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Kanjirakkade Koya Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 1550 of 1971
Judge
Reported inAIR1974Ker148
ActsLaccadive, Minicoy and Amindivi Islands (Restrictions on Entry and Residence) Rules, 1967 - Rule 3; Constitution of India - Articles 4, 6, 7 and 19
AppellantKanjirakkade Koya
RespondentUnion of India (Uoi) and anr.
Appellant Advocate P.K. Shamsuddin and; K.A. Abdul Salam, Advs.
Respondent Advocate C. Sankaran Nair, Adv.
DispositionPetition dismissed
Cases ReferredBamban v. I. I. Officer
Excerpt:
constitution - permit - laccadive, minicoy and amindivi islands (restrictions on entry and residence) rules, 1967 and articles 19 and 21 of constitution of india - matter relates to islands in union territory of laccadive, minicoy and amindivi islands - entry into these islands restricted - holder of permit has to report about his entry - not onerous condition to insist upon reporting before registering officer - not shown that petitioner's counsel had any difficulty in matter of reporting - no permit ever refused - counsels engaged are freely coming to islands to conduct cases on behalf of clients - no violation of article 21 - no proper foundation laid for such plea. - - rule 4 provides that the permit is to be issued, renewed or endorsed by the competent authority whether it be a..........in this case to that question only.4. it may be profitable to refer to the scheme of the rules. rule 3 prohibits the entry or residence in the islands, after the commencement of the rules, of any person who is not a native of the islands except under and in accordance with a permit issued by the competent authority. such permit is not necessary in respect of persons who had taken up permanent residence in the islands at any time before the commencement of these rules and members of the families of such persons nor is it necessary for the members of the armed forces of the indian union entering the islands on duty. persons serving in connection with the administration of the islands proceeding to the islands on official duty and members of their families were also not required.....
Judgment:
ORDER

P. Subramaniam Poti, J.

1. The petitioner, a citizen of India and a native of Androth Island which is one among the group of Islands in the Union Territory of Laccadive, Minicoy and Amindivi Islands, challenges Section 9 of the Laccadive, Minieoy and Amindivi Islands (Laws) Regulation 8 of 1965 and Rules 3 to 9 and 14 of the Laccadive, Minicoy and Amindivi Islands (Restrictions on Entry and Residence) Rules, 1967 (for convenience referred to in this judgment as Regulation and Rules respectively) and particularly seeks a mandamus directing the Administrator of such Union Territory to forbear from interfering with the right of the Advocate of the petitioner to move freely throughout the Union Territory of Laccadives. The Androth island is one among the group of islands generally called as Laccadive Islands. Agati, Kavarati and Kalpeni are the other main Islands in this group. These are coral reefs situate in the Arabian Sea away and west of the western shores of the mainland. These Islands became part of the British Empire in 1909. The Islands are accessible to the mainland by Ships regularly plying in the route. The natives of these Islands are educationally and economically backward. The area is directly under the Union Government as its territory and is one where considerable attention is bestowed in the matter of development. Entry into these Islands was restricted from very early times. Even under Regulation 1 of 1912 as amended later by Regulation 1 of 1926, the residence of non-islanders in these islands was regulated with a view to see that there was no exploitation of the Islanders by the mainlanders. The land available to the islanders was very limited and it was necessary to preserve this to them. The Madras Regulation 1 of 191'2 was later abrogated and Regulation 8 of 1965 was enacted. Section 9 of the Regulation enabled the Administrator of the Union Territory of Laccadive, Minicoy and Amindivi Islands to make rules with the previous sanction of the Central Government imposing reasonable restrictions in the interests of the general public or for the protection of the interests of any scheduled tribe on the right of any person who was not a native of the islands to visit or reside in the islands. Rules were framed in exercise of the powers so conferred and these are the Laccadive, Minicoy and Amindivi Islands (Restrictions on Entry and Residence) Rules, 1967.

2. The petitioner avers that he was the complainant in C. C. 1 of 1971 on the file of the Judicial First Class Magistrate, Androth, that the complaint was presented through an Advocate of Calicut Sri P. M. Mohammed Ali when he visited the island in March 1971 for appearing in another case, that the services of the counsel was sought by him even later in the case but counsel was unwilling to go over to the islands for the reason that in order to visit the island it was necessary that he should seek a permit and abide by the restrictions under the rules which he was not willing to subject himself to. It is for this reason that the petitioner complains that the Rules operate as an infringement on the fundamental rights of the petitioner and therefore ought to be struck down as unconstitutional.

3. At the hearing counsel Sri Shamusuddin fairly conceded that the attack can be only to the Rules and not to Section 9 of the Regulation since that section enables only the imposition of reasonable restrictions in the interests of the general public or for the protection of the interests of the scheduled tribes and these restrictions are saved under Article 19(5) of the Constitution. The complaint is really that the Rules framed pursuant to these powers are not Rules imposing reasonable restrictions either in the interests of the general public or for the protection of the interests of any scheduled tribe. That is the only question urged at the hearing before me and therefore I am confining the consideration in this case to that question only.

4. It may be profitable to refer to the scheme of the Rules. Rule 3 prohibits the entry or residence in the islands, after the commencement of the Rules, of any person who is not a native of the islands except under and in accordance with a permit issued by the competent authority. Such permit is not necessary in respect of persons who had taken up permanent residence in the islands at any time before the commencement of these rules and members of the families of such persons nor is it necessary for the members of the Armed Forces of the Indian Union entering the islands on duty. Persons serving in connection with the administration of the islands proceeding to the islands on official duty and members of their families were also not required to obtain permits. Rule 4 provides that the permit is to be issued, renewed or endorsed by the competent authority whether it be a permit for entry or for residence. The period of the residence was to be specified in the permit. 'Competent authority' within the meaning of Rule 4 has been defined in Rule 2 (b) as meaning such officer serving in connection with the administration of the islands as may be empowered by the Administrator, by order, to perform those functions under the rules. Rule 6 provides that a Permit issued on application under Rule 5 in Form I may be renewed or endorsed on an application made in Form II and submitted through the nearest Registration Officer at least 15 days in advance of the date on which the permit is due to expire, or the date with effect from which such endorsement is required. Renewal is permitted only thrice after which the permit has to be surrendered and fresh permit obtained. Rule 6 (3) is important in that it provides that where an application for the renewal or endorsement of a permit is made under Sub-rule (1) or where a permit has been surrendered under the proviso to that sub-rule, the Registration Officer shall issue to the holder thereof a temporary permit in Form IV. Therefore, in between the time of application for renewal and the actual renewal a temporary permit has necessarily to be granted under Rule 6 (3). The procedure for granting the permit is contained in Rule 7. The competent authority would call for additional information or make such inquiry as he deems necessary for disposing of such application. In case he was not granting permit he has to issue notice to the applicant to give a reasonable opportunity to represent his case. The rejection, if any, must be by an order in writing. He is also bound to record reasons in writing and such reasons should indicate that he is satisfied that it is necessary so to do in the interests of the general public or for the protection of the interests of any scheduled tribe. A copy of the order of rejection together with a brief statement of the reasons has to be forwarded to the applicant.

5. The holder of a permit shall not enter or leave an island otherwise than at such port as may be specified therein and entry shall be only to such island or islands as the permit relates to. The Registration Officer for the purpose of the Rules is to be appointed by the Administrator and the Registration Officer maintains a register of the permits. The holder of a permit shall, as soon, as possible and in any case within 24 hours after his arrival in any island report with his permit to the nearest Registration Officer who is bound to enter in the permit the date and time of arrival of the holder in the island. So is the case with departure.

6. The permit granted is liable to cancellation if the holder is convicted of an offence under the rules or has acted or, in the opinion of the competent authority, conducted himself in a manner prejudicial to the interests of the general public or of any scheduled tribe in a manner which is likely to disturb the peace and tranquillity in the islands. Against the order of cancellation an appeal lies to the Administrator and pending disposal of the appeal he may continue to reside in the islands. This, in short, is the scheme of the Rules.

7. It is evident from the scheme of the Rules that the competent authority has to be moved for the issue of a permit. No fee is prescribed for such application. According to the counter-affidavit, though these rules have been in force for a number of years now, there was not even a single instance where the application for permit had been refused. This is pointed out to show that no power of arbitrary refusal is reserved in the competent authority but that only considerations concerning the interests of the general public and the interests of the scheduled tribe would weigh with the authority when an application for permit is disposed of. In fact the petitioner's case is also not that when his counsel sought a permit to go over to the islands such Permit was not obtained or that it would not be so obtained in the future. The complaint is that the procedure relating to the application for permits, reporting before the Registering Officer when arriving in the islands and before leaving the islands, the obligation to seek renewal 15 days ahead are all onerous conditions which amount to unreasonable restrictions on the fundamental rights of the petitioner.

8. The petitioner has produced Exhibit P-l, a permit issued to his counsel whom he had engaged for his case. It is said that before the counsel applied for the permit and obtained the same he wrote a letter to the Secretary to the Administrator and therein he stated that as a citizen of India he had la right under Article 19(1)(d) of the Constitution of India to move freely throughout the territory of India. A copy of the letter is Exhibit P-2 He was then told that he has to apply for a permit as laid down in the Rules. That reply is Exhibit P-3. A letter from the counsel to the petitioner, Exhibit P-4, is produced by the petitioner to show that his counsel was not willing to go over to the island as he felt that the restrictions in the legal practitioner are highly objectionable, unreasonable and in effect mainly intended to deny legal assistance to the islanders. This has been met in the counter-affidavit filed on be-half of the respondents, the Union of India as well as the Administrator. The Administrator who is the deponent of the counter-affidavit avers that the evidence available shows that several advocates went over to the islands to conduct their cases, and the attempt by Exhibits P-2 to P-4 was only to build up a case indicating an invasion of the petitioner's fundamental rights. It is said that Exhibit P-4 letter is no more than a device intended to make out a case of infringement.

9. At the hearing the main contention was that the petitioner's fundamental right to move about freely within the territory of India has been infringed. In paragraph 11 of the petition the petitioner seeks to strike down these Rules on the ground that they violate Article 19(1)(d) of the Constitution which guarantees to every citizen the right to move freely throughout the territory of India. Restrictions imposed By the Rules are said to be unreasonable restrictions on the free movement of a citizen and made neither in the interests of the security of the State nor public order or morality. They are said to be not restrictions justifiable with reference to Clauses 2 to 6 of Article 19 of the Constitution of India.

10. The petitioner is not one who is governed by the restrictions he being a resident of the island. No permit is required to be possessed by him either for entry or for any residence. Therefore it cannot be said that the petitioner's right of movement has in any way been infringed and therefore it appears to me that the plea of infringement of Article 19(1)(d) of the Constitution of India will not be available to the petitioner.

11. Even assuming that investigation into the question of infringement of Article 19(1)(d) of the Constitution is relevant in this case, on an assessment of the nature and scheme of the Rules and its context and setting, I do not think that these rules lay down any unreasonable restrictions. The purpose of these Rules is said to be to protect the islanders from exploitation by the mainlanders and also to lay down restrictions in the interests of the security of the State.

12. It is not disputed that the islanders are scheduled tribes. Article 19, Clause (5) envisages reasonable restrictions in the interests of Scheduled Tribes being made and also reasonable restrictions being imposed in public interest. The islands, it is said, are economically and socially very backward and it was after careful study of the situation and on the basis of the facts available that it was felt that special protection had to be extended to the islanders. Laccadive, Minicov and Amindivi Islands (Protection of Scheduled Tribes) Regulation, 1964 was therefore enacted in exercise of the powers conferred by Article 240 of the Constitution of India. The Islanders have been declared as Scheduled Tribes in the Constitution (Scheduled Tribes) (Union Territories) Order 1951. This Regulation, inter alia, prohibited persons other than a member of the Scheduled Tribe from acquiring any interest in land in the islands. If restrictions be necessary on the exercise of the rights of citizens to go over to settle in particular areas or acquire property in such areas, for the benefit of the backward people of those areas such restrictions may be justified. The limitations on the availability of land in the islands will justify the restriction settling therein concerning mainlanders. The agricultural economy being poor and the marketing facilities being scanty, unless properly regulated there is real danger of economic exploitation from traders and unscrupulous speculators. Reference is made by the Administrator to the report of a Special Officer appointed by the Government of Madras in 1952. Sri S. Y. Krishnaswami who was the Special Officer noticed the economic and social condition of the islanders and reported about the low standard of life, the saturation point reached by the population and recommended that migration to the islands was not desirable. It was also pointed out that the incursion of destitute mainlanders had given rise to serious problems of unemployment in the islands like Agathi. Kadamat and Androth. He recommended that the existing orders by which the mainlanders had to obtain permit to travel to the islands, being salutary should be continued. There has been increase in the population of these islands even thereafter as seen from the 1971 Census report. It is said to be the third in density of population among the Union Territories in India. All these factors seem to justify the State's policy in imposing restrictions so as to regulate the entry and residence of people in these islands. The objective of these restrictions is not to prevent the entry of persons like the petitioner's counsel or the routine visitors to the islands, but to check the unrestricted entry or residence of those, whose entry or residence without any regulation may be (prejudicial to the islanders. It appears that restrictions to the extent it is warranted by this objective cannot be said to be unreasonable unless it be that the manner of imposing and enforcing such restrictions is unnecessarily onerous. It can-not also be said that there is no substance in the plea that these islands being scattered in the Arabian Sea far out from the coast line of India, are of great strategic importance and therefore the entry or residence of people in these islands must be subject to regulation in the interests of the general public. Whether such sensitive areas should receive a special treatment is a matter in the realms of Policy and it is not for this Court to adjudge the wisdom or propriety of such policy.

13. It is the provision in Rule 6 that a renewal is to be applied for 15 days prior to the date from which the permit is to be renewed which has come up for criticism by learned counsel. According to him this is a condition impossible of compliance. Counsel also contends that the reporting before the Registration Officer within 24 hours after arrival and the reporting before departure are very onerous conditions. I do not think this is so. It is not sufficient if a permit is issued and the person who obtains the permit has no further obligation to act in terms of the permit. It is natural that the holder of a permit has to report about his entry. I do not think that it is in any way an onerous condition to insist upon reporting before a Registering Officer. It has not been shown that even in the case of the petitioner's counsel he had any difficulty in the matter of reporting or that there were circumstances justifying the Court to hold that the condition is so unreasonable because of the way it was enforced. As to the contention that renewal has to be applied for 15 days before the day from which the permit is to be renewed Rule 6 (3) is the answer. Where an application for the renewal or endorsement of a permit is made under Sub-rule (1) or where a permit has been surrendered under the proviso to that sub-rule, the Registration Officer shall issue to the holder thereof a temporary permit, and that would be sufficient protection.

14. The result is that I do not think that there is anything in the rules which would constitute an infringement of Article 19(1)(d) of the Constitution of India.

15. Though in the Original Petition it is urged that Article 21 of the Constitution guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law and the requirement of a permit for entry of mainlanders including the counsel who may be engaged, violates Article 21 of the Constitution, it has not been attempted to be argued in that manner. Moreover, in the face of the facts stated in the counter-affidavit indicating that no permit has ever been refused and that counsel who are engaged are freely coming to the islands to conduct the cases on behalf of the clients, it is too far-fetched to say that there is any violation of Article 21 of the Constitution. In fact no proper foundation has been laid for such a plea.

16. Before concluding I may notice a decision of the Madras High Court reported in Bamban v. I. I. Officer, AIR 1957 Mad 433. Section 33 of the Regulation 1 of 1912 which was then in force enabled an order to be passed under Section 33 of the Act requiring persons to leave the islands and prohibiting them from visiting or taking UP residence in the islands of which they were not natives. Certain persons who were residing in the islands were directed to leave the islands by an order passed under Section 33 of the Act. That was challenged before the Madras High Court and consequently the provision enabling the exercise of that power was also challenged. The learned Judges after referring to the conditions of the islanders in these islands, said--

'From this two matters are clear, viz. (1) that the density of the population in the islands has reached almost the saturation point and (2) that the inhabitants are so backward that it is necessary to impose considerable restriction upon the character of the mainlanders proceeding to or staying in the islands. In these circumstances we consider that even the imposition of a complete prohibition of mainlanders visiting the islands or remaining there would not be beyond the competence of the law. As we have reached this conclusion on the peculiar facts and the situation we do not consider it necessary to set out or discuss the decisions relied on by the learned counsel for the petitioners, which deal with the movement of Citizens of India within the territories of the Union governed by ordinary laws and the restrictions which could reasonably be placed upon such movement.'

17. The question whether the restrictions are reasonable within the meaning of that term in Article 19, Clause (5) of the Constitution has to be decided in the circumstances of the case and having considered those circumstances I do not think that it is necessary, as the Madras High Court said, to refer to the decisions on this point.

In the result, the Original Petition is dismissed. Parties are directed to suffer costs.


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