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Nisar Ahmed Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberMisc. Petn. No. 6 of 1950
Judge
Reported inAIR1958Raj65; 1958CriLJ418
ActsConstitution of India - Articles 5, 6, 7, 19, 19(1) and 19(5); Influx from Pakistan (Control) Act, 1949 - Sections 1; Influx from Pakistan (Control) Ordinance, 1948 - Sections 1; Permit System Rules, 1948 - Rule 16; Permit System (Amendment) Rules, 1950 - Rule 10
AppellantNisar Ahmed
RespondentUnion of India (Uoi) and ors.
Appellant Advocate Shio Prashad Sinnah, Adv. assisted by; Nuruddin Ahmed,;
Respondent Advocate Mangha Ram, Govt. Adv.
DispositionPetition dismissed
Cases Referred(D) and Mohammad Zahural Huque v. State
Excerpt:
- - ' 6. it was argued by the learned counsel for the petitioner that he was born in india, his parents had been born in india, he had been living in india since his birth, had his ancestral home in india and was domiciled in india prior to the partition of india and, therefore, all the conditions of article 5 had been satisfied. they were successful and the dominion of pakistan, the home-land for muslims came into existence with effect from 15th august, 1947. many of the leaders of the muslim league movement migrated to pakistan from india with the deliberate intention of leaving india for good and settling in that country. some of the muslim league leaders were more cautious and moved to pakistan to arrange room for themselves and also to so arrange that they would remain possessed.....bapna, j.1. this is a petition under article 226 of the constitution of india, presented on 12-5-1950. the petitioner nisar ahmad claims that he is a citizen of india inasmuch as he and his family were permanent residents of jodhpur and had certain immovable property consisting of houses and lands in marwar. he alleges that he went to karachi in pakistan on 17-7-1948, to procure 500 cases of scotch whisky for the use of his highness the maharaja of jodhpur, on the occasion of marriage of his sister, but before he could return, the governor-general of india promulgated an ordinance on 19-7-1948 to control the admission into india of persons from west pakistan, (ordinance no. xvii of 1948).under the said ordinance, persons entering into india from west pakistan had to obtain a permit, and.....
Judgment:

Bapna, J.

1. This is a petition under Article 226 of the Constitution of India, presented on 12-5-1950. The petitioner Nisar Ahmad claims that he is a citizen of India inasmuch as he and his family were permanent residents of Jodhpur and had certain immovable property consisting of houses and lands in Marwar. He alleges that he went to Karachi in Pakistan on 17-7-1948, to procure 500 cases of Scotch Whisky for the use of His Highness the Maharaja of Jodhpur, on the occasion of marriage of his sister, but before he could return, the Governor-General of India promulgated an Ordinance on 19-7-1948 to control the admission into India of persons from West Pakistan, (Ordinance No. XVII of 1948).

Under the said Ordinance, persons entering into India from West Pakistan had to obtain a permit, and while it is alleged, the petitioner wanted to return for permanent residence in India, he was only given permit for temporary residence for three months by the High Commissioner for India in Pakistan. It is alleged that after return to Jodhpur, on 30-7-1948, he made several attempts to obtain a permit for permanent stay in India from the High Commissioner for India in Pakistan, but none was issued to him. His temporary permit was extended on several occasions but the last extension was to expire on 19-5-1950. It was alleged that the Superintendent of Police, Jodhpur by a letter dated 2-2-1950 had warned him to leave India on pain of prosecution under the Influx from West Pakistan (Control) Act, 1949.

In a supplementary affidavit it was alleged that he was arrested at Delhi on 24-5-1950 under the Influx from Pakistan Act, XXIII of 1949, by the Jodhpur Police and his removal from India was in contemplation by the Jodhpur Police. The petitioner urged that as a citizen of India, he had, under Art. 19 of the Constitution, the right to reside and settle in any part of the territory of India and that the action of the police was an inroad upon the fundamental right of the petitioner. It was prayed that the Government be restrained from compelling the petitioner to leave India and his right to reside in the territory of Rajasthan may be upheld.

2. The Collector of Jodhpur, in a reply on behalf of the Government of Rajasthan, intimated on 14-7-1950 that the warrant for arrest of Nisar Ahmad was issued in pursuance of the Order of the Government of India that he should be deported, but it was served at Delhi as the-said Nisar Ahmad had absconded from Jodhpur. On motion by the petitioner, the Union off India was made a party, and the same reliefs were claimed against the Union. The Government Advocate, who appeared both for the Government of Rajasthan and the Government of India, did not admit the petitioner to be a resident of former Jodhpur State and denied that he was ' citizen of India. It was alleged that the petitioner was a resident of some place in District Muzaffar Nagar in U. P., but had migrated to Pakistan after the Partition, and that after 15-8-1947, the petitioner paid numerous visits to Pakistan before his last visit on 17-7-1948.

It was alleged that the petitioner was granted temporary permit by the High Commissioner in India in accordance with the application. The history and antecedents of the petitioner supported by certain affidavits were submitted, and it was stated that the petitioner was a staunch supporter of the Muslim League and was its President for a number of years- He was stated to be-wedded completely to the ideology of the Muslim League and had his ties and loyalty with. Pakistan. His numerous visits to Pakistan were stated to be in connection with his anti-Indian activities and he was alleged to be in league with Pakistan Officials and was acting as their spy. His anti-Indian activities for the period before and after partition were mentioned by extracts from some confidential reports of the Inspector General of Police, Jodhpur.

3. The allegation that he was hand in glove with Pakistan and was acting as a spy of the Dominion were seriously denied by the petitioner. On the other hand, it was alleged that his trips to Pakistan were, on more than one occasion, at the request of His Highness the Maharaja of Jodhpur to carry out certain innocent objects and the petitioner carried out only the wishes of the Maharaja as his humble and loyal subject. A visit with his family and children to Pakistan was explained on the ground that one of his children was ill and he went there to obtain the advice of a certain Doctor in Pakistan.

4. The fact that the petitioner owned house-property in Jodhpur and was given a grant of some landed property under certain conditions by the Maharaja of Jodhpur was not disputed' by the opposite party. It was also not disputed, that the petitioner had been living in Jodhpur for about 20 years during which period he was a nominated member of the Municipal Board of Jodhpur. It was, however, suggested that the ancestral home of the petitioner was somewhere in District Muzzafar Nagar in U. P.

5. The points for determination in this case are:--Whether the petitioner was a citizen of India at the commencement of the Constitution

If so, was there any inroad on his right as a citizen to reside and settle in any part of the territory of India? In this connection, it would be proper to examine Articles 5, 6 and 7 of the Constitution. Article 5, which defines the citizenship of India, lays down that

'every person, who, at the commencement of this Constitution, has his domicile in the territory of India, and -

(a) was born in the territory of India, or

(b) either of whose parents was born in the territory of India, or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.'

6. It was argued by the learned counsel for the petitioner that he was born in India, his parents had been born in India, he had been living in India since his birth, had his ancestral home in India and was domiciled in India prior to the partition of India and, therefore, all the conditions of Article 5 had been satisfied. Whether the petitioner was born in Didwana in Marwar as asserted by the petitioner in his affidavit, or in. District Muzzafar Nagar as suggested by the Government Advocate, the fact remains that his birth took place in the territory of India. It is unnecessary to look into Clauses (b) and (c), but it may be mentioned that there is no dispute that the petitioner lived in Jodhpur in the territory of India for more than 20 years prior to the partition in August, 1947.

While the petitioner maintains that he has been continuing to reside in India thereafter, the Government Advocate argues that he had migrated to Pakistan and after July, 1948, his residence in India was temporary. The point is important as it bears on the question whether the petitioner had his domicile in the territory of India on the date of the commencement of the Constitution, and will be examined shortly. Article 6 provides for recognition as citizens of India, certain persons who migrated from the territory now included in Pakistan to India, and in the case of persons who had migrated on or after 19-7-1948, they could only be recognized as citizens if registered as such by the Officer appointed by the Government of India on application made before the commencement of the Constitution. Article 7 is a proviso to Articles 5 and 6 and it is laid down that:

'Notwithstanding anything in Articles 5 and 6, a person, who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan, shall not be deemed to be a citizen of India: Provided that nothing in this Article shall apply to a person who, after having so migrated to the territory now included in Pakisthan, has returned to the territory of India under a permit for resettlement or permanent return, issued by or under the authority of any law, and every such person shall, for the purposes of Clause (b) of Article 6, be deemed to have migrated to the territory of India after 19-7-1948.'

7. The learned Government Advocate argued that the petitioner migrated to Pakistan after 1-3-1947, within the meaning of Article 7, and when he did return, he did so on the last occasion under a permit for temporary stay only and didnot obtain a permit for resettlement or permanent return and, therefore, the petitioner could not be deemed to be the citizen of India on the date of the commencement of the Constitutionand thereafter.

8. It was argued by the learned counsel for the petitioner that the petitioner's various visits to Pakistan were at a time before the introduction of any restrictions on visits to Pakistan, and some of the visits were at the request of His Highness the Maharaja of Jodhpur to carry out his wishes. On two occasions he went in order to deliver messages to Miss Mcbryde in Rawalpindi to induce her to come and attend Her Highness the Maharani of Jodhpur at the time of her confinement. He explained one visit of his family and children to Pakistan on the ground that one of his children was ill and his family doctor of Jodhpur had migrated to Pakistan and the family went there to obtain benefit of his treatment. Another and the last visit was explained on the ground that the petitioner had gone to bring 500 cases of Scotch Whisky from Karachi in connection with the marriage of the sister of His Highness the Maharaja of Jodhpur.

9. While it is true that the first restriction on free travel from Pakistan to India was made by the promulgation of Influx of Pakistan Ordinance on 19-7-1948, the loss of the right of citizenship was attached to all persons who migrated from India to the territory now included in Pakistan after 1-3-1947 i.e., even before 15-8-1947. Therefore if any person migrated from India to the territory now included in Pakistan after 1-3-1947, and thereafter decided to come back, the proviso to Article 7 and Sub-clause (II) of Clause (b) of Article 6 come into operation. That leads to a consideration of what was intended by the use of word 'migrate' in these Articles.

10. The word 'migration' has not been defined in the Constitution and its meaning in the Webster's International Dictionary is -

'to go from one place to another; specially to move from one country region or place of abode or sojourn to another with a view of residence; to move.'

11. The meaning, therefore, though often connotes moving from one country to another for the purpose of residence, does not necessarily mean permanent residence. In order to understand its significance, a short reference to the circumstances under which Pakistan came into existence and migration of people took place is necessary. The conditions in' which the partition was brought out, were that a large number of Muslims, under the leadership of Mr. M.A. Jinnah, President of the All India Muslim League, had been agitating for a number of years for a separate home-land on the ground of the 'two-nation theory' and incompatibility to live with Hindus. They were successful and the Dominion of Pakistan, the home-land for Muslims came into existence with effect from 15th August, 1947. Many of the leaders of the Muslim League Movement migrated to Pakistan from India with the deliberate intention of leaving India for good and settling in that country. Some of the Muslim League leaders were more cautious and moved to Pakistan to arrange room for themselves and also to so arrange that they would remain possessed of their property and business in India as well. They were averse, to give up their previous Muslim League ideology, but at the same time, were not prepared to suffer the consequences of leaving India.

These people remained on the fence for sometime and some of them discarded their old Muslim League ideology and began to lead a new Political life owing allegiance to the Dominion of 'India. Another class of Muslims were those who had no desire to leave India but as a result of mass hysteria left their homes and proceeded to Pakistan without any idea of how and where they were going to settle. Then there were the Nationalists who had nothing to do with the Muslim League ideology and remained in India after the Partition as before.

12. There is no difficulty in holding that the Muslim Leaguers who left India and settled in Pakistan, or the masses of Muslims who owing to certain psychological factors left India to settle in Pakistan, had migrated to Pakistan. The difficulty, however, arises in the case of Muslim. Leaguers who were trying to establish their connections in Pakistan but did not go to reside there permanently. In my opinion, such persons will also be deemed to have migrated to Pakistan. If it was proved that persons with doubtful loyalty to the Indian Dominion had connection in Pakistan and made visits to that Dominion, which were not accounted for satisfactorily, the indication was that the visits were in connection with migration from India to Pakistan.

13. Domicile is defined by Chitty J. in Craignish In re; Craignish v. Hewitt, (1892-3 Ch 180) (A) -

'That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom'.

The elements necessary to the existence of domicile are a residence of a particular kind and an intention of particular kind. (Cheshire on Private International Law -- Second Edition page 164). In the case of staunch Muslim Leaguers, which would include at least the Presidents of the Muslim Leagues of local areas, it would be a legitimate inference that they had the intention of removing themselves from India to live in Pakistan which they' considered as their National home and which was created in fulfilment of their heart's desire. With the creation of Pakistan the petitioner, who was the President of the Marwar Muslim League, must be presumed to have looked to that country for his domicile and must be deemed to have lost the animus of remaining permanently in India. The residence in India thereafter did not affect the question of domicile.

14. It has been said that intention without residence or residence without intention will not suffice for the acquisition of a domicile but will be sufficient for the retention of an existing domicile. This may be true in the case of a Question arising where two different existing countries are concerned. The creation of the Dominions of India and Pakistan took place out of a single political unit and mere residence without animus in any one part of the former undivided India should not in my opinion be considered as a domicile in the particular dominion in which territory that portion happened to have fallen after the partition.

15. I venture to state that in a case of this kind the domicile would be the domicile of choice as could be known by the proclaimed intentions of the person concerned, and the first visit to the country of his choice will complete acquisition of domicile in that country and the loss of the domicile of the country in which his area of arbitration became included as a result of Partition,

16. In the present case the petitioner paid numerous visits to Pakistan after the Partition in August, 1947. The Government has produced an affidavit of Mr. J.L. Mathur, Station. Officer, Indian National Air-ways Ltd., Jodhpur in which no less than six visits to Pakistan have-been proved between 21-10-1947 and 17-7-1948 from Jodhpur Airport alone. The affidavit of Mr. Gaj Singh, Sub-Inspector, Police, Jodhpur, shows only journey by train on three other occasions from Karachi in neatly the same period. It appears that some of his trips were not noticed as only journey on one side is mentioned or it is possible that he left from any other Railway Station or Airport for the other journey. In a supplementary affidavit, the petitioner has tried to give explanation for four of his visits to West Pakistan but in my opinion the explanation cannot be accepted without further support from quarters referred to in the affidavit.

The petitioner wants the Court to believe that for the purpose of carrying message to Miss McBryde, the services of the Post or Telegraph were not available or that none of the staff of His Highness was available to do that errand. Similarly, how the petitioner's services became necessary for bringing Scotch Whisky when according to the petitioner Rao Raja Hanuwat Singh from the staff of the H. H. the Maharaja, had also been sent for the purpose. It is admitted that no cases of whisky ever reached Jodhpur. Again, it is curious that the petitioner could expect to get the assistance of a junior doctor in Pakistan in a better measure as compared to the resources of Mahatma Gandhi Hospital in Jodhpur, which is considered to be one of the best in India.

According to the affidavits produced by the petitioner himself, he weilded considerable influence among the highest officials in Pakistan and even Mr. Gazdar, a Minister of Pakistan visited Jodhpur at his request. He was obviously not one of those who had reconciled himself to the Indian Dominion but was keeping alive his contacts with the authorities in Pakistan. In the circumstances, I am not prepared to accept the petitioner's explanation that . his frequent visits to Pakistan were for innocent purposes. The version of the Government of Rajasthan and the Union of India that the petitioner, by these frequent visits to Pakistan, was carrying on anti-Indian activities prejudicial to the Dominion of India seems to have based on certain reports received by them, which by their nature are confidential and are not available for examination.

17. The learned counsel for the petitioner relied upon certain testimonials by Britishers and Government Officials of Jodhour but in view of the open secret that during the days of British Rule, the Muslim League was fully utilized to oppose the Nationalist movement, such testimonials only prove that the petitioner as President of the Muslim League was as usual in the good books of the Government.

18. It was contended that whatever may have been the antecedents of the petitioner prior to Partition, he owed allegiance to the Indian Dominion after the Partition and resolution by the Marwar Muslim League disapproving partition was stated to have been passed at the instance of the petitioner. The resolution may have been a face saving device since we are not informed whether the Marwar Muslim League broke its connections with the Parent League or what further steps were taken by itOn the other hand, the confidential reports collected at the time are that the petitioner was entrusted by the Muslim League High Command to persuade the Maharaja of Jodhpur to accede to Pakistan, and it was argued that some of the trips to Pakistan may have something to do with that mission.

In any case, the facts on record do not at all support the petitioner's contention that he had reconciled himself to an allegiance to the Dominion of India and had nothing to do with Pakistan after the partition. In view of the unsatisfactory explanation of the visits and antecedents of the petitioner and the fact that on one occasion he went to Pakistan with his family, I have no hesitation in holding that the petitioner migrated to Pakistan after the 1st day of March, 1947, within the meaning of Article 7 of the Constitution.

19. Much stress was laid by the learned counsel for the petitioner on the fact that the petitioner had considerable property in Jodhpur State, also drew substantial stipend from the Government and the petitioner could not think of losing all that property specially when he did not make any gain or acquire any property in Pakistan and even never tried to make any- It is well-known that many Muslims from India, having extensive property and business, left for Pakistan on the creation of that Dominion, and similarly many Hindus who owned extensive property and business, left Pakistan for India and became penniless overnight.

On the other hand, many staunch Muslim Leaguers, whose consistent efforts were responsible for the partition of India and creation of Pakistan, had subsequently changed their ideology and instead of migrating to Pakistan, decided to remain in the Indian Dominion. Again some of them while loudly proclaiming allegiance to the Indian Dominion were discussed one day to have quietly left for Pakistan where they did not hesitate later on to take part in anti-Indian propaganda. The fact that the petitioner has considerable property in India but has not acquired any in Pakistan may be the reason for the vehemence with which the petition was argued but cannot afford any ground in determining thequestions in issue in this case.

20. It is admitted that he returned to India on a permit issued by the High Commissioner for temporary residence in India for three months. It is immaterial whether the petitioner applied for permanent permit and Only a temporary permit was granted, or as contended on behalf of the Government that he only applied for a temporary permit, the fact remains that his entry is India was permitted only for a temporary period and that he had not obtained a permit for permanent return issued by competent authority, and therefore, he had not complied' with the conditions in the Proviso to Article 7 of the Constitution and he cannot be deemed to be a citizen of India.

21. As observed above, an essential element of citizenship as defined in Article 5 is that the person must have had his domicile in India at the commencement of the Constitution. Domicile involves an intention to reside permanently. The petitioner on his return to India on 30-7-1948, had come only to reside for 3 months and therefore, the element of domicile in India at the commencement of the Constitution remained wanting, in the case of the petitioner.

22. It was contended that the petitioner wanted to return permanently to India and hadapplied accordingly to the High Commissioner of India in Pakistan. Reliance was placed on para 6 of the affidavit of the petitioner dated 13-6-1950. The Chief Secretary, Government of Rajasthan, in his affidavit dated 30-8-1950, however, says that in the column for 'Duration of visit', the petitioner entered 'three months' after deleting 'Does not arise'. In a counter affidavit dated 30-10-1950, the petitioner stated in Para 9 that it was not rte but the official in Pakistan who had deleted the word. There is some confusion in the affidavit of the petitioner since it mentions the words deleted to be 'three months' which is perhaps an error.

23. The original application is not before this Court but while para 9 of the petitioner's affidavit dated 11-5-1950 and paras 6 and 7 of his affidavit dated 13-6-1950 seem to show that the petitioner accepted the temporary permit with an idea to apply later for a permanent permit if necessary from the India and, para 7 of his affidavit dated 30-10-1950, indicates that the visit to India was deliberately for a temporary period. He says therein that both he and Rao Raja Hanut Singh returned to India on temporary permit to get more money in order to complete the purchase but as the marriage was postponed, the contemplated visit fell through. It is clear that he came to India on 30-7-1948 with the intention of staying in India for a period not more than 3 months and had intended at that time to go back to Pakistan.

24. The learned counsel for the petitioner has relied on certain orders by which he was allowed to stay in India permanently. The first Order is dated 3-11-1948, passed by Mr. P.S. Rau, the Diwan of Jodhpur. It is as follows:

'Hakim Nisar Ahmed may stay at Jodhpur and he will not go to Pakistan'. The Officers authorised to grant permit for permanent return or resettlement were the High Commissioner and Deputy High Commissioner for India in Pakistan under para 16 of the Rules dated 7-9-194-8 issued under Section 3 of the Influx from West Pakistan (Control) Ordinance andthe Dewan was incompetent to pass the orders that he did.

The Chief Secretary to the Government of Rajasthan has declared in his affidavit D/-30-9-1950 that Mr. P.S. Rau recorded an order on 25-2-1949 indicating that his earlier order was passed without full facts being brought to his notice and he called for a detailed report on the affair and that subsequently after the Integration of Rajasthan, the Commissioner of Jodhpur Division recorded an Order on 20-9-1949 that the order passed by Mr. P. S. Rau was erroneous and was withdrawn and that Mr. Nisar Ahmed return to Pakistan immediately.

25. The next document referred to is an endorsement by the Deputy Commissioner, Jodhpur, dated 1-3-1949, forwarding the application of the petitioner to the High Commissioner for India in Pakistan. The words relied on are 'The applicant is an Indian National and has not been an evacuee from India and there is no objection to the cancellation of the temporary permit and allowing him to establish permanently in Jodhpur.' It is not clear on what basis the recommendation was made and whether the history and antecedents of the petitioner were at all considered by the Deputy Commissioner. It may be mentioned that his recommendation was made shortly after Mr. P.S. Rau doubted the correct-ness of his earlier order and had called for a report from the Deputy Commissioner, Whether any report was submitted to him thereafter is not clear.

26. It may be observed that the definition of 'evacuee' in the Marwar Administration of Evacuee Property Act (Act XX of 1949) promulgated on 19-2-1949 includes a person who on account of the partition of the country has left Marwar after 1-3-1947, for any place outside the territories of India. As has been found, Mr. Nisar Ahmed had paid numerous visits to Pakistan after the partition and it is not clear how the Deputy Commissioner apparently without any enquiry came to the conclusion that he was not an evacuee. The recommendation made by the Deputy Commissioner was at best a personal opinion of the officer and not any judicial order deciding the status of the petitioner and it was for the High Commissioner to give that weight he thought fit to this recommendation, having regard to other factors to be considered by him while exercising his discretion under Rule 16 of the Rules dated 8-9-1948.

27. The learned counsel for the petitioner relied on Habib Ahmed Rizvi v. The Crown, AIR 1950 Nag 161 (B), where it was observed that a National of the Indian Dominion did not lose his Nationality by visit to Pakistan or return from there on a-temporary permit. The case is distinguishable on facts. The petitioner Habib Ahmed Rizvi in that case was admittedly a permanent resident of C. P. and was a retired Government servant drawing pension from the Government and his explanation for the visit to Karachi to see his daughter and make arrangement for her marriage was accepted.

There was no evidence or indication to show that he had abandoned or intended to abandon his domicile or his nationality. He had complied with the terms of the permit, though he subsequently returned to India via Eastern Pakistan, and under the law as it stood, he did not contravene any provision of the Influx from Pakistan (Control) Act. It may also be mentioned that this was a case prior to the enforcement of the Constitution and the actual decision turned on the question whether the High Court could interfere in the order of the District Magistrate in exercise of the powers under Section 491 or Section 439 of the Code, and the answer was in the negative.

28. In my opinion, the petitioner did not have his domicile in the territory of India at the commencement of the Constitution and was, therefore, not a citizen of India as defined in Article 5 of the Constitution.

29. The next question for consideration is whether in case the petitioner be deemed to be a citizen of India, there has been an invasion of any fundamental right of the petitioner.

30. No doubt, Sub-clause (d) and (e) of Article 19(1) of the Constitution confer a right of freedom of movement and residence and settlement in any part of the territory of India but the right is subject to Clause (5) of the same Article, which lays down that nothing in Sub-clause (d), (e) and (f) of Clause (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses in the interest of the general public. The introduction of the permit system amounts to an imposition of restrictions on the exercise of the rights conferred by Sub-clause (d) and (e) of Clause (1J of Article 19.

31. The learned counsel for the petitionerargued that the restrictions imposed by the Influx from West Pakistan (Control) Ordinance or Act and the Rules thereunder were unreasonable, and cited a passage from the American Supreme Court Reports, Bram v. United States, (1897) 168 US 532 at p. 544 (C), in support of his contention that

'the principles of humanity and civil liberty which had been secured after years of struggle should, be given their full efficacy free from the possibilities of future legislative changes.'

On reading the report I find that the entire discussion was with respect to the admissibility of a confession and the remarks are with respect to the 4th and 5th Amendments to the Federal Constitution. In the case under consideration, no change in the Constitution of India is involved. The Article 19 itself, which confers certain rights, provides for certain restrictions to be imposed in the interest of the general public. It goes without saying that the interest of the general public would be greatly jeopardized if there were no restrictions on the entry of persons from the neighboring Dominion, and it only remains to be seen whether the restrictions contained in the Influx of Pakistan Act and Rules made under it, are reasonable.

In my opinion, Rule 16 of 7-9-1948 or the corresponding Rule 10 of the Rules of 20-5-1950, which provides for grant of permit for permanent residence after a personal scrutiny of the application and after securing agreement of the State or Province where the applicant intends to resettle, is a very reasonable one. The failure of the petitioner to obtain a permit for permanent settlement did not, therefore, involve any inroad on his fundamental right. The discretion to grant or refuse permit for permanent settlement is vested in the High Commissioner, and this Court cannot interfere in the exercise of his discretion.

32. It was argued that the Influx from Pakistan (Control) Ordinance now replaced by the Act (Act XXIII of 1949) should not be deemed to apply to Indian Nationals on a temporary visit to Pakistan but that it applied only to persons who prior to Partition were the permanent residents of the territory now forming Pakistan. The language of Section 3 of the Act is, however, very clear. It says

'no person shall enter India from any place in Pakistan whether directly or indirectly unless he is in possession of a permit'.

The other portions of the Section relate to persons not domiciled in India or Pakistan or who are exempted under the Rules. So far as the persons who are domiciled in India or Pakistan are concerned they are bound to obtain the permit.

33. It was contended that the petitioner didenter after obtaining a permit though it was temporary. The -conditions that could be attached to permits are separately provided for in Section 4 and a breach of the conditions is provided for in Ss. 5 and 7 of the Act.

34. The learned counsel for the petitioner relied on Mubarak Hossain v. The King, AIR 1950 Cal 193 (D) and Mohammad Zahural Huque v. State, AIR 1950 Madh B. 17 (E), to show that over-stay after temporary permit did not involve any penalty. The two cases are distinguishable on facts. In the Calcutta case, the petitioner had retuned, to India with a temporary permit pending verification and had applied in accordance with the Rules for extension of the permit. Onthe expiry of the time mentioned in the permit he was prosecuted and convicted for overstaying in India. It was held that if the application had been made for being allowed to stay permanently in India, he could not be convicted until the result of the application had been communicated to him.

The case was remanded for an enquiry as to the nature of the application made by the petitioner. In the Madhya Bharat case, the petitionerwas arrested on 5-11-1948 for overstaying in India after the expiry of the period mentioned in the temporary permit. On motion under Section 491 of the Criminal Procedure Code it was hold on an examination of the state o law in force at the time, that Ordinance XVII of 1948 had not the force of law in Madhya Bharat and the Court directed the release of the petitioner.

35. It was argued that the initial Rules promulgated on 29-7-1948, (Gazette of India of 7-8-1948) did not speak of issue of any temporary permit but only of a permit. The initial Rules were no doubt only a few but it appears that as time went on, they were amended from time to time as necessity arose for their clarification or for meeting new situations and the latest introduced on 20-5-1949, are fairly elaborate. Paragraph 4 prohibits the entry into Indian Dominion of any person from West Pakistan without a permit. The contents of form of permit are notgiven but para 5 says that permit will be given in certain printed forms. The form of permit issued to the petitioner does contain a column 'duration of visit' and against it is written 'three months'. The amended Rules dated 7-9-1948, are more elaborate and Rule 16 provided the procedure for issue of permits for permanent stay in India.

36. No defect attaches to the earliest Rules and at any rate the procedure was laid down for obtaining a permit for permanent stay long before the expiry of 3 months allowed to the petitioner. According to the petitioner, the last extension given to him expired on 19-5-1950, and it was thereafter that the petitioner was arrested on 24-5-1950, to be deported to Pakistan. The action of the police is in accordance with the provisions of the Influx, from West Pakistan (Control) Act and does not call for any interference.

37. As a result the petition has no force and is dismissed.

K. Gupta, J.

38. I agree.

BY THE COURT

39. The learned counsel for the petitioner has asked for a certificate that the case was fit one for appeal to Supreme Court. In view of the importance of the questions involved in this case, a certificate is granted.


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