, it has been stated that it is not correct that the petitioner was born on March 1, 1938, at Godhra. It is also not admitted that he was brought up from his childhood by Yusuf Ibrahim Lala. The petitioner has however, with his affidavit in 'rejoinder, annexed a copy of the school leaving certificate from which it would appear that his statement that he was born at Godhra on March 1, 1938, is correct. The certificate also indicates that he was educated in the Urdu Basic Kumar Shala, Godhra, and left that school oh December 30, 1949. When this certificate was pointed out to the learned Government Pleader, he was fair enough to concede that he would not dispute the petitioner's averments that he was born in Godhra on March 1, 1938, and was also educated there. In view of that statement it is quite clear that the petitioner was, by virtue of article 5 of the Constitution, a citizen of India at the time of the commencement of the Constitution.
6. It was, however, urged by the learned Government Pleader that there was a dispute between the parties as to when exactly the petitioner went to Pakistan. The learned Government Pleader stated that the petitioner had, in fact, left India in 1948 and therefore Article 7 of the Constitution would apply in this case. Consequently, the petitioner can be said to have migrated from the territory of India to Pakistan and therefore cannot be deemed to be a citizen of India. The learned Government Pleader relied upon para 3 of the affidavit in reply, made by the D.S.P., Panchmahals, for his ease that the petitioner did not leave India in 1953 but that he went to Pakistan in 1948. The contention of the learned Government pleader however does not appear to be correct. In para 3 of the affidavit in reply, the only thing that is stated is that it was not admitted that the petitioner' was lured away to Pakistan by Rasul Ibrahim in the year 1953-That statement obviously is ambiguous, for it is difficult to comprehend whether what is not admitted is the fact of the petitioner having been lured to Pakistan by Rasul Ibrahim or whether the petitioner left India in the year 1953. If the respondents wanted to deny the petitioner's case that he left for Pakistan in the year 1953 and if the case of the respondents was that he had, in fact, left India, in 1948, there was nothing to prevent the D.S.P., Panchmahals, to make a definite assertion that the petitioner left India in 1948 and not in 1953. That not having been done, it is not possible to treat the averment in para 3 of the affidavit in reply as an averment raising the dispute with regard to the year when the petitioner left for Pakistan. The school leaving certificate produced by the petitioner shows that he left the school at Godhra sometime in December 1949. The certificate is a clear indication that the petitioner could not have left India in 1948 as the learned Government Pleader contended. Assuming, however, that the petitioner left India in 1948, that would mean that he left India at the time when he was only 10 years old. It is obvious that in that circumstance he cannot be said to have voluntarily migrated to Pakistan so as to make Article 7 applicable to Ms case. It is hardly possible to say that a boy of only 10 years of age migrated, on his own volition, to Pakistan with all the implications attributable to an act of migration. In the absence of a clear denial cf the statement made by the petitioner that he left India in 1953, it cannot be said that the Respondent's affidavit raises a dispute regarding the fact that he left India in 1953. If it is accepted that he left India sometime in 1953 and went to Pakistan, It would mean that he remained in Pakistan for a period less than one year as he obtained A Pakistani passport to re-enter India on November 2, 1954.
7. It was urged by the learned Government Pleader that his declaration in the application for the Pakistani passport as also his declaration while obtaining visa 'C' from the office of the High Commissioner of India in Pakistan would constitute prima facie evidence of his having renounced his citizenship of India and his having acquired the citizenship of Pakistan. It is true that in a case where it is alleged by the State Government that I a person is liable to be deported from out of this country on the ground that he is a foreigner, the onus of proof is upon that person to prove that he is not a foreigner under, Section 9 of the Foreigners Act, 1946. It is also true that where a person enters India on the strength of a Pakistani passport it is prima facie proof that he is a foreigner and it is for him to establish that he is not a foreigner and to rebut the prima facie case against him that he is a foreigner. The petitioner, however, was hardly 16 years of age when he applied for the passport in Pakistan. It is doubtful whether a declaration made by a minor in such an application can be said to be of such a binding nature as to deprive him of his rights as a national of India. In fact it is doubtful whether the petitioner at that age could have himself made an application for the passport and approached the authorities for a passport. It is probable that he made such an application and a declaration therein at the instance of someone else. His very conduct in making an application for passport soon after he went to Pakistan would itself be evidence of rebuttal against the presumption that he had gone to Pakistan with the desire or intention to abandon his citizenship of India. If that were so, it is hardly likely that he would take the step of applying for a passport in so short a time and return to India. The evidence, of rebuttal is further furnished by the judgment in criminal case No. 743 of 1958, wherein the learned trial Magistrate held that the petitioner was not a foreigner and consequently he could not be convicted under Section 14 of the Foreigners Act. AS we have said, the State Government was content with that judgment and it did not file any appeal challenging that finding and the order of acquittal passed thereupon. In our view, therefore, there is enough evidence in the nature of rebuttal to establish that the petitioner did not go to Pakistan either for settling there permanently or with the intention of acquiring the citizenship of that country. That must mean that the petitioner was a citizen, of this country under Article 5 of the Constitution at the commencement of the Constitution and under Article 10 of the Constitution he continued to be a citizen of this country.
8. It was, however, urged by the learned Government Pleader that the position regarding the petitioner changed by reason of the enactment of the Foreigners Laws (Amendment) Act, 1957, (Act No. 11 of 1957), which came into force from January 19, 1957. By Section 2 of that Act, the first two clauses of the original Section 2(a) were deleted and the definition of a foreigner, as from that date, was that a foreigner meant a person who was not a citizen of India. It was argued that the petitioner, by reason of this amendment, became a foreigner as from the date when the Amendment! Act came into force, i.e. January 19, 1957, and against such a foreigner the order in question can be made. It was, however, contended by the learned Government pleader that there is nothing in the Amendment Act to indicate that it is of a retrospective character'. The only contention urged by the learned Government Pleader was that the petitioner ccased to be a citizen of India because of the declaration made by him in his application for the Pakistani passport that he was a national of Pakistan. In plain words, that contention would mean that such a declaration was final and conclusive, establishing renunciation on his part of the citizenship of India. But, it is the case of the learned Government Pleader that though the petitioner was a citizen of this country on the date when the Constitution came into force he subsequently renounced the Indian citizenship and acquired the citizenship of Pakistan, it would be the Central Government, as a Tribunal under Section 9(2) of the Citizenship Act of 1955, which would have the exclusive jurisdiction to determine that question. There is no data before us that the Central Government as such a special Tribunal, has given its decision regarding the petitioner. When the petitioner entered India in November, 1954, he was not a foreigner as held by the learned Magistrate in criminal case No. 743 of 1958. It was conceded by the learned Government Pleader that nothing has happened between November 1934 to January 19, 1957, which would take away from the petitioner his status as a citizen of this country. He was, therefore, held a citizen of this country. There is nothing in the Amendment Act also which would have the effect of rendering a person who is not a foreigner a foreigner. We are not, therefore, in a position to find any justification in this contention of the learned Government Pleader.
9. It was lastly urged that after the petitioner was deported from this country he went to Pakistan and there obtained a fresh Pakistani passport, on the strength of which he again entered India. The petitioner obtained also a visa under which he was entitled to stay in India for a period of three months. It was urged by the Government Pleader that the fact that the petitioner made a declaration in his application to obtain this passport would again be evidence of his renunciation of the citizenship of this country. It is not possible to find substance in this contention. The petitioner went to Pakistan not on his volition but because he was forcibly expelled from this country. He cannot, therefore, be said to have left this country voluntarily. It is true that he made a declaration in his application for a fresh passport that he was a national of Pakistan, but his case is that he did so as a device to obtain a passport on the strength of which he could return to India. That case must he accepted as there is enough data to show that he did not renounce the citizenship of this country. His application for a fresh passport was within 15 days after he entered Pakistan. That fact by itself negatives the contention as to the abandonment by him of his citizenship of this country. Even if his declaration were to be treated as prima facie evidence of, his acquiring Pakistani citizenship, such a declaration at the most would mean an admission on his part and, like all admissions, it is rebuttable evidence. The fact that he made an application soon after he reached Pakistan for new passport with which he could return back to this country is enough evidence to rebut any presumption against him.
10. In our view, in the absence of any order by the Central Government declaring the petitioner a foreigner, the order dated December 12, 1960, passed by the State Government was premature. That being so, he was not lawfully deported from this country. Considering all the facts and circumstances of this case, we must come to the conclusion that there is force in his apprehension that he might be again expelled from this country as soon as his visa period is over. He would, therefore in our view, be entitled to a writ of prohibition restraining the respondents from deporting him in pursuance of or in enforcement of the order dated 12th December 1960.'
The petition accordingly, is made absolute with costs.